Public Service Co.

National Labor Relations Board - Board Decisions

Sep 28, 1993

312 N.L.R.B. 459 (N.L.R.B. 1993)

459
312 NLRB No. 69
PUBLIC SERVICE CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We adopt the judge’s finding that employees Hill, O’Callaghan,
and Johnson, although hired as temporaries, became permanent em-
ployees in accordance with art. 3, sec. 1 of the contract, since they
worked longer than 6 months without the Union’s being notified and
agreeing to extend their temporary status. In doing so, we also rely
on the parties’ past practice. The record shows that normally when
a temporary employee’s 6-month term was ending, the parties would
agree to extend the temporary period, terminate the employee, or
make the employee permanent. In those instances when the Re-
spondent continued such employment beyond the 6-month limit
without notifying the Union and grievances were filed, the disputes
were settled by making the employees permanent. Member Devaney
finds it unnecessary to rely on the fact that past grievances over ar-
guably similar disputes may have been settled by the Respondent by
converting the temporary employee to regular status.
We also adopt the judge’s finding that Hill, O’Callaghan, and
Johnson were performing unit work. As the judge found, their skills
and duties were substantially equivalent to that of unit employees;
they had the same supervisor; they received the same or slightly
greater pay; their work hours, rules, and holidays were the same; and
they used the normal tools of unit employees. We also note that the
record evidence shows that these employees were in daily contact
with and worked alongside of other unit employees. However, we
disavow the judge’s reliance on the fact that Hill, O’Callaghan, and
Johnson desired to be part of the bargaining unit, because employee
desire is irrelevant to a determination of whether an employee is per-
forming bargaining unit work. We also find it unnecessary to rely
on the judge’s dual function analysis.
In adopting the judge’s finding that Hill, O’Callaghan, and John-
son executed valid checkoff authorization cards and that the Re-
spondent unlawfully refused to process their cards, we note that the
judge incorrectly used the date October 13. The record evidence
shows that the checkoff authorizations were signed by Hill,
O’Callaghan, and Johnson on October 12, 8, and 10, respectively,
and that the Respondent notified the Union on November 28 that it
would not process such cards.
Public Service Company of Colorado and Inter-
national Brotherhood of Electrical Workers,
Local 111. Case 27–CA–11650
September 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 6, 1992, Administrative Law Judge Michael
D. Stevenson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Union filed answering briefs,
and the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions as modified below and
to adopt the recommended Order as modified.
1. The judge found that the Respondent violated
Section 8(a)(1) and (5) by subcontracting unit work
contrary to the provisions of art. 19, sec. 9 of the col-
lective-bargaining agreement. Article 19 provides, in
pertinent part, that the Respondent ‘‘will not contract
any work which is ordinarily done by its regular em-
ployees for the specific purpose of laying off or de-
moting such employees.’’ The judge found that em-
ployees Hill, O’Callaghan, and Johnson were laid off
as a result of the Respondent’s subcontracting unit
work to another company, Natural Fuels, and thus con-
cluded that the subcontracting was prohibited under the
contract. We disagree.
The plain language of the contract requires that the
subcontracting of unit work must be for the specific
purpose of laying off unit employees. Simply put, to
be unlawful under the contract it must be shown that
the specific purpose of the subcontracting in question
is to lay off unit employees, and not, as the judge
found, that the subcontracting merely results in or
causes employee layoffs or terminations.
Here, the record evidence does not establish that the
Respondent’s specific purpose in subcontracting the
NGV project to Natural Fuels was to get rid of the
three disputed employees. Rather, record testimony
shows that the Respondent’s purpose in forming a new
company, and thereafter subcontracting the NGV work,
was to have the work performed by a company which
was less regulated than the Respondent’s operation as
a public utility and which could do the work more eco-
nomically. According to Supervisor Gutierrez, there
was an economic advantage to the Respondent in con-
tracting out the work to Natural Fuels, because that
company would only charge the Respondent for the
time that its employees were actually working on site.
Moreover, the Respondent had been considering the
creation of a separate company to build and maintain
natural gas fueling stations since the mid- to late
1980s—long before the employees involved here were
hired. In fact, the new company, Natural Fuels, was al-
ready in the process of being formed at the time Hill,
O’Callaghan, and Johnson were hired, and shortly
thereafter, the Respondent began drafting an agreement
to subcontract the work to Natural Fuels. When the
agreement was finally executed in December 1990, the
Respondent no longer needed the services of the three
employees. Thus, the layoff of employees Hill,
O’Callaghan, and Johnson was simply the natural cul-
mination of the Respondent’s lengthy efforts to have
the work done by a separate entity, and not, as prohib-
ited by the contract, the specific purpose for which the
Respondent decided to subcontract the work.
In addition, despite the fact that Gutierrez referred
to Hill, O’Callaghan, and Johnson as playing ‘‘union
games,’’ there is no evidence that these employees
were singled out for joining the Union. Indeed, the Re-
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 379 U.S. 203 (1964).
3 Member Raudabaugh does not agree that subcontracting of unit
work is necessarily a mandatory subject of bargaining. He relies
solely on the fact that Respondent does not dispute that the specific
subcontracting involved herein is a mandatory subject.
4 289 NLRB 851 (1988).
spondent has a long-established relationship with the
Union which represents approximately 2700 of the Re-
spondent’s employees. Nor is there any evidence that
would set these employees apart from any other unit
employee. Accordingly, there is no record evidence to
support a finding that the Respondent subcontracted
for the specific purpose of laying off these particular
employees.
However, although the Respondent’s subcontracting
of unit work does not violate the specific provisions of
its collective-bargaining agreement with the Union, it
is nevertheless unlawful because the Respondent sub-
contracted unit work without first providing the Union
adequate notice and an opportunity to bargain.
It is well established that the contracting out of work
regularly performed by unit employees is a mandatory
subject of bargaining. Fibreboard Paper Products
Corp.2 Thus, an employer who unilaterally sub-
contracts unit work without first bargaining with its
employees’ representative about its decision, as well as
the effect such contracting will have on unit employ-
ees, frustrates collective bargaining, and thereby vio-
lates Section 8(a)(5).3
The Respondent does not dispute that the sub-
contracting involved here is a mandatory subject of
bargaining. Thus, the Respondent acted contrary to its
statutory obligation when it failed to negotiate with the
Union before implementing its decision to contract out
unit work. Even though the Respondent had previously
bargained with the Union over subcontracting—even to
the extent of including a subcontracting provision in its
contract—it ignored the Union and its duty to bargain
when it decided to subcontract the NGV project. In ad-
dition, this decision was contrary to the Respondent’s
normal practice of notifying the Union of subcon-
tracted work as well as its practice of not using tem-
porary employees or subcontractors for unit work if it
would result in the layoff or termination of unit em-
ployees. Here, of course, the Respondent’s action
clearly had that result as it caused the layoff of three
unit employees, and thereby had a substantial adverse
impact on the bargaining unit.
