MASSACHUSETTS PORT AUTHORITY --

MASSACHUSETTS PORT AUTHORITY and LOCAL 103, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Case Nos. CAS-2184, UP-2357, April 17, 1979, 5 MLC 1844.

On May 13, 1977 Local 103, International Brotherhood of Electrical Workers (IBEW) filed a petition with the Labor Relations Commission (Commission) seeking clarification or amendment of a bargaining unit of the Massachusetts Port Authority (Massport) certified by the Commission in CR-3430. The IBEW also filed on May 13, 1977 a charge with the Commission alleging that Massport had engaged in practices prohibited by Sections 4(1) and (5) and 4(B) of G.L. Chapter 150A (the Law).

Pursuant to its authority under Section 6 of the Law the Commission conducted an investigation of the IBEW's charge and issued its own Complaint of Prohibited Practice on September 20, 1977. The Complaint alleged in pertinent part that Massport had unilaterally transferred bargaining unit work to the newly created position of Building Control Supervisors in violation of Sections 4(1) and (5) of the Law. The clarification petition and the unfair labor practice complaint were consolidated for hearing. On October 26, 1977 the IBEW moved to amend the Complaint to include allegations that the Building Control Supervisors are accretions to the existing bargaining unit and that Massport has refused to bargain with the IBEW regarding the wages, hours and conditions of employment of these positions or to apply to them the terms of the collective bargaining agreement. This motion was granted.

On October 14, 1977 Massport moved to dismiss the Complaint for failure to state a claim upon which relief can be granted and also moved to sever the clarification petition from the unfair labor practice charge. These motions were denied.

On November 7, 1977, Massport moved to dismiss the Complaint for lack of subject matter jurisdiction and also filed a substitute motion to sever. These motions were also denied.

Massport filed a timely Answer denying that its conduct violated Chapter 150A.

On October 25, November 21, November 22, and December 2, 1977 hearings were held at the Commission's offices in Boston. All parties were afforded full and fair opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Both parties submitted briefs which have been considered.

1.	Massachusetts Port Authority is an employer within the meaning of Section 1 of Chapter 760 of the Acts of 1962.
2.	Local 103, International Brotherhood of Electrical Workers is a labor organization within the meaning of Section 2(5) of the Law.
3.	The IBEW is the exclusive bargaining representative for certain employees of Massport including heating, ventilation and air-conditioning mechanics, filter mechanic trainees, and foremen.

History of Heating, Ventilating, Air Conditioning (HVAC) Work at Logan Airport

The Massachusetts Port Authority's Maintenance Department is responsible for maintaining the building structures at Logan Airport including the mechanical and electrical equipment in each building, the central heating and cooling systems, the water pumping station and the power station. In addition, the Maintenance Department contracts with private companies for such services as building cleaning, escalator and elevator repairs, and conveyor system repairs. Among the Maintenance Department personnel are the heating, ventilating, and air conditioning (HVAC) employees who report to the Building Maintenance Manager.

In 1968, Massport installed a Honeywell Selectographic Six (Selectographic Six), an electromechanical device which monitors the temperature at various locations throughout the Airport and controls various heating and air conditioning units. Initially, six panel operators monitored and operated the-Selectographic Six on a 24-hour basis, seven days a week. They performed no "hands-on" maintenance of HVAC equipment. Massport contracted with various service companies for all routine and emergency maintenance.

In March, 1971 Massport developed an in-house HVAC employee unit to perform all HVAC maintenance. The HVAC unit is made up of three job classifications: foreman, HVAC mechanic, and filter mechanic trainee. Local 103, International Brotherhood of Electrical Workers (IBEW) was certified as the exclusive representative for employees in this unit in 1974.

Operation of the Selectographic Six prior to October, 1976

The Selectographic Six was originally installed in the Airport Operations office on the fifth floor of what is now known as the "old" Tower building. The Building Maintenance Department, however, was located some distance away in the heating plant building. The Selectographic Six remotely controls on-off switches and adjusts valves and dampers at various "points". Each point is assigned a number which is recorded in a master book kept near the control panel of the machine. To monitor or control a particular point, the operator punches its number on the panel, along with the appropriate function button. The Selectographic Six also prints a chart of all temperature readings throughout the buildings at the Airport and a chart of temperature readings for one sensor over a period of time. Besides HVAC equipment, the Selectographic Six controls electrical systems and non-HVAC pumps. It has a telephone intercom to all buildings at the Airport.

