Southern california Water Co.

National Labor Relations Board - Board Decisions

Apr 5, 1979

241 N.L.R.B. 771 (N.L.R.B. 1979)

SOUTHERN CALIFORNIA WATER COMPANY
Southern California Water Company, Employer-Peti-
tioner and Local Union No. 47, International Broth-
erhood of Electrical Workers, AFL-CIO, Party to
the Contract, and United Steelworkers of America,
AFL-CIO, CLC, Party to the Contract. Case 31-
UC-84
April 5, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELIO
AND TRUESDAIT
Upon a petition duly filed under Section 9(b) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Lynn K. Thompson
on November 9. 1978, at Los Angeles, California. On
November 22, 1978, and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, the Regional Director for Region 31 issued
an Order transferring this case to the Board for deci-
sion. Thereafter, Southern California Water Com-
pany and United Steelworkers of America, AFL
CIO, CLC, submitted briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer, Southern California Water
Company, is a California corporation and public util-
ity, engaged in the sale and distribution of water and
electricity, with its principal place of business in Los
Angeles, California. During the past calendar year,
the Employer received gross revenues in excess of
$250,000. During the same period the Employer pur-
chased goods valued in excess of $50,000 directly
from suppliers located outside the State of California.
It is not disputed, and we find, that the Employer is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The parties stipulated, and we find, that Local
Union No. 47, International Brotherhood of Electri-
cal Workers, AFL-CIO, and United Steelworkers of
America, AFL-CIO, CLC, are labor organizations
within the meaning of Section 2(5) of the Act and
that they claim to represent certain employees, re-
spectively, of the Employer.
3. On August 29, 1969, the National Labor Rela-
tions Board certified United Steelworkers of America,
AFL-CIO, CLC, hereinafter referred to as Steelwork-
ers, as the bargaining representative of the service
and maintenance employees of California Cities Wa-
ter Company at its San Dimas, Wrightwood, Cowan
Heights, and Santiago, California, locations; and on
July 27, 1977, Local Union No. 47, International
Brotherhood of Electrical Workers, AFL-CIO, here-
inafter IBEW, was certified by the National Labor
Relations Board as the bargaining representative of
the water distribution employees, including service-
men, customer service representatives, service fore-
men, pump maintenance electricians, and storekeep-
ers at the Eastern Division of Southern California
Water Company, hereinafter referred to as the Em-
ployer.
Between April 1976 and August 11, 1978, Califor-
nia Cities Water Company existed as a wholly owned
subsidiary of the Employer, when, on the latter date,
they merged, resulting in the dissolution of California
Cities Water Company.
The Employer filed a petition on September 13,
1978, to clarify the IBEW certification' by including
the service and maintenance employees from the San
Dimas and Wrightwood districts, and by deleting the
portion of the exclusionary language which stated:
".. . all other employees presently represented for
collective bargaining by any labor organization." The
certification language sought by the Employer would
thus read:
All water distribution employees in the Employ-
er's Eastern Division in a unit including service-
men, customer service representatives, service
foremen, pump maintenance electricians and
storekeepers and excluding professional employ-
ees and supervisors as defined in the National
Labor Relations Act.2
In support of its proposed clarification, the Em-
ployer points out that by virtue of the corporate
merger the districts formerly administered by Califor-
nia Cities Water Company3 are now within the Em-
ployer's control. The Employer further notes that the
Board has previously determined 4 that the Employ-
I The certification language reads as follows:
Included: All water distribution employees in the Employer's Eastern
Division, including servicemen, customers service representatives, ser-
vice foremen, pump maintenance electncians and storekeepers:
Excluded: All other employees presently represented for collective har-
gaining by any labor organization, professional employees, and supervi-
sors as defined in the National Labor Relations Act.
It is the Emplo)er's position that the employees within the "service and
maintenance" classification delineated in the 1969 Steelworkers certification
are performing the same duties as the employees within the classifications set
out in the proposed clanfication.
I The districts covered by the 1969 certification were San Dimas. Wright-
wood, Cowan Heights, and Santigo
4Southern California Waler (Copanv, 220 NLRB 482 (1975) Southern
California Water Comnpanr. 228 NLRB 1296 (1977).
