New England Telephone and Telegraph Co.

National Labor Relations Board - Board Decisions

Nov 7, 1969

179 N.L.R.B. 527 (N.L.R.B. 1969)

NEW ENGLAND TELEPHONE &TELEGRAPH COMPANY 527
New England Telephone and Telegraph Company
and Communications Workers of America,
AFL-CIO, Petitioner, and International
Brotherhood of Electrical Workers , AFL-CIO,
Petitioner, and New England Council of
Engineering Associates and Right of Way Agents,
Petitioner . Cases 1-RC-10719, 1-RC-10721, and
I-RC-10735
November 7, 1969
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Ramey Donovan, Hearing
Officer. Following the hearing and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statement of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 1, this case was
transferred to the National Labor Relations Board
for decision. Thereafter, the Employer,' the
Petitioners, and International Brotherhood of
Telephone Workers, an Intervenor,2 filed timely
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case , including the
briefs filed herein, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
'The Employer' s request for oral argument is hereby denied, as the
record and briefs adequately present the issues and the positions of the
parties
'International Brotherhood of Telephone Workers, hereinafter referred
to as the Incumbent Union, and United Automobile, Aerospace and
Agricultural Implement Workers of America, herein called UAW,
appeared at the hearing and participated as Intervenors Although the
record before us does not reveal that either of them requested and was
granted permission to intervene , it is apparent that the Incumbent Union
has an interest in this matter entitling it to intervene , and we are
administratively advised that UAW made a sufficient showing of interest
in the existing unit to the Regional Director for this purpose
The New England Telephone and Telegraph
Company owns and operates a communications
system in all New England States except
Connecticut. The petitions herein seek elections
among certain groups of employees of the
Employer's Plant Department, who are presently
represented in a single unit.
That unit has long been covered by contracts
between the International Brotherhood of Telephone
Workers, and the one immediately preceding the
current contract was effective December 14, 1966,
terminable by either party as of October 26, 1969,
or 18 months after the effective date of any
agreement resulting from negotiations under a
"reopener" provision in the 1966 contract.3 The
agreement dated December 14, 1966, was reopened
by letter dated February 2, 1968, pursuant to article
35.02. A new agreement was executed effective
September 2, 1968 to September 1, 1971. The
Employer and the International Brotherhood of
Telephone Workers contend that this latter contract
bars the instant proceeding, while the Petitioners
contend that it constituted a premature extension of
the previous contract and therefore the petitions
herein may be processed.
In furtherance of its desire to reopen pursuant to
article 35.05(a) of the agreement, the International
'The following are the relevant provisions of the 1966 contract
B Plant Department
Article 35 Duration
35 01 Effective Date This Agreement shall be effective at 11-59 P M on
December 14, 1966 (except that wage adjustments shall be effective as of
12 01 A M on October 23, 1966), and shall continue in full force and
effect (except as suspended pursuant to Paragraph 35 02 below) until
terminated pursuant to Paragraph 35 04 below 35 02 Reopeners Except
as provided in Paragraph 35 03 and in accordance with and subject to
the following provisions , this Agreement may be reopened only as
hereinafter specified , solely for the purpose of negotiating changes in
Appendix I (Wage Schedules ), overtime rates specified in Article 20
(Overtime Payments ), holiday rates specified in Paragraph 13 02 of
Article 13 ( Holidays ), and it is agreed that no other subject shall be
reopened for negotiations
a This Agreement may be reopened by either party by written notice
which is received by the other party at least 60 calendar days prior to
5 00 P M , April 25, 1968 to negotiate only the changes enumerated
above Such changes, if any, which are agreed to as a result of any such
negotiations shall not be effective earlier than 11 59 P M , April 25,
1968
b Negotiations shall commence at least 30 days after receipt of any
notice as provided in 35 02(a), by the other party If no agreement is
reached prior to April 25, 1968, all provisions of this Agreement (except
that providing for its reinstatement , which shall be a continuing
obligation ) shall be suspended As of the date agreement is reached on
changes, if any, under this reopener , all provisions of this Agreement
shall be reinstated and such changes , if any have been agreed by the
parties, shall be incorporated in this Agreement which shall thereafter,
as modified , continue in full force and effect as provided in Paragraph
35 01 above
35 04 Termination Either party may terminate this Agreement at 12 01
AM on the later of the following two dates , by notifying the other
party in writing, at least 60 days prior to the date of termination, (a)
October 26 , 1969 or (b) 18 months after the effective date of the
Agreement resulting from the Agreement opener provided in Paragraph
35 02 above If no such notice of termination is given, this Agreement
shall automatically continue in full force and effect after the later of
these two dates subject to the right of either party to terminate this
Agreement by notifying the other party in writing , at least 60 days prior
to the date of termination , of its intention to terminate this Agreement
179 NLRB No. 93
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Telephone Workers and the
Employer began negotiating on March 15, 1968, and
met 15 times between that date and April 25, 1968.
