Commonwealth Gas Co.

National Labor Relations Board - Board Decisions

Jun 25, 1975

218 N.L.R.B. 857 (N.L.R.B. 1975)

COMMONWEALTH GAS COMPANY 857
Commonwealth Gas Company and United Steelwork-
ers of America, AFL-CIO-CLC, Petitioner. Case
1-UC-159
June 25, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a petition duly filed under Section 9(b) and
(c) of the National Labor Relations Act, as amended,
a hearing was held before Hearing Officer Kevin P.
Donnellan of the National lAbor Relations Board.
Following the close of, the hearing, the Regional
Director for Region 1 transferred this case to the
Board for decision, Thereafter, briefs were filed by
the Employer and the Petitioner.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and fmds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs, the Board fmds:
1. The Employer, Commonwealth Gas Company,
is engaged in commerce within the meaning of the
Act and it will effectuate the purposes of the Act to
assert jurisdiction herein.
2. The labor organization involved claims to
represent' certain employees of the Employer.
3. The Employer, a Massachusetts corporation
with its principal place of business located at
Southboro, Massachusetts, is engaged in the distribu-
tion and sale of natural gas. It has maintained a
collective-bargaining relationship for over 30 years
with the United Steelworkers of America, AFL-
CIO--CLC, and its predecessor unions and locals
covering various groups of employees in various
bargaining units resulting- from the Employer's
growth to its.present size through the acquisition'of
and merger with other gas companies over the course
of the years. What is presently the Employer was in
1952 three separate' companies, with the employees
of each of the three, represented by different unions.
In 1952, the Dedham and Hyde Park Gas Light
Company was merged into the Worcester Gas Light
Company and in 1971, this latter company merged
with the Cambridge Gas Light Company. At this
time employees were still represented in three
bargaining units under three contracts with various
locals of the United Steelworkers of America, AFL-
1 Subsequent to the hearing, the Employer filed a motion to correct the
transcript, the Petitioner filed a statement of opposition, and the Employer
218 NLRB No. 151
CIO-CLC. The local numbers of the various units
remained the same until 1974 when the three locals
were merged into one successor local which was
designated Local 12004, the Petitioner herein. In the
winter of 1974, the Employer, now called the
Commonwealth Gas Company, embarked upon a
reorganization program, transferring its central
operations to Southboro . Following this move, in
December 1974, the three separate bargaining units
were merged into a single unit covered by a single
contract . Article 1, section I of the contract recog-
nized the Petitioner as:
the sole collective bargaining agency in behalf of
all regular employees in the Office and Clerical
Workers, *Payroll, Dispatchers, Commercial,
Building and Grounds, Distribution, Meter Re-
pair, Production, Stores, Transportation, Utiliza-
tion, Gas Supply, to whom this agreement applies
for the purpose of bargaining in respect to wages,
hours and conditions of employment.
Article I, section 2, of the contract specifically
excluded from the bargaining unit "Executives,
Superintendents, Assistant Superintendents, Chief
Engineer, Secretaries to Executives and Superinten-
dents, Guards, Salesmen, *Payroll and Sales Clerks,
Assistant Supervisors and Supervisors, as defined in
the National Labor Relations Act," temporary
employees and probationary employees. The classifi-
cation of payroll clerk appears in both the recogni-
tion and exclusion clauses of the contract marked
with an asterisk. The explanatory language contained
under this asterisk reads, "Subject to the Memoran-
dum of Understanding, dated December 4, 1974."
The memorandum provided that the Petitioner
reserved its right to seek inclusion of the classifica-
tions of payroll clerks, receptionists, coordinators,
and secretaries in the bargaining unit by means of a
unit clarification petition to be filed after the signing
of the merged collective-bargaining agreement and
without waiver, of its rights to file other petitions as
appropriate. Under the memorandum, the Employer
specifically reserved its right to raise all defenses to
the petition, including a motion to dismiss, at such
time as the petition was filed.
The present petition for unit clarification was filed
by the Petitioner on December 20, 1974, and sought
the inclusion of the four classifications named in the
memorandum of agreement noted above. Later in
the hearing the Petitioner made a motion to amend
the petition to add the classification of junior clerk-
student engineer as one sought to be included in the
filed a response thereto . We hereby deny the motion as lacking in merit.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit. The motion was granted and the petition was so
amended.
During the course of the hearing the Employer
made four motions, all of which were referred to the
Regional Director for decision by the Hearing
Officer. With regard to the classification of payroll
clerk, the Company made two alternative motions.
The first of these motions was a "Motion to Dismiss
and to Defer to Arbitration Award." The second
alternative motion was a motion that the Board defer
the, case to arbitration under the Collyer doctrine.
The third motion made by the Employer was a
motion to dismiss the petition in its entirety. The
basis for this motion was that the Union's theory of
the case is that the Employer has assigned work
which has been previously performed by members of
the bargaining unit to the classifications involved in
the unit clarification proceeding. The Employer
moved to dismiss on the ground that, even if such a
position were proven, such a transfer of duties, which
in essence involves a work assignment dispute, does
not present a proper matter for consideration under a
unit clarification petition. Finally, with respect to the
classification of secretaries, the Employer moved to
