Southern Indiana Gas & Electric Co.

National Labor Relations Board - Board Decisions

Jul 9, 1987

284 N.L.R.B. 895 (N.L.R.B. 1987)

SOUTHERN INDIANA GAS CO 895
Southern Indiana Gas & Electric Company and
Local Union No. 702, International Brother-
hood of Electrical Workers, a/w International
Brotherhood of Electrical Workers, AFL-CIO-
CLC. Case 25-CA-18066
9 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 9 January 1987 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
We agree with the judge that Respondent violat-
ed Section 8(a)(5) of the Act by refusing to recog-
nize the Union as the exclusive collective-bargain-
ing representative of its employees in the expanded
unit, including the "Globed" 1 disconnect/bill col-
lector employees, and by refusing to bargain on
that basis. We do not agree with the judge that the
"Globed" employees come automatically under the
terms of the existing collective-bargaining agree-
ment. We note, as the Supreme Court found in
H. K Porter Co. v. NLRB, 397 U.S. 99, 102 (1970),
that
While the Board does have power . . . to re-
quire employers and employees to negotiate, it
is without power to compel a company or a
union to agree to any substantive contractual
provision of a collective-bargaining agreement.
In Federal-Mogul Corp., 209 NLRB 343 (1974),
where, as here, an unrepresented group of employ-
ees voted to be represented as part of the existing
unit, we found that the company and the union had
an obligation to bargain over the working condi-
tions of those employees as part of the already rec-
ognized unit. However, neither party was obligated
to apply the terms of the existing collective-bar-
gaining contract to the newly represented employ-
Globe Machine & Stamping Co., 3 NLRB 294 (1937).
ees, as there had been no bargaining and agreement
over the terms and conditions of their employment.
Thus, we hold that, although in future negotia-
tions for a new contract the parties in such circum-
stances must bargain over the unit as a whole, ini-
tially either party is free to reject immediate appli-
cation of an existing contract to the newly repre-
sented employees and may bargain separately over
their terms and conditions of employment. There-
fore, and consistent with H. K. Porter, we will
modify that part of the judge's remedy and recom-
mended Order that requires application of any of
the existing contracts to the newly represented em-
ployees.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraphs 4 and 5.
"4. By failing and refusing to accept the
disconnect/bill collector employees as part of the
existing bargaining unit subsequent to the Regional
Director's issuance of a Certification of Results of
Election, and by failing and refusing to bargain col-
lectively over terms of particular applicability to
these employees in good faith with the Union as
the exclusive representative of the Respondent's
employees in the appropriate unit, it has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Southern Indiana Gas & Electric Compa-
ny, Evansville, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraphs 1(b)
and (c) and reletter the subsequent paragraph.
"(b) Failing and refusing to bargain collectively
with Local Union No. 702 over the terms and con-
ditions of employment applicable to the discon-
nect/bill collector employees, newly included in
the unit."
2. Substitute the following for paragraphs 2(b)
and (c) and reletter the subsequent paragraphs.
"(b) On request, bargain in good faith with the
Union as the exclusive collective-bargaining repre-
sentative of its employees in the unit found appro-
priate and, if an agreement is reached, embody it in
a written and signed contract."
3. Substitute the attached notice for that of the
administrative law judge.
284 NLRB No. 98
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations - Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to recognize our
disconnect/bill collector 'employees as part of the
existing unit of Local Union No. 702, International
Brotherhood of Electrical Workers, AFL-CIO-
CLC.
WE WILL NOT fail and refuse to bargain with the
Union as the exclusive representative of the em-
ployees in the unit set forth below concerning
terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding
in a signed agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize the Union as the exclusive
bargaining representative of our employees in the
single unit set forth below:
All production, transmission and distribution
employees of the Employer, including all
disconnect/bill collectors, at the Employer's
Evansville, Indiana facility; but excluding all
office clerical employees, all professional em-
ployees, all guards and all supervisors as de-
fmed in the Act, and all salaried office work-
ers.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit.