On April 26, 1968, the contract, by its terms, was
suspended in the absence of agreement and the
International Brotherhood of Telephone Workers
called a strike.
As noted above, a new contract was executed and
it became effective September 2, 1968. The petition
in Case 1-RC-10719 was filed July 29, 1969; the
petition in Case 1-RC-10721 was filed July 29, 1969;
the petition in Case 1-RC-10735 was filed August 5,
1969 - 89, 89, and 83 days, respectively prior to
October 26, 1969, the termination date specified in
article 35.04 of the December 14, 1966, agreement.
In determining when a petition has been timely
filed, the Board has consistently sought to provide
guidance as to the appropriate time to organize and
seek a change of representatives, and to secure to
employees the right to change representatives at
reasonable intervals. The Board concluded that
stability in labor relations would be facilitated by
using reasonable guides as to timeliness of petitions.
To this end, we have long held4 that a new contract
for a longer period signed during the term of a
previously executed agreement, at a time when that
prior agreement would bar a petition, can itself
prevent the processing of a rival petition only for the
remainder of the period when the prior contract
would have been such a bar. It has been held that,
where such a premature extension occurs, the proper
time for the filing of a rival petition in order to
promote such stability and employee protection is
the 30-day period between the 90th day and the 60th
day prior to the expiration date of the original
contract of 3 years' duration or less.'
These considerations are equally applicable to the
facts of this case. The 1966 contract was to
terminate on October 26, 1969, or 18 months after
the effective date of any new agreement reached
pursuant to the reopener clause. The parties were
free from possible interference by a rival petition
during the time they were negotiating pursuant to
the midterm reopening,6 and no special
circumstances exist which might justify a departure
from our long-standing practice.' In fact, a petition
filed by the Counsel May 6, 1968, was identical to
the petition now before us in Case 1-RC-10735. The
Board sustained the Regional Director's dismissal of
that petition on the ground that the 1966 contract
continued in existence and was a bar to that
proceeding. Accordingly, as the current contract was
executed at a time when the prior contract would
have been a bar, and as the instant petitions were
filed during the 60- to 90-day period prior to the
expiration date of that prior agreement, we find that
the petitions were timely filed.'
'Memphis Furniture Mfg Co, 51 NLRB 1447, 1450
'Deluxe Metal Furniture Company, 121 NLRB 995, 999, 1001-02,
Leonard Wholesale Meats , Inc, 136 NLRB 1000
'Cf Firestone Synthetic Rubber & Latex Company, 173 NLRB No
4. The Incumbent Union represents a unit of
Plant Department employees described in its
contract as "the non-supervisory employees of its
Plant Department, scheduled Engineering employees
in occupations formerly under Plant jurisdiction and
the non-supervisory employees in the General
Services Department in occupations formerly under
Plant jusisdiction."' CWA and IBEW, the
Petitioners in Cases 1-RC-10719 and 10721, seek to
represent the existing unit. The Council, Petitioner
in Case 1-RC-10735, contends that outside plant
engineering associates and right-of-way agents are
professional employees and seeks to represent them
in a separate unit. The Employer agrees that such
unit is appropriate; CWA does not oppose severance
of professionals; and the Incumbent Union and
IBEW contend these employees are not
professionals and oppose their severance.10
In view of the positions of the parties as
summarized above, it is apparent that the sole issue
before us is the professional status of the outside
plant engineering associates and right-of-way agents.
