The Western Reserve Telephone Co.

National Labor Relations Board - Board Decisions

Sep 21, 1962

138 N.L.R.B. 755 (N.L.R.B. 1962)

THE WESTERN RESERVE TELEPHONE COMPANY 755
The Western Reserve Telephone Company and Communications
Workers of America, AFL-CIO
The Western Reserve Telephone Company and Communications
Workers of America, AFL-CIO. Cases Nos. 8-CA-2665 and
8-RC-4546. September 21, 1962
DECISION AND ORDER
On June 28, 1962, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent has engaged in and is engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, and recommending further that the election
held on December 19, 1961, in Case No. 8-RC-4546 1 be set aside and
a new election held, as set forth in the attached Intermediate Report.
Thereafter, the Respondent and the Charging Party filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Dlembers Leedom, Fanning, and Brown].
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 Inter-
mediate Report and the entire record in this case and, except as modi-
fied below, hereby adopts the findings, conclusions,' and recommenda-
tions 3 of the Trial Examiner.
i Pursuant to an agreement for consent election executed by the parties and approved
by the Regional Director on December 5, 1961.
2 The Trial Examiner concluded that President Case's Interrogation of Respondent's
employees was not unlawful . We do not agree . As set forth in the Intermediate Report,
during the November 20 meeting , President Case asked for a show of hands by employees
who had signed union cards . In so doing Case did not tell the employees they would not
be subject to any reprisals for engaging in union activities . Indeed, when no hands were
raised Respondent 's Construction Superintendent Paul Graber , who was also present at
the meeting , told the employees that those employees who had signed union cards did not
have the courage of their convictions , and said that he would have raised his hand if he
had signed a card even though it cost him his job. In these circumstances , we find, it is
clear that the polling of the employees was not undertaken solely for the purpose of seek-
ing information with respect to whether or not Respondent should deal with the Union,
and was clearly violative of Section 8(a) (1) of the Act See, e g, Frank Sullivan and
Company, 133 NLRB 726
3 We do not adopt that part of the Trial Examiner ' s Recommended Order that we set
aside the December 19, 1961, election and direct a new election We note that this elec-
tion was conducted pursuant to an agreement for consent election approved by the Re-
gional Director for the Eighth Region. Under the Board' s Rules, the Regional Director
is authorized to make rulings and determinations of the results of such consent elections,
and such actions by the Regional Director shall be final . ( Section 102.62 (a), NLRB
Rules and Regulations , Series 8, as amended .) Accordingly, we shall sever Case No
8-RC-4546 from the proceedings herein and remand it to the Regional Director for such
action as he may deem appropriate.
138 NLRB No. 86.
662353-63-vol 138-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications:
(1) Add new paragraph 1(b) as follows :
"(b) Interrogating its employees as to their union activities, in-
terests, or affiliations, in a manner constituting interference, restraint,
or coercion."
(2) Change the numbering of present paragraphs 1(b) and 1(c) to
1(c) and 1(d) respectively.
(3) Delete the last paragraph of the Recommended Order which be-
gins "Upon the basis of the foregoing ..."
(4) Add the following paragraph to the Appendix following the
paragraph ending ".. . wages or wage rates already in effect.":
WTE WILL NOT interrogate our employees as to their membership,
interests in, or activities on behalf of Communications Workers
of America, AFL-CIO, or any other labor organization, in a, man-
ner constituting interference, restraint, or coercion.
(5) In the Appendix, change the penultimate sentence below the
signature to read "This notice must remain posted for 60 consecu-
tive days from the date of posting, .. ." instead of stating "60 days
from the date hereof."
IT Is FURTIIER ORDERED that Case No. 8-RC-4546 be, and it hereby is,
severed from the proceedings herein and remanded to the Regional
Director for the Eighth Region for such action as he deems
appropriate.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Case No. 8-CA-2665 was brought under Section 10(b) of the National Labor
Relations Act, as amended ( 61 Stat. 136, 73 Stat. 519), herein called the Act, on
a charge filed on January 8, 1962, by Communications Workers of America,
AFL-CIO, herein called the Union , against Respondent , The Western Reserve Tele-
phone Company , herein called the Respondent . On February 21, 1962, General
Counsel issued a complaint based on the charge , alleging that since on or about
November 17, 1961, Respondent interrogated employees , and promised and granted
benefits to them in violation of Section 8 (a)(l) of the Act, and since on or about
December 5, 1961 , initiated , formed , sponsored, and promoted a committee of
employees , herein called the Employees ' Committee , to deal with Respondent in
regard to grievances , wages, rates of pay, hours of work, and other conditions of
employment , and since that date Respondent has dealt with the Employees' Com-
mittee in regard to these matters , and in connection therewith Respondent has as-
sisted, dominated , and contributed to the support of the Employees ' Committee,
and has interfered with its administration , all in violation of Section 8(a)(2) of
the Act
Case No 8-RC-4546 was set for hearing before a Trial Examiner pursuant to
the order of February 21, 1962, of the Acting Regional Director for the Board's
Eighth Region . The Acting Regional Director found that the Union 's objections
Nos. 1 and 5 to the Board - conducted election on December 19, 1961, in a unit of
Respondent 's employees , and conduct Respondent may have engaged in from De-
cember 5 to 19, 1961, in regard to the initiation and sponsorship of the Employees'
Committee , and rendering financial and other assistance to its formation , raised
substantial and material issues with respect to conduct affecting the results of the
December 19, 1961 , election , and ordered a formal hearing on objections Nos
THE WESTERN RESERVE TELEPHONE COMPANY 757
I and 5 to the conduct of the election, and in regard to Respondent's alleged conduct
concerning the formation of the Employees' Committee and its domination and
support of it at or about the time of the election. Objection No. 1 alleged that
Respondent promised employees eligible to vote a wage increase contingent on the
loss of the election by the Union, and objection No. 2 alleged that Respondent
offered to pay hospitalization for these employees if the Union lost the election.
