Brockton Taunton Gas Co.

National Labor Relations Board - Board Decisions

Mar 3, 1969

174 N.L.R.B. 969 (N.L.R.B. 1969)

BROCKTON TAUNTON GAS CO.
Brockton Taunton Gas Company and Utility
Workers' Union of America , AFL-CIO, Local
Union No. 273, Petitioner . Case 1-UC-45
March 3, 1969
DECISION AND ORDER GRANTING
PETITION TO CLARIFY
CERTIFICATION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a petition of the Utility Workers' Union of
America, AFL-CIO, Local Union No 273, filed on
June 25, 1968, under Section 9(b) of the National
Labor Relations Act, as amended, a hearing was
held on July 23 and 24, 1968, before Hearing
Officer Arnold M. Marrow. On September 17,
1968, the Regional Director for Region 1 issued an
Order transferring the case to the Board. Thereafter,
a brief was timely filed by the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial errors They are hereby
affirmed
Upon the entire record in this case, the Board
finds.
The Employer is engaged in the business of
distributing gas for commercial and residential use,
primarily from locations at Brockton and Taunton,
Massachusetts. The Company, as it is presently
constituted, resulted from a merger in 1952 between
Brockton Gas Light Company and Taunton Gas
Company. The Petitioner has represented
production and maintenance employees of the
Employer at Brockton for 25 years The unit as
originally certified at Brockton excluded engine and
boiler room employees who were then represented
by another union.' The Union filed the petition in
this case seeking clarification with respect to the
unit placement of certain employees classified as gas
load supervisors, who it claims are part of the
existing unit. The Union asserts that these
employees essentially are replacements for firemen
and engineers who were part of the bargaining unit
in question. The Employer claims that the gas load
supervisors are a new classification which is not
properly part of the unit.
The unit , composed of about 160 employees , is described in the current
collective -bargaining agreement as "all [the Employer ' s] production and
maintenance employees, except engine and boiler room employees in
Brockton , including garage employees , meter readers , collectors,
draftsmen -clerks , and working foremen ." In the contract , the Employer
recognizes the Utility Workers' Union of America, AFL-CIO, on behalf of
two locals , one of which is the Petitioner , as the representative of all of the
Employer ' s production and maintenance employees , with the noted
exceptions These exceptions-"engine and boiler room employees in
969
Prior to 1953, the Company manufactured its own
gas from coal, and engineers and firemen operated
and maintained the steam-producing equipment
required in the process During this operation, a
coal gas plant provided the base load and any
supplementary gas requirements were made of
carbonated water gas Supplementary (or "peak
shaving") gas was necessary if the demand of
customers exceeded that originally calculated by the
Company
In 1953, the Company changed the method by
which it provided gas and began to purchase natural
gas from the Algonquin Gas Company for its base
load. This gas was transferred in pipe lines from the
southwestern United States to the area serviced by
the Company. Along with this, supplementary gas
was produced by the Company from peak shaving
stations established by it. The stations produced gas
by an oil ga, process. Firemen and engineers (both
of which classifications were licensed) operated the
burners and steam-producing equipment necessary
for the supplementary gas operation. At Brockton,
as noted, these employees were in a unit separate
from the production and maintenance employees
and were represented by a separate labor
organization. At Taunton, the engineers and boiler
employees were represented in a single unit together
with other production employees.
At the end of 1966, the Company eliminated its
gas production facilities at Brockton and Taunton
and established a new facility at Meadow Lane as
the control center for distributing natural gas
purchases and for controlling peak shaving stations.
Engineers and firemen were thereafter no longer
needed. The Meadow Lane facility contains
electronically controlled equipment for running the
operation Natural gas for the base load is still
purchased from the Algonquin Gas Company.
However, the Company has now established a
propane-air method for supplementing the natural
gas The propane-air shaving stations are at three
locations, Medway, Taunton, and Brockton, and are
activated and controlled from Meadow Lane.
There are five gas load supervisors working at
Meadow Lane, all of whom, with one exception,
were newly hired when the operation was
established In addition, there is a chief gas load
supervisor, who, it is stipulated, is a supervisor
within the meaning of the Act. The word
"supervisor" in the title of the other five does not
relate to responsibility over personnel, but only over
the supervision of the now of gas. The load
supervisors are physically isolated from other
employees in the bargaining unit No other
bargaining unit employees report to Meadow Lane,
except for preventive maintenance personnel who
enter about two times a month.
Brockton"- are apparently now a meaningless vestige of the 1943
certification at Brockton , and the petition for clarification requests deletion
of this part of the certification
174 NLRB No. 140
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under this most recent arrangement of the
Employer, the Company continues to contract in
advance for a certain quantity of gas from the
Algonquin Gas Company The Company can have
270 days use of the maximum daily quantity (called
MDQ) each year, distributing this amount as it sees
fit over the 365 days. From November 16 to April
15, Algonquin also offers its own winter peak
shaving gas, called WS-1, to its customers. This gas
must also be contracted for in advance, only on
shorter notice than is required for the MDQ. The
gas load supervisors must see that the MDQ usage
is not above 102 percent of that contracted for, or
the Employer will be subject to a penalty On a
given day, the Company will determine how much
gas is required to service its customers for that da\.
If the amount contracted for is not sufficient to
meet this need, then the gas load supervisor will
attempt to augment the supply, either by getting
extra WS-1 from Algonquin or by activating the
Company's propane-air processing stations. Since
other companies are also going to be seeking
supplements from Algonquin, it is necessary that the
decision be made as early as possible in the day, as
only a limited amount of surplus gas is available
from Algonquin and it is less expensive if the extra
gas is obtained from Algonquin rather than by