Prior to June, 1976, employees of the HVAC unit worked Monday through Friday on two shifts: 7:00 a.m. to 3:30 p.m. and 3:00 p.m. to 11:00 p.m. The first shift consisted of a foreman, two mechanics and a filter mechanic trainee. There is only one HVAC mechanic on duty during the second shift.

The first duty of the day shift was to obtain a readout of the Selectographic Six to determine which units[1] were on and which were in alarm. The mechanics next turned on units which were scheduled to be turned on. They investigated the units which had triggered alarms and repaired them. In addition to repairs, they performed routine maintenance, such as greasing motors, oiling dampers, changing filters, checking valves, checking thermostat operations and changing seals. When not performing any of these functions, the mechanics monitored the Selectographic Six during which times they received telephone calls from Airport tenants complaining about the temperature or ventilation. They remedied any problems first by using the Selectographic Six to adjust the unit. If that failed, a mechanic went to the unit to make repairs. If any repairs were beyond the capabilities of the mechanic, he notified the foreman who contacted the Building Manager who would arrange for a private contractor to make the necessary repairs. The HVAC employees kept-records of routine maintenance, tenant complaints, and actions taken to remedy the complaints. HVAC employees also kept a list of the names of all contractors who made repairs and the amount of time they spent on the job. The mechanics on the day shift spent approximately 25% of their time monitoring the Selectographic Six.

The only HVAC employee on the second shift was a mechanic. He spent approximately 60% of his time monitoring the Selectographic Six and the balance of his time performing the same duties as the day shift mechanics, namely site visits and routine maintenance. Upon arriving each day he reported to the foreman who gave him a list of jobs to perform and the units to be shut down at the end of his shift. The foreman decided which units would routinely be shut off after the second shift for purposes of energy conservation although a mechanic could decide, based on the weather, to alter that schedule.

The HVAC foreman spent approximately 60% of his time monitoring the Selectographic Six. The foreman determined which repairs to make and which parts to purchase. The Building Maintenance Manager had to authorize any such purchases.

No HVAC personnel worked between 11:00 p.m. and 7:00 a.m., Monday through Friday, or on the weekends. During this period, Airport Operations[2] personnel monitored the Selectographic Six which was located approximately ten feet from their desks. The Airport Operations personnel responded if an alarm went off or if a tenant complained. If no HVAC personnel were present during the regular work week Airport Operations would monitor the Selectographic Six. If a tenant complained or an alarm went off, Operations personnel would notify the HVAC mechanic on duty by means of an electronic "beeper". The HVAC mechanic or foreman would instruct the Operations Supervisor on the way to remedy the problem using the Selectographic Six. Sometimes the HVAC foreman or mechanic would return to the Selectographic Six to remedy the problem. The HVAC foreman or mechanic on duty decided the priority of repairs. Operations personnel would call the elevator company or fire department directly if an elevator or fire alarm was activated. Operations personnel did not operate the Selectographic Six for purposes of obtaining the status of various HVAC units. Their functions were limited to alarms and tenant complaints.

If a problem arose during the third shift, a HVAC mechanic was called at home. This occurred approximately ten times a month for each HVAC employee. If necessary, the mechanic would return to work to make a repair, for which he received a minimum of four hours of pay.

Airport Expansion and the Delta 2000

In 1973 and 1974, the airport increased in size with the addition of a new Control Tower, the Volpe International Terminal and the new South Terminal Building. At the same time the Selectographic Six decreased in efficiency and use. The control points became unreliable or did not work and certain functions were not being utilized, such as the trend chart, which showed temperatures of one point over a period of time, and the periodic scanning function, which showed temperatures of all points at one time. Massport purchased more sophisticated equipment, specifically a Delta 2000 computer, to supplement and eventually replace the Selectographic Six. In 1976, the Delta 2000 was installed on the second floor of the heating plant building and the Selectographic Six was moved from the old Tower Building to the same location.

The Delta 2000 is a computer with functions not available on the Selectographic Six. It can be programmed to automatically shut down equipment on a scheduled basis, unlike the Selectographix Six which must be manually operated, and can give a minute-by-minute report of temperature changes. It has a much greater capacity (39,000 points) compared to the Selectographic Six (1,134 points), and therefore can control a larger area and produce a broader print-out of conditions. Operation of the Delta 2000 requires slightly more training than the Selectographic Six. Massport spent approximately $300,000 to install the Delta 2000. This amount includes $160,000 for the computer itself, $40,000 for additional points, and $30,000 for engineering and consultant fees. The annual budget for the Building Maintenance Department is $7 million.