The Acting Regional Director on February 21, 1962, ordered Cases Nos.
8-CA-2665 and 8-RC-4546 consolidated for hearing. On April 16, 17, and 18,
1962, a consolidated hearing was held before Trial Examiner (James F. Foley) at
Akron, Ohio. Respondent, General Counsel, and the Charging Party were repre-
sented at the hearing, and were afforded an opportunity to be heard, make oral
argument, and file briefs. Briefs were filed by Respondent, General Counsel, and
the Charging Party after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation with its principal office and place of business
in Hudson, Ohio, is engaged in the business of providing local exchange and long
distance telephone services to customers in the State of Ohio. Annually, Respond-
ent's gross income is in excess of $100,000. It provides toll-call service valued in
excess of $25,000 annually to points outside the State of Ohio. Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and
assertion of jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act
Ill. THE UNFAIR LABOR PRACTICES AND CONDUCT AFFECTING THE RESULTS OF A
BOARD-CONDUCTED ELECTION
A. Issues
The issues in this case are whether Respondent's President Case and Vice President
F. W. Wood interrogated employees on November 20, 1961, with respect to union
membership and activity; whether Respondent, through Case and other representa-
tives, on November 20, 1961, and on other dates prior to a Board-conducted elec-
tion on December 19, 1961, promised wage increases and hospitalization and other
fringe benefits to defeat the Union's organizational efforts and bring about its defeat
in the Board-conducted election; whether prior to and after the Board-conducted
election, Respondent spawned the Employees' Committee, has bargained with it
in regard to wages, hours of work and other working conditions, and grievances,
has dominated or interfered with its formation and administration, or has con-
tributed financial or other support to it; and whether prior to the Board-conducted
election Respondent made the employees aware of the Committee, and gave them
the understanding that they would have to support the Committee as their bargain-
ing representative, and would obtain the benefits Respondent indicated might be
made available to them only through the Committee. If Respondent engaged in
the alleged conduct, it violated Section 8(a)(1) and (2) of the Act, and has
illegally affected the results of the Board-conducted election of December 19, 1961,
in a manner that warrants the Board setting aside the election and conducting
another election when the time and other circumstances are appropriate.
B. Background evidence
On November 9, 1961, Nelson H. Case, president of Respondent, sent a memo-
randum to all of its approximately 122 employees informing them that Respond-
ent's 19-year practice of giving an annual Christmas bonus to them would be
abandoned. He explained that it was abandoning the practice to pave the way for
the inauguration of an employee benefit program that would be in,line with the
program of the industry in general and commensurate with the type of operation
Respondent had, in view of the many operational changes it had undergone during
the 19-year period.'
'Respondent stated in the last paragraph of its memorandum:
There has been one field which has been lacking in its changes and that is the
field of employee benefits. In an effort to bring about some of the changes which
have been adopted by the industry in general, we are undergoing a very broad policy
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 15, 1961, President Case by memorandum informed Vice President
F. W. Wood, Commercial Manager T. H. Brown, and H. E. Cain, an unidentified
member of management, that he would like to hold a meeting November 20, 1961,
with all employees to further discuss the plan set out in his memorandum of
November 9. He stated he would like to meet with the office personnel in the
morning and the outside personnel in the afternoon. He further stated that he
would establish the exact time by discussing it with them.
On November 17, 1961, the Union filed with the Board a petition for certification
as bargaining representative of all Respondent's employees except supervisory,
professional and confidential employees, and guards. The organizational activities
began with the announcement of the discontinuance of the annual bonus on Novem-
ber 9. A consent-election agreement was executed on December 5, 1961, and the
election was held on December 19. The Union received only 37 of the 109 valid
votes counted. The remaining 72 votes were against the Union.
C. Interrogation of employees
President Case met with the outside employees in the warehouse of Respondent
in Hudson, Ohio, on the afternoon of November 20, 1961, from 3 to 5 o'clock.
There were approximately 75 employees present. Respondent's representatives
present besides Case were the vice president, the commercial manager, and Con-
struction Superintendent Paul Graber.2
President Case spoke to the assembled employees. He referred to the subject
matter covered by his memorandum of November 9. He then read to the employees
a telegram addressed to him by Martin J. Hughes, Ohio director of the Union. The
telegram was delivered to the offices of Respondent by telephone at 8 a.m. that
morning. The telegram contained notice by the Union that it represented a majority
of the employees and was their lawful collective-bargaining representative, and was
prepared to prove such representation. The Union demanded recognition as
collective-bargaining representative and requested that Respondent's representatives
meet with the Union's representatives that morning of November 20 at 9 a.m at
the Hudson office for collective bargaining. Hughes also stated in the telegram
that any changes in wages, hours, or other conditions of employment without first
bargaining with the Union's representatives would be considered by the Union as a
violation of Federal law.
Along with the reading of the telegram, President Case told the assembled em-
ployees that the consideration of the employee benefits program set out in the
November 9 letter would have to be tabled until after an election He stated he
believed that the Union did not represent a majority of the employees He asked
for a show of hands by employees who had signed union cards No hands were
,raised Paul Graber, construction superintendent, reprimanded the employees who
had signed union cards for not having the courage of their convictions in failing
to acknowledge the signing of the cards by raising their hands when requested
to do so by President Case. He said he would have raised his hand if he had signed
a card even though it cost him his job. He also said to them that they should
do the right thing?