SOUTHERN INDIANA GAS & ELEC-
TRIC COMPANY
J. Frederick Gatzke, Esq., for the General Counsel.
Arthur D. Ruthowski, Esq., of Evansville, Indiana, for the
Respondent.
David E. McNeely, of West Frankfert, Indiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Evansville, Indiana, on 3 Octo-
ber 1986. Subsequently, briefs were filed by the General
Counsel and the Respondent.
The proceeding is based on a charge filed 16 June
1986 by International Brotherhood of Electrical Work-
ers, Local Union 702, AFL-CIO-CLC, The Regional
Director's complaint dated 7 August 1986 ,alleges that
Respondent, Southern Indiana Gas & Electric Company,
Evansville, Indiana, violated Sections 8(a)(1) and (5) and
8(d) of the National Labor Relations Act by refusing to
recognize and include certain employees , as part of a bar-
gaining unit under an existing collective-bargaining
agreement and failing and refusing to bargain in good
faith with the Union.
On a review of the entire record in this case and from
my observation of the witnesses and their, demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the supplying of elec-
tricity and natural gas as a public utility. It has gross
annual business in excess of $100,000 and it annually re-
ceives good valued in excess of $50,000 from suppliers
located outside of Indiana. It admits that at all times ma-
terial it has been an employer engaged in operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act. It also admits that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On 18 October 1985 the Regional Director approved a
Stipulation for Certification Upon Consent, Election en-
tered into by the Respondent and the Union, calling for
an election among the Respondent's disconnect/bill col-
lector employees on 8 November 1985: This stipulation
describes "The Appropriate Voting Unit" with the word
"Voting" typed in over the crossed out phrase "Collec-
tive Bargaining" and describes the -unit in the same
manner as the notice for a rerun election set forth below.
This election was set aside on 21 January 1986 and a
notice of a rerun election for 21 Febtiiary 1986 was
issued.'
1 The General Counsel requests notice be taken of the proceedings in
Case 25-RC-8249 and moves to substitute an attached notice to employ-
ees for that notice currently in the record as G.0 Exh..5, thus conform-
mg the record to the intent of the parties He further represents that G.C.
Exh. 5 inadvertently reflects the prior notice for the initial 1985 election.
Although copies given to the parties may have been the earlier dated
document, the official record contains the notice for 1986 as G C. Exh. 5,
therefore no substitution is necessary.
Additionally, the General Counsel ask that notice be taken of the stipu-
lation to set aside election and stipulation for conducting rerun election
(also attached to his motion), in which the parties agreed that all proce-
dures subsequent to the conclusion of the counting of the ballots in the
rerun election would be governed by the terms and provisions of the
original Stipulation For Certification Upon Consent Election (G.C. Exh.
4). Accordingly, counsel for the General Counsel seeks a 'finding that the
Certification of Results for rerun election are based on the results of the
election on 21 February 1985 and moves to amend par 5(c) of the com-
plaint to allege a 21 February 1986 self-determination election, rather
than one of November 8, 1985
I find that good cause is shown for the granting of the relief requested
and official notice is taken of the "record" in the representation proceed-
Continued
SOUTHERN INDIANA GAS CO, 897
As pertinent, the notice for the rerun election states:
VOTING UNIT
Those eligible to vote are all Disconnect/Bill Col-
lectors at the Employer's Evansville, Indiana facili-
ty who appear on the payroll for the period ending
Sunday, January 5, 1986;
BUT EXCLUDING all office clerical employees,
all professional employees, all guards and supervi-
sors as defined in the Act, and all salaried office
workers.
(If a majority of the employees in the voting group
vote against representation they will be taken to
have indicated their desire to remain unrepresented.
If a majority vote for representation, they will be
taken to have indicated their desire to be included
in the existing unit of production, transmission and
distribution employees currently represented by
LOCAL UNION NO. 702, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORK-
ERS, AFL-CIO-CLC. In any event, a certification
of results of the election will issue.)