The fact that the Respondent had already bargained
with the Union on the general topic of subcontracting
and executed a specific contract provision with respect
thereto did not relieve the Respondent of its statutory
duty to bargain over specific instances of subcontract-
ing. In this regard, Island Creek Coal Co.4 is distin-
guishable. In that case, the parties agreed to a contract
which contained detailed provisions concerning the
leasing, subleasing, and licensing out of coal lands. In
particular, the contract prohibited subcontracting done
for the purpose of avoiding other provisions of the
contract or that would result in the laying off of the
employer’s employees. Otherwise, according to the
contract, subcontracting would be permitted, provided
that the subcontractor agreed to offer employment first
to the employer’s qualified employees who were on
layoff status. In Island Creek, the employer subcon-
tracted unit work in accordance with the provisions of
its contract but without giving the union prior notice
or an opportunity to bargain. The Board, in dismissing
the 8(a)(5) allegation, found that, in executing the con-
tract as described above, the respondent had fulfilled
its affirmative obligation to bargain over the sub-
contracting of unit work.
In contrast, the subcontracting provision involved
here is not nearly as extensive as the Island Creek pro-
visions. Instead, it is a narrowly drawn provision
which merely prohibits subcontracting in very limited
circumstances. Nor is there any language in the con-
tract providing procedures to be followed in the case
of contractually permitted subcontracting. Thus, here,
when the Respondent chose to subcontract without first
discussing it with the Union, unlike the employer in Is-
land Creek, it was not acting pursuant to specific pro-
visions of a previously negotiated contract. Con-
sequently, there is no basis here for finding that the
Respondent has fulfilled its statutory obligation to bar-
gain simply by executing the collective-bargaining
agreement.
We also find that the Union did not waive its right
to bargain over the Respondent’s action in contracting
to Natural Fuels. The Respondent claims that notice
was given to the Union during the l990 contract nego-
tiations that it intended to subcontract the work, and
that in not responding to this notice the Union waived
its right to demand bargaining on this issue. Record
evidence shows that at the bargaining table on July 2,
the Respondent’s manager of employee relations in-
formed the Union’s representative that the Respondent
was going to contract out the job of maintaining and
constructing natural gas fueling stations. The natural
gas fueling station work, however, was not a topic
which could be raised for negotiation at that time be-
cause the parties had previously agreed to limit the re-
opened talks to specific, listed items and work on the
fueling stations was not an included topic. Instead, the
record shows that the Respondent’s remark was made
in the context of discussing another, listed topic—a ju-
risdictional dispute between Public Service and West
Gas over natural gas vehicle work. Thus, it was not in-
tended, nor could it at that time, invite bargaining over
the matter. Moreover, as the judge noted, the Respond-
ent’s statement did not indicate that any unit employ-
ees would be affected. In fact, the Respondent’s rep-
461PUBLIC SERVICE CO.
5 259 NLRB 225 (1981), and cases cited therein.
6 We also find that the Union did not waive its general right to
bargain over subcontracting by virtue of the ‘‘management rights’’
or ‘‘zipper’’ clauses of the parties’ collective-bargaining agreement.
See Johnson-Bateman Co., 295 NLRB 180, 184–185 (1989); Gen-
eral Electric Co., 296 NLRB 844, 851–852, 856–857 (1990). As in
the cited cases, we note that here the contract’s management-rights
clause in art. 2, sec. 1, while reserving to the Respondent such mat-
ters as the right to direct its employees and to hire, discharge, dis-
cipline, and promote such employees, does not specifically reserve
any rights with respect to subcontracting. Nor is there any other pro-
vision in the contract giving the Respondent the right to subcontract
in all instances except for the one prohibited in art. 19. Moreover,
although art. 30, sec. 1 of the contract states that this agreement con-
stitutes the sole and complete agreement of the parties, such general
terms do not demonstrate a mutual intent to waive bargaining as to
all subjects not specifically negotiated. In fact, this clause specifi-
cally provides that the past practices of the parties shall continue.
resentative did not know at the time, and did not tell
the union representative, that any unit employees, es-
pecially Hill, O’Callaghan, and Johnson who would
subsequently be laid off as a result of the Respondent’s
actions, were even working on the fueling station
project. Thus, the Union had no way of knowing that
the proposed subcontracting would warrant bargaining.
It is axiomatic that the waiver of a statutory right
must be clear and unequivocal. Chesapeake & Poto-
mac Telephone Co.5 On the basis of the factual find-
ings described above, we find that the Union did not,
clearly and unmistakably, waive its right to bargain.
The Respondent’s statement, made under the cir-
cumstances described above, was not a sufficient no-
tice to the Union to relieve the Respondent of its obli-
gation to bargain over its decision to subcontract or the
effect it would have on the unit.6
2. Although we have reversed the judge’s 8(a)(1)
and (5) finding that the Respondent’s subcontracting
violated its contract with the Union, we have found
nevertheless that the Respondent violated Section
8(a)(1) and (5) by unilaterally subcontracting unit work
without first bargaining with the Union. We, therefore,
modify the judge’s Order accordingly. We do not,
however, modify the judge’s remedy, which provides,
inter alia, that the Respondent be ordered to offer Hill,
Johnson, and O’Callaghan immediate and full rein-
statement to their former jobs displacing, if necessary,
any replacements or, if these jobs no longer exist, to
substantially equivalent positions without prejudice to
their seniority or other rights and privileges as regular
employees, and make them whole for any loss of pay
suffered as a result of the Respondent’s action in by-
passing their bargaining agent and unilaterally sub-
contracting their jobs. Since their loss of employment
stemmed directly from the Respondent’s unlawful ac-
tion in failing to bargain with the Union over its deci-
sion to subcontract unit work, directing the Respondent
to restore these employees to the positions they held
prior to the Respondent’s unlawful act is proper.
Fibreboard Paper Products Corp., supra, 138 NLRB
at 555; General Electric Co., supra, 296 NLRB at 857.
3. In its exceptions, the Respondent claims that the
instant complaint is barred by Section 10(b) of the Act.
The Respondent asserts that since the Union took no
action with respect to the Respondent’s July 2 notifica-
tion that unit work would be contracted out, not only
did it waive its right to demand bargaining but it also
exceeded the 6-month time limitation of Section 10(b)
as it did not file the instant charge until March 27,
1991. The Respondent also claims that the charge is
untimely because the Union knew that the three dis-
puted employees were working on the Respondent’s
fueling stations as early as late summer. The Respond-
ent, however, did not raise this defense in its answer
or at the hearing. Rather, it raised Section 10(b) for the
first time in its posthearing brief to the judge and then
in its exceptions to the Board. Section 10(b) is an af-
firmative defense and, if not timely raised, is waived.
As the Respondent did not raise this defense until after
the hearing had closed, it is clearly untimely. K & E
Bus Lines, 255 NLRB 1022, 1029 (1981); Laborers
Local 252, 233 NLRB 1358 fn. 2 (1977).
In any event, even if the Respondent had raised its
10(b) claim timely, its arguments are without merit.