D. Promising and giving hospitalization and other fringe benefits
Prior to December 5, the date of the consent-election agreement, and between
this date and the date of December 19, the date of the election, many departmental
change in our employee-benefit program. This program will cover hospitalization,
group life insurance, major medical programs, pension plans, disability benefits on
the job and off the job, and some sort of thrift and savings plan through stock pur-
chases. This program is an effort to modernize our employee-benefit program to
modern standards A more detailed summary of these changes will be forthcoming
within the next few weeks In order to bring about these changes it will he necessary
to forgo the annual Christmas bonus to assist in the establishment of this broader
program. Please be assured that the benefits which you will receive under the new
program will more than offset the benefits of the present program.
The witnesses did not testify regarding a morning meeting of assembled inside em-
ployees. Nor was Case asked whether such a meeting was held.
3I have credited President Case's testimony of what he said at the November 20 meet-
ing. When Case's testimony and the testimony of General Counsel's witnesses are con-
sidered with Case's November 9 and 15 memorandums, the latter's testimony appears to
be the more credible
THE WESTERN RESERI 'E TELEPHONE COMPANY 759
meetings of employees were held by President Case. General Counsel claims that
the testimony shows that Case discussed hospitalization and other fringe benefits with
the employees and told them that these benefits would be given to the employees
if the Union lost the election. However, testimony of all the witnesses, when evalu-
ated and analyzed, shows that Case never said that the benefits would be given to
the employees, but only that they would be considered after the election if the
Union lost. Case was about to discuss them with the employees when he received
the Union's telegram on November 20. No discussion of them took place because
of the telegram. Case also stated that if the Union won the election the benefits
would be subjects for collective bargaining between Respondent and the Union.
Moreover, the ,testimony of General Counsel's witnesses as well as Respondent's wit-
nesses disclose that the observations by Case that the benefits would be considered
if the Union lost the election could well have been made in response to questions
by the employees as to whether they would receive the benefits set out in the memoran-
dum of November 9 and referred to by Case in his talk to them on November 20.
E. Promising and giving wage increases
President Case testified that in meetings in the first part of December 1961,
prior to the election, he referred to a retroactive wage increase, and that after
the elections the wage increases were given. Respondent claims that the wage
increases referred to by Case were increases received annually by the employees
over a period of years. General Counsel's witness George Shaffer testified that a
week before the election in a departmental meeting of cable splicers, Case promised
a 3-percent -retroactive pay increase covering the period from February 19, 1961,
to June 1, 1961. He said that Case said the increase was to give them the same
increase received by the employees of The Elyria Telephone Company 4 These
employees received their increase on February 19 and Respondent's employees
received their increase on June 1. Shaffer further testified that Case said the
increase could not be paid until after the eletcion and only if the Union lost it.
Case 'testified that the purpose of the increase was to compensate employees for the
loss resulting from the discontinuance of the annual bonus, as well as to bring
the increase in line with the increase given to The Elyria Telephone Company em-
ployees George Randolph, a special equipment installer, testified that on the
Thursday (December 14) before election Tuesday (December 19), Kenneth Pontius,
his supervisor, said to him that the Company was thinking of a retroactive wage in-
crease to cover the period of February 19 to June 1, 1961. From Randolph's testi-
mony, the explanation of Pontius gave for the increase was the same reason that
Case gave to the cable splicers on or about December 12 for the increase. Pontius
also said that if the Union came in the increase would have to be negotiated. Pontius
further said to Randolph that he had been a little neglectful of his job as supervisor,
so he had put in for a 10-cent an hour merit increase for him, but it could not be
settled then in view of the coming election. He then asked Randolph if he would
care to tell him how he was going to vote, and Randolph replied he intended to vote
for the Union. Both Shaffer and*Randolph received the retroactive increases in lump
sums the same week of the election, and Randolph received the 10-cent an hour
merit increase iabout 4 weeks after the election. Charles Byers, an employee assigned
to the central office and doing work on special equipment and toll ticketing, and a
hostile witness called by the General Counsel, admitted hearing President Case say
in a departmental meeting that there would be the 3-percent retroactive increase
Employee Charles Barger, who was assigned to the warehouse and repaired tele-
phones and gave out supplies, and was a hostile witness called by the General
Counsel, could not recall the mention of a retroactive increase by Case before the
election. Both Byers and Barger admitted receiving the retroactive increases in
lump sums shortly after the election.5
F. The Employees' Committee
About 10 days prior to December 19. the election day, there was a meeting of the
central office employees at the main office in Hudson. Sixteen dial equipment room
'Mid-Continent Telephone Corporation was organized in June 6, 1960 , as a holding
company. The Elyria Telephone Company, Respondent , and other small telephone com-
panies in Ohio had or were to become subsidiaries Apparently, an attempt was being
made to inaugurate uniform policies including a uniform wage policy
51 credit the testimony of employees Shaffer, Randolph , and Suda about the retro-
active wage increase and Suda's testimony about the wage rate increase This testimony
is unrebutted , and corroborated by the testimony of President Case and employees Barger
and Byers.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and four special equipment installers were present. President Case and
G. B. Wright, in charge of the toll ticketing department, were also present.
Wright read to the employees a written proposal which he said was for a com-
mittee consisting of a representative from each of nine departments 6 to handle em-
ployees' grievances. Each department representative would be selected by the em-
ployees of each department. Wright said that Dick Burns, in charge of special equip-
ment installation in maintenance, and another person had assisted him in the prepara-
tion of the,proposal.7 Case expressed his opinion that such a plan would work, and
some of the employees expressed a similar opinion. Case asked John Blakely, an
installer or switchman, to attend a meeting that afternoon at Respondent's ware-
house to explain to employees headquartered there the proposal for a committee
of employees.8
On or about a week before the election, 20 to 30 construction and maintenance
employees headquartered at Respondent's warehouse in Hudson, Ohio, were as-
sembled there by President Case. Employees Charles Byers, Craig Wallace, and
two other central office employees were also present. President Case stated to the
employees that the men from the central office had a plan he thought would work.
