Brooklyn Union Gas Co.

National Labor Relations Board - Board Decisions

Mar 27, 1959

123 N.L.R.B. 441 (N.L.R.B. 1959)

BROOKLYN UNION GAS COMPANY 441
However, through inadvertence, the Board did not specifically amend
the Direction of Election to provide a new eligibility date. As a
consequence, the eligibility date used by the Regional Director in
conducting the election on December 22 and 23, 1958, was the payroll
period immediately preceding the date of the original Decision.
Consistent therewith, the ballots of all mill employees who voted in
the. election were challenged. However, it cannot be ascertaind how
many other mill employees failed to appear at the polls because the
election notices erroneously set forth an eligibility period antedating
their employment at the mill. In the circumstances, and as the votes
of mill employees are sufficient to affect the election results, we be-
lieve it will best effectuate the policies of the Act to set the election
aside and direct a new election herein.3
[The Board set aside the election held on December 22 and 23,
1958.]
[Text of Direction of Second Election omitted from publication.]
3 1n view of this disposition , we need not consider the effect of the challenged ballots
upon the election.
Brooklyn Union Gas Company and Local 101, Utility Division,
Transport Workers Union of America, AFL-CIO, Petitioner.
Cases Nos. 2-RC-9689 and 2-IBC-9727. March 27, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Winifred D. Morio,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case,' the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
i On February 26, 1959, the IBEW filed a motion with the Board 'to reopen the hearing
for the purpose of taking evidence with respect to a proposed consolidation of Brooklyn
Union Gas Company and Brooklyn Borough Gas Company. The Employer and Petitioner
filed motions in opposition . The Utility workers took no position on the motion. As the
consolidation cannot be consummated until approved by the Public Service Commission of
New York State and by the stockholders of the two companies involved, and as it is not
possible to determine when 'such approval will, if ever, be given, the actual consolidation
and its effect upon the Employer's operations are at this time speculative and remote.
Moreover, the IBEW has failed to show with reasonable specificity just wiiat evidence it
intends to introduce at a reopened hearing and how such evidence might bear upon the
issues now before the Board . Under these circumstances we find that no proper purpose
would be served in reopening the hearing and the motion is, therefore, denied.
123 NLRB No. 68.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organizations involved claim to represent employees
of the Employer.2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer, a gas utility, is a consolidated company com-
posed, insofar as is material here, of what is referred to as the
"old" Brooklyn Union Gas Company, the Kings County Lighting
Company, and the Richmond Gas Company. Prior to the consolida-
tion of January 15, 1957, and since 1943, the Utility Workers repre-
sented the physical and clerical employees, about 216 in number, of
the Kings Company, whose franchise for home and industrial gas
distribution covered generally the Bay Ridge area of the* Borough of
Brooklyn, New York City. IBEW similarly represented since 1946
the 99 physical workers of the Richmond Company whose franchise
covered certain areas of the Borough of Richmond on Staten Island,
while the Petitioner, Transport Workers, represented since 1942 all
physical and clerical workers numbering approximately 3,000 of "old"
Brooklyn Union whose franchise extended over parts of the boroughs
of Brooklyn and Queens. At the time of the consolidation each of
the unions had outstanding bargaining agreements with their respec-
tive companies, and after that event Brooklyn Union administered
these contracts and has continued to recognize the unions for the
employees they have traditionally represented. In March of 1957
it entered into a new agreement with the Transport Workers to run
from April 1 of that year till March 31, 1959, while the following
spring it negotiated supplemental agreements with the Utility Work-
ers and the IBEW for the period from June 1, 1958, to May 31,
1959.3
In this proceeding the Transport Workers seeks to combine into a
single, companywide unit all of the Employer's physical and clerical
employees by merging the former Kings and Richmond Company
employees into the unit it presently represents. Such unit would
include not only the employees currently represented by the Inter-
venors but certain unrepresented clerical employees working on
Staten Island. The Transport Workers contends, and the Employer
2 Local Union No. 3, International Brotherhood of Electrical Workers , AFL-CIO (herein
called IBEW) and Utility Workers Union of America Local 1-2 (Kings County Division),
AFL-CIO ( herein called Utility Workers ) intervened at the hearing upon the basis of
their current bargaining agreements concerning employees in the requested unit . However,
the Petitioner has throughout this proceeding resisted the intervention of IBEW and
Utility Workers on the grounds that they do not have sufficient interest, in view of the
small size of their contractual units, to support their interventions . The Board has long
held that a contractual interest in employees in a requested unit is sufficient to support
Intervention in a proceeding . See Brown-Ely Co ., 87 NLRB 27 , 28, footnote 2. We are
not persuaded , as urged by the Petitioner , that •a different rule should be applied In
this case.