The fact that the Union knew about employees Hill,
O’Callaghan, and Johnson by late summer is irrele-
vant. The Respondent did not commit an unfair labor
practice until it refused to process their dues-checkoff
cards on November 28. The Respondent’s claim that
its July 2 announcement triggered the 10(b) period is
unsuccessful for the same reason. The Respondent’s
statement that it intended to subcontract unit work
does not constitute a violation; only when the Re-
spondent actually did so in mid-December without first
bargaining with the Union was an unfair labor practice
committed which, in turn, started the 10(b) period.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Public
Service Company of Colorado, Denver, Colorado, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Subcontracting unit work without bargaining
with the Union.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent was originally charged with certain additional viola-
tions of the Act in Cases 27–CA–11683 and 27–CA–11698. The al-
legations contained therein were disposed of by private resolution
and, on December 31, 1991, the Regional Director approved with-
drawal of these complaints (G.C. Exh. 1h).
2 All dates herein refer to 1990 unless otherwise indicated.
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to honor valid dues-checkoff
authorizations submitted by bargaining unit employees.
WE WILL NOT subcontract unit work without first
notifying and bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL offer to Ronald Hill, James Johnson, and
Michael O’Callaghan immediate and full reinstatement
to their former jobs, displacing, if necessary any re-
placements, or if their jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges as regular em-
ployees, and WE WILL make them whole for any loss
of pay suffered as a result of the discrmination against
them.
WE WILL on demand offer to bargain with the Union
over any subcontracting out of unit work.
WE WILL restore the subcontracted work in issue in
this case to the bargaining unit described in the collec-
tive-bargaining agreement.
WE WILL honor the dues-checkoff authorizations for
Hill, Johnson, and O’Callaghan and remit any de-
ducted moneys to the Union, including that deducted
from backpay.
PUBLIC SERVICE COMPANY OF COLO-
RADO
Barbara E. Greene, Esq., for the General Counsel.
Marla S. Petrini and Mary Will (Kelly, Stansfield &
O’Donnell), of Denver, Colorado, for the Respondent.
Joseph M. Goldhammer, Esq. (Brauer, Buescher, Valentine
Goldhammer & Kelman), of Denver, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case,1 was tried before me at Denver, Colorado, on January
14 and 15, 1992,2 pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board for
Region 27 on May 31, 1991, and which is based on a charge
filed by International Brotherhood of Electrical Workers,
Local 111 (the Union) on March 27, 1991. The complaint al-
leges that Public Service Company of Colorado (the Re-
spondent) has engaged in certain violations of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act).
Issues
(1) Whether since on or about October 13, Respondent has
failed and refused to meet and bargain with the Union con-
cerning wages, hours, and other terms and conditions of em-
ployment;
(2) Whether since on or about same date, Respondent has
refused to honor dues-checkoff authorizations of unit em-
ployees Ronald Hill, James Johnson, and Michael Callaghan.
(3) Whether since on or about December 14, the Respond-
ent has unilaterally contracted out unit work that had been
done by the three employees named above for the purpose
of laying off said employees.
(4) If Respondent engaged in one or more of the acts in
paragraphs 1–3 above, whether Respondent violated the Act.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, the Charging Party, and the Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a corporation which operates
as a public utility in the generation, transmission, distribu-
tion, and sale of electricity and the distribution and sale of
natural gas, with its headquarters located in Denver, Colo-
rado. Respondent further admits that annually in the course
and conduct of its business, that its gross volume exceeds
$250,000 and that annually it purchases and receives goods
and material valued in excess of $50,000 directly from points
and places outside the State of Colorado. Accordingly Re-
spondent admits, and I find, that it is an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Brother-
hood of Electrical Workers, Local 111 is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. Introduction
On December 14, Respondent’s temporary employees
Ronald Hill, James Johnson, and Michael O’Callaghan were
terminated from their jobs. The essential dispute in this case
concerns the nature of the work the three had been perform-
ing for Respondent; if it was bargaining unit work, then not-
withstanding the ‘‘temporary’’ status under which they were
463PUBLIC SERVICE CO.
3 A wholly owned subsidiary of Respondent, West Gas has a sepa-
rate collective-bargaining relationship with the Union, and is party
to a separate contract. West Gas is involved in the transmission of
gas while Respondent is involved in the distribution of gas and elec-
tricity. (Tr. 24–25.) Whereas West Gas has about 200 bargaining
unit employees, Respondent has between 2600 to 2700 bargaining
unit employees. Both these units cover operating, production, and
maintenance employees (OP&M).
4 As I understand the testimony, the refueling stations and service
centers are different names for the same operation. Accordingly, I
have used the terms interchangeably.
initially hired, other questions and issues arise to be consid-
ered in light of the parties’ collective-bargaining agreement
which has been admitted into evidence as General Counsel’s
Exhibit 2. If the three employees were not performing bar-
gaining unit work, the inquiry is ended and the case should
be dismissed. To decide this important threshold question, I
must of course consider carefully the testimony of Hill, John-
son, and O’Callaghan describing the work they were doing
and the testimony of their supervisor, Michael Gutierrez,
who hired them, with respect to the same subject. In addi-
tion, I will review the testimony of other witnesses who per-
formed some or all the work in issue before Hill, Johnson,
and O’Callaghan were hired. All this will make more sense
in the context of relevant background which is essentially un-
disputed.
2. Background
a. Respondent’s business
As noted above, Respondent is a public utility subject to
close state regulation, and according to Respondent witness
Gutierrez, limited to 14-percent profit. Sometime in the mid-
to late-1980s, Respondent elected to explore the possibility
of branching out into a separate but related businesses in-
volving the sale of natural gas as fuel for vehicles (NGV).
Described by Gutierrez as nontraditional for a public utility,
this program first needed the consent of the state Public Util-
ity Commission to get underway. Then because this aspect
of Respondent’s business would be unregulated, Respondent
needed to decide whether it would engage in this new busi-
ness or whether a related business entity would be formed
to undertake the work. This latter question was also impor-
tant because Respondent maintained a collective-bargaining
relationship with the Union dating from 1946; if a new com-
pany was to be formed, Respondent anticipated that it would
be nonunion.
During the chronology involving the facts and cir-
cumstances of this case, as recited below, all these prelimi-
nary questions were resolved. In addition, Respondent hired
qualified employees with appropriate background and skills
to supplement Respondent’s bargaining unit employees who
from time to time were loaned to this new project. Also at
certain times, independent contractors, both union and non-
union, were brought into this nontraditional endeavor to fur-
ther supplement Respondent’s work force.
By the late 1980s and early 1990s new fueling stations
were built, some on land owned by Respondent and some on
land owned by others. The jobs of building and subsequently
maintaining up to 15 fueling stations constitute the bulk of
the work in controversy in this case. By comparison, the
work of converting a number of vehicles to use natural gas
as fuel plays little or no role in this case.
