Bay State Gas Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bay State Gas Company and Utility Workers Union of America, Local No. 273, AFL-CIO. Case 1- CA-16824 November 2, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge, amended charge, and second amended charge filed on November 9, 1979, May 15, 1980, and June 3, 1980, respectively, by Utility Workers of America, Local No. 273, AFL-CIO, herein called the Union, all of which were duly served on Bay State Gas Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint, an amended com- plaint, a further amended complaint, and a second further amended complaint on January 7, 1980, April 8, 1980, May 21, 1980, and June 6, 1980, re- spectively, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges and complaints and notices of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the second further amended complaint alleges in sub- stance that about July 1979, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative of all the employees in the unit as clarified to include the position of "garage clerk,"' although the Union has requested and is requesting it to do so, in that since about July 1979 Respondent has eliminated the job classification of garage clerk and/or changed the duties thereof without bargaining or negotiating with the Union about such changes; and since on or about November 2, 1979, Respond- ent has refused to meet and/or bargain with the Union concerning the terms and conditions of em- ployment of the job classification of garage clerk. Thereafter on June 19, 1980, Respondent filed its answer to the second further amended complaint I Official notice is taken of the record in the clarification proceeding. Case I UC-254, as the term "record" is defined in Secs. 102.68 and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc.. 166 NLRB 938 (1967), enfd. 388 F2d 683 (4th Cir. 1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Iniertype Co. v Penello. 269 FSupp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), nfd. 397 F2d 91 (7th Cir 1968); Sec 9(d) of the NLRA, as amended. 253 NLRB No. 69 admitting in part, and denying in part, the allega- tions of the complaint, and asserting certain affirm- ative defenses. On July 2, 1980, counsel for the General Counsel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 9, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the second further amended complaint, Respondent admits that it refused to bargain with the Union concerning the terms and conditions of employment of the garage clerk clas- sification and that it eliminated that classification and/or changed the duties thereof without bargain- ing about such changes with the Union. It denies, however, that such refusals violated the Act, as- serting, inter alia, that it decided no longer to fill the position of garage clerk when the incumbent garage clerk was promoted to supervisor in July 1979, and thus, since the position ceased to exist before the issuance of the Board's Decision on Review, 2 it would serve no purpose under the Act to determine the unfair labor practices alleged. Al- ternatively, Respondent asserts in its answer that its refusal to bargain about the garage clerk classifica- tion was justified because the Board's inclusion of that classification in that existing unit was inappro- priate and erroneous as a matter of law. In its response to the General Counsel's Motion for Summary Judgment, Respondent moves that its answer be amended to admit the refusal to bargain about the terms and conditions of the garage clerk classification but to deny that the elimination of said classification and/or change in the duties thereof3 constituted a refusal to bargain since at the time of those latter events in July 1979 the Union was not "the exclusive representative of the unit described in paragraph 9 of said complaint clarified to include the position of garage clerk," 2 244 NLRB 1135 (1979) :' Respondent's motion to amend its answer to admit its refusal to bar- gain but to deny that its actions in eliminating or changing the duties of the garage clerk classification violated the Act amounts to merely a re- statement (of part of its affirmative defense Accordingly, we grant the motion 538 BAY STATE GAS COMPANY because the Board's decision clarifying the unit did not issue until September 17, 1979. Respondent also contends, in its response, that summary judgment is not appropriate herein because the retirement of the supervisor of transportation and the consequent abolishment of the position of garage clerk upon the promotion of the incumbent clerk to supervisor constitute evidence previously unavailable at the time of the underlying unit clarification proceeding and, further, that such evidence is admissible at a hearing and relevant to whether, even assuming a technical violation of the Act, a bargaining order would be appropriate. Finally, Respondent con- tends that the elimination of the garage clerk classi- fication had an insignificant impact on the unit or the Union's bargaining position as it did not result in a loss of a single job. Our review of the record herein, including the record in Case 1-UC-254, reveals that on Septem- ber 22, 1978, the Utility Workers Union of Amer- ica, AFL-CIO, Local