The Elyria Telephone Co.

National Labor Relations Board - Board Decisions

Aug 21, 1945

63 N.L.R.B. 432 (N.L.R.B. 1945)

In the Matter of THE ELYRIA TELEPHONE COMPANY and INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS , LOCAL UNION
B-1014 (AFL)
Case No. 8-C-1756.-Decided August 21, 1945
DECISION
AND
ORDER
On June 21,1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had en-
gaged in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist from the unfair labor practices found
and, take certain affirmative action, as set out in the copy of the Inter-
mediate Report attached hereto. No exceptions to the Intermediate
Report were filed, and oral argument before the Board in Washington,
D. C., was not requested. The Board has reviewed the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Elyria Telephone Com-
pany, Elyria, Ohio, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Electrical Workers, Local Union B-1014, affiliated with the American
Federation of Labor, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection,.as guaranteed in,Section 7 of the Act.
63 N. L. R. B., No. 66.
432
THE ELYRIA TELEPHONE COMPANY 433,
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its plant at Elyria, Ohio, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice to be furnished
by the Regional Director for the Eighth Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent
immediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARn D. REILLY took no part in the consideration of the above
Decision and Order.
NLRB 576
(9-1-44)
APPENDIX A
NOTICE TO ALL EbIPLOYERS
Pursuant to a decision and order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to join, or assist International Brotherhood of
Electrical Workers, Local Union B-1014 (AFL) or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection. All our
employees are free to become or °remain members of this union, or any
other labor organization.
THE ELYRIA TELEPHONE COMPANY
(Employer)
By ---------------------- ------------------
(Representative ) (Title)
Dated ---------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Thomas E. Shroper, for the Board.
Mr William Patrick Clyne, of Cleveland, Ohio, for the respondent.
Dlr. James E. Reilly, of Richmond, Ind., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by International Brotherhood of Electrical Workers,
Local Union B-1014 (AFL), herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by its Regional Director for the Eighth
Region (Cleveland, Ohio), issued its complaint dated May 1, 1945, against The
Elyria Telephone Company, Elyria, Ohio, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were duly served upon
the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that from January 1, 1945, to the date of the issuance of the complaint, the
respondent advised and urged its employees to withdraw from the Union, at-
tempted to persuade its employees to withdraw from the Union by notifying
them that it was granting a retroactive wage increase, and stated to its employees
that they might withdraw from the Union without being penalized under the
closed shop provision of the contract between the respondent and the Union,
and (2) that by such conduct the respondent engaged in unfair labor practices
within the ineaning of Section 8 (1) of the Act.
Thereafter the respondent filed its answer, in which it denied that it had en-
gaged in any unfair labor practice and that James E. Reilly, who had signed and
instituted the charge of unfair labor practices in behalf of the Union, was an
officer of the Union or hid authority from the Union to institute such charge.'
Pursuant to notice, a healing was held on May 24, and 25, 1945, at Elyria, Ohio,
before Frederic B. Parkes, 2nd, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner The Board and the respondent were represented
by counsel and the Union by an official representative. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the close of the Board's case, the
respondent moved to dismiss the complaint for failure of proof ; the motion was
renewed at the closing of the hearing. The undersigned reserved ruling on both
motions They are hereby denied. Following the introduction of all evidence,
the undersigned granted without objection; a motion by counsel for the Board
to conform the pleadings to the proof as to dates and minor variations. All
parties waived oral argument before the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, an Ohio corporation with its principal office and place of busi-
ness in Elyria, Ohio, is engaged in the business of furnishing local exchange
' The undersigned finds no merit in this contention Reilly testified that the interna-
tional president of the Union has the right to administer the affairs of a local union and
may delegate his authority to international representatives . The last of November 1944,
Reilly was assigned by the international president to advise Local B -1014. Reilly further
testified that the Union authorized him to file the complaint . See Matter of Wilson d Com-
pany, Inc ., 31 N. L. R. B. 440 , enf'd 126 F ( 2d) 114 (C. C. A. 7), cert. denied 316 U. S. 699.