Charles Byers then read to them the proposal for a committee of employees to
consist of representatives selected by the employees of each of nine departments to
handle employee grievances with Respondent.
Also about a week before the December 19 election, Kenneth Pontius, foreman of
the crew of special equipment installers with which employee George Randolph
worked, asked him if he would be willing to attend a meeting to discuss his ideas
of ways of setting up the committee of employees, and matters he would like to see
brought up by the committee. Randolph agreed to attend this meeting. He attended
the meeting which was held with employee Byers presiding, during working hours
on Thursday, December 14, 5 days prior to the election, in the conference room of
the central office. Only rank-and-file employees were present. Employee William
Danforth, also of the central office, was among those present .9
Employee Byers, who testified for General Counsel as a hostile witness, testified
that on December 20, 1961, he learned from President Case of a meeting to be held
on December 21, 1961, in regard to the formation of the employee group that had
been discussed within the 10-day period prior to the election. According to Byers,
he asked Case if it could be held in the conference room of the central office, and
Case gave his consent. Byers further testified that the meeting was held on the morn-
ing of December 21. Present were an employee from each of seven of the nine de-
partments. The employees were Byers from the central office group of construction
and maintenance employees, identified as switchmen; Bender from the installers;
Madelyn Owen from the operators located at Northfield, Ohio; Donna Hunter from
the service representatives or commercial department; Mary Rober from accounting;
Cosma from the plant employees; and Krejci from the linemen and the tree trimmers.
The evidence is not clear as to how these employees were selected or how they were
notified to attend the meeting.1° For this meeting and the meeting of December 26
In each department one or more employee classifications were grouped. These depart-
ments were installers , linemen and tree trimmers , cable splicers, miscellaneous employees,
switchmen, Northfield traffic (operators), revenue accounting employees, service repre-
sentatives, and inside plant employees These departments, which were designed to chan-
nel employee actions to management through a committee, did not necessarily coincide
with operational groups established by management for operational purposes
7 On or about February 5, 1962, President Case announced that Burns was preparing a
training program for installers and repairmen. These employees numbered 15 or more.
9 The outside installers and repairmen, linemen and tree trimmers, cable splicers, plant
employees, and miscellaneous employees were headquartered at Respondent's warehouse
in Hudson. Ohio.
6 Employee Byers testified that there was an employee committee in existence in Novem-
ber 1961, consisting of himself and employees Keller, Wallace, and Horning of the central
office. However, the statements made prior to the election by President Case and by
Pontius and Wright disclose that the committee whose formation was being discussed
was something new and not related to any prior existing employee group
10 Employee Byers could not recall the manner by which the employees were selected to
attend the meeting, or the manner by which they were notified to attend, then he testified
that in a sense they were invited to attend, and finally afer persistent examination by
Counsel Finley for the Charging Party, he testified that they were selected by the em-
ployees of their respective departments. When asked how he knew this was the case, he
testified that they told him so. Byers spearheaded the Employees' Committee organiza-
THE WESTERN RESERVE TELEPHONE COMPANY 761
they were temporary representatives. However, the group meeting on December 21
and 26, 1961, and 10 times thereafter, is the Employees' Committee referred to herein,
as well as in the complaint and order setting the hearing on objections to the election
of December 19, 1961.
At the meeting, procedures were adopted for the holding of the meeting and for
other meetings of temporary representatives and of permanent representatives. Byers
was elected to preside as chairman at the meetings. The employees decided that the
chairman would swear in permanent members of the committee and that President
Case would swear in the chairman. The employees also decided that verbal griev-
ances would go to the supervisor in a department or to the department representative
or both. If satisfaction was not given, a written grievance signed by the complainant
and the department representative would be submitted to the Employees' Committee
for the written decision of the Committee. This group of employees voted to hold
another meeting on December 26, 1961, at 1 p.m.
Employees representing six of the nine departments met in the conference room
of the central office on December 26, 1961. Byers, Bender, Owen, Rober, and
Krejci again represented their respective departments. Judy Gridley represented the
service representatives or commercial department instead of Donna Hunter. Betty
Spears, Vice President Wood's secretary, was present to act as secretary. Employee
Cosma, who represented the plant employees on December 21, was not present, and
no other employee appeared in his place. The record also lacks clarity as to how
these particular employees were present to represent their fellow employees. It is
true that they agreed at the meeting on December 21 to meet again on December 26
at 1 o'clock in the afternoon.
Employee Byers presented a draft of a set of bylaws to the assembled group of
employees. This set of bylaws was considered by the group. Byers testified that
the set of bylaws attached to the minutes of the December 26 meeting is a summary
of the set originally submitted. Some changes in language were made. In answer
to a question of Attorney Clyne for the Respondent, Byers testified that they had
not been formally adopted by the Employees' Committee. But the minutes of the
meetings of the Employees' Committee and the oral testimony show that they in-
corporate the procedures followed in the election of representatives at the depart-
ment level who became the committee of departmental representatives herein called
the Employees' Committee, and identified in the bylaws and by Byers as a board
of trustees. They also incorporate the procedures used in the election of depart-
mental committees, and alternate departmental representatives to assist the depart-
mental representatives in bringing matters before the Employees' Committee and
the procedures followed by the Employees' Committee in considering these matters.