Building Control Supervisors

Because of the expansion of the airport and the installation of the Delta 2000, Massport decided to alter the structure of the Building Maintenance Department. As a result of the restructuring, the Delta 2000 and Selectographic Six would be monitored 24 hours a day, seven days a week by a new group of employees.

The Building Maintenance Manager, Laszlo Fleischer, developed a job description for this new group of employees in 1975. He envisioned hiring a supervisor and four operators to monitor the Delta 2000 and the Selectographic Six.

He forwarded the job descriptions for these proposed job categories to the Airport Manager, H. W. Gainer, who approved them and sent them to the Director of Aviation, R. E. Mooney. Gainer assumed that the operators would "undoubtedly be in a union..." and that Union would be Local 103. He also assumed the Supervisor would be a non-union employee.

Mooney discussed the proposed job descriptions with the Director of Personnel, James Sullivan, in February, 1976. They concluded that there should be five persons hired and that each should have equal responsibility rather than hiring four co-equal Building Control Center Operators and one Building Control Center Supervisor. Shortly thereafter, Sullivan, Gainer, Fleischer and two members of the Engineering Department developed a job description for Building Control Center Supervisors which was approved by the Personnel Subcommittee of Massport's Board of Directors. This job description combined the Building Control Center Supervisors' and Building Control Center Operators' job descriptions as first proposed. The only three changes made were an additional responsibility for screening potential employees; an additional responsibility for supervision, review and discipline of HVAC and related maintenance personnel; and an additional responsibility for the assignment of personnel to remedy a problem rather than merely alerting personnel.

The Building Control Center Supervisor positions were posted on April 12, 1976. The posting described the position as follows:

This position is responsible for the management control and operation of the Building Systems Center, as well as the general management of established maintenance systems and procedures to provide effective scheduling and assignment of maintenance personnel. Provides the required supervision and surveillance of airport systems and acts as the System Manager in determining all phases of corrective action. In addition, will provide a central communications center for maintenance activities and handle all administrative functions (i.e., purchase orders, work orders, etc.) as required by the Building Maintenance Manager.

The position requires a technical background in the supervision and operation of electromechanical and pneumatic control apparatus, as well as an ability to communicate, issue clear instructions and make decisions effecting personnel engaged in phases of maintenance work. The salary is $12,000 to $19,000 per year. A detailed job description was available but was not posted.

A few of the HVAC personnel applied for the Building Control Supervisor position but none was selected. James Sullivan, the Director of Personnel, stated in a memorandum regarding the eight in-house applicants, that "...on matters relative to supervision of personnel and general management capabilities, only Mr. Kinton[3] appeared to possess the necessary potential for management." Massport hired the five Building Control Supervisors in September and October, 1976. Except for Kinton, all of the positions were filled by applicants who were not Massport employees.

Building Control Center Supervisors monitor the Selectographic Six and Delta 2000 24 hours a day. They perform no "hands on" maintenance. They receive tenant complaint calls which they relay to the HVAC foreman they cannot resolve the problem with the computer or the Selectographic Six. They set the priorities for repairs. They act directly on behalf of the Building Maintenance Manager in his absence. They have authority to sign purchase orders and to otherwise commit Massport's credit and to call in contractors for repairs without the approval of the Building Maintenance Manager. They are responsible for control of not only the HVAC department, but also the mechanical, structural and janitorial departments and the heating plant. Building Control Center Supervisors direct the work assignments of employees in all these departments and assign overtime in the absence of the Building Maintenance Manager. They have the authority to review and to discipline employees in any of these departments although they have never exercised this authority. Three employees who were not in IBEW's HVAC unit were disciplined as a result of the Building Control Center Supervisors' recommendations. They also have the authority to screen potential employees although they have never exercised this authority.

Building Maintenance Department after October, 1976.

As soon as the Building Control Center Supervisors were hired in October, 1976, the Delta 2000 was put into operation and the Selectographic Six was moved. Since that time, no HVAC personnel or member of the IBEW bargaining unit has had access to either machine. Building Control Center Supervisors operate both machines. When the HVAC mechanics arrive at work,[4] they now report first to the foreman who gives them a list of jobs to do for the day. These would be the same repair and maintenance tasks they performed prior to the advent of Building Control Center Supervisors.

Building Control Center Supervisors receive all tenant complaints. When they are unable to remedy a problem by means of the Selectographic Six or the Delta 2000, they notify the foreman who then instructs a mechanic to repair the unit. The foreman spends no time at either the Selectographic Six or Delta 2000.

