136 N.L.R.B. 219 (N.L.R.B. 1962)

Boston Gas Co.

National Labor Relations Board - Board DecisionsMar 12, 1962

136 N.L.R.B. 219 (N.L.R.B. 1962)

BOSTON GAS COMPANY 219 V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discriminatorily removed Breen as Dracut corre- spondent on or about January 23, 1961, and discharged him from all employment on March 20, 1961. I therefore recommend that Respondent immediately offer him reinstatement to both of his former positions , without prejudice to his seniority or other rights and privileges. It is further recommended that Respondent make Breen whole for any loss of earnings he may have suffered as the result of the discrimination against him since March 23, 1961. All loss of earnings shall be computed in accordance with the formula and method prescribed in F. W. Wool- worth Company, 90 NLRB 289. Having also found that Dudley was discriminatorily transferred to the night shift, it is recommended that Respondent immediately offer him reinstatement to his former daytime position on the Sunday edition, without prejudice to his seniority or other rights and privileges. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. 2. Newspaper Guild of Greater Boston, Local 32, American Newspaper Guild, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily removing Breen as Dracut correspondent on January 23, 1961, and by discharging him on March 20, 1961, Respondent violated Section 8(a) (3) and (1) of the Act. 4. By discriminatorily transferring Dudley to the night shift, Respondent violated Section 8(a) (3) of the Act. 5. By interrogating its employees concerning their membership in or activities on behalf of the Guild, and by threatening them with reprisals if they continued their membership or activities therein, Respondent violated Section 8(a)(1) of the Act. 6. By the grant of the wage increases on July 18, 1961, to dissuade its employees from joining or supporting the Guild, Respondent violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent did not violate the Act by reprimanding Christine Hansen for her tardiness. 9. Respondent did not violate the Act on or about March 27, 1961, or promise its employees economic benefits if they would cease support of the Guild. 10. Respondent did not violate Section 8(a)(4) of the Act. [Recommendations omitted from publication.] Boston Gas Company and Utility Workers Union of America, AFL-CIO, Petitioner and Local Union No. 12003 and Local Union No. 12118, District 50, United Mine Workers of America. Case No. 1-RC-5691. March 1l, 196,2 SECOND SUPPLEMENTAL DECISION AND ORDER CLARIFYING CERTIFICATION OF REPRESENTATIVES On November 4, 1960, after an election conducted pursuant to a Decision and Direction of Election,' the Regional Director for the C Boston Gas Company, 129 NLRB 369. This Decision and Direction of Election was subsequently modified by the Board in a Supplemental Decision, 130 NLRB 1230. 136 NLRB No. 14. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD First Region issued a certification of representatives in which he cer- tified Local Union No. 12003 and Local Union No. 12118, District 50, United Mine Workers of America, herein called the Union, as the collective-bargaining representative for a unit of the following employees : All employees of the Employer excluding executives, secretaries, to executives, superintendents, confidential clerks, salesmen, professional employees, guards, and all supervisors as defined in the Act. On November 21, 1960, the Employer filed a request for clarifica- tion of the scope of the unit, alleging, in effect, that all those employed in some 11-named job classifications were supervisors within the mean- ing of the Act, and "should not be considered within the bargaining unit." On November 30 and December 9, 1960, the Union also filed a similar request for clarification, alleging that those employed in some 62 other named job classifications were neither supervisors within the meaning of the Act nor confidential employees, and therefore should be included in the unit. On March 31, 1961, the Board directed that a hearing be held to determine, in effect, whether those persons occupying the 73 job classi- fications in dispute were properly within or without the unit described above. A hearing was held before M. Alice Fountain, hearing officer, on April 27 and 28, May 2, 11, and 31, and June 2,12, 16, and 28, 1961. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its power in connection with this proceeding to a three-member panel [Members Rodgers, Fanning, and Brown]. Upon the entire record in the case, the Board finds : 2 Before turning to the unit placement of those employed in the 11- named job classifications set forth in the Employer's request for clari- fication,3 we shall consider several union motions to dismiss which were referred to the Board by the hearing officer. The motions to dis- miss are based on three principal grounds. First, the Union contends, in effect, that as the Board found its earlier contract with the Em- ployer constituted a bar to the representation petition, the Board must also find that this same contract constitutes a bar to the Employer's 2 The Union's request for oral aigunient before the Board is hereby denied as the record and briefs adequately present the issues and positions of the parties 3 During the course of the hearing , the Union moved to withdraw its November 30 and December 9, 1960, motions for clarifications described above. In the absence of objec- tion, and as no evidence was presented during the course of the hearing with respect to the unit placement of the employees employed in the job classifications referred to in the Union's requests for clarification, the Union's motion to withdraw its November 30 and December 1960 iequests for clarification , is hereby granted BOSTON GAS COMPANY 221 motion for clarification. Secondly, the