The bylaws provide for Employees' Committee meetings both in the presence and
absence of President Case.
The bylaws provide, among other things, that: Notice of meetings shall not be given
later than 4 p.m. and will not occur before 8 a.m. of the following day; the personnel
in each department must attend meetings called by the permanent departmental rep-
resentative or the alternate departmental representative with the consent of two of
the departmental committee; the president of Respondent may attend meetings of
the Employees' Committee during presentation of documents, negotiations of docu-
ments, and the signing of final documents; all final documents are to be signed by the
president of Respondent in the presence of the Employees' Committee, and the
committee chairman shall witness all documents signed by Respondent's president;
the president of Respondent shall inform all management and supervisors of the
contents of the documents, after his signature; the committee chairman shall present
all documents of the Employees' Committee to Respondent's president for his ap-
proval or for negotiation and approval; and the committee chairman shall arrange
to notify all supervisors of the absence of their personnel required to attend a meeting
of the Employees' Committee. The bylaws also provide for the disposition of griev-
ances in the manner adopted by the Employees' Committee at its December 21
meeting.
Employee George Shaffer, a cable splicer, headquartered at the warehouse, was
elected by the cable splicers as their permanent representative during the last part
of December 1961 or the first few days of January 1962. The meeting of the cable
splicers at which Shaffer was elected was held at 8 a.m. Working time for Shaffer
and the other employees at the warehouse began at 7:30 a.m. Shaffer attended a
meeting of departmental representatives on January 4, 1962. Shaffer was notified
tion and the preparation of its bylaws, participated in the preelection discussions of an
employees' committee, and was a member of a three-employee committee a year before
the election and a member of a 'four-employee committee in existence in November 1961.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the meeting by President Case 11 Robert D. Schafer, a cable splicer's helper,
testified that about a week after the December 19 election, Construction Superin-
tendent Graber informed the construction department employees that they would
have to hold an election to elect a representative to represent the department with
the Company (Respondent). He testified that Graber conducted the election, col-
lecting the ballots and counting them. This was the meeting at which employee
Krejci was elected temporary representative. Schafer testified that Graber was
not present when his department, the cable splicers, elected George Shaffer as their
permanent representative.12 Schafer further testified that at the election Graber
said he wanted the men to go along with the "Committee or else," and also said
the faster the election was over the better.13
Employee Leonard Suda was elected by the department of switchmen in the
central office as their department representative at a meeting held at 8 a in. on
some day between January 4 and 8, 1962.14 A foreman by the name of Williams
in the central office had reached him by telephone the day before the meeting when
he was at Respondent's Northfield office to tell him to be at a meeting the following
morning at the central office to elect a representative.15
The first meeting of the Employees' Committee was held at the conference room
of the central office the morning of January 4, 1962. Seven of the departments
were represented at this meeting. These employee representatives, or their alter-
nates, were to attend nine similar meetings through March 12.16 They and Madelyn
Owen who represented the operators at Northfield, Ohio, and Suda, who repre-
sented the switchmen at the central office, were the permanent representatives.
President Case was present at this meeting as he was at the following nine meet-
ings.17 So also was Betty Spears, Vice President Wood's secretary. She was the
secretary and took down the minutes. Case opened the meeting, Chuck Byers
was elected chairman, and Case swore Byers in as chairman. George Shaffer was
elected assistant chairman. The subject of a 40-hour week was brought up and
discussed.
"Shaffer testified that Dick Krejci, lineman or tree trimmer, was elected on Decem-
ber 26, 1961, as a temporary representative for the cable splicers Krejci apparently
was elected at that time to represent more employees in the construction group than cable
splicers. Construction Superintendent Graber told the employees under him on Decem-
ber 26 that a temporary representative had to be selected. The grouping of all employee
job classifications into nine departments was done in connection with the drafting of the
bylaws, and the schedule by departments of job classifications and personnel was attached
to the bylaws, and presented to the Employees' Committee along with the bylaws at the
December 26 meeting . So representation by the nine departments was not necessarily
followed until the January 4, 1962, meeting, which followed the December 26 meeting
As previously found , supra, Krejci was on the employee group that met on December 21
to plan for a permanent employees committee Since he was not elected as temporary
representative until December 26, 1961, it appears that be was selected and not elected
to be on the employee group that met on December 21
"Employee Schafer was elected by verbal vote to the cable splicers' departmental
committee.
13 This is the election at which employee Dick Krejci was elected temporary representa-
tive. Employee George Shaffer testified for the General Counsel regarding this election
(supra).
14 Suds, and 3 other equipment installers and 16 dial equipment room workers in the
central office made up a departmental group identified as switchmen
15 Employee Byers had been elected as the representative prior to January 4, but the
departmental representatives, who became the Employees' Committee at their January 4
meeting, elected Byers to be their chairman. By this latter action, Byers' department was
entitled to have another permanent representative to sit on the Committee as the chair-
man did not vote unless there was a tie Suda attended the January 8 meeting and the
seven meetings that followed.
ae Those present at the January 4 meeting were Chuck Byers from the central office
switchmen , Edward Bender from the installers, Mary Rober from accounting, Dick Krejci
from the linemen and tree trimmers, Les Dunlap from the plant employees, George Shaffer
from the cable splicers, and Prank McCartney from the service or commercial representa-
tives. Neither Madelyn Owen nor her alternate, Maryann Hoffman, appeared for North-
field traffic. One of them was present, however, at six of the nine meetings that followed
The group of employees identified as miscellaneous did not have a representative No
representative appeared for these employees at any of the meetings.
17 An additional meeting was held at Chuck Byers' home on January 26 Case was not
present. There are no minutes of this meeting in evidence.
