Bay State Gas Co.

National Labor Relations Board - Board Decisions

Nov 2, 1980

253 N.L.R.B. 538 (N.L.R.B. 1980)

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 6
9(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