Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Nov 23, 1951

97 N.L.R.B. 79 (N.L.R.B. 1951)

SOUTHWESTERN BELL TELEPHONE COMPANY 79
Employer at its Denver, Colorado, plant, excluding all production
and maintenance employees , plant clericals , assistants to the personnel
director , confidential secretaries , time-study engineers , rate setters,
routing engineers, the manager of the employees' credit union, tech-
nical employees , department heads , and all other supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
SOUTHWESTERN BELL TELEPHONE COMPANY and CLAUDE JULYAN
SOUTHWESTERN DIVISION No. 20, COMMUNICATIONS WORKERS Or
AMERICA, CIO and CLAUDE JULYAN. Cases Nos. 141-CA-550 and
14-CB-110. November 23, 1951
Decision and Order
On July 30, 1951, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter , the Respondents filed
exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs , and the entire record in the
case, and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner , with the modifications and exceptions
noted below.
We agree with the Trial Examiner that the Respondent Company,
at the instance of the Respondent Union, discriminatorily refused to
permit employee Julyan to trade his work tour assignment because he
was not a member of the Respondent Union , and thereby violated Sec-
tion 8 (a) (3) and (1) of the Act. We also agree with the Trial Ex-
aminer that the Respondent Union, in violation of Section 8 (b) (2)
and (1) (A) of the Act, attempted to, and did, cause the Respondent
Company to discriminate in this manner against Julyan.2 In reach-
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Members Houston , Reynolds , and Styles]
2 We not only agree with the Trial Examiner that the terms of the contract did not justify
the discrimination in question, but find, in addition , that E ven if the contract authorized such
discrimination , it would not be lawful or enforceable . Rockaway News Supply Company,
Inc., 94 NLRB 1056 , and cases there cited.
97 NLRB No. 19.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing these conclusions, however, we find it unnecessary to rely on the
Trial Examiner's subsidiary finding that the Company yielded to the
Union's demands because of the latter's threatened work stoppage.,,
Whether or not the Company actually succumbed to this pressure is
immaterial. The significant factor is that the Company, with full
knowledge of the Union's discriminatory motivation,' accepted the
Union's list of applicants which excluded Julyan's names
The Respondent Union asserts that it did not include Julyan's
name on the list of those desiring to trade assignments solely because
Julyan did not submit his name to his steward, as the Local Union's
secretary, Eckrich, advised him to do. It seems thereby to argue that
Julyan's failure to follow this procedure was the reason for the Com-
pany's refusal to permit Julyan to trade tours. However, it is clear
from the record, as the Intermediate Report shows, that the Union
attempted to, and did, cause the Company to reverse its original de-
cision and deny Julyan that privilege because of his nonmembership
in the Union and not because of his failure to submit his name to the
stewards This is readily evident in Eckrich's action in erasing from
the posted schedule Julyan's name, which Julyan had inserted in
accordance with the then prevailing practice, and in Eckrich's subse-
quent rebuke to Julyan for seeking to avail himself of the benefits
gained by the Union without his joining the organization. Although
at the conclusion of his conversation with Julyan, Eckrich told him to
see the steward if he still desired to trade tours, it is significant that
Eckrich gave him no assurance that the steward would place his name
on the Union's list of bidders, much less that he would not be discrim-
inated against because of his nonmembership in the Union.' Indeed,
8 The Intermediate Report erroneously states that Eckrich, the Local Union 's secretary,
told Telker , instead of Chief Switchman Miller, about the employees ' contemplated work
stoppage.
4In its brief in support of its exceptions , the Company "admits that it had good reason
to believe , and in fact did believe , that the reason for the erasure of Julyan's name from
the original trade-out list was because he was not a member of the Union."
5 The Company 's contention that no violation was proved because of the absence of evi-
dence that its action resulted in, or had as its purpose , the encouragement of membership
in the Union , is plainly without merit . All that the Act requires to establish a violation
under Section 8 ( a) (3) is that the discrimination have the natural tendency to encourage
or discourage union membership . Rockaway News Supply Company, Inc ., supra. More-
over, the Company 's conduct clearly interfered with, restrained , and coerced Julyan in the
exercise of his statutory right to refrain from joining a union and thus was violative of
Section 8 ( a) (1) of the Act . Whether the Company 's conduct be viewed as a violation of
Section 8 ( a) (3) or ( 1), we find that effectuation of the policies of the Act requires the
remedy hereinafter provided
e The Union's assertion that its position has always been that the Company was simply
required to accept its list of bidders but that the Company was not bound to make its selec-
tion from it , is plainly something less than candid , as the entire record discloses
In view of our finding herein , we deem it unnecessary to consider the correctness of the
Trial Examiner 's additional findings, that 'the•establishment of the new procedure for trad-
ing tours was designed as a means of discriminating against Julyan and other nonmembers
of the Union.
' