Edison Sault Electric Co.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 753 (N.L.R.B. 1994)

753
313 NLRB No. 129
EDISON SAULT ELECTRIC CO.
1 The letter states in relevant part:
This is to confirm that during our meeting on Thursday, January
7, 1993, the [Employer] raised an issue regarding the appro-
priateness of the Bargaining Unit. It is the [Employer]’s position
that superforemen should not be included in the Bargaining Unit
because they are supervisors under the National Labor Relations
Act. The Union evidently does not agree with this position.
Therefore, since the [Employer] does not wish to hold up settle-
ment of our new contract over this issue, we are willing to sign
the collective bargaining agreement which has been negotiated
by the parties. However, the [Employer] is not waiving or aban-
doning the issue of whether the unit is appropriate because of
the inclusion of the superforemen. We intend to raise this issue
before the NLRB through a unit clarification petition.
Edison Sault Electric Company and United Steel-
workers of America, AFL–CIO–CLC. Case 7–
UC–435
February 28, 1994
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On March 24, 1993, the Regional Director for Re-
gion 7 issued a Decision and Order in which he grant-
ed the instant clarification petition to exclude foremen
special from the collective-bargaining unit because
they are supervisors. Thereafter, in accord with Section
102.67 of the National Labor Relations Board’s Rule
and Regulations, the Union filed a timely request for
review of the Regional Director’s decision. The Union
argued that the petition should be dismissed because it
was untimely filed, or, in the alternative, because the
foremen special are not supervisors as defined by Sec-
tion 2(11) of the Act and should continue to be in-
cluded in the unit. The Employer-Petitioner (the Em-
ployer) filed a timely opposition. The Board grants the
Union’s request fo review on the ground that it raises
a substantial issue warranting review.
The Board has carefully considered the record and
finds, contrary to the Regional Director, that the Em-
ployer did not reserve its right in a timely manner to
file a unit clarification petition. We therefore find that
the instant petition is untimely and must be dismissed.
The Employer is a utility company operating four
facilities in the Eastern Upper Peninsula of Michigan.
Between 1972 and 1987, the Employer created five
‘‘foreman special’’ (also known as superforemen) posi-
tions, which were included in the union-represented
bargaining unit with production and maintenance em-
ployees. On the expiration of the parties’ most recent
collective-bargaining agreement on October 21, 1992,
the parties began to bargain over a new contract. The
new contract was ratified by the union members on or
about November 10 or 11, 1992. On January 8, 1993,
the Employer sent a letter to the union representative
claiming that there was a disagreement over the inclu-
sion of foremen special in the new contract.1 Subse-
quently, on January 22, 1993, the Employer filed a pe-
tition with the Board to clarify the bargaining unit.
The Regional Director found, with little discussion,
that the Employer filed its clarification petition in a
timely manner, and proceeded to the merits of whether
the foremen special were statutory supervisors. The
Union now argues that, under Arthur Logan Memorial
Hospital, 231 NLRB 778 (1977), the Board should dis-
miss the Employer’s petition as untimely because the
Employer failed to reserve its position that the foremen
special were supervisors who should be excluded from
the unit prior to conclusion of bargaining. We find
merit in the Union’s contention.
The Board has traditionally held that a unit clarifica-
tion petition submitted during the term of a contract
specifically dealing with the disputed classification will
be dismissed if the party filing the petition did not re-
serve its right to file during the course of bargaining.
Wallace-Murray Corp., 192 NLRB 1090 (1971). The
Board’s rule is based on the rationale that to entertain
a petition for unit clarification during the midterm of
a contract which clearly defines the bargaining unit
would disrupt the parties’ collective-bargaining rela-
tionship. In other words, the Board has held that to
permit clarification during the course of a contract
would mean that one of the parties would be able to
effect a change in the composition of the bargaining
unit during the contract term after it agreed to the
unit’s definition. San Jose Mercury & San Jose News,
200 NLRB 105, 106 (1972); Monongahela Power Co.,
198 NLRB 1183 (1972).
It is undisputed here that neither the Employer nor
the Union discussed the placement of the foremen spe-
cial during the contract negotiations. Indeed, the only
evidence on this matter shows that the Union proposed
wage rates covering this position and, further, that this
classification has been included in the unit under the
parties’ contracts for the past 20 years. It was not until
after contract ratification—that is, until negotiations
were completed and the union membership accepted
the contract—that the issue was raised by the Em-
ployer. The question, then, is whether the Board
should extend the Wallace-Murray rationale to cases
where a party files a unit clarification petition prior to
signing the contract, but after negotiations have ended
and a contract agreed to. We find that such an exten-
sion is appropriate.
We note, first, that the issue is not one of contract
bar, where execution of a written contract has been
made a requirement in order that the contract bar rules
be clear and not subject to extended litigation. In fact,
even a written, executed contract is not necessarily a
bar to the filing of a UC petition—for example, where
the classification is newly created, or otherwise not
clearly covered by the contract. Union Electric Co.,
217 NLRB 666, 667 (1975); Crown Cork & Seal Co.,
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Where the Board has found that a party filed a timely unit clari-
fication petition after a contract’s execution, it has premised its deci-
sion on the fact that the petitioning party reserved its right during
the course of bargaining to file for clarification after a contract’s
execution. Where, however, the parties were aware that a disputed
classification was encompassed by the unit, but did not protest until
immediately after the execution of a collective-bargaining agreement,
the Board has found the petition untimely. Arthur C. Logan Memo-
rial Hospital, supra.
203 NLRB 171 (1973). Hence, it is not the contract
bar rule which is involved here. The Wallace-Murray
principle is instead based on the rationale that, where
the parties have reached a contract, it would be disrup-
tive for the Board to change that contract midterm.
Wallace-Murray, supra at 1090.2
The same rationale applies to the facts of this case.
Here, the Employer has presented no evidence that it
negotiated over the composition of the unit, to exclude
the foremen, prior to ratification of the contract. In
fact, there is evidence on the record that, to the con-
trary, the parties bargained over and agreed on wages
of the foremen special prior to ratification. Thus, the
issue of unit clarification was introduced for the first
time almost 2 months after the contract was ratified.
Allowing the Employer to file and have processed a
unit clarification petition at this time would not be any
less disruptive to the bargaining relationship of the
parties than it would be if the petition were filed after
the contract was signed by the parties.
Finally, we disagree that the timeliness grounds for
our rejection of the Employer’s petition would be in
any way undermined by a finding that the foremen
special are supervisors within the meaning of Section
2(11) of the Act. Thus, in Washington Post Co., 254
NLRB 168 (1981), a unit clarification case involving
alleged supervisors, cited by the Regional Director, the
Board directed processing of the petition only after ex-
pressly noting that the petition was timely; and it dis-
tinguished cases in which petitions were not timely
filed. Id. at 169 and fn. 13. Furthermore, Wallace-Mur-
ray itself involved supervisors who were, as here,
originally included in the unit by mutual consent. The
stability rationale for extension of Wallace-Murray to
cases of agreed-on, but not yet signed, contracts ap-
plies as logically to cases in which a party is attempt-
ing a postagreement exclusion of classifications on
grounds of supervisory status as to those in which it
is attempting exclusion on other grounds. Finally, we
note that on the somewhat analogous question of
whether an employer may repudiate an agreement that
it has reached, but not yet signed, by invoking the in-
clusion of supervisors in the contractual unit, the
Board has held, with court approval, that an employer
may not lawfully do so. Union Plaza Hotel & Casino,
296 NLRB 918 fn. 4 (1989), enfd. sub nom. E. G. &
H. Inc. v. NLRB, 949 F.2d 276, 278, 280 (9th Cir.
1991). As the court reasoned, to allow such employer
conduct ‘‘would be . . . destructive of stable bargain-
ing relationships.’’ 949 F.2d at 280. That would also
be the result in this case were we to permit the proc-
essing of the unit clarification petition at this point.
Accordingly, we find that the Employer’s petition is
untimely, and we dismiss it.
ORDER
The petition is dismissed.