If they are professionals, they are entitled to a
self-determination election, inasmuch as it appears
that they have not previously been afforded an
opportunity to express their desire to be included in
a unit with nonprofessionals and Section 9(b)(1) of
the Act precludes the Board from deciding that such
a combined unit is appropriate unless a majority of
178 (Member Brown dissenting on the facts)
'Cf Aerotet-General Corporation, 144 NLRB 368
'In order to promote the stability of the bargaining relationship and to
protect the right of the employees to change representatives at reasonable
and predictable mtersals, we find that the current contract does not bar the
petitions herein We find no merit in the contention of the Employer and
the Intervenor Incumbent Union that, although the underlying policy
expressed in the Board's determinations as to the timeliness of petitions is
sound, the Board's contract bar rules cannot be applied here because they
were not adopted in accordance with the rule making procedures of the
Administrative Procedure Act, as they assert is required by N L R B v
Wyman-Gordan Company, 394 U S 759 Cf N L R B v Grace
Company. 184 F 2d 126, 129 (C A 8)
'By stipulation, the parties agreed that this unit, excluding all other
employees, would be appropriate, subject to determination of the
professional status of the categories sought by the Council They also
stipulated that the categories set forth in Appendix A, attached hereto,
comprise that unit
"IBEW contends, alternatively, that if the outside plant engineering
associates and right-of-way agents are professionals, additional hearings
are necessary because there are other professional employees performing
similar functions to those of right-of-way agents, but the record herein
does not permit a determination as to the proper scope of such a unit In
this connection, it asserts also that other professional employees in the
legal, accounting, and fiscal areas should be included However, IBEW
does not specify which of the categories listed in footnote 8, above, might
also be professionals who should be included within the unit sought, and an
examination of that list does not reveal any job titles which suggest
possible professional status of others within the existing unit It also
appears that the two categories in issue herein are the only classifications
of professional employees performing work within the Plant Department
and might, if they desire, be represented as part of the Plant Department
unit Accordingly, we find no merit in the IBEW's position and deny its
Motion for Further Hearing Cf Douglas Aircraft Company, Inc . 157
NLRB 791, 794, Weyerhaeuser Company, 173 NLRB No 177 This does
not preclude the IBEW from challenging any persons who appear to vote
in the election hereinafter directed in voting group (a) who it contends are
professional employees entitled to a self-determination election under the
Act
NEW ENGLAND TELEPHONE &TELEGRAPH COMPANY 529
the professional employees vote for inclusion
therein. Based on the record before us, we conclude
that these categories may be represented separately
or as part of the Plant Department unit.
The Plant Department is concerned with the
maintenance of the telephone equipment and the
installation, construction, and maintenance of
telephone equipment facilities. The telephone outside
plant is that physical plant between the central
office and the subscriber's telephone, consisting of
poles, underground conduit, manholes, interior
building conduit, aerial cable, underground cable,
buried and submarine cable, building cable, and line
wire. The outside plant engineering associates'
function may be summarized as the construction,
relocation, replacement, major maintenance, and
removal of all telephone outside plant, including the
determination as to when action must be taken,
preparing alternate plans, preparing work plans,
including the procurement of permits, easements,
and outside contracts necessary for the construction
work. They work out of approximately 24 District
Offices which the Employer operates in its 5-State
area. The function of the right-of-way agent is to
prepare and prosecute petitions to municipalities for
grants to place telephone company plants on public
ways. They conduct negotiations with public officials
and owners of private property, handle complaints,
search titles, and maintain records.
The Employer requires that new employees have
at least 2 years of formal college education, and, as
communications engineering is not available in any
college, the Employer provides classroom and
on-the-job training for both engineering associates
and right-of-way agents. They are required to know
aspects of mathematics, fundamentals of electricity,
and electronics, strength of materials, structures,
geology, site planning, design and construction of
foundations, architecture, surveying, highway
engineering, mechanical drawing, English
composition, public speaking, engineering economy,
principles of accounting, contract preparation, and
real estate fundamentals. The parties stipulated that
there were 362 engineering associates and 26
right-of-way agents as of August 3, 1969. Of these,
approximately 82 percent were college graduates or
had education beyond high school.
It is apparent that the functions and
responsibilities of these engineering associates and
right-of-way agents are similar, if not identical, to
those of similar categories considered by the Board
in Illinois Bell Telephone Company, 77 NLRB
1073. We found there that persons performing these
functions were professional employees within the
meaning of Section 2(12) of the Act, as amended."
We find no reason to reach a contrary conclusion
here. Accordingly, we find that the outside plant
engineering associates and the right-of-way agents in
the Employer's Plant Department may constitute a
unit appropriate for the purposes of collective
bargaining, and we shall direct separate elections in
the following voting groups:
(a) All nonsupervisory employees of the
Employer's Plant Department, scheduled
engineering employees in occupations formerly
under Plant jurisdiction and the nonsupervisory
employees in the General Services Department in
occupations formerly under Plant jurisdiction, in the
job classifications set forth in Appendix A, infra,
but excluding outside plant engineering associates,
right-of-way agents, all other professional
employees, all other employees, and supervisors as
defined in the Act.
(b) All outside plant engineering associates and
right-of-way agents in the Employer's Plant
Department, excluding all other employees, and
supervisors as defined in the Act.
The employees in the professional voting group
(b) will be asked two questions on their ballot:
(1) Do you desire to be included in the same unit
as other employees in the Employer's Plant
Department for the purposes of collective
bargaining?
(2) Do you desire to be represented for the
purposes of collective bargaining by New England
Council of Engineering Associates and
Right-of-Way Agents; or by International
Brotherhood of Telephone Workers; or by
Communications Workers of America, AFL-CIO;
or by International Brotherhood of Electrical
Workers, AFL-CIO-CLC; or by United
Automobile, Aerospace & Agricultural Implement
Workers of America; or by none.