THE ELYRIA TELEPHONE COMPANY 435
telephone service over its own lines and equipment as well as long distance tele-
phone service and communications over its own lines and equipment and con-
necting lines of the Ohio Bell Telephone Company. Through the latter company
and other companies the respondent's system is connected with the American
Telephone and Telegraph Company. The respondent provides the territory serv-
iced by it with the only means of communication by telephone to points outside
the State of Ohio. The respondent, together with the Ohio Bell Telephone Com-
pany and other telephone companies, furnishes nation-wide communication serv-
ice through the coordination of plant equipment and services, and, pursuant to
arrangements with these telephone companies, the respondent handles and trans-
mits calls originating at points outside the State of Ohio, coming into its terri-
tory from that of such companies, and transfers to such companies calls originat-
ing in its territory and directed to points in states other than the State of Ohio.
During the year 1944, the respondent purchased equipment and materials valued
in excess of $25,000, of which approximately 75 percent was transported in inter-
state commerce to the respondent's place of business from states of the United
States other than the State of Ohio. During the same period, the total gross
receipts of the respondent were in excess of $250,000, a substantial portion of
which was in payment for calls transmitted by the respondent to points outside
the State of Ohio. The respondent concedes that it is subject to the Board's
jurisdiction.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union B-1014, is a
labor organization affiliated with the American Federation of Labor, admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
In March 1943, the Union negotiated its first contract with the respondent
covering the employees of the traffic department, the only employees of the
respondent concerned in this proceeding! The contract term was effective retro-
actively from January 1, 1943, for the period of one year, and was to continue
in effect from year to year thereafter unless either party desiring changes should
notify the other in writing at least sixty days prior to the annual renewal date.
Among other things, the contract provided for a closed shop, forbade any work
stoppage by strike or lockout, and established a wage scale ranging from 30 to 60
cents an hour Subsequently, apparently in 1943, upon the agreement of the
respondent, and the Union and with the approval of the National War Labor
Board, herein called the W. L. B., the wage rates were increased so that they ,
ranged between 40 and 621/!,, cents an hour.
During one working day in July 1943, the employees of the traffic department
were on strike, leaving the office for a number of hours. The traffic department
contract, as amended, was automatically renewed for another year at the close
of its 1943 term.
On October 17, 1944, following an election directed by the Board,' the Union
was certified as the statutory representative of the employees in the respondent's
2 The employees of the traffic department are long distance telephone operators. All
local calls are handled by an automatic system, requiring no operators . In addition to the
long distance telephone operators , the contract also covered record clerks , trouble clerks
and service department employees.
3 Matter of The Elyria Telephone Company, 58 N. L. It. B. 402.
662514-46-vo]. 63-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant department. Shortly thereafter , negotiations for a contract covering the
plant department employees were commenced . About October 24, 1944, the
Union informed the respondent in writing that it desired to change the terms of
the 1943 traffic department contract , which had been automatically renewed
for the year 1944 ; and about November 14, 1944, the Union presented to the
respondent a memorandum of proposed changes.
On November 17, 1944, the traffic department employees commenced a sit-down
strike which lasted for 8 days. On November 22, 1944, the respondent sent the
following telegram to the Union 's international president :
This is to notify you that the telephone operators of this company , members
of your local 1014 have been on sitdown strike since last Friday. Also a
group of plant department employees are on strike who are members of your
organization . We will refuse in the future to enter into any closed shop
contract with you since you have violated your present contract on two
occasions and will consider our present contract null and void unless your
members return to work by five p. in. Wednesday the 22nd.'
By agreement the parties first commenced negotiation on the contract for the
plant department employees . When, on December 12, 1944, an impasse was
reached in such negotiations , the Union requested that negotiations on the traffic
department contract be started . However, the respondent expressed a desire to
complete the negotiations on the plant department agreement before discussing
the traffic department contract , so that general matters affecting all its employees
agreed to in the plant department contract might be automatically incorporated
in the traffic department contract.
On January 5, 1945, a conciliator from the United States Conciliation Service
was called in and met with the respondent and the Union . At this meeting,
according to the undenied and credible testimony of James E Reilly, the Union's
representative , it was agreed that inasmuch as the traffic department employees
"were under contract which provided a continuance from year to year, that the
Union need have no apprehension about the fact that the new contract had not
been consummated , and we were assured by the Company that it was their desire
that the contract should continue during the time it was necessary to iron out
our difficulties in the Plant department , and then go into serious work on the
Traffic Department , contract ." During the negotiations for the plant department
contract, it was also agreed that the new traffic department contract would be
given retroactive effect to January 1, 1945.