activating the Company's propane stations. While
the gas load supervisors are free to make the
determination of the need for extra gas themselves,
they do consult with Norman Stultz, the
vice-president of operations for the Employer, or
with the chief supervisor, if either of these persons is
in the plant.
The load supervisors perform other functions.
They calculate statistics, using algebraic formulas,
from charts brought to them from the Employer's
five gate stations. These calculations relate to the
amount of gas received from Algonquin and the
maintenace of differential pressures. They monitor
gauges which telemeter the level of pressure
throughout the distribution system. In appropriate
circumstances, they operate regulators which raise
or lower the pressure in the lines. In the course of
their work, principles of mathematics, electronics,
pneumatics, magnetics, and other systems are
applied.
The Employer contends that the gas load
supervisors exercise independent judgment and have
the right to contract for additional gas in the
amounts of hundreds of thousands of dollars, and
they must therefore be considered managerial
employees. In the alternative, the Employer argues
that these employees possess and exercise technical
skills which place them outside of the existing unit.
The Petitioner argues that these employees replaced
bargaining unit employees or, at any rate, are
merely performing routine production and
maintenance functions.
It appears to us that the gas load supervisors
should be included in the unit. They are engaged
primarily in a production and maintenance function
by controlling the flow of gas necessary to meet the
needs of customers and by their other duties They
neither exercise the technical skills nor make the
sort of managerial decisions which would justify
their exclusion from the existing unit
The Company contends that the gas load
supervisors occupy management positions because
they have to make immediate independent decisions,
especially in the area of obtaining supplementary
gas. The fact that the supervisors make the decisions
to seek extra gas from Algonquin or, if none is
available, to initiate the extra flow from the shaving
stations, does not make their jobs "managerial."
The supervisors merely determine that, according to
the prescribed requirements, there will not be
enough gas to meet these needs, and they then
initiate the procedure to provide additional gas.
There is, in fact, no true discretion involved as to
whether or not, or how, additional gas should be
provided. An Employer witness indicated the
relatively routine nature of this function when, in
reply to a question at the hearing as to the manner
in which gas load supervisors exercise independent
judgment in making this determination, he replied,
"Well, knowing what the send-out is going to be
and knowing how much gas we have available to
apply to that send-out, the difference is WS-1, extra
WS-1 It appears that this and other matters about
which the load supervisors must make decisions are
delimited by practical and obvious considerations,
leaving little room for independent judgment.
The Company argues that gas load supervisors
make calculations of gas pressures and of the
volume of gas that passes through the stations, using
algebra, and that previously these calculations were
never made by employees in the bargaining unit.
Formerly, the engineers only took the counter
readings and multiplied by a given factor, but at
present that factor is calculated by the load
supervisors themselves. The mathematical
computations necessary to determine the gas load
and content would not appear, however, to be of a
technically demanding nature. While the Company
argues that "aptitude" was a factor considered in
the hiring of persons for this classification, no
special knowledge, training, or education was
required of these persons.
As for the other work done by the predecessors of
these employees,' the engineers would observe
calorimeter instruments, which measured the content
of gas, and would also attend to the flame on these
instruments. When the reading indicated that there
was too much or too little BTU, a change in the
ratio of air and gas would be required. This was
accomplished by means of a ratio controller. The
'It will be recalled that although engineers were not recognized as a part
of the Brockton bargaining unit, since they had already been recognized
separately prior to the 1943 certification of that unit , the engineers and
firemen were historically included in the unit recognized at Taunton
BROCKTON TAUNTON GAS CO.
engineers at Taunton made this adjustment
themselves, while those at Brockton reported it to
supervisors. Presently, the gas load supervisors
make this determination themselves on the ratio
controller, by turning a dial either clockwise or
counter-clockwise. Hannon, President of the
Petitioner, and serviceman first class at the
Brockton plant, testified that there used to be a
control panel at the Grove Street office where
engineers checked pressures for towns outside of
Brockton. They also checked BTU from gauges in
the control room.
It would thus seem that engineers u d to perform
many functions similar to those presently performed
by load supervisors, such as taking recordings of
pressure, watching the BTU content of gas, and
making adjustments to correct any deficiencies.
Although the engineers may have been directed
when to activate one of the plants, it would appear
that they thereafter had a part similar to the load
supervisors in running the operation, such as
watching the gauges, sending out the gas to different
lines, and maintaining the pressure. While the load
supervisors have been given the authority to start
the propane plants and to order extra gas, there
971
does not appear to be involved in these decisions the
type of discretion which would warrant classifying
these employees as managerial employees.
Furthermore, the job of the load supervisors does
not seem to have the technical characteristics which
would justify the exclusion of these employees as
technicals who have no community of interest with
the unit employees While it does appear that the
load supervisors may engage in somewhat more
discretionary and technical functions than engineers
and firemen, neither of these aspects of the work
has been demonstrated to be of sufficient
significance to support a finding that the supervisors
are not appropriately members of the production
and maintenance unit.
We find that the unit description should be
modified as requested by the Petitioner to clarity
that gas load supervisors are included in the unit.
Accordingly, we amend the certification as requested
by the Union Petitioner.
ORDER
It is hereby ordered that the Petition for
Clarification be, and it hereby is, granted.