THE WESTERN RESERVE TELEPHONE COMPANY 763
The next meeting was held on January 8, 1962, at 8 a.m. The same employee
representatives were present, with the addition of Madelyn Owen for the operators
at the Northfield office and Leonard Suda. As previously stated, Suda became a
member of the Employees' Committee after Byers was elected chairman at the
January 4 meeting. These representatives were sworn in as permanent representa-
tives by Chairman Chuck Byers. The previous meeting's minutes were read and it
was decided to discuss Respondent's proposals to the employees. During this meet-
ing a discussion was held on the subjects of seniority, a 40-hour week, overtime,
holidays, vacations, leave of absence, job posting, sick time, hospitalization, school-
ing, uniforms, and a stock-purchase plan.
At the following meetings, which were held on January 15, 22, 25, and 29,
February 5, 12, and 19, and March 12, at 8 a.m., the above bargainable subjects
and many others were discussed to the extent that the whole gamut of bargainable
subjects was covered. At the January 15 meeting, President Case reviewed the
minutes of the January 8 meeting. At the January 22 meeting, a wage schedule
was discussed, and at the January 25 meeting President Case presented Respondent's
proposed wage schedule. Attached to the minutes of the February 5 meeting is a
detailed statement covering many matters involving wages, hours, and working
conditions, including wage schedules. Counsel for Respondent identified it as a
proposal of the Respondent. At the January 4 and 8 meetings , the Respondent's
workweek which varied for employee groups from 44 hours to 421h hours was
discussed. The Committee indicated to President Case that a 40-hour week was
preferred. Respondent's proposal of February 5 for a 40-hour week was accepted
at that meeting by the Committee, with the reservation that it would be voted on
by each department of employees.
The minutes of the March 12 meeting have a reference to a reading of the
Board's complaint in this proceeding and a reference to the originally scheduled
hearing date of April 9, 1962. Presumably, no further meetings were held in view
of the pendency of the Board hearing.18
i F. Analysis and concluding findings
I conclude and find that Respondent by President Case and Vice President Wood
did not interrogate employees in violation of Section 8(a) (1) of the Act, or in a
manner that illegally affected the results of the Board-conducted election. No
evidence was presented to show questioning by Vice President Wood, and President
Case's questioning was legal under the Blue Flash doctrine.19
I conclude and find that Respondent in violation of Section 8(a) (4) of the Act
promised retroactive wage increases and a wage-rate increase to employees at or
about a week before the December 19, 1961, Board-conducted election, and granted
the increases shortly after the election 20 I also conclude and find that Respondent's
action illegally and substantially affected the results of the Board-conducted election
of December 1.9. The promises were made after the consent-election agreement of
December 5, 1961.21 It is true, as President Case testified, that the retroactive wage
increase, which the employees received shortly after the Union lost the election, was in
connection with the increase the employees annually received. But Respondent,
which had given the annual increase from the prior June .1, suddenly announced
just a week before the election that the beginning date for the increase would be
the prior February 19, the date the employees of the Elyria Company received theirs,
and not June 1, and following the election paid each of the employees the lump sum
to cover the time between February 19 and June 1. It is more than a coincidence
that the announcement of the retroactive increase was made just before the election,
since Respondent's interest was in the Union's defeat rather than its success in the
then-forthcoming election. Absent a motive to defeat the Union, Respondent would
have waited at least until the election had been held before announcing the Re-
181 have premised my findings of preelection statements about the Employees' Com-
mittee by President Case and other representatives of Respondent on the testimony of
employees Suda and Randolph This testimony is undenied and unrebutted, and cor-
roborated by the testimony of employees Shaffer, Schafer, and Byers My findings as to
what transpired at the meetings starting December 21, 1961, and continuing through
March 12, 1962, are premised on the minutes of those meetings
18 Blue Flash Express , Inc, 109 NLRB 591 ; N.L.R B v Fcredoor Corporation of
America, 291 F. 2d 328, 331 , cert denied 368 U.S. 921
20 Central Freight Lines, Inc, 133 NLRB 393; Jan's Service Inc., 131 NLRB 341;
Wahlgren Magnetics, a division of Marshall Industries , 132 NLRB 1613.
21 F. W. Woolworth Company, 109 NLRB 1446; Colvert Dairy Products Company,
136 NLRB 1508.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's change in policy with respect to the increase. For these same reasons,
I also hold illegal the merit wage-rate increase promised employee Suda on Decem-
ber 44 and given to him 4 weeks after the election.
I conclude and find that President Case did not violate the Act or illegally affect
the results of the Board election by references he made to hospitalization and fringe
benefits in meetings he held with assembled employees on November 20, 1962, and
at other meetings of assembled employees prior to the election on December 19,
1961.22 In his memorandum on November 9, 1961, prior to any organizational
activity by the Union, he stated that the Respondent contemplated giving hospitaliza-
tion and the other fringe benefits to the employees instead of the annual bonus which
they had been receiving for the previous 19 years. In the November 20 meeting, Case
told the employees who had been assembled pursuant to his memorandum of Novem-
ber 15, that he was precluded from discussing these benefits with them because
of the Union's telegram received by Respondent that morning at 8 o'clock demanding
recognition and a bargaining conference at 9 o'clock that same morning. Case fur-
ther told them that the benefits would be considered by Respondent after a Board
election, and that Respondent would have to negotiate with the Union regarding
them if the Union won the election. Case told the employees only what the situa-
tion truthfully was and what it would be after the election. He had a legal right to so
inform the employees, and the employees had a legal right to this information. In
order for the employees to decide freely and voluntarily whether they wished to have
the Union represent them, they had a right to know that hospitalization and other
fringe benefits would be discussed with Respondent on their behalf through the
Union and not by the employees directly. if the Union became their collective-
bargaining representative. To sustain the Union's and General Counsel's position
that Respondent had to abstain from disclosing this truthful situation to the em-
ployees, presumably because the employees might not vote for the Union if they
knew they could not deal directly with Respondent regarding the benefits if the Union
won the election, would be to accord the Union an advantage in the election that the
Act does not provide. There is no evidence warranting the inference that Case was
saying in effect that the benefits would be forthcoming only if the Union lost the
election. Moreover, the state of the evidence does not permit me to cast aside
the Respondent's position supported by evidence as well as argument that in the
meetings following the November 20 meeting Case stated that hospitalization and
other benefits would be considered after the election, and would be negotiated with
the Union if it won the election, only when discussion of these subjects was initiated
by the employees. It was natural for the employees to initiate such a discussion
since the annual bonus had been discontinued, and nothing was being received as a
substitute for it as promised in Case's memorandum of November 9.23
I conclude and find that the Respondent dominated or interfered with the forma-
tion or administration of the Employees' Committee and contributed support to it.