Respondent resolved the questions and performed the tasks
recited above, while at the same time performing its tradi-
tional role as a public utility, where demands for its services
increased with the extremes of weather. Clearly the uncer-
tainties inherent in a new project like that described cannot
be ignored.
b. Certain key employees
So far as the instant case is concerned, a key employee is
Gutierrez, employed by Respondent for 16 years. A high
school graduate with about 2 years of technical school train-
ing, Gutierrez rose rapidly in the company. Beginning as an
apprentice for gas control equipment—a bargaining unit posi-
tion—he advanced to repairman, then to technician in gas
utilization and employee in the testing lab. For 3 years, he
worked as an agent for Western Gas Supply Co. (West
Gas).3
In the late 1980s Gutierrez was asked by his superiors to
work on the NGV program on a temporary basis, as the tech-
nical coordinator, a supervisory position. Volunteers were so-
licited from Respondent’s bargaining unit employees includ-
ing West Gas, to work with Gutierrez on this new project.
Answering the call for volunteers were three persons who
testified for the General Counsel, Rand Myers and Ronald
Witman, current employees with West Gas, but no longer as-
sociated with the NGV program, and Bruce Lawler, now an
employee of the Union.
Because all three of these witnesses were selected from the
ranks of OP&M bargaining unit employees to perform bar-
gaining unit work on the project under the supervision of
Gutierrez, and ultimately were replaced by Hill, Johnson, and
O’Callaghan in early 1990, I examine in detail the testimony
of Myers, Witman, and Lawler as to what work they were
doing on the NGV program.
Myers (a West Gas employee) began working on the NGV
program in the summer of 1989 and stopped in December
1989. He worked on the NGV project 3 days per week and
was paid for this work out of a special account maintained
by Respondent. The 2 remaining days per week Myers
worked as a field operator at the lighting Gas Storage facil-
ity. Myers did construction work on the new MGV service
centers4 during his months on the project. Located mostly in
and around the Denver area, these service centers all had
compressors and computers on which Myers performed elec-
trical and other work. Other electrical work performed by
Myers consisted of bringing power to the various refueling
stations. While Myers worked on the MGV project, he was
classified as a natural gas vehicle mechanic; however, he did
no work converting vehicles to natural gas.
In the course of performing his duties on the NGV project,
Myers worked with Witman who did essentially the same
job. Both of them also worked on the NGV project with
other Respondent bargaining unit employees such as welders
and mechanics.
Myers described employees from independent contractors
also working on the NGV project while he was there. For
example, Sturgeon Electric, a union employer, supplied em-
ployees for complex occasional electric problems. Total
fuels, a nonunion employer, supplied employees to engage in
the continuous program of rebuilding compressors.
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Gutierrez first testified on direct examination that he did not re-
call telling Johnson anything about an opportunity to rollover into
a job with a new company after 6 months (Tr. 375). Then on cross-
examination by Charging Party, Gutierrez reiterated that he never en-
couraged any of the three to believe they would get a permanent job,
‘‘especially with Public Service.’’ (Tr. 419.) Under further cross-ex-
amination, Gutierrez testified he told the three ‘‘there’s a possibility
of opportunities,’’ i.e., to work with the new company then being
formed or continued employment with Respondent (Tr. 433–434).
6 In concept, Natural Fuels was to be a nonunion company. The
Union did not agree with that concept and attempted to organize
Natural Fuels employees. After an election Natural Fuels remains
nonunion, the union having lost the election by a single vote.
After Hill, Johnson, and O’Callaghan were hired, they
consulted from time to time with Myers and Witman with re-
spect to job-related questions.
Myers returned to his normal bargaining unit work in De-
cember 1989, after his supervisor told him Respondent was
hiring employees from outside to perform the work he had
been doing for the NGV program.
In September 1988, Witman was asked to volunteer for the
NGV project on a 3-day-per-week basis. His assignment with
Myers was to maintain the compressor sites and stations. At
that time Witman had been a 12-year employee for West Gas
as a field operator. He also helped construct some of the new
stations.
Witman left the project in late January because he was
needed back at his former position on a full-time basis and
because Respondent was then in the process of hiring Hill,
Johnson, and O’Callaghan.
Finally, as to Lawler, he worked for Respondent during
two periods of employment, 1974–1978 and 1982–1989.
During his first period, he was ultimately classified as an un-
derground storage operator and was a member of the OP&M
unit. Most of his work during this early stage of Respond-
ent’s alternate fuels program involved maintenance of a com-
pressor at a single service center.
3. Employment of Hill, Johnson, and O’Callaghan
On or about January 21, Gutierrez hired Hill as an inspec-
tor of measurement and control. Hill had 22 years of training
and experience in electrical technology working in the fields
of gas and electricity. Of this time, 13-1/2 years had been
spent in the military with the rest in the private sector. Hill
has no college education or degrees.
Before he was hired by Gutierrez, Hill had worked for Re-
spondent as an independent contractor for several months
during late 1989. His primary job then was as an electrical
worker with a specialty involving computers, programing,
and systems design. His work included sales and service of
personal computers. After he was employed by Respondent,
a portion of his work continued to deal with computers, but
not with computer programing. In particular, Hill worked
with Tec-21 computers. When they needed repairs, Hill
pulled the circuitry and sent it to the manufacturer. Occasion-
ally a computer panel would need replacement and Hill could
do that job, and so could, according to Hill, any electrician.
Finally, Hill did some assembling of computers, using manu-
als prepared by the manufacturers.
Besides computer-related work, Hill also did construction
work, first with Witman and later in 1990 with Johnson and
O’Callaghan. In this work, Hill took direction from blue-
prints prepared by a company called Centennial Engineering.
Hill was paid $18.63/hour. This is to be compared to the
wages earned by Johnson and O’Callaghan who were paid
$16.58/hour. The parties stipulated that $16.58/hour is iden-
tical to pay grade 24 which was paid to Myers and Witman
during all times material to this case. (Tr. 286–288.) Pay
grade 24 was one of the pay grades set forth in the collec-
tive-bargaining agreements between the Union and Respond-
ent and West Gas. (Although separate agreements existed,
the pay scales for the two OP&M units were identical.)
In late February or early March, Gutierrez placed a news-
paper ad in a local paper. The ad reads as follows (G.C. Exh.
6):
Mechanic
Natural Gas
Vehicle Station Mechanic
Public Service Company of Colorado is seeking a tem-
porary Natural Gas Vehicle Station Mechanic. Will be
involved with the construction, operation, and mainte-
nance of Natural Gas Vehicle fueling and compression
equipment. Must have experience with maintenance of
high pressure gas compressors and related equipment.
Must demonstrate the ability to read wiring and control
diagrams and troubleshoot electrical control circuit sys-
tems. Should also have experience with high pressure
stainless steel tubing. Salary is $16.50 per hour. If you
are qualified, please apply in person at 1400 Glenarm
Place, Suite 100, between 9:00 a.m. and 1:00 p.m., dur-
ing the week of January 22–26.
An Affirmative Action/
Equal Opportunity Employer
About 15 to 20 persons responded to this ad and from this
group 6 applicants were interviewed, and only two were
hired, Johnson and O’Callaghan.