A majority of valid ballots were cast for representation
and, on 3 March 1986, the Regional Director issued a
Certification of Results of Election, which states:
IT IS HEREBY CERTIFIED that the said organiza-
tion may bargain for the employees in the above-
named category as part of the group of employees
which it currently represents.
On 26 March 1986 the Union and the Respondent met
and began negotiations. The Union stated it was there to
negotiate terms specifically applicable to the
disconnect/bill collectors' wage rate, uniforms, layoff
and promotion schedule, and assignments to existing de-
partments. The Company responded that it was there to
negotiate a separate and distinct agreement for the col-
lectors and stated that they would be a separate and dis-
tinct bargaining unit. The Union responded that the
Company's acceptance of this election process placed the
two disconnect/bill collectors in the existing unit of ap-
proximately 550 existing employees, but Respondent
denied that they automatically went into the existing
unit.
A second meeting was held on 11 April. At the Re-
spondent's request, the Union presented a written pro-
posal embracing the subjects noted above and a wage
schedule the same as that for meter readers under the ex-
isting agreement. The Company repeated its position that
the employees did not go into the agreement automati-
cally and stated that the issue as far as these employees
going into the existing unit is subject to the bargaining
process and it continued to demand a separate collective-
bargaining agreement to cover the two disconnect/bill
collector employees.
ings, see Fmntier Hotel, 265 NLRB 343 (1982), and the appendices sub-
mitted by the General Counsel. The corresponding motion to amend the
complaint to reflect the appropriate date is also granted.
Shortly after this second meeting, the union business
representative told the Respondent's director of industri-
al relations, Rodney Penfield, that he still could not un-
derstand why the Respondent would not agree to in-
clude the two employees as the existing unit. Penfield in-
dicated that he was willing to look at any documents the
Union had bearing on the Respondent's obligation to in-
clude them in the unit. The Union then sent Penfield a
letter, dated 18 April 1986, attaching the stipulation and
the election certification as authority supporting the
Union's contention that it had the right to bargain for
the employees as part of the existing unit.
By certified letter of 20 May 1986, Penfield responded
contending that the Regional Director's certification of
results did not certify that the Union represented the
disconnect/bill collector employees specifically as part of
the existing unit, and that the Regional Director merely
said that the "Union may bargain for the employees." No
further negotiations were held and, as noted, the Union
filed a charge on 16 June.
III. DISCUSSION
The General Counsel argues that the certification of
the results of a self-determination election, in which the
employees have designated a labor organization as their
exclusive bargaining representative, automatically in-
cludes those employees in the existing unit and obligates
the employer to apply to the newly represented employ-
ees, so far as practicable, its existing collective-bargain-
ing agreement with the employee unit. The Respondent,
on the other hand, argues that a "Globe" election does
not take the place of a Board finding with reasons there-
for that a new unit is appropriate and that the Regional
Director never specifically found the disconnect/bill col-
lectors to be an appropriate bargaining unit. It thus as-
serts that as the unit is not properly certified, the Com-
pany cannot be found to have unlawfully refused to bar-
gain. It also contends that it cannot automatically cover
a group of employees in an existing collective-bargaining
agreement as this would compel the Company to agree
to a concession in contravention of Section 8(4) of the
Act and that, in any event, there is no evidence that the
Respondent refused to negotiate about placing the new
employees in the existing unit or refused to bargain over
the terms of an agreement for these employees.
It is well settled that in the absence of special circum-
stances, a respondent in an 8(a)(5) proceeding is not enti-
tled to relitigate issues that were or could have been liti-
gated in a prior representation proceeding, see Baldwin
League of Schools, 281 NLRB 981 (1986), citing Pitts-
burgh Plate Urns Co. v. NLRB, 313 U.S. 146 (1941).