Union contends that as no rep- resentation petition or unfair labor practice charge is currently pend- ing, the Board cannot consider the Employer's request for clarifica- tion. Finally, the Union argues, in effect, that as the parties entered into a "new contract" covering the disputed job classifications after the Employer filed its request, any present consideration of the Em- ployer's request to clarify is "untimely." We find no merit in these contentions of the Union. The Employer does not now seek to question the Union's representa- tive status, and the Board's contract-bar rules designed to deal with situations involving questions concerning representation are not ap- plicable to the instant proceeding.4 Rather the Employer now seeks only a clarification or amendment of an outstanding certification, and it is within the Board's authority to decide the issues thus raised by the Employer. For, as the Board has previously stated, its power to issue certifications under Section 9 (c) necessarily implies the authority to police such certifications by clarifications or amendment.5 Further- more, the Board will exercise its power in this regard even though no representation petition or unfair labor practice charge is currently pending.6 Finally, the record does not show that the parties, either by the "new contract," or in any other manner, agreed as to the unit placement of those persons now in dispute. Indeed the record shows that the prefatory statement to the current job classification and wage rates contract between the parties takes note of the fact that the bargaining unit status of those involved in the instant proceeding is currently pending before the Board, and that such persons will not be included in the bargaining unit until such time as their unit place- ment is determined by the Board. Accordingly, in view of the fore- going, and on the basis of the entire record, we shall deny those union motions to dismiss which have been referred to us by the hearing officer. Turning to the merits of the proceeding, the Employer contends that all transportation foremen, foremen dispatchers, assistant dis- patchers, street foremen, chief dispatchers, dispatchers-central dis- trict, dispatcher-west district-day, inspector of foreign openings, as- sistant supervisor-outside collectors, supervisors-outside collections, and dispatcher-commercial industrial sales are supervisors within the meaning of the Act and should thereby be excluded from the ap- propriate unit. The Union disputes the supervisory status of these persons, contending that they have been included in the bargaining unit since 1937, that there have been no changes in their duties and * Phillips Petroleum Company, 129 NLRB 813 , 814, footnote 3 See also The Mountain States Telephone and Telegraph Company, 130 NLRB 388 6Phillips Petroleum Company, supra; The Bell Telephone Company of Pennsylvania, 118 NLRB 371, 373 6 See Phillips Petroleum Company , supra; Mississippi Lime Company, 124 NLRB 884. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsibilities since 1937, and that they are not in fact supervisors within the meaning of the Act. Accordingly, the Union would in- clude them in the unit heretofore found to be appropriate. Transportation foremen: The Employer employs two transporta- tion foremen at its vehicle repair shop at 144 McBride Street, Jamaica Plain, Boston. The Employer contends that these foremen supervise the work of mechanics, garagemen, digger operators, and a porter, and that ultimately they are responsible for the repair and main- tenance of company trucks. The record shows that these foremen are paid 29 cents an hour more than the highest-paid employee under them. They do no repair work except in training sessions, select par- ticular mechanics for individual jobs, authorize overtime when nec- essary repairs cannot be completed during the regular night shift, reprimand employees for improper work, and are "held responsible for the work" of those assigned to the above-described vehicle repair shop. In addition, the record shows that the Employer would not consider an employee assigned to this work area for promotion unless he has the full recommendation of the foreman. Further, the assistant supervisor of transportation to whom these foremen report, works in the transportation office located in another building a short distance away, and is not present at all on the night shift, leaving the foreman then on duty in sole charge of the garage. In these circumstances, and as the foremen rotate on the day and night shift every 15 weeks, we find that the transportation foremen are supervisors within the meaning of the Act 7 Foreman dispatchers and assistant dispatchers: The Employer em- ploys five foremen and five assistant dispatchers in its customer service department at the McBride Street building. The Employer contends in principal part that these employees responsibly direct and assign the work of the servicemen in the field and, accordingly, should be excluded from the unit as supervisors. The foreman dispatchers are assigned to varying shifts so as to provide dispatcher coverage on a 24- hour, 7-day week basis. The assistant dispatchers work with the fore- man dispatchers on varying shifts. Customer complaints and service calls are forwarded to the dispatch office where work order priorities are determined. As the servicemen report in by telephone, the work orders are assigned by the foreman dispatcher or assistant dispatcher according to the priority ratings. In unusual or emergency cases, the dispatchers will make direct contact with a serviceman via radio com- munication assigning the work order immediately. The dispatchers and assistant dispatchers do not visit the jobsites and their only con- tact with the servicemen is by phone or radio. Further, the service- men, with the exception of approximately 