Respondent's sponsorship of the Committee prior to the election also illegally and
substantially affected the results of the Board-conducted election of December 19.
That the Employees' Committee is a labor organization is apparent from the find-
ings I have made. It was formed to deal with Respondent on behalf of employees
regarding labor disputes, grievances, wages, hours of work, and other conditions
of employment.24
The domination and interference by Respondent both of the formation and the
administration of the Employees' Committee are apparent from the evidentiary
findings. President Case stated he favored the proposal for the Committee read to
assembled employees by Foreman G. B. Wright and employee Chuck Byers 10 days
before the election, and asked employee Blakely to attend a meeting of employees at
Respondent's warehouse and explain the proposed committee to them. Respondent's
foremen solicited and instructed employees to attend meetings of departmental groups
of employees to elect departmental representatives who would make up the Em-
See N.L R B. v. Cleveland Trust Co ., 214 F . 2d 95 (C A 6).
23 The absence of any reference to a retroactive wage increase or a wage-rate increase
in Case's memorandum of November 9 as a substitute for the annual bonus rebuts Case's
testimony that the increases were a substitute for the bonus . Case knew that the placing
in effect of the fringe benefits was not possible in view of the representation proceeding.
He must have realized that he had less chance of giving wage increases in view of the
representation proceeding since the wage increases were not contemplated as a substitute
for the annual bonus.
24 N.L.R B. v. Cabot Carbon Company, 360 U.S. 203, 210-213; N .L R B. v. Firedoor
Corporation of America, 291 F 2d 328, cert. denied 368 U.S. 921 ; Wahlgren Magnetics,
a division of Marshall Industries , 132 NLRB 1613.
THE WESTERN RESERVE TELEPHONE COMPANY 765
ployees' Committee. One foreman, Ken Pontius, asked employee Suda, who worked
under his supervision, to attend a meeting of employees on Thursday, December 14,
5 days prior to the election, to discuss ideas regarding the formation of the Committee
and matters to be brought up by committee members. On December 20, 1961,
employee Chuck Byers, who was to become the Committee's chairman, learned from
President Case of the meeting to be held on December 21 of the group of seven
temporary departmental employee representatives, five of whom were subsequently to
become permanent representatives and to form the nucleus of the Employees' Com-
mittee. While they were elected to be permanent representatives by the employees,
the manner in which each of them acquired the status of temporary representative is
not clear.
President Case attended each of the 10 meetings of the Employees' Committee held
during the period January 4 to March 12, 1962. He swore in the chairman on
January 4, and at the January 15 meeting he reviewed the minutes of the prior
meeting of January 8. He conferred with the Employees' Committee representatives
on all matters dealing with wages, hours, working conditions, and other conditions
of employment. All the meetings, except the January 26 meeting which was held
at Byers' home, and some, if not all, meetings at the department levels, were held dur-
ing working hours and on Respondent's premises.
The foregoing evidence supports my finding that Respondent dominated and
interfered with the formation and administration of the Employees' Committee or
board of trustees and contributed support to it.25
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, which occurred in
connection with the operations of the Respondent described in section 1, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent promised wage increases just prior to a Board-
conducted election and granted the wage increases shortly after the election, and
that prior to and after the Board-conducted election Respondent initiated and spon-
sored the formation and administration of the Employees' Committee and furnished
assistance to it, and thereby interfered with, coerced, and restrained employees
in violation of Section 8(a)(1) of the Act, and dominated or interfered with the
formation or administration of a labor organization and contributed support to it
in violation of Section 8(a)(2) and (1) of the Act, and illegally and substantially
iaffected the results of the Board-conducted election of December 19, 1961, I shall
recommend that Respondent cease and desist from engaging in this conduct and take
certain affirmative action designed to prevent the recurrence of the unfair labor
practices, or same or similar conduct, and I shall further recommend that in the
representation proceeding, the Board vacate and set aside the election of December
19, 1961, and direct a new election at a time appropriate pursuant to the consent-
election agreement of December 5, 1961.
As -a remedy against the 8(a) (2) violation, I shall not only recommend that
Respondent be ordered to cease and desist from dominating, interfering with, or
furnishing support to the formation and administration of any labor organization,
particularly the Employees' Committee, but shall also recommend that Respondent
be ordered to withdraw its recognition from, and to permanently diestablish, the
Employees' Committee and refrain from recognizing it, or any successor thereto,
for the purpose of dealing with it as the representative of its employees regarding
grievances, labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment. However, I am not recommending that Respondent be
required to vary the wages, hours, or other working conditions or benefits Respond-
ent established as a result of meeting, conferring, or negotiating with, or otherwise
dealing with the Employees' Committee.