Unlike Hill whose independent contract with Respondent
had expired or was about to expire when he was hired, John-
son and O’Callaghan were employed when they responded to
the ad above. In fact, Johnson left a 5-year job and
O’Callaghan left a 7-year job to work for Respondent. Be-
fore accepting Gutierrez’ offer, both inquired as to the dura-
tion of the job. Both Johnson and O’Callaghan, as well as
Hill, gave essentially the same account of their hiring inter-
views with Gutierrez. They were all told that except for paid
Federal holidays off, they were to have no other benefits, in-
cluding no health insurance. This information was of particu-
lar concern to O’Callaghan whose young son had a chronic
medical condition. However, Gutierrez added to all three in
separate interviews that after 6 months they would become
permanent and regular employees of Respondent, or they
would be afforded an opportunity to go with a new company,
then in the process of being formed.5 In fact sometime dur-
ing the second quarter of 1990, a company called Natural
Fuels was formed.6 Respondent owned 80 percent of Natural
Fuels and in June, Gutierrez’ supervisor directed him to
begin work on a draft agreement between Respondent and
Natural Fuels for the latter to perform the maintenance and
any remaining construction work on Respondent’s natural
gas fueling stations and the equipment such as computers and
compressors contained therein. Gutierrez prepared the draft
465PUBLIC SERVICE CO.
7 This letter explains the delay between the time the Union re-
ceived the executed dues-checkoff cards and the submission of these
cards to Respondent’s payroll department.
agreement as ordered (R. Exh. 2). By December, a formal
agreement between Respondent and Natural Fuels had been
executed (C.P. Exh. 3).
Allegedly because Natural Fuels employees were to per-
form the work done by Hill, Johnson, and O’Callaghan, they
were terminated. However, between employment and termi-
nation other relevant events occurred. Returning briefly to
their hiring, I note that Hill, Johnson, and O’Callaghan all
agree that there was no mention of membership in a union,
or performance of bargaining unit work. In fact, the subject
of the Union or its collective-bargaining agreement was not
to become an issue until Hill and the others had worked for
several months.
Sometime in the late summer, Hill, Johnson, and
O’Callaghan were all contacted by union stewards who noted
the three appeared to be performing bargaining unit work.
After the three confirmed the stewards’ suspicions as to their
job assignments and further expressed no reluctance at join-
ing the Union, they contacted Nancy Sheehan, senior assist-
ant business manager of the Union, and General Counsel wit-
ness at hearing, for the purpose of getting more information.
In early October, Hill, Johnson, and O’Callaghan filled out
applications to join the Union and executed dues checkoffs
(G.C. Exhs. 5, 7, and 8) which the Union submitted to Re-
spondent.
On November 28, Sheehan received a phone call from a
Respondent clerical employee, informing Sheehan that the
payroll dues-checkoff cards would not be honored. Sheehan
then wrote a letter to Walt Wagner, Respondent’s labor rela-
tions representative.7 The letter reads as follows (G.C. Exh.
3):
International Brotherhood of Electrical Workers
Local Union No. 111
Denver Labor Center
360 Acoma Street, Room 305
Denver, Colorado 80223
November 28, 1990
Mr. Walt Wagner
Senior Labor Relations Representative
Public Service Company of Colorado
P.O. Box 840
Denver, CO 80201
November 28, 1990
Dear Mr. Wagner:
This letter serves as a confirmation of our telephone
conversation regarding the Natural Gas Vehicle Me-
chanics at Public Service Company of Colorado.
As I stated in that conversation, after it became clear
that these three mechanics were doing bargaining unit
work that had been performed in the past by West Gas
employees, specifically Mr. Ron Witman, from Mesa
Facility, and Mr. Grant Myer, from Leyden Mine Facil-
ity, it was then that I had these three employees sign
membership cards for Local 111 and Public Service
Company of Colorado Dues Checkoff Form. At this
time, it was not clear to this Local Union what depart-
ment and division these bargaining unit members were
working under.
On November 8, 1990, at 1:00 p.m., Chief Steward,
Mr. James Burden and myself had a labor-Management
Meeting with Mr. Gerry Venard and at that time, in-
quired as to the department status of these employees.
Although Mr. Venard was cognizant of these three em-
ployees working on 3rd & Lipan’s property, he was not
sure as to where they belonged, but would investigate
and get back to me. It was then, on November 9, 1990,
that I contacted you and notified you of the situation.
This morning I was contacted by Debbie, from Pub-
lic Service Company of Colorado’s Payroll Department,
notifying me that the payroll dues checkoff cards sent
in for these employees are not to be processed for the
month of December and to be returned to you.
I attempted to contact you, Monday, November 26,
1990, and instead spoke to Mr. Charles Rodgers regard-
ing the Company’s position on the department and divi-
sion, the permanent status of these employees and bene-
fits surrounding this status and any other items that
need to be discussed and/or negotiated.
I would appreciate hearing from you as soon as pos-
sible, in order to take any necessary measures to ade-
quately represent these Union members, in the event
there is a dispute.
I once again thank you for your cooperation in this
matter.
Very truly yours,
/s/
Nancy M. Sheehan
Senior Assistant Business Manager
NMS: cb/opeiu#5
cc: Mason
Burden
Hubbard
Johnson
O’Callaghan
Miller
Wagner was called as an adverse witness by General
Counsel. He testified that the dues checkoffs had not been
honored because Hill, Johnson, and O’Callaghan were not
doing exclusively bargaining unit work and therefore they
were not covered by the collective-bargaining agreement. In
addition, Wagner said, the three employees were to be laid
off in the near future (Tr. 20). Wagner explained all this to
Sheehan in a telephone conversation on December 4.
While the controversy over the status of the three employ-
ees continued between Respondent and the Union, working
conditions for the three began to change. In mid-November,
Hill, Johnson, and O’Callaghan had a conversation with
Gutierrez at one of the refueling stations. The conversation
was initiated by the three employees because they wished to
clarify Respondent’s priorities as to their work. Specifically,
they asked Gutierrez whether they should concentrate efforts
on maintenance of the stations already constructed or on con-
struction of new stations. Implicit in the question was their
inability to perform both activities competently as increas-
ingly, they had been called on to do. To this question,
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I find no credible evidence of any work slowdown. First Mike
Boose never testified, and the three denied, any such activity. I fail
to see what they might gain by a slowdown. I also doubt that Gutier-
rez truly believed the three employees were so engaged. Even as
they were about to be terminated, they were characterized by Gutier-
rez as ‘‘exceptional employees,’’ and referred to Respondent’s per-
sonnel office for new job leads. About 1 month before hearing,
Gutierrez even gave Johnson a positive job recommendation. In any
event the alleged slowdown played no role in the terminations of the
three (Tr. 454).
9 At least in the short run, Gutierrez admitted that Respondent’s
expected cost savings by subcontracting to Natural Fuels had not
been realized. Accordingly, Gutierrez renegotiated the contract with
Natural Fuels, the results of which remain to be seen. (Tr. 446.)
