Monongahela Power Co.

National Labor Relations Board - Board Decisions

Feb 20, 1970

181 N.L.R.B. 257 (N.L.R.B. 1970)

MONONGAHELA POWER COMPANY 257
Monongahela Power Company and International
Brotherhood of Electrical Workers, AFL-CIO.
Case 6-CA-4703
February 20, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a charge filed by the International
Brotherhood of Electrical Workers, AFL-CIO,
herein called the Union , the General Counsel for the
National Labor Relations Board , by the Acting
Regional Director for Region 6, issued a complaint
dated August 27, 1969, against Monongahela Power
Company, herein called the Respondent , alleging
that the Respondent did engage in and is engaging
in unfair labor practices within the meaning of
Sections 8(a)(5) and (1) and 2 ( 6) and (7) of the
National Labor Relations Act, as amended . Copies
of the charge, complaint , and notice of hearing were
duly served upon Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance , that on July 28,
1969, the Union was duly certified by the Board as
the exclusive bargaining representative of
Respondent 's employees in the unit found
appropriate by the Board and that , since on or
about August 7, 1969, the Respondent has refused
to bargain with the Union as such exclusive
bargaining representative , although the Union has
requested it to do so.
On September 9, 1969 , the Respondent filed its
answer , admitting in part and denying in part, the
allegations of the complaint , and requesting that the
complaint be dismissed.
On May 20 , 1969, the General Counsel filed with
the Board , a motion for summary judgment,
requesting , in view of the admissions contained in
Respondent ' s answer , and the Board ' s finding in the
representation case,' that the allegations of the
complaint be found to be true and that the Board
make findings of fact and conclusions of law in
conformity with the allegations of the complaint. On
September 25, 1969, the Board issued an order
transferring proceeding to the Board and a notice to
show cause . On October 9, 1969, Respondent filed a
response to the notice to show cause requesting that
the General Counsel ' s motion for summary
judgment be denied that the complaint herein be
dismissed , or, alternatively, that the matter be
scheduled for a full evidentiary hearing before a
Trial Examiner.
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-member panel.
'Case 6-RC-4897
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
On January 16, 1969, the Union filed a petition
for an election in the unit hereinafter defined. A
hearing was held on February 25 and 26 and March
10 and 11, 1969. On June 20, 1969, a Decision and
Direction of Election was issued by the Board in
which the Board found, contrary to the contentions
of the Respondent, that the unit sought by the
Union was appropriate for the purposes of collective
bargaining.
On July 17, 1969, a majority of the employees in
the unit described herein, by secret-ballot election
conducted under the supervision of the Regional
Director for Region 6, designated and selected the
Union as their representative for the purposes of
collective bargaining with the Respondent. On July
28, 1969, the Regional Director for Region 6
certified the Union as the exclusive
collective-bargaining representative of the employees
in said unit. By letter dated July 31, 1969, the
Union requested Respondent to meet and bargain
concerning the wages, hours, and working conditions
of the employees in the appropriate unit.
Respondent indicated by a letter on August 7, 1969,
its refusal to recognize and bargain collectively with
the Union. In its answer to the complaint in this
proceeding, Respondent admits the fact of the
Union's certification and that the Respondent has
refused to bargain as alleged but it denies that the
unit is appropriate for the purposes of collective
bargaining.
In the absence of newly discovered or previously
unavailable evidence,2 a respondent is not entitled to
relitigate in an unfair labor proceeding issues which
were or could have been raised in a related
representation proceeding. The issues which
Respondent seeks to have the Board reexamine in
the instant proceeding are identical to those which
the Board considered and disposed of in the
representation proceeding. There is no allegation
that special circumstances exist that require the
Board to reexamine the determination which it
made in the representation proceeding. Inasmuch as
Respondent has already fully litigated these issues in
the representation case, we find that it has not
raised any issue which is properly triable in the
unfair labor practice proceeding.
in its response to the notice to show cause issued on September 25,
1969. the Respondent avers that it has newly discovered evidence tending
to show that the transfers among personnel assigned to its headquarters
and several divisions has increased during the first 9 months of 1969, and it
argues that a full evidentiary hearing before a Trial Examiner is necessary
for the Board to determine the appropriateness of the bargaining unit In
support of this contention the Respondent has submitted to the Board
records to show that employee transfers interdivision and General Office
increased to 32 during the first 9 months of 1969, as compared with 26
such transfers during calendar year 1968 At the same time the Respondent
concedes that temporary interchange of employees within its divisions
181 NLRB No. 42
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All material issues thus having been either decided
by the Board or admitted in the answer to the
complaint, there are no matters requiring a hearing
before a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the entire record before it, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation and public
utility engaged in the production, sale, and
distribution of electricity, throughout northern West
Virginia, one county and parts of five other counties
in Ohio and parts of one county each in the States
of Maryland and Virginia. During the past
12-month period, the Employer's gross revenue
derived from its operations exceeded $250,000.
During the same period, the Employer produced and
sold electricity valued in excess of $1 million, which
electricity was distributed and transmitted from
points within the state of origin to points within and
outside the State, of which electricity valued in
excess of $500,000 was distributed to points outside
the state of origin. During the past 12-month period,
the Respondent has purchased electricity, goods,
supplies, and materials valued in excess of $500,000
transmitted or shipped directly or Indirectly in
commerce from States outside of West Virginia to
points within that State, for use in the Respondent's
operations.
Respondent admits, and we find, that Respondent
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.
II. THE LABOR ORGANIZATION INVOLVED
The International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(6) and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees constitute a unit
appropriate for collective-bargaining purposes within