CONCLUSIONS OF LAW
1. Respondent, The Western Reserve Telephone Company, is engaged in commerce
within the meaning of the Act.
23Firedoor Corporation of America , 127 NLRB 1123 , enfd 291 F. 2d 328 (CA 2),
cert denied 368 US 921; Oliver Machinery Corp, 102 NLRB 1822, enfd 210 F. 2d
946-947 (C.A. 6)
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Communications Workers of America, AFL-CIO, and the Employees' Com-
mittee are labor organizations within the meaning of the Act.
3. By promising wage increases to its employees prior to the Board-conducted
election of December 19, 1961, Respondent promised benefits to discourage union
activity and membership and to interfere with employees' rights in Section 7 of
the Act, in violation of Section 8(a)(1) of the Act, and illegally and substantially
,affected the results of the Board-conducted election of December 19', 1961, in a unit
of Respondent's employees, and by granting the promised wage increases following
the election, Respondent also violated Section 8 (a) (1) of the Act.
4. By initiating, sponsoring, and furnishing assistance to, and dealing with, the
Employees' Committee, Respondent dominated or interfered with the formation or
administration of a labor organization and contributed support to it, in violation of
Section 8(a)(2) and (1) of the Act, and illegally and substantially affected the
results of the Board-conducted election of December 19, 1961.
5. Respondent did not illegally interrogate employees by its President Case or
Vice President Wood, or illegally promise hospitalization or other fringe benefits
during union organizational activity or prior to an election conducted by the
National Relations Board in a representative proceeding
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and the
entire record in the case, I recommend that Respondent, The Western Reserve
Telephone Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising wage increases or increases in wage rates, or other benefits before
a Board-conducted election or promising or granting them during organizational
activity by Respondent or any other labor organization, or engaging in similar or
related conduct, except that Respondent is not required to vary any increases in
wages or wage rates or any benefits already granted.
(b) Dominating, interfering with, or furnishing support to, the formation or
administration of any labor organization, and particularly the Employees' Committee.
(c) Recognizing the Employees' Committee or any successor thereto as the
representative of its employees for the purpose of dealing with Respondent in
regard to grievances, labor disputes, wages, rates of pay, hours of work, or other
conditions of employment, except that Respondent is not required to vary wages,
hours of work, or other conditions of employment it placed in effect as a result
of meeting, negotiating, and conferring with or otherwise dealing with, the Em-
ployees' Committee.
2 Take the following affirmative action which I find will effectuate the purposes
of the Act:
(a) Withdraw and withhold all recognition from, and completely disestablish,
the Employees' Committee as the representative of any of Respondent's employees
for the purpose of dealing with Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of work, or other conditions of employment
(b) Post in conspicuous places at all its offices, plants, warehouses, or other
places where notices to employees are customarily posted, copies of the attached
notice marked "Appendix." 26 Copies of said notice, to be furnished by the Re-
gional Director for the Eighth Region, shall, after being duly signed by Respondent,
be posted by Respondent immediately upon receipt thereof and be maintained by
it for a period of 60 consecutive days thereafter. Reasonable steps shall be taken
by the Respondent to insure that such notices are not altered, defaced, or covered
by any other material.
2e In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
THE WESTERN RESERVE TELEPHONE COMPANY 767
(c) Notify the Regional Director for the Eighth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith.27
It is further recommend that unless on or before 20 days from the date of receipt
of this Intermediate Report and Recommended Order, the Respondent notify the
aforesaid regional Director in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring Respond-
ent to take the action aforesaid.
Upon the basis of the foregoing findings of fact and conclusions of law, it is
further recommended to the Board that it set aside the election it conducted on
December 19, 1961, in a unit of Respondent's employees, pursuant to the consent-
election agreement of December 5, 1961, and direct a new election to take place in
this unit of employees at such time as circumstances permit the free choice of a
bargaining representative.
In the event that these Recommendations are adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the purposes of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT promise or give you wage increases or other benefits for the
purpose of persuading you to vote against Communications Workers of America,
AFL-CIO, or any other labor organization in an election conducted by the
National Labor Relations Board, or in any like or related manner interfere with,
restrain, or coerce you with respect to your rights to engage freely in union
activity, other concerted activity, or other mutual aid and protection, or to em-
brace union membership We recognize, however, that we are not required
to withdraw or rescind any increases in wages or wage rates already in effect.
WE WILL NOT dominate, interfere with, or furnish support to the formation of
any labor organization of our employees, including the Employees' Committee
or board of trustees.
WE WILL NOT dominate, interfere with, or furnish support to the administra-
tion of the Employees' Committee or board of trustees, or any other labor
organization of our employees.
WE WILL NOT recognize the Employees' Committee or board of trustees, or
any successor thereto, as the representative of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages, rates of pay, hours
of work, or other working conditions of employment. We recognize, however,
that we are not required to vary wages, rates of pay, hours of employment, or
other working conditions heretofore established as a result of our dealing with
the Employees' Committee or board of trustees.
WE WILL withdraw all recognition from and completely disestablish the Em-
ployees' Committee or board of trustees, and refrain from recognizing it, or any
successor thereto, as the representative of any of our employees for the purpose
of dealing with us concerning labor disputes, grievances, wages, wage rates, hours
of work, or other conditions of employment.
All our employees are free to become or remain members of Communications
Workers of America, AFL-CIO, or any other labor organization
THE WESTERN RESERVE TELEPHONE COMPANY,
Employer
Dated------------------- By-------------------------------------------
(Rei)iesentative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, 72,0 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone Number, Main 1-4465,
if they have any questions concerning this notice or compliance with its provisions.