On February 16, 1945, the respondent and the Union executed the agreement
governing the plant department employees and turned their attention to the
contract for the traffic department . At this meeting, the respondent offered,
among other things, to give all employees in the traffic department a 2'/2 cents
an hour increase in pay.
On February 22, 1945, employee Mildred Trieskey and "some of the older
girls" composed and circulated a petition indicating that the signers did not
wish to continue their union membership and submitted it to one Robinson,
president of the respondent . Fourteen employees in the traffic department
signed the petition s
The same 21/2 cents an hour wage increase was included in the proposed contract
submitted by the respondent to the Union at their next meeting on February 26.
At the last meeting on February 27, the Union and the respondent were in
4 Although it appears that the employees did not return to work until after the date of
the respondent 's ultimatum , the respondent did not cancel the contract.
" At the time of the hearing , there were 33 employees in the traffic department unit.
THE ELYRIA TELEPHONE COMPANY 437
agreement , according to Reilly, upon all general terms of the contract and had
reached an accord to submit to the W . L. B. five disputed matters, namely, union
security provisions ," overtime pay , "calling time," pay for work on Monday after
a Sunday holiday, and severance pay. Reilly testified that the Union did not
at this meeting agree to the respondent 's proposal of a 21/2 cents an hour increase
for all employees , but stated that the matter would have to be submitted to the
membership for approval . That evening a meeting of the Union was held and
it was agreed to accept the respondent's proposal on the wage issue. On February
28, Reilly informed the conciliator of the Union's acceptance of the wage increase
proposed by the respondent. O
B. Interference, restraint, and coercion
Mary Harrison, a long distance operator in the traffic department, testified
without contradiction and the undersigned finds that on February 27, 1945, about
4: 30 in the afternoon' one Mrs. Williams,' head operator of the traffic depart-
ment, called Harrison to Williams' desk and stated that "she [Williams] had
to tell every girl, individually, that [General Manager] Ammel was going to
give us a 21/•_, cents raise after January 1, 1945, and whether we belonged to the
Union or not, we would not be penalized "
According to the undenied and credible testimony of employee Marie Stankard,
president of the Union, she was next interviewed by Williams, who made sub-
stantially the same statements attributed to her by Harrison. When Stankard
remonstrated, "What do you mean, we won't be penalized for not belonging to
the Union? We have a contract that is in effect. It is a closed shop, and we
have to belong to a Union," Williams replied, "I don't know anything about that.
That is what I was told to tell you " Thereupon Stankard returned to her duties
at the switchboard and a few minutes later Williams came over and showed her
a copy of the telegram sent by the respondent to the Union's international presi-
dent on November 22, 1984, set forth above. Williams then telephoned someone
and after a brief conversation posted the copy of the telegram on the bulletin
board where it remained for approximately 2 weeks. After Williams posted the
telegram, she went down the line of switchboards and talked with each of the
remaining operators, with the exception of employee Mildred Trieskey, who,
according to Harrison and Stankard, had been the first employee to be summoned
to Williams' desk in the series of interviews that afternoon.'
" The Union insisted that the closed -shop provisions of the 1943 contract be carried over
into the new agreement . The respondent refused to agree to a closed shop and offered
instead a maintenance of membership provision whereby employees who on a specified date
were members of the Union and had not resigned therefrom should as a condition of em-
ployment maintain their membership in the Union . A similar maintenance of membership'
provision was agreed upon by the Union and the respondent in the plant department
contract.
7 Reilly testified without contradiction and the undersigned finds that the final bargain-
ing conference on February 27 ended about 3: 30 p. in. but that General Manager Roy
Ammel left the meeting about 2 p in.