8 The contracts are not alleged as a bar to this proceeding.
BROOKLYN UNION GAS COMPANY 443
agrees, that the requested overall, systemwide unit is alone appro-
priate.4 The IBEW contends, however, that its unit of physical
employees on Staten Island, despite the merger, is still appropriate,
conceding, though, that a unit of such employees with the presently
unrepresented clericals might be preferred. The Utility Workers
takes no position on the unit but requests that it be placed on the bal-
lot in any election the Board may direct.
Since the consolidation, many of the administrative functions
which had been separately handled by the merged companies have
been centralized in the offices of Brooklyn Union. Thus all super-
vision from the department heads up to the company president is
located in Brooklyn Union territory, as is a large part of lower
supervision. All accounting and payroll administration has been
located in Brooklyn Union offices, while hiring, except for laborers
on Staten Island, has been similarly centralized. Also, certain physi-
cal work such as meter and vehicle repair is now done in "old"
Brooklyn Union shops. The Employer has also taken a number of
steps to establish uniform working conditions throughout the com-
pany. The stock purchase plan, welfare programs, and other fringe
benefits of "old" Brooklyn Union have been made applicable to all
employees of the company, and steps have been taken to establish
uniform job classifications, rates of pay, and work practices. The
negotiation and administration of labor agreements is handled for
the Employer by the staff of its personnel department at its principal
office in the "old" Brooklyn Union area.
The changes made since the merger have substantially affected the
former Kings Company unit. Out of a total of approximately 55
clerical employees in that unit some 43 are permanently assigned to
the "old" Brooklyn Union offices where they work side by side with,
and under the same immediate supervision as, clerical employees in
Petitioner's unit. Also, of the 138 physical employees in that unit
24 now work in "old" Brooklyn Union shops with employees in the
Petitioner's unit. The physical employees so transferred include
such classifications as meter mechanics, mechanics, and helpers. Of
the remaining 111 physical workers of the Kings Company unit, a
substantial number, the streetworkers, have for administrative pur-
poses been placed by the Employer in a section called Kings Street
West which covers all of the former Kings Company's franchise
area and part of "old" Brooklyn Union's area in Brooklyn. In terms
of personnel this section includes not only former Kings Company
streetworkers, but a number of streetworkers in Petitioner's present
unit. If possible the streetworkers are assigned to work in areas
covered by their original companies, but are in fact assigned to those
4 The Petitioner stated as an alternative that it would accept any unit which the Board
may find appropriate.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
locations where they are needed. As a result employees included in
the former King's Company unit work "fairly" regularly together
with employees in the "old" Brooklyn Union. unit and under the
same immediate supervision. The only employees represented by
the Utility Workers who seem to be relatively untouched by the
merger are the Kings Company meter readers who apparently work
in their old area and under immediate supervision separate from that
of other employees.
Despite the transfers of employees out of the Kings Company
area and the intermingling of Brooklyn Union and Kings Company
streetworkers in the Kings Street West section as described above,
the Employer has continued to recognize the Utility Workers as the
representative of all those employees it represented before the con-
solidation. This practice has resulted, for example, in two clerical
employees in the Employer's main office who work side by side and
under the same supervision being represented by different unions.
The same situation has arisen with respect to meter repairmen and
other classifications, and has found expression in the recognition
clause of the 1958 agreement between the Utility Workers and the
Employer. Where as the former Kings Company recognized the
union as the representative of all its employees in certain classifica-
tions, the present Employer recognizes the union as the representa-
tive of certain individuals in certain classifications, but not as repre-
senting all employees in a given area or classification. As the record
makes clear, the identification of the individuals to be represented
by the Utility Workers is based largely on their membership in that
union. The 1958 agreement is, thus; close to being a members-only
contract.