during the first 9 months of the current year has decreased from the
corresponding period in 1968 Assuming the correctness of the
Respondent ' s allegation and supporting records, we deem the matter
alleged to be insufficient to warrant relitigation of the issue concerning the
appropriateness of the unit . As our prior Decision and Direction of
Election reflects , the minimal degree of interchange among the employees
assigned to the Respondent 's general offices and several divisions was but
one of several factors relied on by the Board in finding appropriate a
bargaining unit limited to the employees in its Panhandle Division . In view
of these other factors, and considering the insubstantial increase in the
number of permanent transfers relied on by the Respondent , we find no
issue of law or fact present to warrant a reexamination of the previous
finding of an appropriate unit
the meaning of Section 9(b) of the Act:
All employees employed by the Employer in its
Panhandle Division, including lead linemen, the
lead electrician and crew leaders; but excluding
estimators, power plant employees, local
representatives, casual employees, office clerical
employees, and guards, professional employees
and supervisors as defined in the Act.
2. The certification
On July 17, 1969, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 6, designated the Union as their
representative for the purpose of collective
bargaining with Respondent and on July 28, 1969,
the Union was certified as the collective-bargaining
representative of the employees in said unit and
continues to be such representative.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 31, 1969, and
continuing to date , the Union has requested and is
requesting Respondent to bargain collectively with
the Union as the exclusive collective-bargaining
representative of the employees in the
above-described unit. Since August 7, 1969, and
continuing to date, Respondent has refused and
continues to refuse to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of Respondent in
the appropriate unit described above and that the
Union at all times since July 28, 1969, has been and
now is the exclusive bargaining representative of all
the employees in the aforesaid unit, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has since August 7, 1969, refused,
and continues to refuse to bargain collectively with
the Union as the exclusive bargaining representative
of its employees in the appropriate unit. By such
refusal Respondent has engaged in and is engaging
in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
IN. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The Acts of Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and
MONONGAHELA POWER COMPANY 259
commerce among the several States and tend to lead
to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged 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 as the exclusive
representative of all employees in the appropriate
unit and, if an understanding is reached, embody
such understanding in a signed agreement. In order
to insure that the employees in the appropriate unit
will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial year of certification as
beginning on the date the Respondent commences to
bargain in good faith with the Union as the
recognized bargaining representative in the
appropriate unit. See Mar-Jac Poultry Company,
Inc, 136 NLRB 785; Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 228, enfd. 328 F.2d
600 (C.A. 5), cert. denied 379 U.S. 817; Burnett
Construction Company, 149 NLRB 1419, 1421,
enfd. 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. Monongahela Power Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(6) and (7) of the Act.
3. The following unit is an appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by the Employer in its
Panhandle Division, including lead linemen, the
lead electrician and crew leaders; but excluding
estimators, power plant employees, local
representatives, casual employees, office clerical
employees, and guards, professional employees
and supervisors as defined in the Act.
4. Since July 28, 1969, the Union has been the
exclusive representative of all the employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing since on or about August 7, 1969,
and at all times thereafter, to bargain collectively
with the Union as the exclusive bargaining
representative of all the employees in the
appropriate unit, 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 refusal to bargain, Respondent
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 has thereby
engaged 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
Relations Board hereby orders that Respondent,
Monongahela Power Company , Pittsburgh,
Pennsylvania , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment , with the International Brotherhood of
Electrical Workers, AFL-CIO , as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All employees employed by the Employer in its
Panhandle Division , including lead linemen, the
lead electrician and crew leaders ; but excluding
estimators , power plant employees, local
representatives , casual employees , office clerical
employees , and guards , professional employees
and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed to them by 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 as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an
understanding is reached , embody such
understanding in a signed agreement.
(b) Post at its place of business copies of the
attached notice marked "Appendix ."3 Copies of said
notice , on forms provided by the Regional Director
for Region 6, shall , after being duly signed by the
Respondent ' s representative , be posted by the
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 the Respondent
to insure that said notices are not altered , defaced,
or covered by any other material.
'in the event that this Order is enforced by a judgment of the United
States Court of Appeals , the words in the notice reading "Posted By Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director for Region 6, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT refuse to bargain collectively with the
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named union as the exclusive representative of all
our employees in the bargaining unit described below
with respect to rates of pay, wages, hours and other
terms and conditions of employment and, if an
understanding is reached, embody such understanding
in a signed agreement.
The bargaining unit is:
All employees employed by the Employer in its
Panhandle Division, including lead linemen, the lead
electrician and crew leaders; but excluding estimators,
power plant employees, local representatives, casual
employees, office clerical employees, and guards,
professional employees and supervisors as defined in
the Act.
Dated By
MONONGAHELA POWER
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board ' s Office,
1536 Federal Building, 1000 Liberty Avenue, Pittsburgh,
Pennsylvania 15222, Telephone 412-644-2977.