Communications Workers of America

National Labor Relations Board - Board Decisions

Aug 21, 1957

118 N.L.R.B. 1104 (N.L.R.B. 1957)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in that portion which dismisses as to the riggers-a normal appren-
ticeship program, or even the label "journeyman," is not sufficient
to create craftsmen within the Board's definition of the term. Indeed,
denial of a separate bargaining unit to the riggers, who also train
through a 4-year apprenticeship program, are classified in progressive
grades to journeymen status, and exclusively perform specialized and
difficult work, unmistakably illustrates the majority's departure from
the American Potash rule in granting the boilermaker unit.
Because I do not believe this record, as to the boilermaker group,
meets the Board's established craft severance test, and because of the
inconsistency inherent in applying, all in one case, a high-content test
to the riggers and a watered-down one to the boilermakers, I would
dismiss both petitions in this case.
Communications Workers of America , AFL-CIO and its District 8
and its Local Union 8519 and The Mountain States Telephone
and Telegraph Company. Case No. 21-CD-39. August 21,1957
DECISION AND ORDER
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of Section 8 (b) (4) (D) of
the Act, the Board is empowered and directed to hear and determine the
dispute out of which such unfair labor practice shall have arisen...."
On March 28,1956, Mountain States Telephone and Telegraph Com-
pany, herein called the Company, filed a charge 1 with the Regional
Director for the Twenty-first Region against Communications Work-
ers of America, AFL-CIO, and its District 8 and its Local Union 8519,
herein called the CWA. The charge alleged that CWA had engaged
in and were engaging in unfair labor practices within the meaning of
Section 8 (b) (4) (D) of the Act.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge and provided for an appropriate
hearing upon due notice to all parties. A hearing was held before
Ernest L. Heimann, hearing officer, from July 24 through July 27,
1956. All parties appeared at the hearing and were afforded full op-
portunity to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. The rulings of the hearing officer made
at the hearing are free from prejudicial error and are hereby affirmed.
The Company and CWA filed briefs with the Board.
"This original charge was followed by an amended charge filed May 22 , 1956, which
added the Union 's District No. 8 and its Local 8519 as additional parties.
118 NLRB No. 154.
COMMUNICATIONS WORKERS OF AMERICA 1105
Upon the entire record in the case, the Board makes the following:.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Mountain States Telephone and Telegraph Company is a public
utility, with its principal office at Phoenix, Arizona. The parties
stipulated that the Company has an annual gross volume of business
exceeding $3,000,000.
We find that the Company is engaged in commerce within the mean-
ing of the Act.
2. THE ALLEGED DISPUTE
a. The facts
The Union has represented employees of the Company' s revenue
accounting division for many years. Its contract provides that neither
the Company nor the Union shall "change, delete, or add to the list
of job titles," except by mutual agreement.
The Company several years ago rented machines for the purpose of
establishing direct long distance dialing, called CAMA (Centralized
Automatic Message Accounting). It decided that the machines, which
were only being partially utilized by CAMA, could also be used for
some of the functions performed in its revenue accounting division, as
well as its disbursements accounting division. Employees in the latter
division are unrepresented. It therefore determined to place the ma-
chines in a machine service section, and to staff this section with em-
ployees from both revenue accounting and disbursements accounting
divisions. It contemplated putting the machine service section under
the disbursements accounting division for purposes of supervision and
direction.
When the Union was advised of the proposed change, it took the
position that the Company was precluded by the contract from effect-
ing it without consent by the Union. The Union filed charges with the
Board on February 23, 1956, and an amended charge on March 28,
1956, alleging, in substance, that the Company had refused to bargain
with it concerning the proposed transfers. These charges were dis-
missed by the Regional Director for the Twenty-first Region, and, on
November 26, 1956, the General Counsel denied the Union's appeal
from the Regional Director's action.
On March 7, 1956, after the first employee from revenue accounting
was transferred to the machine service section, the Union called a
strike. The Union's position at the time was that the Company was
bound by its contract not to transfer work and employees out of the unit
represented by the Union without the latter's consent. The Union
alternatively took the position that it was entitled to represent em.-
450553-58-vol. 118-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees performing the transferred work functions, whoever they
might be (i. e., whether they were transferred from revenue accounting
division or not). The Union did not at any time, so far as the record
shows, demand that the work tasks of the machine section be assigned
to any employee or employees other than those the Company had desig-
nated for these tasks 2
b. The contentions of the parties
The Company contends that an object of the strike was to require or
force the assignment of work in the machine service section to the
Union. The Union, on the other hand, asserts that (1) the dispute
arose not over the assignment of work, but over the Company's alleged
violation of its contractual obligation to get the Union's agreement
before transferring any employees; (2) the Company's refusal to
bargain with it as the representative of the employees transferred to
the machine service section after the transfer caused the strike; (3)
the Respondent Union never sought to force the Company to assign
particular work to members of a particular labor organization, trade,
craft, or class rather than to members of any other labor organization,
trade, craft, or class; (4) the parties agreed upon voluntary methods
of adjusting the dispute by a strike termination agreement, executed
May 9, 1956 ; (5) the Union has been and is willing now to confer with
the Regional Director and the Company in order to settle the charges.
c. As to the nature of the dispute and the applicability of the statute
Section 10 (k) of the Act provides that :
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph 4 (D) of section
8 (b), the Board is empowered and directed to hear and determine
the dispute... .
Section 8 (b) (4) provides that it shall be an unfair labor practice
for a labor organization or its agents :
8 Thus, the Company in its brief points to certain documents published by the Union,