20 servicemen who are on shift work, report each morning and evening to their immediate super- 4 E g, Alabama-Tennessee Natural Gas Company , 110 NLRB 390, 392 BOSTON GAS COMPANY 223 visors, the service foremen, at the McBride Street office for initial work assignments and to review the day's work.' During the day each serviceman also meets his service foreman at least once at a predeter- mined location to review work assignments. The remainder of their work assignments are received via telephone or radio from the foreman dispatchers or assistant dispatchers located at the dispatch office. In these circumstances, and in view of the availability of direct field supervision by the service foreman, we find that the transmission of work assignment orders to the servicemen does not constitute "respon- sible direction" within the meaning of the Act .9 In addition to the foregoing, the Employer also contends that the foreman dispatchers and assistant dispatchers otherwise possess and exercise supervisory authority in emergency situations, in the authori- zation of overtime, in the assignment of priorities to work orders, and in the assignment and transferring of the servicemen from one job to another. As to their duties in emergency situations, the record indi- cates that the dispatchers exercise considerable discretion in deter- mining the extent of the initial steps to be taken to cope with the situation. However, he record also indicates that the action taken in such situations involves certain predetermined procedures varying in each case only in a degree corresponding to the extent of the emer- gency. As to the authorization of overtime, the record shows that the dispatchers are contacted by the servicemen when a job cannot be finished during the normal shift. In such situations, the dispatcher can authorize short periods of overtime to complete the work. Ap- parently, however, this authority is only exercisable where the over- time involved is relatively short and the job cannot be held over until the next day. If a longer period of time is necessary to complete the work, it is assigned to the following shift. As to the assignment of job priorities and the selection of servicemen to work a particular job, the record shows that the dispatchers have progressed through the ranks and are, from past experience, thoroughly familiar with the type of work performed by the servicemen and the situations that may confront them. Thus, although the functions of assigning priorities and servicemen to particular jobs might at first appear to constitute responsible direction, careful consideration of the record does not con- vince us that this is so. On the contrary, the record indicates that the largest majority of situations handled by the dispatchers involve service calls calling for the application of routine procedures and assignments. In view of the foregoing, and on the basis of the entire record, it appears that the dispatchers herein are primarily concerned 8 There are approximately 250 servicemen and helpers who report directly to and receive orders from the service foremen , while 20 other servicemen apparently receive their work assignments by telephone or radio from the dispatchers ' office. 9 The Baltimore Transit Company and The Baltimore Coach Company, 92 NLRB 1260, 1261-1264. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the maintaining of the Employer's gaslines and customer services, rather than in the day-to-day work of the servicemen or other person- nel. In these circumstances, we find that the foreman dispatchers and assistant dispatchers are not supervisors.lo Street foremen: The Employer employs 15 street foremen in the street division, of which 9 are assigned to the central district and 6 to the west district. The Employer contends that these employees responsibly direct the work of crews assigned to them and therefore should be excluded from the unit as supervisors. The Union contends that they do not responsibly direct the street crews, but rather, engage in only routine direction along standardized procedures. The street crews lay new mains and repair or replace old mains. In addition to the foremen, each crew consists of an equipment operator, two pipe- men, and two laborers. On occasions, a gang foreman's 11 crew of some five employees will be added to the street foreman's crew, and on such occasions the street foreman is in complete charge of the com- bined crew. The record shows that street foremen spend approxi- mately 10 percent of their time working with the crew, and the re- mainder of their time is spent directing the work of the crew and planning the day's work. They are paid 30 cents an hour more than the equipment operators, the highest-paid men in the street crew. Although they do not have the authority to hire, fire, or discipline employees or to handle grievances, the street foremen have the au- thority to reprimand members of their crew and to recommend trans- fers for employees performing inadequate work. They grant time off for periods up to 2 hours, and make the initial determination of whether or not a street crew will work overtime. In addition, while the district foremen may visit the street crews on the average of twice a day for short periods of time, on many occasions they do not visit the jobsite at all. The record also shows that the street foremen are in constant contact with other contractors working at the same site, and where in their judgment it is necessary, they have the authority to deviate from the initial job plans, "break concrete" even though the city permit has not arrived and to "break sidewalks" even though such action was not specified in the work order. In these circumstances, and on the basis of the entire record, we find the street foremen are supervisors within the meaning of the Act. Chief dispatcher; dispatcher-central district; and