241 NLRB No. 122
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er's primary organizational structure is the "division,"
and that it is the division which constitutes an appro-
priate unit for collective bargaining. The Employer
thus argues that because the "district" is subsumed by
the "division"--not only from an organizational per-
spective, but also in terms of what constitutes an ap-
propriate unit-the San Dimas and Wrightwood dis-
tricts must be included in the eastern division by
virtue of the community of interest shared by the dis-
trict employees with those in the division. The Em-
ployer contends that it would thereby maintain the
organizational consistency of its operations, as well as
conform to the Board's determination as to what con-
stitutes an appropriate unit. In suppport of its conten-
tions, the Employer presented evidence relating to the
community of interest of the San Dimas and Wright-
wood employees, with that of the employees in the
eastern division. We will not, however, engage in any
analysis concerning whether the San Dimas and
Wrightwood employees ought to be included in the
eastern division by virtue of any of the factors usually
considered in determining community of interest; for
we are in agreement that the petition for unit clarifi-
cation herein is not appropriate under the circum-
stances present in this case.
Subsequent to the certification which issued on Au-
gust 29, 1969, the Steelworkers entered into a series of
collective-bargaining agreements with California
Cities Water Company, the most recent being effec-
tive from December 3, 1977, and expiring on Decem-
ber 2, 1978. The IBEW, having been certified on July
27, 1977, entered into a collective-bargaining agree-
ment with the Employer which was effective March 1,
1978, through February 28, 1979. The IBEW has
taken the position that it would not participate in the
hearing on this matter, that it was not seeking to rep-
resent the employees in question, and that the Em-
ployer may not legally clarify the unit to include these
employees.5
Our consideration of the appropriateness of the
unit clarification petition begins with the observation
that the petition would have the effect of consolidat-
ing two existing certified units-each represented by a
different union. It is true, that the merger of the Em-
ployer and California Cities Water Company has re-
sulted in the dissolution of the latter corporation. It is
also true, however, that this corporate dissolution did
not abrogate the existing Steelworkers certification so
as to transform those unit employees into "free-
agents." This is because as a result of the corporate
merger the Employer became a successor to Califor-
nia Cities Water Company, thereby requiring the Em-
Although the IBEW did not participate in the heanng, it sent its position,
in writing, to the Regional Director, who made it a part of the record herein.
ployer to bargain with the Steelworkers in the appro-
priate unit.6
Having thus determined that the Employer must
continue to bargain with the Steelworkers as the cer-
tified representative of those employees which are the
subject of the Employer's petition for unit clarifica-
tion, we now examine the concept of certification as it
relates to the clarification procedure. Certification of
a labor organization as the statutory bargaining rep-
resentative of a particular group of employees occurs
only after the employees have expressed their de-
sire-through a Board election-to be represented or
not by a particular labor organization.7 Likewise, cer-
tification cannot be revoked unless a majority of em-
ployees in the appropriate unit manifest their intent
in that regard. Clarification of a unit, then, does not
occur as the result of the expressed desire of employ-
ees, but is rather an administrative determination of
what constitutes an appropriate unit in the face of
changed circumstances, carried out much in the same
way the Board initially determines the appropriate
unit prior to an election.
The case herein certainly presents us with changed
circumstances relating to the Employer's organiza-
tion, but the fact of the matter is that the Steelwork-
ers certification is still in force and cannot be ignored.
Inclusion of the San Dimas and Wrightwood districts
into the eastern division would therefore have the ef-
fect of the Board imposing the IBEW on the San
Dimas and Wrightwood employees, in spite of their
having chosen-in a Board election-to be represent-
ed by the Steelworkers.' The Board would thus be
administratively nullifying a certification which was
conferred as the result of a representation proceeding.
We are therefore in agreement that the Employer has
invoked the inappropriate procedure here: for it re-
6 See, generally, N. L.R. B. v. Burns International Security Services, Inc., el
al.. 406 U.S. 272 (1972): TKB International Corporation t/a Hendricks-Miller
Typographic Company, 240 NLRB No. 114, fn. 4 (1979). In the case herein,
the employee complement did not change at the time of dissolution and
merger; and the operations, location, working conditions, supervision, equip-
ment, and services performed did not change. Those changes that did occur
were primarily cosmetic: changing the Employer's name on uniforms and
vehicles, buying these vehicles as opposed to leasing them, changing the
name of the employer on signs at various plants, altering locks so as to have
them conform to the Employer's master system, and placing radios on the
Employer's uniform frequency. In addition, the employees formerly paid by
California Cities Water Company are now paid by the Employer.
I See Sec. 9(c) of the Act.
