Brooklyn Union Gas Co.

National Labor Relations Board - Board Decisions

Oct 11, 1960

129 N.L.R.B. 361 (N.L.R.B. 1960)

BROOKLYN UNION GAS COMPANY 361
Apart from the foregoing inconsistent interpretation of criteria for good- and
bad-faith dealings I view the subject matter herein to be clearly controlled by the
Supreme Court 's caution that collective bargaining is a function of the parties to be
resolved by them without outside interferences Bad-faith bargaining is that conduct
in which a party engages when it has no real desire nor intent to reach an agreement.
The facts supplied by General Counsel , however , provide ample evidence that an
agreement was the objective of all parties . Under such circumstances it is not the
function of the Board to dictate the manner in which, or the extent to which this
objective is to be achieved?
Upon consideration of the entire record herein , the briefs and arguments of the
parties, and the foregoing findings and conclusions,
IT IS HEREBY ORDERED, pursuant to Sections 102.25 and 102.35 (h)8 of the Board's
Rules and Regulations , Series 8, that Respondents ' respective motions to dismiss the
complaint be granted , and that the complaint be accordingly dismissed in its entirety.
e N.L.It.B. v. American National Insurance Co., 343 U.S. 395, 404; N.L.R.B. v. Insur-
ance Agents' International Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477.
4 N.L.R.B. v. Insurance Agents' International Union, supra.
8 See Cherry Rivet Company , 97 NLRB 1303, footnote 1.
Brooklyn Union Gas Company and Local 101 , Utility Division,
Transport Workers Union of America , AFL-CIO, Petitioner.
Cases Nos. 2-PC-9689, 2-RC-9727, and 3-R'C-10853. October 11,
1960
SUPPLEMENTAL DECISION, ORDER, AND AMENDMENT
OF CERTIFICATION
On April 24, 1959, following a Board-directed election,' the Pe-
titioner was certified as the collective-bargaining representative of all
employees of the Employer working. in and permanently assigned to
operations in the boroughs of Brooklyn and Queens, New York.2
On March 23, 1960, the Petitioner filed a motion for clarification
in which it requested the Board to amend its certification to include
all employees of the Employer who were formerly employed by
Brooklyn Borough Gas Company (herein called Brooklyn Borough),
which company was consolidated with the Employer on June 1, 1959.
In its motion, the Petitioner contends that such employees constitute
an accretion to the unit for which it was certified. Thereafter, Local
1869, International Brotherhood of Electrical Workers, AFL-CIO
(herein called Local 1869), which is the recognized bargaining repre-
sentative of the former employees of Brooklyn Borough, filed an
answer requesting dismissal of the Petitioner's motion or, in the al-
ternative, a self-determination election. On April 24, 1960, the Board
remanded the proceeding to the Regional Director for a hearing.
Hearings were held on May 26 and June 15, 1960. On June 17,
1960, Local 1869 filed a petition in Case No. 2-RC-10853 in which it
1123 NLRB 441 (Cases Nos. 2-RC-9689 and 2-RC-9727, referred to herein as the
original proceeding).
2 The appropriate unit excluded executives , superintendents , heads of departments,
foremen, skilled technical employees in the chemical laboratories other than those who
have by mutual agreement in the past been included in the bargaining unit, confidential
employees , guards, and all supervisors as defined in the Act.
129 NLRB No. 38.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested an election in a separate unit of all physical and office clerical
employees formerly employed by Brooklyn Borough. On June 17,
the Regional Director issued an order consolidating Case No. 2-RC-
10853 with Cases Nos. 2-RC-9689 and 2-RC-9727, and on July 6,
1960, a further hearing was held on the consolidated cases 3
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers herein to a three-
member panel [Chairman Leedom and Members Jenkins and
Fanning].
Upon the entire record in this case, the Board finds :
Prior to their consolidation, the Employer and Brooklyn Borough
Gas Company were both engaged in the sale and distribution of gas
in New York City. The territory serviced by the Employer extended
over a large part of the borough of Queens and all of the borough
of Brooklyn except for the area serviced by Brooklyn Borough.
Brooklyn Borough's territory covered the remainder of Brooklyn,
consisting chiefly of Coney Island, and was surrounded on three sides
by the Employer's territory (the fourth side bordering on the Atlantic
Ocean). Thus, the two companies were engaged in identical opera-
tions in geographically contiguous territories. The Employer
employed approximately 2,679 physical and clerical employees in
Brooklyn and Queens. These are the employees in the unit repre-
sented by the Petitioner; they are covered by a collective-bargaining
agreement effective until January 31, 1961. Brooklyn Borough em-
ployed about 209 employees who were covered by its contract with
Local 1869 effective until May 31, 1960.4 All Brooklyn Borough em-
ployees were retained by the Employer. They possess similar skills
and perform the same duties as the Employer's "old" employees.
After the consolidation, all Brooklyn Borough operations were
brought under the control and direction of the Employer's executive
and administrative organization, which is organized on a company-
wide basis with no separate department or division for the Coney
Island area formerly serviced by Brooklyn Borough. Administrative
3 Utility Workers Union of America, Local 1-2, AFL-CIO, appeared briefly on the first
day of the hearing but took no position on the issues. The Employer contends that
all its physical and clerical employees in the boroughs of Brooklyn and Queens should be
included in a single unit and opposes a self -determination election among former Brooklyn
Borough employees
4 The Employer has continued to apply the terms of its contract with the Petitioner to
the employees in its certified unit, and the Brooklyn Borough -Local 1869 contract to the
former Brooklyn Borough employees. Within limitations permitted by the latter con-
tract, it has , however, extended to former Brooklyn Borough employees certain benefits
previously available to its "old" employees , such as its stock-purchase , sales lead, and
appliance discount purchasing plans On March 22, 1960 , the Petitioner requested
recognition as representative of the former Brooklyn Borough employees on the ground
that they had been integrated into the unit for which it was certified On March 23,
Local 1869 proposed that the Employer enter into negotiations with it for a new agree-
ment covering the former Brooklyn Borough employees . The Employer refused both re-
quests and informed the Unions that it would abide by the status quo until the issues
raised by the Petitioner 's motion for clarification were resolved by the Board
BROOKLYN UNION GAS COMPANY 363
and accounting procedures, including bill collecting and payroll, and
employees engaged therein, are centrally located and under common
overall supervision. This is equally true of labor relations, employee
training, laboratory work, meter repair work, and dispatching. While
it is the Employer's policy to continue to employ employees in the areas
with which they are familiar and where their homes are located, it
has transferred former Brooklyn Borough employees out of the Coney
Island area and its "old" employees into that area as operations require
and as requested by employees. At the time of the hearing, 200 former
Brooklyn Borough employees were working for the Employer.
Seventy-five, or 37 percent, of them 5 have been permanently trans-
ferred out of the Coney Island area to various locations throughout
the Employer's establishment where they work side by side with, and
under the same overall supervision as, the Employer's old employees.
Fifty-two, or approximately 30 percent; of the employees now work-
ing in the former Brooklyn Borough area are old employees of the
Employer, who work under the same overall supervision as former
Brooklyn Borough employees and, in many instances, the same imme-
diate supervision. In addition, there has been considerable inter-
change on a temporary basis, particularly among the physical
employees such as meter readers, customer servicemen, street depart-
ment employees (laborers, street mechanics, and ditching machine
operators), and plant equipment and construction workers.?
The facts outlined above clearly show that the employees formerly
employed by Brooklyn Borough have been integrated into the Em-
ployer's establishment and operations in the same manner as were
the employees of Kings County Lighting Company, discussed in the
Board's Decision and Direction of Election in the original proceeding
herein. Except for their membership in Local 1869, the former em-
ployees of Brooklyn Borough are no longer identifiable as a separate
unit. Under these circumstances, and in view of the geographical
contiguity of the Brooklyn Borough territory with that of the Em-
ployer, we find that it is merely an extension of the Employer's
operations, and that the employees formerly employed by Brooklyn
Borough are accretions to the unit of employees working in or per-
manently assigned to the boroughs of Brooklyn and Queens repre-
sented by the Petitioner." We find no merit in the request of Local
6 This figure includes 56 clerical and 19 physical employees.
8 This figure includes 3 clerical and 48 physical employees.
7 The president of Local 1869 stated in a recent issue of that Union's publication, which
statement he confirmed at the hearing herein, that "Our members are now working for
the Brooklyn Union Gas Company instead of the Brooklyn Borough. They work in prac-
tically every section of Brooklyn-Coney Island, Canarsie , Greenpoint , Pearl and Remsen
Streets, etc . . . There has been harmony among the workers on all occasions in spite
of the fact that members of both unions sit side by side and do the same work."
8 Cf., the Board 's finding in its original Decision and Direction of Election that the
former employees of Richmond Gas Company located on Staten Island retained their
identification as a separate unit after that company was consolidated with the Employer,
in view of their separate geographical location in the absence of substantial interchange,
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1869 for a separate election among the former employees of Brooklyn
Borough based on their separate bargaining history for , as we have
found, they have lost their identity as a separate established unit and
have become merged with the Employer 's other Brooklyn and Queens
employees . Therefore , as no question exists concerning the representa-
tion of former Brooklyn Borough employees , we shall dismiss the
petition filed by Local 1869 herein.' However, we shall grant the
Petitioner 's motion and amend the description of its certified unit to
specifically include therein all employees of the Employer who were
formerly employed by Brooklyn Borough Gas Company.10
[The Board dismissed the petition in Case No . 2-RC-10853.]
[The Board amended the certification of representatives in Cases
Nos. 2-RC-9689 and 2-RC-9727 issued on April 24 , 1959, to Local 101,
Utility Division , Transport Workers Union of America , AFL-CIO,
to include all physical and office clerical employees of the Employer
who were formerly employed by Brooklyn Borough Gas Company and
who work in or are permanently assigned to the Employer 's operations
in the boroughs of Brooklyn and Queens , New York.]
B Continental Can Company, Inc, 127 NLRB 286
"The alternative request of Local 1869 made at the hearing and in its brief to the
Board, that an election be held among all employees in the certified unit is denied because
there is a contract bar to an election in such a unit, and further because Local 1S69 has
not demonstrated a sufficient petitioner's showing of interest and none of the other parties
has filed a petition for an election in such unit
Martin -Burns Sportables , Inc. and Local 1010 , Retail Employees
Union of South Florida, Retail , Wholesale and Department
Store Union , AFL-CIO, Petitioner . Case No. 12-RC-.510. Octo-
ber 11, 1960
DECISION AND ORDER ON MOTION TO AMEND OR
CLARIFY CERTIFICATION
In a Decision and Direction of Election issued on June 16, 1959,
the Board found that "all employees of the Employer at its retail
stores in the Americana Hotel and the Fontainebleu Hotel, Miami
Beach, Florida,' including selling assistant managers, salesmen,
bushelmen, and cashiers, but excluding office employees, guards, pro-
fessional employees, and supervisors as defined in the Act" consti-
tuted an appropriate unit. On October 28, 1959, following an election
and a Supplemental Decision and Direction dated October 12, 1959, in
which the Local 1010, Retail Employees Union of South Florida,
1 The parties agreed to the two-store unit However , the Employer also operates stores
in Palm Beach , Boca Raton , Fort Lauderdale , and Hollywood , Florida.
129 NLRB No. 39.