dismiss the petition on the ground that under
National Labor Relations Board decisions and
policies, where a classification is in existence at the
time of a certification and neither the certification
nor any subsequent collective-bargaining agreement
ever included the classification in the unit, the
Petitioner has made no attempt to represent such
classification, and there has been no change in job
content, a unit clarification is not the proper vehicle
for seeking representation.
With respect to the Employer's first two motions, it
is well established that the Board will not defer to
arbitration or an arbitration award concerning
representation issues such as the ones involved herein
as opposed to questions of contract interpretation.
For the reasons set forth below, we fmd merit in
the Employer's third motion to dismiss the petition
with regard to the classifications of payroll clerks,
receptionists, coordinators, and secretaries. In es-
sence we fmd that the Petitioner's petition with
respect to these classifications represents a work
assignment dispute, which is clearly not cognizable
under the unit clarification procedure. Thus, the
Petitioner argues that the Employer has created "job
titles within classifications which have normally been
excluded from the Unit and to designate those
excluded job titles the very same jobs as what had
been within job classifications within the Unit." On
the basis of the entire record, we find that the
Petitioner is seeking through this unit clarification to
bring new classifications into the unit which have not
been included before. As the Board held-in the case
of The Gas Service Company, 140 NLRB 445, 447
(1963):
... work assignment disputes are not properly
matters for consideration and resolution in a
representation proceeding. As the Board has said,
its sole function in representation proceedings is
to ascertain and certify the name of the bargain-
ing representative,, if any, that has been designat-
ed by the employees in the appropriate unit. It is
not -the Board's responsibility in representation
proceedings to decide whether employees in the
bargaining unit are entitled to do any particular
work or whether an employer has properly
reassigned work from employees in the bargain-
ing unit to other employees?
Finally, there remains for consideration the classifi-
cation of junior clerk-student engineer. Robert
Megerdichian was hired as a student clerk in
December 1970, in the Employer's distribution office
in Cambridge, after he had worked for the Employer
for two previous summers as a garage helper and
laborer trainee. He has performed a variety of jobs
for the Employer. When he was first hired, Megerdic-
hian updated the Employer's permanent records for
services, answered the telephone, and performed
general work in the drafting area, including drafting
work. During this time and up until December 20,
1974, when the merged contract was signed, the
drafting area of the Employer in Cambridge was not
a part of the bargaining unit. From January 1972
until the summer of 1973, Megerdichian spent about
70 percent of his time on a special assignment
working with the Company's engineering depart-
ment. The assignment involved the changeover of the
Company's . computer system from an analog to a
digital computer. After 1973, when, the project was
completed, Megerdichian continued to. work in the
same area from time to time making corrections or
changes in the computer programs. I
Megerdichian received an engineering degree from
Tufts University in June 1974, and is taking an
additional year of study which will -give him a liberal
arts degree in June of this year. He works 15-20
hours per week depending on his schedule of classes.
He works full time during the summer and on his
school vacations. Bargaining unit personnel at
Cambridge work a normal schedule from 7:30 a.m.
until 3:30 p.m. Due to exams and other personal
reasons there are weeks in which Megerdichian does
not work at all. -
2 In view of our ruling on this motion, we find it unnecessary to pass on the Employees separate motion to dismiss with respect to the classification
of secretaries.
COMMONWEALTH GAS COMPANY
Megerdichian presently performs engineering work
for the Employer in addition to his work as a
draftsman . This work includes drawing proposed
meter locations ' in the field which are used in
connection with building construction plans. The
engineering department of the Employer which
regularly performs this type of work is not in the
bargaining unit . Megerdichian also performs such
miscellaneous duties as making building drawings for
proposed changes in the Company's physical loca-
tions, filing, typing headings on service orders, and
messenger work.
Megerdichian is supervised by five people-two
foremen, the general foreman, the superintendent,
and the coordinator . He could be assigned to assist
any one of them in drawing sketches and other
similar assignments.
In the normal course of his work , Megerdichian
does not have any contacts with bargaining unit
members . His only actual contact with a unit
member is with the clerk who works in the same
office. He does not receive any benefits which
bargaining unit personnel receive , nor does he
859
receive holiday pay, except during the summer
months when all student employees receive it.
Megerdichian's pay when hired was substantially
less than the lowest bargaining unit member. His
salary has generally varied between 85 cents and $1
an hour below that of the lowest bargaining unit
member . At the present time his salary is about 85
cents an hour lower.
In these circumstances , we conclude that Meger-
dichian does not share a community of interest with
the unit employees and, accordingly, we find that this
classification is not an accretion to the bargaining
unit.
In view of the foregoing and the entire record in
this proceeding, we find that the employees and
classifications sought in the UC petition are not
accretions to the bargaining unit and we shall dismiss
the petition.
ORDER
It is hereby ordered that the petition be, and it
hereby is , dismissed.