If a majority of the professional employees in
voting group (b) vote "Yes" to the first question,
indicating their wish to be included in a unit with
the nonprofessional employees, they will be so
included. Their votes on the second question will
then be counted together with the votes of the
nonprofessional voting group (a) to decide their
representative for the whole unit.' 2 If, on the other
hand, a majority of the professional employees in
voting group (b) do not vote for the inclusion, they
will not be included with the nonprofessional
employees, and their votes on the second question
will then be separately counted to decide whether
they want any of the Unions on the ballot to
represent them in a separate professional unit. There
is no indication in the record that any of the Unions
which seek the overall unit would be unwilling to
represent the professional employees separately, if
those employees vote for separate representation.
However, if any Union does not desire to represent
the professional employees in a separate unit even if
those employees vote for such representation, that
"See also Northwestern Bell Telephone Company, 79 NLRB 549,
551-553
"if the votes are pooled , they are to be tallied in the following manner
Votes for the Council shall be counted as valid votes, but neither for nor
against any of the other Unions on the ballot All other votes are to be
accorded their face value
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union may notify the Regional Director to that
effect within 10 days of the date of this Decision
and Direction of Elections."
Our unit determination is based in part, then,
upon the results of the elections However, we now
make the following findings in regard to the
appropriate unit:
(1) If a majority of the professional employees
vote for inclusion in a unit with nonprofessional
employees, we find that the following employees will
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All nonsupervisory employees of the Employer's
Plant Department, scheduled engineering
employees in occupations formerly under Plant
jurisdiction and the nonsupervisory employees in
the General Services Department in occupations
formerly under Plant jurisdiction, in the job
classifications set forth in Appendix A, attached
hereto, including outside plant engineering
associates and right-of-way agents, but excluding
all other professional employees, all other
employees, and supervisors as defined in the Act.
(2) If a majority of the professional. employees do
not vote for inclusion in the unit with
nonprofessional employees, we find that the
following two groups of employees will constitute
separate units appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
(a) All nonsupervisory employees of the Employer's
Plant Department, scheduled engineering employees
in occupations formerly under Plant jurisdiction
and the nonsupervisory employees in the General
Services Department in occupations formerly
under Plant jurisdiction, in the job classifications
set forth in Appendix A, infra, but excluding
outside plant engineering associates, right-of-way
agents, all other professional employees, all other
employees, and supervisors as defined in the Act.
(b) All outside plant engineering associates and
right-of-way agents in the Employer's Plant
Department, excluding all other employees, and
supervisors as defined in the Act.
[Direction of Elections' 4 omitted from
publication.]
"Westinghouse Electric Corporation , 116 NLRB 1545, 1548, Sonotone
Corporation . 90 NLRB 1236, 1241-42
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the elections should have access to lists of voters and their
addresses which may be used to communicate with them Excelsior
Underwear , Inc, 156 NLRB 1236, N L R.B v Wyman-Gordon Company,
394 US 759 Accordingly, it is hereby directed that election eligibility
lists containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region I within 7
days of the date of this Decision and Direction of Elections The Regional
Director shall make the lists available to all parties to the elections No
extension of time to file these lists shall be granted by the Regional
Director except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the elections whenever
proper objections are filed
APPENDIX A
Air Conditioning Technician
Assistant Construction Planner
Central Office Attendant
Central Office Equipment Powerman
Central Office Powerman
Central Office Repairman
Cleaner
Clerical Wage Schedules by Location
Clerks - Table 53
Clerks - Table 54
Clerks - Table 55
Clerks - Table 56
Clerks - Table 57
Construction Head Lineman
Contract Work Inspector
District Chief Clerk
Elevator Operator
Elevator Starter
Engineer - Buildings
Engineering Assistant
Engineering Associate
Equipment Installer
Forewoman
Garageman
Garage Mechanic
Head Janitor
House Service Foreman
House Service Mechanic
Installer Dispatcher
Installer - Repairman
Instructor - Plant School - Engineering School
Janitor
Junior Engineering Assistant
Junior Toll Service Assigner
Lineman
Local Testman
Mail Truck Driver
Plant Assigner
P.B X (Installation or Repair)
Pole Inspector
Power Follow-Thur Inspector
Reproduction Machine Operator
Right of Way Agent
Senior Reproduction Machine Operator
Senior Stockman
Service Head Lineman
Splicer
Splicer - Unassigned
Splicer's Helper
Staff Assistant - Craft
Station A (Installation or Repair)
Stockman
Switchman
Testman - Equipment Installation
Toll Service Assigner
Toll Tester
Toll Testman
Transmission Tester
Unrated Men in Rated Crafts