The Respondent does not offer to show special cir-
cumstances or to adduce evidence showing some sepa-
rate community of interest that could warrant separate
unit representation and, otherwise, there is no evidence
of record and no applicable presumption that might justi-
fy the recognition of separate units. Here, there is no in-
dication that the Regional Director failed to make an ap-
propriate finding on the composition of the unit. It ap-
pears that if the question had been raised the
disconnect/bill collector employees would be found to
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be similiar to the Respondent meter reader employees
and it appears that under circumstances in which there is
an existing plant (not craft) unit involved it is obvious
that a separate unit for two employees would not be ap-
propriate, see Hall's Super Duper, 281 NLRB 1116
(1986), and under these circumstances, I also find the Re-
spondent's reliance on the dictum in the dissent in
Libbey-Owens-Ford Co., 202 NLRB 29, 31 (1973), to be
inapposite to the present situation.
Here, the election certification identifies the
disconnect/bill collectors as the category of employees
that has designated the Union as their representative;
however, the Regional Director then specifically certifies
that the Union: "may bargain for the employees in the
above-named category as part of the group of employees
which it currently represents" (emphasis added). It is abun-
dantly clear from this specific language, as well as the
references at numerous earlier stages of the election pro-
ceeding to inclusion of these employees in the existing
unit (see the description of the voting unit in the notice
for the rerun election and the stipulation set forth and re-
ferred to above), that the logical and unambiguous intent
and meaning of the entire election process was to allow a
new group of employees to become part of the existing
represented group.
In connection with that portion of the certification,
reading "may bargain," it also is clear that to the extent
the phrase can be considered to be merely permissive
language, the phrase applies only to the Union (which
must first request an employer to bargain to initiate any
corresponding obligation to bargain) and in no manner
can it be considered to allow or imply that the Employer
has some choice whereby it may refuse to meet its man-
datory duty to bargain.
The record here shows that in two meetings in March
and April the Respondent twice adamantly insisted that
the Union first had to bargain over whether the
disconnect/bill collector should go into the existing unit
and it further demanded that a separate and distinct col-
lective-bargaining agreement be negotiated. This was fol-
lowed by a May letter in which the Respondent set forth
a "formal statement," which reiterated its position while
seizing upon the language of the certification that said
that the "Union may bargain for the employee" and said
it was willing to negotiate a separate agreement but that
"we will not" reopen the existing agreement or, in effect,
cover the disconnect/bill collectors under the existing
unit and agreement. No offer was made to continue any
bargaining except on its terms and, accordingly, I fmd
that there is sufficient evidence to support a finding that
the Respondent has refused to negotiate or bargain with
the Union as the exclusive representative of the employ-
ees in the approved bargaining unit. Under these circum-
stances, I find that the Respondent has arbitrarily and ca-
priciously elected to delay or avoid recognition of its
employees' choice to be included in an existing bargain-
ing unit and I concluded that its conduct constitutes an
unlawful refuSal to bargain in violation of Sections
8(a)(5) and (1) and 8(d) of the Act, as alleged. See UGI
Corp., 276 NLRB 1410 (1985), and American Printers &
Lithographers, 275 NLRB 1490 (1985).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Since the issuance of a Certification of Results of
Election on 3 March 1986, the unit set forth herein con-
stitutes a single bargaining unit, inclusive of the Re-
spondent's disconnect/bill collector employees, appropri-
ate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. At all times material, Local Union No. 702 has been
the exclusive collective-bargaining representative of the
employee in the expanded, single unit, which is:
All production, transmission and distribution em-
ployees of the Respondent, including all discon-
nect/bill collectors, at the Respondent's Evansville,
Indiana facility; but excluding all office clerical em-
ployees, all professional employees, all guards and
all supervisors as defined in the Act, and all salaried
office workers.