No. 273 (hereinafter called the Union), filed a unit clarification petition, seek- ing to include the classification of garage clerk within the bargaining unit, as set forth in the then existing collective-bargaining agreement between Bay State Gas Company and the Union. On October 23, 1978, and November 1, 1978, a hearing was held on the issues raised in the peti- tion. On December 1, 1978, the Regional Director for Region I issued a Decision and Order in which he clarified the existing bargaining unit by exclud- ing the classification of garage clerk. Thereafter on December 26, 1978, the Union filed a request for review of the Regional Director's Decision and Order. On February 26, 1979, the Board granted the Union's request for review. On September 17, 1979, the Board issued a Decision on Review in which it reversed the Regional Director and clari- fied the existing production and maintenance unit to include the classification of garage clerk.4 We find no merit to Respondent's contention that during the pendency of the unit clarification proceeding it was free to make unilateral changes with respect to the position of garage clerkbecause the Union was not then the exclusive representa- tive of a unit that included such classification. It is clear that at the time Respondent promoted the garage clerk to a supervisory position and abol- ished the garage clerk position it was well aware that the Board had granted review of the Regional Director's Decision.5 While the garage clerk issue was pending, Respondent acted at its peril in not 4 Bay State Gas Company. supra. 5 For the purposes of this proceeding, we have assumed as true these and other facts proffered by Respondent in support of its cntentions as raised in its answer and its response. consulting the Union concerning the job change and the elimination of the position.6 We also reject Respondent's contention that the retirement of the supervisor of transportation and the subsequent business necessity of changing and/ or eliminating the garage clerk position constitute a defense. The fact that these changes were business- motivated does not affect the duty to bargain over the means of dealing with the situation presented by the retirement of the supervisor of transporta- tion. Finally, we find no merit to Respondent's con- tention that it is excused from bargaining since the elimination of the garage clerk position did not have a significant impact on the unit or the Union's bargaining status since it did not result in the loss of a single job. The elimination of a job classifica- tion without notice to or bargaining with the Union constitutes a unilateral change in violation of Respondent's obligation under the Act. 7 And al- though no immediate job loss occurred, the issue of an individual employee's job security, though im- portant, is not the only subject over which bargain- ing is required. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by Respondent in this proceed- ing concerning the inclusion in the unit of the garage clerk classification were or could have been litigated in the prior unit clarification proceeding, and Respondent does not offer to adduce at a hear- ing any newly discovered or previously unavailable evidence other than that indicated above which oc- curred after the hearing in the clarification matter and which we have considered and rejected as a defense to the complaint allegations; nor, apart from such evidence, does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the clari- fication proceeding. We therefore find that Re- spondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 6 Pilot Freight Carriers. Inc., 221 NLRB 1026, 1028 (1975) 7 R. J Liberto. Inc., 235 NLRB 1450. 1456-57 (1978) 6 See Pittsburgh Plate Glas Co v . L.R.B., 313 U S 146. I62 (194 1) Rules and Regulations (lf the Board, Secs 102 7(f) and 102 69(c) 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Massachusetts corporation with its office and place of business located in Brockton, Massachusetts, although it also maintains offices in Lawrence, Springfield, and Canton, in the Com- monwealth of Massachusetts, where it is engaged in the sale and distribution of gas for commercial and residential use and related products. In the course and conduct of its business Respondent has annual gross revenues in excess of $250,000. Re- spondent also annually receives at its Brockton lo- cation goods and products valued in excess of $50,000 directly from points outside the Common- wealth of Massachusetts. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Utility Workers Union of America, Local No. 273, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICES A. The Clarification Proceeding 1. The unit as clarified The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All its production and maintenance employees in the Brockton Division including garage em- ployees, garage clerks, meter readers, collec- tors, draftsmen-clerks, working foremen, and gas load monitors but excluding executives, of- ficials, office and clerical employees, student engineers, chemists, customer service repre- sentatives, seasonal employees, part-time stu- dent employees, and supervisory employees. B. Request To Bargain and Respondent's Refusal Commencing about July 1979, Respondent uni- laterally eliminated the classification of garage clerk and/or changed the duties of that classifica- tion without bargaining or negotiating such changes with the Union. Further, Respondent did refuse and continues to refuse to bargain collective- ly with the Union as the exclusive representative of all the employees in the unit, as clarified to include the classification of garage clerk, in that on or about November 2, 1979, and at all times thereafter Respondent refused to meet and/or bargain with the Union concerning the terms and conditions of employment of the classification of garage clerk. Accordingly, we find that Respondent about July 1979 unilaterally eliminated the classification of garage clerk and/or changed the duties of that classification without bargaining or negotiating with the Union and, at all times thereafter, refused to bargain with the Union regarding the terms and conditions of employment of the unit classification of garage clerk. By such actions, we conclude, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union with respect to the terms and conditions of em- ployment of the classification of garage clerk, and about the elimination and/or change in the duties of said classification. CONCLUSIONS OF LAW 1. Bay State Gas Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Utility Workers Union of America, Local No. 273, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All its production and maintenance employees in the Brockton Division including garage employ- ees, garage clerks, meter readers, collectors, drafts- men-clerks, working foremen, and gas load moni- tors but excluding executives, officials, office and clerical employees, student engineers, chemists, customer service representatives, seasonal employ- ees, part-time student employees, and supervisory 540 BAY STATE GAS COMPANY employees, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. At all times material Utility Workers Union of America, Local No. 273, AFL-CIO, the above- named labor organization, has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally eliminating and/or changing the duties of the unit classification of garage clerk without bargaining or negotiating with the Union, and refusing to bargain with the Union with re- spect to that classification, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusals to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Bay State Gas Company, Brockton, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Utility Workers Union of North America, Local No. 273, AFL- CIO, with respect to the unit classification of garage clerk concerning the rates of pay, wages, hours, and other terms and conditions of employ- ment for that classification. The appropriate unit, as clarified to include the position of garage clerk, is: All production and maintenance employees in the Brockton Division including garage em- ployees, garage clerks, meter readers, collec- tors, draftsmen-clerks, working foremen, and gas load monitors but excluding executives, of- ficials, office and clerical employees, student engineers, chemists, customer service repre- sentatives, seasonal employees, part-time stu- dent employees, and supervisory employees. (b) Eliminating and/or changing the duties of the unit classification of garage clerk without bargain- ing or negotiating with the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization with respect to rates of pay, wages, hours, and other terms and conditions of employment of the unit classification of garage clerk and with respect to the elimination and/or changing of the duties of said classification. If an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at its Brockton, Massachusetts, facility copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National l.abor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIL.L NOT refuse to bargain with Utility Workers Union of North America, Local No. 273, AFL-CIO, with respect to the unit classi- fication of garage clerk concerning the rates of pay, wages, hours, and other terms and condi- tions of employment for that classification. WE WII. NOT eliminate and/or change the duties of the unit classification of garage clerk without bargaining or negotiating with the Union. WE WI.l. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. 541 D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD WE Wll.l., upon request, bargain with the above-named Union, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment of the unit classification of garage clerk and with respect to the elimi- nation and/or changing of the duties of said classification. If an understanding is reached, we will embody such understanding in a signed agreement. The bargaining unit, as clarified to include the position of garage clerk, is: All production and maintenance employees in the Brockton Division including garage employees, garage clerks, meter readers, col- lectors, draftsmen-clerks, working foremen, and gas load monitors but excluding execu- tives, officials, office and clerical employees, student engineers, chemists, customer serv- ice representatives, seasonal employees, part- time student employees, and supervisory em- ployees. BAY STATE GAS COMPANY 542