Despite the various changes effected since the merger, there have
been no substantial modifications made affecting the employees in the
IBEW's unit located on Staten Island. Geographically, Staten
Island is distinctly separate from the other areas of the Employer.
Certain work, such as meter repair, has been permanently transferred
from the Island and, thus, outside the jurisdiction of that union.
But such transfers have affected relatively few employees, who have,
moreover, not permanently followed the work but transferred to
jobs within the IBEW's bargaining unit. The IBEW does not claim
to represent any employees working in areas over which the other
unions, parties to this proceeding, have had jurisdiction. There have
been some employees assigned to Staten Island from Brooklyn since
the merger, but for the most part their jobs have involved work not
normally done by employees in the IBEW's bargaining unit and
have largely been of temporary duration. Generally, the employees
represented by the IBEWT perform the same type of work in the
BROOKLYN UNION GAS COMPANY 445
same areas as they did before the consolidation. They have their
own separate immediate supervision, though there is apparently no
single "resident" manager responsible for all the work done by the
employees in the Staten Island unit. Moreover, the Staten Island
employees do not to any substantial extent interchange with employ-
ees in other areas of the company. There have been since the merger
no modifications, such as that noted above with respect to the Utility
Workers, of the recognition clause in the IBEW's agreement with
the Employer. Rather the union continues to operate under the
clause as it appears in the last contract with the Richmond Company.
The Petitioner and Employer contend, as noted above, that as a
result of the integration which has taken place since the consolida-
tion the only appropriate unit is one covering all the company's op-
erations. Clearly, a number of factors listed above such as central-
ized control of labor relations, and integration of accounting and
clerical functions, support a finding that a company, or systemwide,
unit is appropriate, in accordance with the Board's long-established
policy favoring such units in the public utilities field.' However, in
many situations the rigorous application of that policy is tempered
by the'rights of employees in existing bargaining, units or in identifi-
able unrepresented groups to a self-determination election before be-
ing merged in a larger unit.6 The employees in the Utility Workers'
unit, unlike those of the IBEW unit and the groups of unrepresented
clericals on Staten Island, do not fall within this exception. As the
facts outlined above show, the Utility Workers unit is no longer
capable of being identified but has, as a result of the consolidation,
ceased to exist. About 80 percent of the clerical employees and
roughly 20 percent of the physical employees have been permanently
transferred outside the area covered by the historical unit, and, of
those physical employees who remain, a substantial number, the
streetworkers, work under the same immediate supervision as em-
ployees in the Petitioner's present unit and are assigned to an ad-
ministrative subdivision which areawise embraces not only their
Kings Company territory but a substantial segment,of that of "old"
Brooklyn Union. Furthermore, the existing bargaining agreement
5 See New England Power Company, 120 NLRB 666.
9 See Montana-Dakota Utilities Co., 110 NLRB 1056, 1057; Pennsylvania Electric
Company, 110 NLRB 1078, 1080.
The Petitioner and Employer in support of their position that a systemwide unit of all
the company's employees is alone appropriate, cite The Laclede Gas Light Company,
77 NLRB 354, in which the Board first announced a policy of favoring the optimum or
systemwide unit in the public utility field. However, on several occasions since that case
was decided the Board has stated that "The policy favoring system-wide units for public
utilities has not precluded the Board from applying the self-determination principle with
respect to unrepresented groups sought to be added to the existing contract unit."