dispatcher-west district-day: The Employer employs two chief dispatchers (one in the west district), five dispatchers-central district, and one dispatcher- west district-day, who are assigned to the street division. The Em- 10 The Connecticut Light and Power Company , 121 NLRB 768, and cases cited therein ; see also Central Mutual Telephone Company, Inc ., 116 NLRB 1663, 1664-1665. n The Employer agrees that gang foremen are not supervisors on the grounds that gang foremen are really "working foremen" whose supervisory responsibilities , if any, are not as significant as those of the street foremen. BOSTON GAS COMPANY 225 ployer contends that the dispatching duties of these individuals involve responsible direction and that accordingly, they are super- visors within the meaning of the Act. The record shows that these dispatchers receive and routinely assign work orders to the street crews by means of radio communication. In addition, they also dis- patch certain truckdrivers, laborers, and utility pipemen normally stationed in the yard. The work crews dispatched by these employees are under the direct supervision of the district foremen and further, when assigned to work with the street crews, are also under the im- mediate direction of the street foremen found to be supervisors herein. As to the assignment of work orders to the truckdrivers, laborers, and utility pipemen stationed in the yard, it would appear that these as- signments are of a routine nature. Thus, the ordering of truckdrivers to load and deliver certain materials clearly does not involve respon- sible direction, nor it is made so by virtue of the fact that the dis- patchers may have a voice in selecting particular materials to be used. The truckdrivers and utility pipemen apparently work with little or no supervision in the streets. However, like gang foremen crews described elsewhere herein, their work is routine, and when jobs beyond their capacity exist, complete crews are assigned to perform the nec- essary work. Moreover, the record does not establish that the dis- patchers directly oversee the work of the above-described employees while in the yard, or while performing their assigned tasks elsewhere. In our opinion, the record does not establish that the assignment ,of work by these dispatchers constitutes responsible direction within the meaning of Section 2(11) of the Act, but rather, as in the case of foremen dispatchers discussed above, clearly shows that, except in unusual emergencies, their duties involve work of a routine nature which is not supervisory in character.12 Accordingly, on the basis of the entire record, we find these employees not to be supervisors. Inspector of foreign openings: He works from 8 a.m. to 4:30 p.m., Monday through Friday, under the immediate supervision of the as- sistant superintendent of the central district. Foreign openings are described as excavations by outside contractors or municipalities in the vicinity of the Employer's underground structures. The inspector is in charge of a basic group of 6 to 7 handicapped employees who are assigned as watchmen on these foreign openings. Their primary function is to prevent damage to the Employer's facilities by outside excavators. The record shows that the inspector is notified of a foreign opening and, after inspection of the site and job plans, de- termines whether or not a watchman will be assigned to the job and which watchmen to assign. The inspector rarely performs any man- ual labor, and such work, where necessary, is performed by a pipeman " See The Connecticut Light and Power Company, supra; and Central Mutual Telephone 'Company, Inc, supra 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assigned to the inspector or by additional pipemen called in by the inspector. He has the authority to determine whether overtime is to be worked without prior approval, to transfer a watchman from one job to another, to designate who shall substitute for a watchman who is ill or on vacation, and to reprimand the watchmen. He may also recommend other disciplinary action. Finally, the record clearly shows that the inspector of foreign openings responsibly directs the work of the watchmen and pipeman assigned to him. In such circum- stances, and on the basis of the entire record, we find the inspector of foreign openings to be a supervisor. Assistant supervisor-outside collectors : The Employer employs one individual in this classification who shares an Arlington Street office with the supervisor-outside collectors and an attorney. The super- visor of outside collectors, an admitted supervisor, and the attorney are excluded from the bargaining unit. The record shows that the assistant supervisor and the supervisor both process collection orders, classifying them for assignment to the various collectors. Either or both will answer any problems the collectors have, both at the start of the day and by telephone contact during the day. At the end of the day, if a collector had any unusual incidents on his route, he would discuss the same with the assistant or the supervisor, whichever is available, and where the assistant felt it necessary, the collector would submit a written report of the incident for the company files. In addition, the assistant supervisor will check the collector's collection bundles to determine the number of calls, collections, discontinuances, and meters read, speak to the collector if he is failing in any of these features, and generally review the performance of the collectors. Where partial payments have been collected, the assistant will review the same, and if in his opinion it is inadequate, the account is remitted to the unfinished accounts for further reassignments. The assistant can also reprimand collectors and recommend discipline, and decides when a trainee is ready for collection work. In addition, either the assistant