Gutierrez answered that their job was to maintain the stations
and to get the construction done as soon as possible and his
priority was to get rid of the three employees as soon as pos-
sible. No reply was made to Gutierrez’ statement. Gutierrez
testified that he made this blunt statement (or or about Octo-
ber 23) to the three employees as a kind of favor to them
so they could see handwriting on the wall that their termi-
nations were imminent (Tr. 456–457).
About this same time, Johnson overheard Gutierrez talking
over the phone to someone saying these guys are playing
‘‘union games.’’ When he hung up, Johnson stated he would
appreciate it if Gutierrez would not stab him in the back as
he and the others were working as fast and as safely as pos-
sible. Gutierrez told Johnson that Mike Boose, a supervisor
at one of the fueling stations, had been complaining that
Johnson, Hill, and O’Callaghan had been deliberately work-
ing at a slow pace. Gutierrez told Johnson he knew about
this ‘‘union stuff.’’ Gutierrez testified that he felt a work
slowdown was in progress (Tr. 396).8
On or about December 4, Hill, Johnson, and O’Callaghan
met with Gutierrez and his supervisor, Kin Hooker, who did
not testify. Gutierrez told the three that they would be termi-
nated just as soon as the Natural Fuels contract was signed.
The three were then referred to Respondent’s personnel de-
partment to inquire whether any jobs were available for per-
sons with their qualifications. None were. Then on December
11, Gutierrez told the three employees that this was their last
day of work. According to Gutierrez, there was an economic
advantage to Respondent in contracting out the work to Nat-
ural Fuels. That is Natural Fuels only charges Respondent for
the time that Natural Fuels employees are actually working
on site (Tr. 438).9
B. Analysis and Conclusions
1. Did Hill, Johnson, and O’Callaghan share a
community of interest with OP&M bargaining
unit employees
According to Gutierrez, he did not hire the three named
above as bargaining unit members. Rather they were hired as
technical employees with specialized skills which would
keep them out of the unit. To ascertain whether Gutierrez
achieved his goal, I begin with basic Board law as recited
by Prof Morris, in I Developing Labor Law, p. 416 (2d Ed.
1983):
Community of interest is the fundamental factor in
bargaining-unit determination involving previously un-
represented employees. . . . In Kalamazoo Paper Box
Corp.,15 a unit-severance case, the Board enumerated
the factors to be considered in determining community
of interest apart from other employees:
[A] difference in method of wages or compensation;
different hours of work; different employment benefits;
separate supervision; the degree of dissimilar qualifica-
tions, training and skills; differences in job functions
and amount of working time spent away from the em-
ployment of plant situs . . .; the infrequency of lack of
contact with other employees; lack of integration with
the work functions of other employees or interchange
with them; and the history of bargaining.16
15 136 NLRB 134, 49 LRRM 1715 (1962). Cf. Olincraft, Inc., 179
NLRB 414, 72 LRRM 1337 (1969) (refusing to sever truck drivers
from a production and maintenance unit because of similarity of em-
ployee duties and interests).
16 136 NLRB at 137. While the Kalamazoo case dealt specifically
with severance of truck drivers from a production unit, the principles
announced in that case have been given general application in cases in-
volving unit severance and in cases involving previous unrepresented
employees.
See also NLRB v. Joe B. Foods, 953 F.2d 287, 297 (7th Cir.
1992); Armco, Inc. v. NLRB, 832 F.2d 357, 362 (6th Cir.
1987).
By the standards described in the above-cited cases, I have
little difficulty in finding that Hill, Johnson, and O’Callaghan
were performing bargaining unit work and were therefore
properly considered to be members of the OP&M unit de-
scribed in the collective-bargaining agreement. As noted
above, the agreement has been received into evidence and
describes the relevant unit as follows (G.C. Exh. 2, art. 1,
p.2):
ARTICLE 1
RECOGNITION
1. For purposes of collective bargaining, Company
hereby recognizes Union as the exclusive representative
of all Operating, Production, and Maintenance employ-
ees of the Gas and Electric Operating Departments, in-
cluding Appliance Servicemen of the Commercial De-
partment, Storekeepers and Warehousemen of the Ac-
counting Department, Custodians, and Health Physics
Technicians at Fort St. Vrain; all Electric Distribution
Operations Dispatchers, Dispatch Coordinator, Gas Op-
erations Center Dispatchers, Lead Dispatcher in Gas
Operations Center, Division Dispatchers in the Boulder
and Western Regions and Senior Clerk-Dispatcher in
the Mountain Region and all Substation and Line
Equipment Test employees; but excluding office cleri-
cal employees, managerial employees, professional em-
ployees, confidential employees, guards, part time em-
ployees doing miscellaneous work, all other employees
of the Commercial and Accounting departments, all en-
gineering and other technical employees and all super-
visors as defined in the Act and all other employees.
2. Wherever the words ‘‘employee’’ and ‘‘employ-
ees’’ are used in the Agreement they shall be construed
to refer only to employees included in the bargaining
unit as described in Section 1 of this Article, unless
otherwise noted herein.
467PUBLIC SERVICE CO.
10 Because I find no independent judgment or specialized training
present in the work performed by Hill, et al., I specifically reject any
claim that they should be excluded from the unit on the grounds they
are ‘‘technical employees.’’ See II Morris, Developing Labor Law,
supra at 1485 and cases cited at fn. 328.
3. This Agreement shall apply only to employees of
the Company described in Section 1 of this Article, and
shall embody general working rules, hours of work,
rates of pay, grievance procedure, method of arbitration,
and other conditions of employment as hereinafter out-
lined.
4. Positions outside bargaining unit. Company re-
serves the right to assign employees, when agreeable to
employee, to supervisory or other positions outside this
bargaining unit, which assignment if made, shall not be
subject to the provisions of this Agreement.
Without repeating the evidence summarized above, I find
that the skills and duties of Hill, Johnson, and O’Callaghan
were substantially equivalent to unit employees such as
Myers and Witman who came before the three or in the case
of Witman overlapped with Hill’s tenure. Basically, the three
employees were performing construction and maintenance in-
cluding laying of pipe, electrical work, painting, and mechan-
ical works. The fact that Hill, et al., carried pagers while
other unit employees did not, or had slightly greater authority
to write purchase orders than other unit employees is of little
consequence.
The pay of Hill, et al., was either equivalent to or slightly
greater than Myer and Witman. The supervisor, Gutierrez,
was the same for all employees, assigned to work on the
NGV program during the time in question. Working condi-
tions, work rules, day shift, hours of work, and paid holidays
were all the same. As to training and education, I have re-
ferred to Hill’s education above. Johnson is licensed by the
FAA as an aircraft mechanic, and O’Callaghan has a bach-
elor’s degree in Service Management with a State of Colo-
rado teaching credential in vocational training. These dif-
ferences in background do not support a conclusion different
from the one I have reached. And Hill, Johnson, and
O’Callaghan’s desire to be part of Respondent’s OP&M unit
must be considered as a factor supporting my conclusion.