as answers to questions set forth by the Company in a form letter to its employees, as
being "of particular significance." These answers quite clearly set forth the Union's
objective , which, as stated above, was limited, once the transfers were actually made, to a
demand for representative rights for employees doing work that had earlier been performed
in the revenue accounting division . For example , the Union said "We have n.o quarrel
with the transfer of disbursement employees to the new machines , only that the job
operation be left under the revenue accounting contract " ; ". . . we are interested first in
the job operation staying under a union contract " ; William R . Martin, assistant director
of the Union 's District No. 8, testified to the same effect : "We do not object to transfers
of people . . . but we certainly do oppose your taking work out of the bargaining unit," for
example , was District No. 8 District Director Smith's statement to the Company , as testi-
fied to by Martin ; and Martin stated further that "We want the portion that has been done
by the revenue accounting to continue to be bargained for by the union, and that the people
who work in the revenue accounting to continue to be represented by the union that
they have always been represented for or by."
0
COMMUNICATIONS WORKERS OF AMERICA 1107
(4) to engage in, or to induce or encourage the employees of any
employer to engage in, a strike . . . where an object thereof is:
(D) forcing or requiring any employer to assign particular work
to employees in a particular trade, craft, or class rather than to
employees in another labor organization or in another trade, craft,
or class, .. .
The long list of cases involving these sections manifest that 8 (b)
(4) (D) and 10 (k) were intended to embrace disputes over the assign-
ment of particular work. It does not matter that the "dispute" is not
between two unions; for one union to require the Employer to assign
work to its members rather than to employees who are not members
of any union is proscribed.' Likewise, requiring the assignment of
work to members of a particular class, broadly defined to include any
cognizable "group,"' is a proscribed objective.
However, the language of 8 (b) (4) (D) itself, and its legislative
history, emphasize that there must be a choice between the two groups,
whatever factors may differentiate the two. The required assignment
must not only be to employees in the one group, it must be in deroga-
tion of, or rather than, assignment to members of the other group.'
There must, in short, be either an attempt to take a work assignment
away from another group, or to obtain the assignment rather than have
it given to the other group.6
In the instant case, the facts show that the Union's object was not
to require the Company to take work from anyone, or to assign it to
one group of employees as against another. The Union merely wanted
the Company to recognize it as continuing to represent whatever
employees were assigned to the work.'
The record shows that the Union never demanded that the work in
question either be assigned to members of a particular union, trade,
craft, or group of any kind, or, conversely, that it not be assigned to,
or be taken away from, members of another group of any kind.
Even assuming, as the Company contends in its brief, that the
Respondent Union sought to require the company to assign the entire
machine service section to its jurisdiction, rather than, as the Union
asserts, only to demand bargaining rights over work done up to the
3 New London Mills, Incorporated, 91 NLRB 1003.
4 Truck Drivers and Chauffeurs Union, etc. (Direct Transit Lines, Inc.), 92 NLRB 1715,
at 1720.
6 Of. Direct Transit Lines, Inc., supra, (dictum) where the Board stated that 8 (b) (4)
(U) would be applicable even when the employees sought to be replaced would not be
prejudiced by such replacement.
6 Cf., however, Sheet Metal Workers International Association (Albers Milling Company),
90 NLRB. 3015, where this criterion was on its face present, but the Board held that 8 (b)
(4) (D) was not designed to prevent labor organizations from requiring the employer to
take back strikers who had been replaced, even though such action is within the literal
purview of the section.
7 We need not, and do not, here decide whether or not the Union's demands in this re-
spect were proper in the sense that employees assigned to the CAMA work doing opera-
tions formerly done in the revenue accounting department were appropriately included
in the Union's already existing unit.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer in the revenue accounting section, such action would not be
within the scope of a proceeding under Section 10 (k) of the Act.
A demand for recognition as bargaining representative for employees
doing a particular job, or in a particular department, does not to the
.slightest degree connote a demand for the assignment of work to par-
.ticular employees rather than to others.
In these circumstances, that the unit embodied in the request may
not be appropriate within the meaning of Section 9 and the Board's
unit policies 8 is totally irrelevant to the question of whether the
Union's object was one proscribed by the statute.
Upon the basis of the foregoing, we are satisfied, and conclude,
that the dispute in this case is not over the assignment of work within
the meaning of Section 8 (b) (4) (D). It is therefore not a dispute
within the meaning of Section 10 (k). Accordingly, we shall quash
the notice of hearing.9
[The Board quashed the notice of hearing.]
CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con-
sideration of the above Decision and Order.
9 As indicated, we are not to be deemed as determining this question affirmatively or
negatively by this decision,
, In view of our determination that a dispute within the meaning of Section 10 (k)
does not exist , we find it unnecessary to consider the other contentions of the Union.
General Electric Company and Hanford Atomic Metal Trades
Council , affiliated with the American Federation of Labor, Peti-
tioner. Case No. 19-RC-2008. August 01, 1957
SUPPLEMENTAL DECISION
On February 24, 1949, after an election conducted pursuant to a
stipulation for certification upon consent election, the Board issued
a Decision and Certification of Representatives in the above-entitled
proceeding in which the Council was certified as the collective-
bargaining representative of the following unit of the Employer's
employees :
All weekly salaried production and maintenance employees
employed in and about the Hanford Works, of General Electric
Company, Richland, Washington, excluding clerical employees;
patrolmen; firemen; medical division employees; health instru-
ment division employees; design and construction division em-
ployees; laboratory assistants; technologists; technical gradu-
ates; electrical division dispatchers; "P" and "S" division chief
operators; glassblowers classified as instrument mechanics; mes-
sengers and motor messengers; transitmen, axemen, chain and
118 NLRB No. 150.