When parts are needed a HVAC mechanic goes to the Building Control Center Supervisor for authorization. This is also the procedure when an outside contractor is required. The HVAC mechanics still keep maintenance records but all other records are kept by the Building Control Center Supervisors.

The HVAC foreman no longer schedules which HVAC units will be shut off at the end of the second shift. This is done by the Building Control Center Supervisors. On the second shift a HVAC mechanic performs the same duties as mechanics on the first shift and no longer spends any time monitoring the Selectographic Six.

Although HVAC personnel no longer monitor the Selectographic Six, the amount of overtime they have worked has increased. In 1975, the amount of overtime paid to HVAC personnel was $4192.82. In 1976, this figure increased to $9098.97. In 1977, through November, this figure reached $16,704.43. Although one of the HVAC mechanics was suspended from February, 1977 to August, 1977, this did not cause the amount of overtime to increase appreciably. He had only performed a small amount of overtime in the past and his shift was moved from 3-11 p.m. to 12-8 p.m. Fleischer attributed the increase in overtime to the increased availability of HVAC personnel to attend to long-neglected repairs rather than spending their time monitoring the Selectographic Six.

No jobs were eliminated as a result of creating the new Building Control Center Supervisors, nor were HVAC salaries reduced.

Collective Bargaining During Creation of Building Control Center Supervisors

In February or March, 1976, during negotiations pursuant to the wage reopener clause of the collective bargaining agreement between Massport and the IBEW, the union's representative, McManus, asked the Director of Personnel, Sullivan, if the Building Control Center Supervisors would be in the unit. Sullivan replied that Massport considered the positions managerial and not part of the unit. Sullivan further stated that a job description was not finalized.

In April, 1976 McManus again questioned Sullivan about the new positions after he received a copy of the job posting and stated that they should be included in the unit. Sullivan again replied that they were managerial positions.

In July or August, 1976, contract addenda were agreed to and incorporated into the collective bargaining agreement for 1976-1977. Building Control Center Supervisors were not mentioned in either the addenda or in the agreement.

In February or March, 1977, during negotiations for the 1977-1978 contract, McManus stated that the Building Control Center Supervisors were part of the unit. Sullivan repeated that the positions were managerial and not in the unit. The contract was signed May 11, 1977 and did not include the Building Control Center Supervisors.

The IBEW filed the unfair labor practice complaint and petition for clarification on May 13, 1977.

The first question for consideration is whether the Building Control Center Supervisors (BCCS or Supervisors) should be accreted to the existing bargaining unit of heating, ventilating and air conditioning personnel. Our inquiry begins with an examination of the Commission's policy set forth in City of Somerville, 1 MLC 1234 (1975):

[T]he Commission must attempt to ascertain, and give effect to, the mutual intent of the parties, for, as a general proposition, it may be stated that disputed employees are properly accreted into a unit only in accordance with either the presumed intent of the parties at the time of certification or recognition, or in accordance with their subsequent conduct, as reflected typically by the negotiation of successive collective bargaining agreements. 1 MLC at 1236.

Our caution in placing disputed employees in a bargaining unit through the vehicle of an accretion evolves from reluctance to impose a bargaining representative on employees who have not elected to be so represented. Peabody School Committee, 3 MLC 1512 (1977).

The BCCS positions were not in existence at the time of the original certification of the bargaining unit in 1974. See Massport, CR-3430 (1974). Under current Commission law, we must ascertain the presumed intent of the parties. This test of the "presumed intent" of the parties requires the Commission to determine today whether the parties would have included these job titles if they had existed at that time. This esoteric standard has required the Commission to examine the nature of the work performed by unit employees and determine whether this is the kind of work which the parties reasonably would have included in the unit at the time of certification. Boston School Committee, 5 MLC 1628 (1979).

What the parties would have reasonably done at the time of original certification is not clear from this record nor is it helpful in resolving the dispute. A better question for the Commission to ask is whether these employees should be placed in the HVAC unit because there is no other unit which would be more appropriate for them. The difficulty with such a standard is that the Commission must rely on the litigants before it and we do not investigate other possible unit placements. However, we can determine on the basis of the present record whether the unit to which the employees are sought to be accreted is at least the most appropriate unit at the present time. Such a finding would not preclude later determination that these employees belong in a different unit. Once disputed employees are accreted to an existing bargaining unit, however, they become as much a part of that unit as those previously included. Thus, in any litigation subsequent to the accretion, the amended unit would be treated in the same manner as any other certified unit.