Of course, the three temporary employees did not receive
the same benefits as regular employees. Even in the absence
of a specific provision in the collective-bargaining agree-
ment, this difference in benefits would not affect the status
of employees as members of the bargaining unit. See United
States Aluminum Corp., 305 NLRB 719 (1991). Here how-
ever, there is a specific provision of the collective-bargaining
agreement defining ‘‘temporary employees’’ (G.C. Exh. 2,
art. 3, sec. 1, p. 6):
ARTICLE 3
DEFINITIONS
1. Temporary Employee. A temporary employee is
one hired for a specific job of limited duration not to
exceed six (6) months unless a longer period is agreed
to by Company and Union in each specific case. An
employee may be transferred from temporary to regular
employee status as defined in Section 2 below. The last
continuous time served as a temporary employee shall
be considered as part of the probationary time required
in Section 2. Notwithstanding any other provisions in
this Agreement to the contrary, temporary employees
shall not be entitled to vacation allowance, sick leave
allowance, medical insurance, excused absence, or per-
sonal leave days.
It is clear from the above, that a temporary employee can
be either bargaining unit or nonbargaining unit. In this case
the three allegedly temporary employees drove Respondent
vans, completed Respondent’s driver training course, carried
ID cards like unit employees, and wore Respondent hardhats
and raingear. They worked with the normal tools of elec-
tricians, mechanics, and other unit employees and for all of
the reasons stated above, I find that Hill, Johnson, and
O’Callaghan share a community of interest with Respond-
ent’s regular OP&M unit described above. See Capital Insu-
lation Co., 233 NLRB 902 (1977).10
Finally, I note the testimony of Respondent official Walt
Wagner, who testified Respondent refused to process the
dues checkoffs for Hill, et al., because the work they were
performing was not exclusively bargaining unit work (empha-
sis added) (Tr. 20). This suggests that even Respondent
would concede that the three were dual function employees,
i.e., employees who spend part of their time working within
a bargaining unit and the balance of their time working for
the same employer at tasks outside of the bargaining unit. II
Morris, Developing Labor Law, supra at 1484. Assuming for
the sake of argument only that Hill, et al., were dual-function
employees, I still find they should be included within Re-
spondent’s OP&M unit as their greater community of interest
lies there. See Oxford Chemicals, 286 NLRB 187 (1987);
Alpha School Bus Co., 287 NLRB 698 (1987).
2. Did Respondent violate Section 8(a)(5) and (1) of the
Act as alleged
a. The alleged refusal to honor the dues-checkoff
authorizations
At p. 18 et seq., of its brief, Respondent contends that
even if Hill, et al., are found to be bargaining unit employ-
ees, it makes no difference to the ultimate outcome of the
case. As I understand Respondent’s argument, it first refers
to temporary employees as defined in the collective-bargain-
ing agreement and recited above (G.C. Exh. 2, art. 3, par.
1). Then Respondent notes the testimony of Union Official
Sheehan that the Union usually has no problem in extending
the time period worked of a union temporary employee until
a project is completed. To be more specific, Sheehan testified
that when Respondent has given proper notice to the Union
that a temporary employee’s 6-month tenure is about to ex-
pire ‘‘nine out of ten [times] we sit down and we agree to
an extension.’’ (Tr. 343.)
Thus, Respondent concludes that the Union would have
agreed to an extension of temporary employee status for Hill,
et al., if Respondent had acted correctly and as of December
14, they could still have been laid off with impunity. I reject
this harmless error/de minimis’’ contention based on specula-
tion, and note that no Board cases are cited in support of it.
Moreover, this argument ignores the dues-checkoff compo-
nent of the case.
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 At pp. 10–11 of its brief, Respondent raises the issue of collat-
eral estoppel and res judicata. These are affirmative defenses not
raised by Respondent in its answer (G.C. Exh. 1e). It is not nec-
essary to decide whether Respondent’s reference to these issues dur-
ing hearing suffices to put General Counsel on notice (Tr. 59–61).
I find that Respondent has failed to meet its burden of proof to show
these defenses apply to this case.
12 At p. 19 of her brief, General Counsel cites Westinghouse Elec-
tric Corp., 150 NLRB 1575, 1576 (1965). As I read that case, it ap-
plies only in the absence of a specific provision of the contract pro-
hibiting unilateral subcontracting under certain conditions. Compare
Shell Oil Co., 166 NLRB 1064 (1967), where a contractual clause
existed which implicitly recognized the employer’s right to act uni-
laterally.
The dues checkoff is a device whereby the employer de-
ducts union dues directly from the employee’s pay and re-
mits the amount to the union. Its primary value to the Union
is administrative convenience; the time and effort which oth-
erwise would have to be spent making individual monthly
collections is eliminated. II Morris, Developing Labor Law,
supra at 1406.
In the instant case, there is no issue as to the validity of
the dues-checkoff authorizations, that is, no claim they were
coerced or otherwise invalid. Union security, including dues
checkoff, is a mandatory subject of bargaining under Section
8(a)(5) and (d). Textron, Inc. v. NLRB, 401 F.2d 205, 210
(4th Cir. 1968). An employer who is a party to an existing
collective-bargaining agreement may not modify any term or
condition of employment established by that agreement with-
out first obtaining the union’s consent. O.W. Hubbell &
Sons, Inc., 305 NLRB No. 138 (Dec. 23, 1991) (not reported
in Board volumes). This rule includes the dues checkoff
which the parties agreed to in the collective-bargaining
agreement. (G.C. Exh. 2, art. 2, sec. 4, p. 4.)
Because Respondent refused to abide by the contract and
made a unilateral change, I find that on October 13, the date
that Hill, Johnson, and O’Callaghan voluntarily executed
their dues-checkoff authorizations, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act. Cf. Presbyterian Hospital,
241 NLRB 996 (1979); R. T. Jones Lumber Co., 303 NLRB
841 (1991). See also Sweet Kleen Laundry, 302 NLRB No.
121 (Apr. 30, 1991) (not reported in Board volumes).11
b. The alleged unlawful subcontracting
Article 19, section 9 of the collective-bargaining agree-
ment (G.C. Exh. 2, p. 56) reads as follows:
(a) The Company agrees that it will not contract any
work which is ordinarily done by its regular employees
for the specific purpose of laying off or demoting such
employees. In contracting out work for any major
project which is ordinarily done by employees and has
not ordinarily been contracted out in the past, the Com-
pany shall require in it’s contracts that the contractor
compensate its employees having comparable job clas-
sifications to those covered in this Agreement at a level
at least equal to the wage scale in Exhibit ‘‘B’’ herein
for such job classification or in accordance with any
collective bargaining agreement between the contractor
and its employees.
(b) In all new construction work where outside con-
tractors may be employed it will be the established pol-
icy of the Company to have such work done under
Union conditions if possible.
(c) The Company agrees that all contracts to which
this section applies shall require the contractor to pro-
vide documentation of wage rates the contractor paid to
its employees who performed work under the contract
to the Company showing the contractor’s compliance
with the provisions of the Labor Agreement mandated
by this section upon written request from the Union. If
a contractor fails to comply with the Labor Agreement
provisions mandated by this Section, the Company
agrees to take action.
