The Detroit Edison Co.

National Labor Relations Board - Board Decisions

Mar 13, 1975

216 N.L.R.B. 1022 (N.L.R.B. 1975)

1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Detroit Edison Company and Local Union No.
458, affiliated with the International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case 7-CA-11407
March 13, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on September 6, 1974, by
Local Union No. 458, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, and duly served on The Detroit Edison
Company, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 7, issued a
complaint on September 27, 1974, against Respon-
dent , alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 23, 1974,
following a Board election in Case 7-RC-12088 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about August 30, 1974, and at all times
thereafter , Respondent has refused , and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative , although
the Union has requested and is requesting it to do so.
On October 7, 1974, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On October 23, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 5,
1974, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted . Respon-
dent thereafter filed a response to Notice To Show
Cause and a Cross-Motion for Summary Judgment.
i Official notice is taken of the record in the representation proceeding,
Can 7-RC-12088 , as the term "record" is defined in Secs . 102.68 and
102.69(g) of the Board 's Rules and Regulations , Series 8 , as amended. See
LTV Ekctroayatems, Inc., 166 NLRB 938 (1%7), enfd. 388 F .2d 683 (C.A. 4,
1%8); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp . 573 (D.C. Va., 1%7);
216 NLRB No. 174
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Respondent's principal contention in opposition to
the General Counsel's Motion for Summary Judg-
ment, and in support of its own Cross-Motion for
Summary Judgment, is that the unit determination in
the representation proceeding was erroneous in that
it includes supervisors and/or managerial employees.
Respondent argues that the Regional Director's
determination in this regard was improper in law and
fact, and that the Supreme Court decision in
N.LR.B. v. Bell Aerospace Company, Division of
Textron, Inc., 416 U.S. 267 (1974), requires reconsid-
eration of this unit determination. Respondent also
offers to produce at any hearing so ordered, as
previously unintroduced evidence, a tape recording
of conversations of a unit employee and other
employees, which it submits will establish the true
nature of unit employees' performance as supervisory
and/or managerial. The General Counsel argues that
the issue of the status of unit employees as supervi-
sors and/or managerial employees was raised and
thoroughly litigated in the representation proceeding,
and thus may not be relitigated in the instant unfair
labor practice proceeding. With regard to Respon-
dent's introduction of the tape recording, the
General Counsel submits, in effect, that by the
exercise of due diligence Respondent could have
presented such a tape in the representation case but
instead chose to rely on oral testimony, and thus is
precluded from introducing such evidence in this
proceeding.
In view of the General Counsel's contention that
Respondent is attempting to relitigate representation
case issues regarding the supervisory and/or manage-
rial status of unit employees, we have reviewed the
record of the representation proceeding. It reveals
that, following a hearing, the Regional Director
issued a Decision and Direction of Election on
January 25, 1974, finding appropriate a unit includ-
ing the various classes of systems supervisors and
other employees sought by the Union.2 Respondent
requested review of this decision, assigning error to
the Regional Director's determinations in several
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1%8); Sec.
9(d) of the NLRA.
2 Upon the Union's request and with the general concurrence of the
Respondent, the unit description was amended by order of February 12,
1974.
THE DETROIT EDISON COMPANY 1023
respects , and arguing that it was contrary to the
decision of the United States Court of Appeals for
the Ninth Circuit in Arizona Public Service Company
v. N. L. R. B., 453 F.2d 228 (1971). On February 21,
1974, the Board denied Respondent's request for
review stating it raised no substantial issues warrant-
ing review. During the month of February 1974, a
mail ballot election was conducted in which Respon-
dent challenged all the ballots on the grounds that
the unit employees voting were supervisory and/or
managerial employees. On March 14, 1974, the
Regional Director issued a Supplemental Decision
and Order, ruling that, inasmuch as the Respondent's
grounds for challenging the ballots raised the same
issue as was raised and extensively litigated in the
representation hearing, the challenges would be
overruled. Respondent requested review of this
supplemental decision, again assigning error to the
Regional Director's unit determination and asserting
that the Board should consider the matter with
regard to its policy on the status of employees as
supervisors and/or managerial when performing
their duties in the manner of those herein. On April
5, 1974, the Board again denied review. Opening the
challenged ballots resulted in a vote of 36 to 2 in
favor of the Union, and a revised tally of ballots was
issued reflecting this result. Respondent filed objec-
tions to conduct of the election, objections to the
revised tally, and motions to reopen the hearing and
for reconsideration, all based on its contention that
the Regional Director had erred in finding the unit
not to include supervisory and/or managerial em-
ployees. On April 23, 1974, the Regional Director
issued a Second Supplemental Decision and Order,
finding that Respondent was again attempting to
relitigate issues previously litigated, and overruled
the objections3 and denied the motions. Respondent
requested review of this determination , assigning
error to the Regional Director's rulings on the unit
issue and arguing that the Bell Aerospace decision,
supra, required reconsideration of this issue on the
basis of the factors set forth therein. On June 17,
1974, the Board denied Respondent's request for
review on the ground it raised no substantial issues
warranting review.
From the foregoing review of the record, we find
merit in the General Counsel's argument that
Respondent is attempting to relitigate in this unfair
labor practice proceeding the unit issue it raised and
litigated in the prior representation proceeding,
including the application of Bell Aerospace in the
instant matter , and in the Regional Director's
determinations . It is well settled that representation
proceeding issues may not be relitigated in a
3 The Regional Director also noted as an alternative basis for rejecting
Respondent's objections that they were untimely filed.
subsequent unfair labor practice proceeding alleging
violation of Section 8(a)(5) of the Act .4
As to Respondent's offer to produce a tape
recording which it asserts will reveal the true nature
of unit employees' duties to be supervisory and/or
managerial, we are constrained to agree with the
General Counsel that this evidence may not now be
introduced in this proceeding. We note that Respon-
dent admits in its response to the Notice To Show