4. By failing and refusing to accept the disconnect/bill
collector employees as part of the existing bargaining
unit subsequent to the Regional Director's issuance of a
Certification of Results of Election, and demanding that
these employees be in a separate unit, the Respondent
has violated Sections 8(a)(5) and (1) and 8(d) of the Act.
5. By failing and refusing since 26 March 1986 to rec-
ognize aptly appropriate terms of its existing collective-
bargaining agreement to its disconnect/bill collector em-
ployees and by failing and refusing to recognize and to
bargain collectively over terms of particular applicability
to these employees in good faith with the Union as the
exclusive representative of the Respondent's employees
in the unit described, it has engaged, and is engaging in,
unfair labor practices within the meaning of Sections
8(a)(5) and (1) and 8(d) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in unfair labor practices, I find it necessary
that it be ordered to cease and desist therefrom, and to
recognize the disconnect/bill collector employees as part
of the existing unit, subject to its mutually applicable
terms and, on request, bargain collectively with the
Union, with respect to terms of particular applicability to
these employees.
In addition, it appears that since 26 March 1986 the
Respondent's disconnect/bill collector employees may
have been deprived of contractual benefits common to
all other unit employees as a result of the Respondenes
arbitrary and capricious failure and refusal to include
them within the general terms of the existing, agreement
and its failure to bargain over specifically applicable
terms of employment and, accordingly, it shall be re-
quired to give retroactive effect to all terms, including
those subsequently negotiated with respect to specifically
applicable terms, including wages, and make these em-
ployees whole for any such loss suffered as a result of
the Respondent's illegal practices in accordance with
SOUTHERN INDIANA GAS CO. 899
F. W Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977).
As part of the relief sought, the General Counsel also
seeks imposition of a so called visitatorial clause, where-
by the Board would be authorized to engage in certain
discovery activities in order to monitor compliance. Al-
though the imposition of such a provision recently has
become a common practice, there is no showing that it is
a practice involved in this proceeding. Accordingly, the
request is denied and no visitatorial clause will be im-
posed as part of the Order.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Southern Indiana Gas & Electric
Company, Evansville, Indiana, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize its disconnect/bill
collector employees as part of the existing unit of Local
Union No. 702, International Brotherhood of Electrical
Workers, AFL-CIO-CLC.
(b) Failing and refusing to apply the general terms of
its current collective-bargaining agreement with Local
702 to the disconnect/bill collector employees in all
areas where that agreement applies equally and uniform-
ly to all unit employees.
(c) Failing and refusing to bargain collectively with
Local 702 over such terms of the current bargaining
agreement that do not apply equally and uniformly to all
unit employees, as most particularly applicable to the
disconnect/bill collector employees, newly included in
the unit.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
2 If no exceptions are filed as provided by Sec 102,46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(a) Recognize Local Union No. 702, International
Brotherhood of Electrical Workers, AFL-CIO-CLC as
the exclusive bargaining representative of its employees
in the following single unit:
All production, transmission and distribution em-
ployees of the Respondent, including all
disconnect/bill collectors, at the Respondent's Ev-
ansville, Indiana facility; but excluding all office
clerical employees, all professional employees, all
guards and all supervisors as defmed in the Act, and
all salaried office workers.
(b) Retroactively apply the general terms of its current
collective-bargaining agreement with Local 702 to the
disconnect/bill collector employees not previously in-
cluded in the unit, in all areas where the agreement ap-
plies equally and uniformly to all unit employees.
(c) On request, bargain in good faith with the above-
named Union as the exclusive collective-bargaining rep-
resentative of its employees in the unit found appropri-
ate, respecting such terms of the current bargaining
agreement that otherwise do not apply equally and uni-
formly to all unit employees with specific application to
the disconnect/bill collectors recently added to the unit
and, if an agreement is reached, embody it in a written
and signed contract, and make these employees whole
for any losses incurred as a result of the illegal practices
in the manner specified in the remedy section.
(d) Post at its Evansville, Indiana plant copies of the
attached notice marked "Appendix." 3 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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,"