Because I found above that Hill, Johnson, and
O’Callaghan were bargaining unit employees covered by the
collective-bargaining agreement, the next question is whether
they are covered by Section 9 of the agreement recited
above. That is, were they regular employees as of December
14. I find that they were. Under article 3, section 1, p. 6
(G.C. Exh. 2) recited above, a temporary employee is an em-
ployee hired for a specific job not to exceed 6 months.
Through no fault of the Union, Hill, et al., worked in excess
of 6 months. Therefore, I find they became regular employ-
ees according to the contract after completing 6 months’ em-
ployment and after Respondent failed to give the Union
proper notice that bargaining unit employees had been hired.
Because they were laid off as a result of Respondent’s sub-
contracting to Natural Fuels the work Hill, et al., had been
doing, the subcontracting was prohibited under the contract.
At this point, it is helpful to refer to the testimony of Re-
spondent’s witness Gary Goodwin, Respondent’s manager of
employee relations. According to Goodwin, in a negotiating
session on July 2, he told Union Official Mason, who did not
testify, that Respondent would be subcontracting unit work
to a new company, Natural Fuels. This statement to Mason
was made at a time when there is no evidence to show that
Mason was even aware of Hill, Johnson, and O’Callaghan,
or that they were performing bargaining unit work, or that
they would exceed their 6 months’ tenure as temporary em-
ployees and therefore become regular employees. For these
reasons, I find that the July 2 statement to Mason was not
proper notice of Respondent’s intent to make a unilateral
change in the contract. See NLRB v. Walker Construction
Co., 928 F.2d 695 (5th Cir. 1991). It is also unnecessary to
determine how, if at all, the case might be affected had the
notice to Mason been valid. More specifically, I need not be
concerned with any issue of Union waiver of its right to de-
mand bargaining.
Because the collective-bargaining agreement specifically
prohibited subcontracting where the result is layoff of regular
employees, I find that Respondent violated Section 8(a)(1)
and (5) of the Act as alleged by laying off Hill, Johnson, and
O’Callaghan as of December 14.12 In sum, I find the sub-
contracting in this case has resulted in a substantial adverse
effect on bargaining unit employees, i.e., Hill, Johnson, and
O’Callaghan. Accordingly, Respondent’s failure to give ade-
quate notice to the Union with an opportunity to demand bar-
gaining has violated the Act. See Equitable Gas Co., 245
NLRB 260 (1979), enf. denied 637 F.2d 980 (3d Cir. 1981).
469PUBLIC SERVICE CO.
13 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
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.’’
CONCLUSIONS OF LAW
1. Public Service Company of Colorado is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
111 is a labor organization within the meaning of Section
2(5) of the Act.
3. At all times relevant herein, International Brotherhood
of Electrical Workers, Local 111 was the exclusive represent-
ative of all the employees in the appropriate unit set forth
below for purposes of collective bargaining with respect to
wages, rates of pay, hours of employment, and other terms
and conditions of employment within the meaning of Section
9(a) of the Act:
ARTICLE 1
RECOGNITION
1. For purposes of collective bargaining, Company
hereby recognizes Union as the exclusive representative
of all Operating, Production, and Maintenance employ-
ees of the Gas and Electric Operating Departments, in-
cluding Appliance Servicemen of the Commercial De-
partment, Storekeepers and Warehousemen of the Ac-
counting Department, Custodians, and Health Physics
Technicians at Fort St. Vrain; all Electric Distribution
Operations Dispatchers, Dispatch Coordinator, Gas Op-
erations Center Dispatchers, Lead Dispatcher in Gas
Operations Center, Division Dispatchers in the Boulder
and Western Regions and Senior Clerk-Dispatcher in
the Mountain Region and all Substation and Line
Equipment Test employees; but excluding office cleri-
cal employees, managerial employees, professional em-
ployees, confidential employees, guards, part time em-
ployees doing miscellaneous work, all other employees
of the Commercial and Accounting departments, all en-
gineering and other technical employees and all super-
visors as defined in the Act and all other employees.
4. During all times relevant to this case Hill, Johnson, and
O’Callaghan performed bargaining unit work and were there-
fore covered by the collective-bargaining agreement.
5. On October 13, Respondent violated Section 8(a)(1) and
(5) of the Act by making a unilateral change in the collec-
tive-bargaining agreement in that Respondent failed to proc-
ess valid dues-checkoff authorization for unit employees,
Hill, Johnson, and O’Callaghan.
6. Hill, Johnson and O’Callaghan became regular employ-
ees after 6 months’ employment as temporary bargaining unit
employees, when Respondent failed to give the Union timely
notice of their employment.
7. On December 14, Respondent violated Section 8(a)(1)
and (5) of the Act by unilaterally subcontracting unit work
that had been done by Hill, Johnson, and O’Callaghan, for
the purpose of laying off said regular employees.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
by making a unilateral change in the collective-bargaining
agreement by failing to process valid dues-checkoff author-
izations for unit employees Hill, Johnson, and O’Callaghan
and by unilaterally subcontracting unit work done by the
same three regular unit employees for the purpose of laying
off said employees, I shall recommend that Respondent be
ordered to cease and desist from such conduct. I shall also
recommend that Respondent be ordered to offer Hill, John-
son, and O’Callaghan immediate and full reinstatement to
their former jobs displacing, if necessary, any replacements
or, if these jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or other rights
and privileges as regular employees, and make them whole
for any losses of pay suffered as a result of the discrimina-
tion against them with backpay computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). See also Isis
Plumbing Co., 138 NLRB 716 (1962). I shall also rec-
ommend that Respondent be required to post an appropriate
notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Public Service Company of Colorado,
Denver, Colorado, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to honor dues-checkoff authorizations for unit
employees.
(b) Subcontracting unit work done by regular employees
for the purpose of laying off regular employees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Hill, Johnson, and O’Callaghan whole for any
loss of pay suffered as a result of the discrimination against
them in the manner set forth in the remedy section of this
decision.
(b) Offer to Hill, Johnson, and O’Callaghan immediate and
full reinstatement to their former jobs, as regular employees,
displacing, if necessary, any replacements or, if their jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges as
regular employees, said status beginning after 6 months of
their employment as temporary employees.
(c) On demand, offer to bargain with the Union over any
subcontracting out of unit work.
(d) Restore the subcontracted work in issue in this case to
the bargaining unit described in the collective-bargaining
agreement (G.C. Exh. 2).
(e) Honor the dues-checkoff authorizations for Hill, John-
son, and O’Callaghan and remit any deducted moneys to the
Union, including that deducted from backpay.
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 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
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.’’
(f) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amounts on backpay due under the terms of this rec-
ommended Order.
(g) Post at its refueling and service centers within the State
of Colorado copies of the attached notice marked ‘‘Appen-
dix.’’14 Copies of said notice on forms provided by the Re-
gional Director for Region 27, after being signed by the Re-
spondent’s representative, shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.