I In addition, setting aside for a moment the fundamental concerns relat-
ing to the affected employees, it is noted that both the Steelworkers and the
IBEW oppose the petition for unit clarification. The Steelworkers opposes
the petition because it wishes to continue to represent the employees in the
unit for which it was certified; the IBEW opposes the petition because, inter
alia, it totally disclaims interest in the employees whom the Employer would
have us foist upon it. See LTV Aerospace Corporation (Range Systems Divi-
sion), 170 NLRB 200, 203 (1968), where the Board held that "the proposed
merger or amalgamation of so many different bargaining units represented
by so many different unions, none of which claims to represent all the em-
ployees involved, is [not] a matter that may appropriately take place without
an election."
772
SOUTHERN CALIFORNIA WATER COMPANY
quests that we engage in a unit determination process
which, given the existence of the Steelworkers certifi-
cation, would have representational consequences. 9
The Employer further suggests that the Board con-
duct an election based upon its petition for clarifica-
tion, apparently in answer to the argument that the
desires of the employees should be considered. We
have had the opportunity to consider a similar situ-
ation in Libbey-Owens-Ford Glass Compan, 169
NLRB 126 (1968). That case involved a multiplant
unit represented by different locals of the same inter-
national union. The union wished to include two ad-
ditional plants in this unit-plants where the employ-
ees were already represented by certified labor
organizations which were operating within existing
collective-bargaining agreements. The Board major-
ity therein determined an election in the context of a
unit clarification petition to be proper. Then-Member
Fanning and Member Jenkins dissented in relevant
part, pointing out that a unit clarification petition
does not arise in the context of a question concerning
representation, and that "[t]here simply is no present
statutory authority for permitting employees to de-
cide, in a representational vacuum, which contract
unit they wish." The dissent went on to distinguish a
Globe election by noting that, while in a Globe elec-
tion the employees determine their unit preference,
they do so in connection with selecting a bargaining
representative-not the case in a unit clarification
context.
Subsequent to that decision, an election was held in
accordance with the then majority view, and a Sup-
9 As no evidence has been presented which would in any way indicate that
a majority of employees in the Steelworkers unit no longer wish to be repre-
sented by that labor organization, there is no reason for us to consider revok-
ing that certification. Moreover, even if it could be said that the majority has
been dissipated, the appropriate course lies with a representation petition
whereby the intent of the employees may have open expression.
plemental Decision and Order Clarifying Unito is-
sued, which included the additional two plants in the
larger unit. In 1970, the union again filed a petition to
further clarify the certification to include yet another
plant already certified as a single-plant unit. Libbey-
Owens-Ford, 189 NLRB 869 (1971). On this occasion,
the Board majority reversed the position taken in the
earlier case, and based the decision to dismiss the pe-
tition on the earlier dissent therein of then-Member
Fanning and Member Jenkins." We reaffirm that rea-
soning and the resulting determination, and we are in
agreement that such reasoning is dispositive of the
case herein.
Accordingly, and for the reasons stated above, we
shall dismiss this petition to clarify the existing certi-
fication.
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
'o 173 NLRB 1231 (1968).
H Libbeo-Owens-Ford Comparnv, 189 NLRB 871 (1971). issued on the same
date, concerned a refusal-to-bargain charge filed by the union-petitioner con-
cerning a unit clarification petition in the earlier case (169 NLRB 126).
Subsequent to the election, and after expiration of the collective-bargaining
agreements, the respondent employer refused to bargain with one of the two
plants in the multiplant unit, attacking the proceeding in the earlier unit
clarification petition. The Board, in consonance with its companion decision
(189 NLRB 869) dismissing the second unit clarification petition, also dis-
missed the 8(aX)(5) allegation, concluding that since the Board was without
statutory authonty to direct the elections in that proceeding (169 NLRB 126;
173 NLRB 123 1), the Order Clarifying Unit was of no force or effect, and the
complaint was dismissed as resting on an improper clarification of certifica-
tion. The court of appeals reversed the Board, United Glass and Ceramic
Workers of North America, AFL-CIO [Libbey-Owens-Ford Company] v.
N L R B 463 F.2d 31 (3d Cir. 1972), and remanded the case to the Board for
a finding on the appropriateness of the units involved. The Board accepted
the court's opinion as the law of that case and found the 8(aXS) violation.
The court's decision did not, however, disturb the Board's expressed determi-
nation in the second unit clarification petition (189 NLRB 869). which the
Board had determined to dismiss for the reasons already discussed, supra
773