or the supervisor will make up and deliver to the assistant superintendent a verbal weekly report on the operation of the collec- tion office. Further, the assistant regularly substitutes for the super- visor while he is on vacation, ill, and approximately 1 day each week while the supervisor is inspecting branch collection offices. In such circumstances, we find the assistant supervisor-outside collectors to be a supervisor.13 Supervisor-outside collections: The Employer employs three su- pervisors-outside collections who are assigned to the Newton, Quincy, and Braintree districts, respectively. They are directly responsible to the supervisor of outside collectors for the work performance of 13 Malden Publications , Inc., Medford Publications , Inc., 129 NLRB 792, 793 BOSTON GAS COMPANY 227 a varying number of collectors, meter readers, and bill delivers. In directing the collectors, meter readers, and bill deliverers, the super- visors see to it that the men report on time, are assigned their work for the day, complete that work, and make their reports at the end of the day. Where necessary, they can authorize overtime for the meter readers, recommend promotions, grant time off with pay for short periods of time, approve carfare expenses for reimbursement by the Employer, and correct tardiness. They are also responsible for seeing that the men adhere to the rules set forth in the Employer's manual for collectors and meter readers and where violations of the rules require instant action, the supervisors have the authority to suspend the man immediately cutting off his pay until further notice. Moreover, the supervisors-outside collections are paid from some $6 to $36 more per week than the employees for whose work they are responsible. In such circumstances, we find the supervisors-outside collections to be supervisors within the meaning of the Act.14 Dispatcher-commercial industrial sales: The Employer contends that the dispatcher responsibly directs the work of 11 servicemen as- signed to the new construction and volume sales department. The Union, in opposing the Employer's position, contends that any orders that this dispatcher might issue to the servicemen are routine and do not involve responsible direction. The record shows that the dispatcher-commercial industrial sales and his superior, the industrial commercial foreman, an admitted supervisor, share an office in the Arlington Street building. Here, unlike those dispatchers assigned to the customer service department and to the street division which we have heretofore considered and found not to be supervisors within the meaning of the Act, the industrial commercial foreman, and in his absence, the dispatcher-commercial industrial sales, is directly respon- sible for the work performance of 11 servicemen. It appears that the foreman spends at least 50 percent of his time away from the office. The servicemen report daily to the foreman or the dispatcher each morning, and either the foreman or the dispatcher reviews with them their work of the previous day, and assigns new work to them. The record also shows that all service requests received during the day are referred by either the foreman or the dispatcher to the servicemen by telephone as they periodically report in. At night and on week- ends, service requests are referred either to the foreman or the dis- patcher at home and they in turn will call a serviceman at home and assign him to the job. The foreman, and in his absence, the dis- patcher, have authority to determine whether or not overtime is to be worked and to instruct a serviceman to work overtime, to assign helpers to particular servicemen for on-the-job training, to authori7.p 14 See The Wichita Water Company, 93 NLRB 895, 897. 641795-63-vol. 136--16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -short periods of time off, to discipline servicemen for improper work, transfer servicemen from one district to another, and to determine .the work priorities for the servicemen. As the parties admit that the foreman is a supervisor within the meaning of the Act, and as it ap- pears that the dispatcher substitutes for the foreman during the fore- man's absence, and as the record shows that the foreman is out of the .office each day for approximately 50 percent of the time, we find the dispatcher-commercial industrial sales to be a supervisor within the meaning of the Act. As we have herein found that the transportation foremen, street foremen, inspector of foreign openings, assistant supervisor-outside collectors, supervisors-outside collections, and the dispatcher- commercial industrial sales are supervisors within the meaning of the Act, we shall exclude them from the unit heretofore found appropri- ate. We have also found that the foremen dispatchers, assistant dis- patchers, chief dispatcher, dispatcher-central district, and the dispatcher-west district-day are not supervisors within the meaning of the Act as contended by the Employer. Accordingly, we shall include these employees in the unit heretofore found appropriate. ORDER IT Is HEREBY ORDERED that the certification heretofore issued in the ,above-captioned proceeding, be, and it hereby is, clarified by specifi- cally including all foremen dispatchers, assistant dispatchers, chief dispatchers, dispatcher-central district, and the dispatcher-west district-day and by specifically excluding, as supervisors, all trans- portation foremen, street foremen, inspector of foreign openings, as- ,sistant supervisor-outside collectors, supervisor-outside collections, and dispatcher-commercial industrial sales. National Company, Inc. and Independent Union of Plant Pro- tection Employees. Case No. 1-C A-3479. March 13, 1962 DECISION AND ORDER On December 11, 1961, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a brief in ,support of the Intermediate Report. 136 NLRB No. 21.