Our approach in future accretion cases will be to examine the original certification and determine whether the sought employee classifications were included in the original certification. If the Commission's examination of the certification is inconclusive, we will then examine the parties' subsequent conduct including their successive collective bargaining agreements to determine whether the employee classifications were considered by the parties to be included in the bargaining unit. Failing that, the Commission will examine the community of interest between the employees sought and the employees already in the bargaining unit. A mere community of interest, however, will not be sufficient to warrant the accretion of these employees. The Commission will require a higher standard of appropriateness. We need not determine in the present case the extent of the community of interest necessary for accretion since, as discussed infra, the employees involved herein do not meet even the minimum community of interest standard.

The certified bargaining unit in this case consists of three job titles: Heating, Ventilation/Air Conditioning Mechanic, Filter Mechanic Trainee, and a Foreman. The foreman position is a promotional position and the foreman has traditionally been chosen from the ranks of the HVAC mechanics. The jobs performed by these individuals require an extensive knowledge of the mechanical aspects of performing routine maintenance and repair work on the mechanical equipment used for heating, ventilating and air conditioning the buildings at Logan Airport, There is no latent deficiency in the bargaining unit and we find no evidence to support a finding that the Commission's certification included the Building Control Center Supervisor positions.

Nor do we find that the parties' successive collective bargaining agreements were intended to include the BCCS positions in the unit. During the negotiations for the 1976 and 1977 agreements, the union sought repeatedly to include the BCCS's in the recognition clause. Massport steadfastly refused. The agreements were executed without mention of the Supervisor positions. Massport argues that the omission of those positions coupled with the contractual merger language[5] in the contract render this matter settled as a matter of contract law. Furthermore, they argue that any accretion would amount to an "abrogation pro tanto of an existing agreement." (Massport Brief at p.9) We do not agree that the subsequently signed contracts amount to an agreement that the positions were to be excluded or that the contract language requires a finding that the Union agreed to the inclusion of the BCCS's. The BCCS positions are outside the contract and no adverse inference, much less an agreement, can be drawn from the Union's willingness to leave the matter out of the contract.[6] The Union's petition for clarification properly brings the issue before the Commission.

Having found that neither the original certification nor the successive collective bargaining agreements preclude the accretion of the BCCS's to the existing bargaining unit, we must examine the community of interest among the employees involved. Peabody School Committee, 3 MLC 1512 (1977); City of Worcester, 1 MLC 1034 (1974).[7] The community of interest standard requires the Commission to examine such factors as integration of operations, centralization of managerial and administrative control, geographic proximity, similarity of working conditions, skills and function, collective bargaining history, and interchange of employees. Pilot Freight Carriers, Inc., 208 NLRB 853, 85 LRRM 1170 (1974). See Lynn Hospital, 1 MLC 1046 (1974); Barnstable County, 3 MLC 1144 (1976); Statement Accompanying Amendments to Rules and Regulations of the Labor Relations Commission, 1 MLC 1318 (1975). Our examination of these standards leads us to the conclusion that there is no community of interest between the Building Control Center Supervisors and the unit employees. Not only is there no interchange between employees in the unit and the Building Control Center Supervisors, but there is little contact between the two groups of employees. Unit members and other employees of Massport are specifically prohibited from entering the building area in which Supervisors are stationed. The skills and functions of the two types of employees differ vastly. The unit employees are mechanics with mechanical aptitude backgrounds; the supervisors are white collar technicians with some background in computer science. The supervisors make work assignments to many different types of Massport employees, including the HVAC employees. They operate the Honeywell Selectographic Six and the Delta 2000 in order to monitor the conditions at the airport. They also make decisions with respect to hiring outside contractors when Massport employees are incapable of performing the required work.

With respect to the centralization of managerial and administrative control, it is clear that the Building Control Center Supervisors play an important role as the central group for giving direction and orders to HVAC, custodial and other mechanical, electrical, and technical employees at Massport. The supervisors are the central point of at least administrative control and, perhaps, of managerial control. While there is some functional integration among these employees, there is similar functional integration among all the employees of the airport whose overall function is to make the airport operate. The nature of the integration of the operation between the supervisors and the HVAC employees is not such that HVAC employees' work product or output is dependent upon the performance of the Building Control Center Supervisors. Unlike the cases cited by the Union in its brief, Granite City Steel Co., 137 NLRB 209 (1962), Kennecott Copper Corp., 165 NLRB 96 (1968), and Firestone Synthetic Fibers Co., 171 NLRB 1121 (1968), Building Control Center Supervisors do not perform the exact same type of work as unit employees, nor do they carry the raw material necessary for production. The integration of the operation comes only from the chain of command which involves orders and complaints received by the Supervisors from Massport customers or managerial personnel. The Supervisors relay orders for repairs to HVAC and other employees.

The centralization of managerial and administrative control also does not provide a basis for finding that unit employees enjoy a community of interest with the supervisors. In fact, the centralization of managerial or administrative control is one of the major reasons the positions were created. The centralization was designed to provide twenty-four hour coverage for building maintenance and repair. The supervisors are the key link between Massport's maintenance personnel and Massport's tenants. Thus, rather than HVAC employees and the supervisors sharing the same central administrative control, the Supervisors constitute the central administrative control.

The Union's other arguments supporting accretion also fail. As almost all of Massport's employees at the airport work in close proximity to each other, geographic proximity will not support accretion of BCCS employees to the HVAC unit. In addition, Supervisors are permanently stationed on the second floor of the Maintenance building, while the HVAC employees move from location to location depending upon the area to which they are assigned.

There is little similarity in working conditions. The Supervisors work on a three-shift rotating schedule including weekends. The HVAC personnel work primarily a single shift each day, with one individual working a swing shift. No HVAC personnel are scheduled to work on the weekends. While the Supervisors utilize the Honeywell Selectographic Six and the Delta 2000 to monitor the temperature and other environmental factors throughout the airport, and the HVAC personnel formerly utilized the Selectographic Six to determine the status of HVAC equipment, the overlap of this single skill does not lead to the conclusion that the skills and functions of the two groups are identical or for that matter even similar. The Supervisors use more sophisticated equipment to monitor the entire airport and assign all personnel and outside contractors to assure the airport's Proper maintenance. The HVAC personnel simply used the Selectographic Six to monitor the status of HVAC equipment. The difference between these objectives is not insignificant.

Other community of interest considerations convince us that the two groups of employees should not be amalgamated into a single bargaining unit. There is little interchange between the Supervisors and the HVAC personnel. Although HVAC personnel were eligible for and applied for the Supervisor position, none was selected. None of the Supervisors has transferred into the HVAC unit and, in light of the mechanical skills required, it is highly unlikely that a Supervisor could perform the routine maintenance and repair necessary to do the work. In sum, we find that the Building Control Center Supervisors do not share a sufficient community of interest with HVAC personnel to warrant accretion.

We turn now to the second issue presented, namely, whether Massport committed an unfair labor practice when it unilaterally moved the Selectographic Six from the Tower Building to a location where the Supervisors operate it and the HVAC employees no longer have access to it.

This Commission has repeatedly held that included in the duty to bargain is the employer's obligation to negotiate before changing wages, hours, or other terms or conditions of employment. Boston School Committee, 4 MLC 1912 (1978); Town of Wayland, 3 MLC 1724 (1977); City of Boston, 3 MLC 1450 (1977); Town of North Andover, 1 MLC 1103 (1974). The employer must notify the union of potential or proposed changes before they are announced so that the bargaining representative has an opportunity to present arguments and proposals concerning possible alternatives. City of Boston, 4 MLC 1202 (1977); City of Boston, 3 MLC 1421 (1977); City of Chicopee, 2 MLC 1971 (1975). The duty to bargain arises, however, only over mandatory subjects of bargaining. Town of North Andover, supra. The maintenance of the status quo with respect to such subjects of bargaining applies not only to contractual provisions, but to long-standing customs and Practices as well. City of Boston, 3 MLC 1450 (1977); City of Everett, 2 MLC 1471 (1976).

It has long been established that preservation of unit work is a mandatory subject of bargaining. Town of Andover, 3 MLC 1710 (1977); Town of Danvers, 3 MLC 1559 (1976); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 57 LRRM 2609 (1964). In addition, the National Labor Relations Board has held that the effects of a management decision to institute a change in technology in the workplace is a mandatory subject of bargaining. NLRB v. Columbia Tribune Publishing, 495 F.2d 1385, 86 LRRM 2078 (8th Cir. 1974).

Before the duty to bargain over a change in unit work assignments or technology arises, however, it must be shown that the changes have had a significant adverse impact on the working conditions of the unit employees. For example, the employer's failure to bargain over sub-contracting decisions was not held unlawful where such decisions were not materially different from past practice, and where it had not been shown that subcontracting had any demonstrably adverse effects on the employees in the unit. Westinghouse Electric Corp., 150 NLRB 136, 58 LRRM 1257 (1965). Similarly, the employer's failure to bargain over a decision to discontinue use of electric-eye scanning machines was not unlawful where the action did not result in any loss of employment for any employees, but was merely a change in work duties. Coca-Cola Bottling Works, 186 NLRB 1050 at 1062, 75 LRRM 1550, aff'd 466 F.2d 380, 80 LRRM 3244 (D.C.C. 1972). Accord, Rochester Telephone Corp., 190 NLRB 161, 77 LRRM 1190 (1971); Lufkin Foundry and Machine Co., 181 NLRB 187, 73 LRRM 1575 (1970).

In determining whether the change has a significant adverse impact on the bargaining unit, the Commission examines the history of how the work was performed by the employer, whether the removal of the work constituted a substitution of one group of individuals for another performing the same work and located in the same place, whether unit employees lost wages or overtime or opportunities for overtime, and whether the employer's actions constituted an overall shift in the direction and goals of the employer.

We have previously held that a key element in distinguishing between a non-mandatory level of services decision as existed in Town of Danvers, 3 MLC 1559 (1977) and the mandatorily bargainable subcontracting decision, as in City of Boston (Boston Typograhical Union), 4 MLC 1202 (1977) is the "continuing consumption" of the same service:

The bargaining obligation will arise where the same work previously performed by bargaining unit employees is still being used by the employer in its operation, but is being performed by employees of another employer, unless the employer can show a compelling, nondiscriminatory reason why negotiations should be foregone. Where the need for services is reduced, the exclusive representative is entitled to bargain over the work still being consumed by the employer. 4 MLC at 1210 to 1211. (footnotes omitted)

In Town of Andover, 4 MLC 1086 (1977), the Commission found an unlawful unilateral change in removing dispatching duties from firefighters and substituting CETA employees, and determined that:

The work [dispatching] was being performed in the same manner, in the same location, with the same equipment, and under the same supervision as previously. 4 MLC at 1087.

Our analysis of the present case leads us to conclude that historically the use of the Selectographic Six had always been shared and it was never exclusively bargaining unit work; that the Employer has drastically reduced the use of the Selectographic Six because of changes in technology; that the HVAC employees have not suffered any detriment because of this change; and that there has been a fundamental change in the work performed by the Employer over which it has no obligation to bargain.

The operation of the Selectographic Six was never exclusively HVAC bargaining unit work and the work had always been shared with employees of the Airport's Operation Division. During the day shift when the foreman was not available, during the second shift when the HVAC mechanic was not available, and during the entire night shift and every weekend and holiday, Massport's Operations Division answered the telephone at the Selectographic Six's control panel to take tenant complaints, punched out information on the Selectographic Six, and attempted to remedy the problem directly from the control panel. It was only when the operations personnel could not remedy the problem by pushing buttons on the control panel that they would contact an employee of the HVAC unit.

HVAC employees, while perhaps more familiar with the Selectographic Six then the operations personnel, primarily made necessary on-site repairs in response to complaints. The Employer's actions herein amounted in large part to the transfer of responsibility for the operation of the Selectographic Six from one group of non-bargaining unit employees to another, i.e,, Operations staff to BCCS's.

In the present case, the Employer is not consuming the same quantity and quality of services. The development of new technology has caused Massport to expand its computer facilities through the Delta 2000. As the Board stated in Westinghouse Electric Corp., 150 NLRB 1574, 1576:

"[O]ur condemnation in Fibreboard and like cases of the unilateral subcontracting of unit work was not intended as laying down a hard and fast new rule to be mechanically applied regardless of the situation involved. As the Supreme Court has indicated in a broader context, even where a subject of mandatory bargaining is involved, there may be "circumstances which the Board could or should accept as excusing or justifying unilateral action." (footnotes omitted).

The expansion of the airport and the improved computer facilities allowed the employer to centralize its monitoring of the property. The number of points monitored by the new computer facility has increased from 1,134 to over 39,000 with the Delta 2000. The usefulness of the Selectographic Six has been reduced and the overall function replaced with a new integrated computer facility.

There has been minimal impact on the HVAC employees. HVAC personnel were employed based upon their technical skills, their knowledge of HVAC equipment, and their ability to fix and maintain that equipment. The HVAC employees continue to perform this kind of work. They receive the same wages and have increased opportunities for overtime. The nub of the change is that they now receive their work assignments from the Supervisors and are not required to monitor the Selectographic Six. This is not a significant adverse impact.

It must also be noted that while the HVAC foreman and the mechanic on the second shift spent 60% of their time at the Selectographic Six, not all of that time was spent using the machine. The testimony reveals that the machine was used at the beginning of the morning and evening shifts when a status report was taken on all of the points. Thereafter, the Selectographic Six was used only if tenant calls were received and the machine was used to monitor specific points at the location of the complaint. That the Selectographic Six was not in constant use is evidenced by the fact that the operations personnel handled the machine as an adjunct to their regular work duties.

In the City of Boston, 4 MLC 1202, at 1209, the Commission noted that the City's decision did not involve a "major" addition or withdrawal of capital when viewed in the light of the enterprise as a whole. The purchase of a $300,000.00 computer and the expansion of the airport constitutes a capital expenditure which evidences the amalgamation of the Selectographic Six with the Delta 2000 into a functionally integrated computer facility. This restructuring of the monitoring facility was performed with little or no impact in the bargaining unit.

The cases cited by the Union do not lead us to a different conclusion. In Wisconsin Contractors, Inc., 183 NLRB 872, 74 LRRM 1630 (1970), the NLRB found the employer violated its duty to bargain in good faith when it refused to post a newly-created job and refused to give employees an opportunity to qualify for the new position by providing a thirty-day trial period. The employer's refusal violated its contractual obligation and deviated from its past practice. In that case, however, the new position consisted of driving and operating an M-4 and Midwest plow. This equipment allowed the company to lay plastic pipe and a four-inch cable which the company's smaller mows (operated by unit employees) and equipment were incapable of performing. The Board based its finding of bad faith on three factors. First, the Employer contended that the work was not covered by the contract because the contract did not cover non-gas pipes or cables. The Board rejected this argument finding that "Prior to this time, the respondent never questioned the application of its contract to its non-gas work." Second, the employer contended that none of the union's members were qualified to operate the M-4 equipment. The Board rejected this contention, finding that the employer had never previously questioned the ability of the union's members to operate new equipment but had relied upon the posting and thirty-day trial period to fill jobs on new equipment. Finally, the Board found that testimony in the record indicated that the Respondent never intended to fill the newly-created position with union personnel.

The case before the Commission presents a far different situation. First, in Wisconsin Contractors, Inc., supra, it is clear that the type of work performed with the new equipment was of the same nature as that previously performed by bargaining unit personnel. Here, however, the kind of work performed by the bargaining unit, hands-on maintenance and repair of equipment, is significantly different from the kind of work performed by the Supervisors. Furthermore, the Union here cannot complain that the posting provisions of the contract were violated, nor has the Union complained that qualified personnel were denied the opportunity of a trial period as afforded by an established past practice. Massport posted the newly-created positions and bargaining unit members were given the opportunity to qualify for the job.[8]

Based upon this record, we find that the Building Control Center Supervisors are not properly accreted to the Union's bargaining unit and further find that the removal of the operation of the Selectographic Six did not constitute a unilateral change in working conditions and therefore did not constitute an unfair labor practice. We DISMISS the petition and the Complaint.

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[1] A "unit" in this context is a machine used to regulate air by means of cooling coils, heating coils, dampers and a fan.

[2] The Airport Operations Department is responsible for operating the Airport. There is at least one Operations Supervisor and one Operations Assistant on duty twenty-four hours a day, seven days a week.

[3] Kinton was not a member of the HVAC unit.

[4] In approximately June of 1976, the hours of the first and second shift for HVAC personnel were changed. The first shift now works 7:30 a.m. to 4:00 p.m. instead of 7:00 a.m. to 3:30 p.m. and the second shift works 12 noon to 8:00 p.m. instead of 3:00 p.m. to 11:00 p.m. This change in hours is not the subject of any charge before the Commission.

[5] "Both parties agree that this agreement contains their total agreement and that any and all prior or contemporaneous agreements oral or written are merged herein." minis sentence appears in the last paragraph of the parties' collective bargaining agreement and has remained in effect since May 6, 1975.

[6] Indeed, the Union's actions are consistent with its duty to bargain in good faith since insistence to impasse over the scope of the certified unit would violate its statutory duty to bargain. G.L. c.150A, s.4B. See Douds v. International Longshoremen's Association, 241 F.2d 278, 39 LRRM 2388 (2nd Cir. 1957).

[7] Massport argues that the Building Control Supervisors are "clearly 'supervisory', and arguably 'managerial'." (Brief at p.10). In view of our conclusion herein, we need not and do not reach that issue.

[8] The Record reveals that some members of the bargaining unit applied for the Supervisor positions but were determined to lack the necessary qualifications.