Montana-Dakota Utilities Co., supra, footnote 5, and cases there cited . See cases cited
in footnote 7 below for application of the self-determination election rule to established
bargaining units in the public utilities field.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the Utility Workers and the Employer is not based upon
the previous, long-established bargaining unit, but in effect has, as
previously stated, shifted in large part, if not wholly, to a mem-
bers-only basis. Consequently, the Utility Workers seeks no well-
defined bargaining unit or other separate identifiable group of em-
ployees, but a shifting group whose only common bond is member-
ship in the same union. Under these circumstances, we find that
any separate bargaining with Utility Workers that has occurred
since the merger 7 is entitled to little weight in determining whether
or not a unit broader than the Utility Workers' current contract unit
is appropriate. Under such circumstances, the Board's general
policy favoring optimum units in the public utility industry, as well
as considerations of stability in labor relations, dictates inclusion of
the employees in the former Kings Company and "old" Brooklyn
Union units in a single unit .8
As for the.IBEW's Staten Island unit, it is clear, and we find, that
the consolidation and subsequent administrative and operational re-
organization have not, materially affected that unit. As set forth
above, the Staten Island physical employees in the IBEW's unit are
assigned to the same areas and perform essentially the same type of
work as before the merger, and the long history of bargaining for
these employees has continued uninterrupted and unchanged until
the present. It may, therefore, if the employees so desire, constitute
a separate appropriate unit. These factors preclude the inclusion of
such employees in a systemwide or optimum unit without a self-de-
termination elections Similarly, we find that the unrepresented
clerical employees on Staten Island, whom the Petitioner seeks to
include in its broader unit, are entitled to a self-determination elec-
tion, for they constitute a residual, readily identifiable group of office
clerical employees.10 However, as the Petitioner has not made an
adequate showing of interest among either the physical or clerical
employees on Staten Island and as the IBEW does not seek an
election among the employees it now represents, we shall not direct
an election in voting groups composed of such employees.-
7 As to the bargaining history prior to the merger, it is now well settled that such
history does not survive a merger having the results such as occurred here with respect
to the Kings Company unit of the Utility Workers. See Hooker Electrochemical Company,
116 NLRB 1393.
8 Hooker Electrochemical Company, supra.
9 Pennsylvania Electric Company, 110 NLRB 1078; Upper Peninsula Power Company,
110 NLRB 1082, 1085; see also, The Hartford Electric Light Company, 122 NLRB 1421.
10 Montana-Dakota Utilities Co., supra.
u Pennsylvania Electric Company, supra ; The Hartford Electric Light Company, supra.
The IBEW suggests, as noted above , that a single unit of its Staten Island physical
employees and the unrepresented clerical employees might be preferred to its present unit
of physical employees only. For the reasons given above, the clericals would be entitled
to a self-determination election before being included in the IBEW's established unit.
However, the IBEW Chas not requested that such an election be held nor has it made a
sufficient showing to warrant our holding such an election.
STEWART DIE CASTING DIVISION (BRIDGEPORT), ETC. 447
In view of the foregoing, we shall direct that an election be held
among the following employees of the Employer who, we find, con-
stitute, under the circumstances of this case, a unit appropriate for
purposes of collective bargaining within the meaning of Section
9(b) of the Act: All employees of the Employer working in or per-
manently assigned to operations in the boroughs of Brooklyn and
Queens, New York, excluding executives, superintendents, heads of
departments, foremen, skilled technical employees in the chemical
laboratories other than those who have by mutual agreement in the
past been included in the bargaining unit, confidential employees,
guards, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Stewart Die Casting Division ( Bridgeport ) of Stewart Warner
Corporation and Stewart Die Casting Independent Union
Local #1, Petitioner . Cases Nos. 2-RC-9623 and 2-RC-9667.
March 27, 1959
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held in Case No. 2-RC-9623 be-
fore Sidney H. Levy, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.' Prior to this hearing the petition in Case No. 2-RC-9667,
which was filed on November 3, 1958, was dismissed by the Regional
Director because it covered the same issues as the petition in Case
No. 2-RC-9623. The Peitioner has filed a timely request for review
by the Board of this dismissal, contending, as does the Employer,
that these two petitions should have been consolidated for hearing.
As will appear hereinafter, the disposition of this request for review
is necessarily governed by the Board's decision with respect to Case
No. 2-RC-9623. Accordingly, these cases are hereby consolidated
for purposes of decision.
Upon the entire record in these cases 2 the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Intervenor contends that the Petitioner is not a labor or-
ganization within the meaning of Section 2(5) of the Act. The Peti-
'The Intervenor, International Union, United Automobile, Aircraft, and Agricultural
Implement Workers of America, UAW, AFL-CIO, was permitted to intervene on the basis
of its contractual interest in the employees involved herein.
= The Intervenor ' s motion to correct the transcript is hereby granted, in the absence of
specific objections thereto.
123 NLRB No. 52.