Cause that the communications of unit employees in
the performance of their duties are continually
monitored and recorded. Respondent does not assert
that recordings of conversations similar to the one
presently offered were not available for introduction
in the representation hearing, but rather contends
that in the interests of obtaining the "best evidence"
on the issue at hand, the Board should supplement
the record with the recording now offered, approxi-
mately a year after the representation hearing.
Absent a showing that such evidence or similar
evidence was previously unavailable, we are not
disposed to reopen the record at this late date to
receive this evidence particularly where oral testimo-
ny has already been received on such matter.
Accordingly, the Respondent's Cross-Motion for
Summary Judgment is denied, and the General
Counsel's Motion for Summary Judgment is granted.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Detroit Edison Company, Respondent herein,
is, and at all times material herein has been, a
corporation organized and existing under the laws of
the States of New York and Michigan, and is a
public utility engaged in the generation, sale, and
distribution of electrical energy in the southeastern
part of the State of Michigan. During the calendar
year ending December 31, 1973, which period is
representative of its business operations at all times
herein, Respondent purchased from outside the State
of Michigan and had shipped directly to its Michigan
facilities supplies valued in excess of $5 million.
During the same period, Respondent sold electrical
energy valued in excess of $250 million to customers
within its service area which includes an approximate
11-county geographical area within and surrounding
the Detroit, Michigan, area.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
* See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102 .69(c).
1024 DECISIONS OF NATIONAL
meaning of Section 2 (6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 458, affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective -bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time employees
of the Employer 's System Supervisory Division at
its locations in Detroit , Marysville , and Ann
Arbor, Michigan , including central system super-
visors , senior system supervisors , shut down
prearrangement coordinators , district system su-
pervisors , and technical assistants ; but excluding
office clerical employees , professional employees,
training personnel , temporary and seasonal em-
ployees, irregular part-time employees, senior
typist clerk, dispatcher clerk , guards and supervi-
sors as defined in the Act, and all other
employees.
2. The certification
In February 1974 a majority of the employees of
Respondent in said unit, in a secret mail ballot
election conducted under the supervision of the
Regional Director for Region 7 designated the Union
as their representative for the purpose of collective
bargaining with the Respondent . The Union was
certified as the collective -bargaining representative
of the employees in said unit on April 23, 1974, and
the Union continues to be such exclusive representa-
tive within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 26, 1974, and at
all times thereafter , the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about August 30, 1974, and continu-
LABOR RELATIONS BOARD
ing at all times thereafter to date , the Respondent has
refused , and continues to refuse , to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since August 30, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that , by such refusal , Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above , occurring in connection with its opera-
tions described in section I, above, have a close,
intimate , and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging 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 period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd . 328 F.2d 600
(C.A. 5, 1964), cert . denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
( 1964), enfd . 350 F .2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. The Detroit Edison Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
THE DETROIT EDISON COMPANY 1025
2. Local Union No. 458, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time employees
of the Employer's System Supervisory Division at its
locations in Detroit, Marysville, and Ann Arbor,
Michigan, including central system supervisors,
senior system supervisors, shut down prearrangement
coordinators, district system supervisors, and techni-
cal assistants; but excluding office clerical employ-
ees, professional employees, training personnel,
temporary and seasonal employees, irregular part-
time employees, senior typist clerk, dispatcher clerk,
guards and supervisors as defined in the Act, and all
other employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since April 23, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about August 30, 1974, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has 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 mean-
ing 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, The
Detroit Edison Company, Detroit, Marysville, and
Ann Arbor, Michigan, its officers , agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local Union No.
458, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time employees
of the Employer's System Supervisory Division at
its locations in Detroit, Marysville, and Ann
Arbor, Michigat, including central system super-
visors, senior system supervisors, shut down
prearrangement coordinators, district system su-
pervisors, and technical assistants; but excluding
office clerical employees, professional employees,
training personnel, temporary and seasonal em-
ployees, irregular part-time employees, senior
typist clerk, dispatcher clerk, guards and supervi-
sors as defined in the Act, and all other
employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Detroit, Marysville, and Ann Arbor,
Michigan, facilities copies of the attached notice
marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for Region
7, after being duly signed by Respondent's represent-
ative, shall be posted by 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 Respondent to insure that said notices are not
altered, defaced, or Covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that 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 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."
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
Union No. 458, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, 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 representa-
tive of all 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 agree-
ment. The bargaining unit is:
All full-time and regular part-time em-
ployees of the Employer's System Superviso-
ry Division at its locations in Detroit,
Marysville, and Ann Arbor, Michigan,
including central system supervisors, senior
system supervisors, shut down prearrange-
ment coordinators, district system supervi-
sors, and technical assistants; but excluding
office clerical employees, professional em-
ployees, training personnel, temporary and
seasonal employees, irregular part-time em-
ployees, senior typist clerk, dispatcher clerk,
guards and supervisors as defined in the Act,
and all other employees.
THE DETROIT EDISON
COMPANY