8 Williams is in charge of the supervision of the traffic department . She makes out
work schedules , instructs the operators , and give them orders She never works on the
switchboards She grants or denies requests for leave of absence. The respondent admits
that Williams is "a supervisory employee of an executory nature." She is not included' in
the traffic department contract unit The undersigned finds that Williams is a supervisory
employee and that the respondent is accountable for her statements and activities
9 The above findings are based upon the mutually corroborative and undenied testimony
of the Board ' s witnesses . The respondent did not call any witnesses during the course of
the hearing.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
The respondent contends that by announcing on February 27, 1945, through
Head Operator Williams, that the respondent was granting a 21/2 cents an hour
wage increase to each employee in the traffic department, it committed no unfair
labor practice, because the Union and the respondent had entered into an accord
upon the wage increase a few hours earlier at a collective bargaining conference.
The contention is clearly without merit. Reilly, the Union's representative, testi-
fied without contradiction, and the undersigned finds, that at the close of the
meeting on February 27, 1945, the Union had not agreed to the 21/2 cents wage
increase offered by the respondent since it was necessary that this vital issue be
submitted to the membership for approval. On the other hand, assuming arguendo
that the Union and the respondent had reached an accord upon the wage issue, it
is clear that the collective bargaining negotiations had not ceased and that no
contract had yet been executed. The respondent, under these circumstances, was
under a duty to refrain from action which would influence the employees in their
voting on the respondent's wage proposal or in their organizational desires. In-
stead, having knowledge through the petition circulated on February 22, 1945,
that a considerable group of the traffic department employees were disposed to
withdraw from the Union, the respondent sought to undermine further the
strength of the Union by announcing, without giving credit to the Union for its
negotiating efforts, that the respondent was granting a wage increase. In addi-
tion, the respondent coupled with the wage increase announcement the further
statement that, despite the current closed-shop provisions of the extended 1943
contract and the pendency before the W. L. B. of the union security provision of
the 1945 contract then being negotiated, the employees would not impair their
job security by not being a member of the Union. Similarly, by the posting of
the telegram of November 22, the respondent sought to further emphasize its
pronouncement to the employees that they did not have to remain members of
the Union. By such unilateral action the respondent indicated to its employees
that the Union was an ineffective instrument through which they might expect to
secure their demands, thereby undercutting the authority of the Union as the
chosen representative of the employees. That such action on the part of the
respondent was obviously designed to discourage, and had the necessary effect
of discouraging, union membership and activity is shown by the testimony of
employee Harrison, who stated in this regard, "The idea is if you are going to be
penalized or not, what would be the use of joining the Union . . . The way it
whs said, it sounded that that 21/2 cents was given to us, whether you belong to
the Union or not, you wouldn't be penalized."
The undersigned concludes and finds that the respondent, by the statements of
Williams hereinbefore set forth and by the posting of the telegram of November
22, has interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act 10
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in con-
nection with the operations of the respondent described in Section I, above, have
a close, intimate, and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
10 Matter of Schmidt Baking Co ., Inc., 27 N. L. R . B. 864, enf 'd 122 F. ( 2d) 162 ( C. C. A.
4) ; Matter of Great Southern Trucking Company, 34 N. L. R. B . 1068, enf ' d 127 F. (2d)
180 (C. C. A. 4), cert. denied 317 U. S. 652.
THE ELYRIA TELEPHONE COMPANY 439
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS Or LAW
1. International Brotherhood of Electrical Workers, Local Union B-1014,
affiliated with the American Federation of Labor, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1) .
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, The Elyria Telephone Company,
Elyria, Ohio, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist International Brotherhood of Electrical Workers, Local Union
B-1014, affiliated with the American Federation of Labor, or any other labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Post at its plant at Elyria, Ohio, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice to be furnished by the Regional
Director for the Eighth Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material ;
(b) Notify the Regional Director for the Eighth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any party or counsel for the Board may within fifteen ( 15) days from the date
of the entry of the order transferring the case to the Board , pursuant to Section
32 of Article II of said Rules and Regulations , file with the Board, Rochambeau
Building , Washington 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceedings ( including rulings upon all motions or objec-
tions ), as he relies upon, together with the original and four copies of a brief
in support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a copy
upon each of the parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten ( 10) days from the date of the order transferring the case to the
Board.
I
Faao o B. PARxns, 2nd,
Trial Examiner.
Dated June 21, 1945.