Monongahela Power Co.

MONONGAHELA POWER CO. Monongahela Power Company and International Brotherhood of Electrical Workers, Local Union 2357, AFL-CIO-CLC. Case 6-CA- 13379 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on April 24, 1980, by Inter- national Brotherhood of Electrical Workers, Local Union 2357, AFL-CIO-CLC, herein called the Union, and duly served on Monongahela Power Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a com- plaint and notice of hearing on May 16, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges .in substance that on November 20, 1979, following a Board election in Case 6-RC- 8501, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about January 7, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On May 29, 1980, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and asserting certain affirmative de- fenses. Respondent admits receipt of the charge filed by the Union on April 24, 1980, that it meets the Board's jurisdictional standards, and that the Union is a labor organization within the meaning of the Act. Respondent denies that the employees desig- nated by the Regional Director in his Decision and Direction of Election constitute an appropriate bar- Official notice is taken of the record in the representation proceed- ing. Case 6-RC-8501, as the term "record" is defined i Sees. 102.68 and 102.69 (g) or the Board's Rules and Regulations, Series 8, as amended. See LTV Elecrosystems. Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (4th Cir. 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir 1969): Inrertype Co. v. Penello. 269 F.Supp. 573 (D.C.Va. 1967); FolleII Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir 1968): Sec 9(d) of the NLRA, as amended gaining unit. Respondent admits that on November 20, 1979, the Union was certified as the collective- bargaining representative of the employees in the unit, but denies that the certification was issued in accordance with applicable law. Respondent admits that the Union has requested and is requesting it to bargain collectively with the Union, but denies that it engaged in, or is engaging in, unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(l) and (5) and Section 2(6) and (7) of the Act. On July 30, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. All parties were properly served. Subsequently, on August 8, 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 Judgment should not be granted. Respondent thereafter filed a re- sponse 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 complaint and its response in opposition to the Motion for Summary Judgment, Respondent attacks the Union's certification on the basis that the designated bargaining unit is inappro- priate and that the Regional Director failed to con- duct a hearing on Respondent's objections to pree- lection misconauct. Review of the record herein reveals that in Case 6-RC-8501 the Union filed the petition on May 21, 1979. After a hearing and submission of briefs by the parties, the Regional Director issued a Decision and Direction of Election on July 3, 1979, finding that five control room foremen were not supervi- sors within the meaning of the Act and were to be included in the unit appropriate for the purposes of collective bargaining. On July 13, 1970, Respond- ent filed a request for review of the Regional Di- rector's Decision and Direction of Election. The Board denied Respondent's request on July 25, 1979, on the ground that it raised no substantial issues warranting review. The election was held on August 3, 1979, and Respondent filed timely objections to the conduct of the election on August 10, 1979. Respondent al- leges that shortly prior to the election the Union, through its officials, agents, and representatives, made substantial and material misrepresentations re- garding wages, benefits, and other conditions of 252 NLRB No. 102 715 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's facilities and in respect to the facili- ties of other employers. Respondent alleges that these misrepresentations destroyed the laboratory conditions necessary for a fair election. In support of these objections, Respondent submitted affidavits from its personnel director and its station manager. The Regional Director conducted an investigation of the issues raised by the objections and on No- vember 20, 1979, issued a Supplemental Decision and Certification of Representative overruling the objections. On December 3, 1979, Respondent filed a request for review, which was denied by the Board on February 12, 1980. The Board found that Respondent's exceptions raised no material or sub- stantial issues of fact or law warranting reversal or remand for hearing. Following the Union's request by letters dated January 4, 1980, and March 12, 1980, that Re- spondent engage in bargaining negotiations with the Union, Respondent, on January 7, 1980, and at all times thereafter, refused to bargain collectively with the Union. 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.2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. 3 We therefore find that Respondent 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: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation and a wholly owned subsidiary of Allegheny Power System, 2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). ' Respondent alleges that the bargaining unit, as designated, was not appropriate. Respondent further alleges that certain unspecified changes in job manning and procedures demonstrate the inappropriateness of the certified bargaining unit. Respondent, however, has not indicated how the unit has been made inappropriate. In any event, it appears that Re- spondent had an obligation to bargain with respect to any such changes pursuant to the certification of the Union as the exclusive representative of the bargaining unit employees. Inc., with its principal office located in Fairmont, West Virginia. Respondent has been a public utility engaged in the generation and transmission of elec- tricity. Solely involved in this proceeding is Re- spondent's Maidsville, West Virginia, facility. During the 12-month period ending April 30, 1979, Respondent, in the course of its business operations as described above, derived gross revenues in excess of $250,000. 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 International Brotherhood of Electrical Workers, Local Union 2357, AFL-CIO-CLC, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 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 employees, including control room fore- men, employed by the Employer at its Fort Martin Generating Station located in Maids- ville, West Virginia; excluding all office cleri- cal employees, temporary employees, casual employees, the station manager, the superin- tendent of operations, the superintendent of maintenance, the superintendent of results, the clerical and stores supervisor, shift supervisors, the coal supervisor, maintenance supervisors, the labor foreman, the coal foreman, and guards, professional employees and other su- pervisors as defined in the Act. 2. The certification On August 3, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 6, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on November 20, 1979, and the Union continues to 716 MONONGAHELA POWER CO. be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 4, 1980, and March 12, 1980, and at all times thereafter, the Union has requested Respondent to bargain collec- tively with it as the exclusive collective-bargaining representative of all the employees in the above-de- scribed unit. Commencing on or about January 7, 1980, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclu- sive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 7, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 I, 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 as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 79 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Monongahela Power Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local Union 2357, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees, including control room fore- men, employed by the Employer at its Fort Martin Generating Station located in Maidsville, West Vir- ginia, excluding all office clerical employees, tem- porary employees, casual employees, the station manager, the superintendent of operations, the su- perintendent of maintenance, the superintendent of results, the clerical and stores supervisor, shift su- pervisors, the coal supervisor, maintenance supervi- sors, the labor foreman, the coal foreman, and guards, professional employees and other supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 20, 1979 the above-named labor organization has been and now is the certified and 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 refusing on or about January 7, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal 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)(l) 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- 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Board hereby orders that the Respondent, Monongahela Power Company, Maidsville, West Virginia, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Brotherhood of Electrical Workers, Local Union 2357, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All employees, including control room fore- men, employed by the Employer at its Fort Martin Generating Station located in Maids- ville, West Virginia; excluding all office cleri- cal employees, temporary employees, casual employees, the station manager, the superin- tendent of operations, the superintendent of maintenance, the superintendent of results, the clerical and stores supervisor, shift supervisors, the coal supervisors, maintenance supervisors, the labor foreman, the coal foreman, and guards, professional employees and other su- pervisors as defined in the Act. (b) 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 as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Fort Martin Generating Station, Maidsville, West Virginia, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- 4 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 Labor 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." spicuous places, including all places where notices to employees are customarily posted.Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Brotherhood of Electrical Workers, Local Union 2357, AFL-CIO-CLC, as the exclusive representative of the employ- ees in the bargaining unit described below. WE WILL 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. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees, including control room fore- men, employed by the Employer at its Fort Martin Generating Station located in Maids- ville, West Virginia; excluding all office clerical employees, temporary employees, casual employees, the station manager, the superintendent of operations, the superin- tendent of maintenance, the superintendent of results, the clerical and stores supervisor, shift supervisors, the coal supervisor, main- tenance supervisors, the labor foreman, the coal foreman, and guards, professional em- ployees and other supervisors as defined in the Act. MONONGAHELA POWER COMPANY 718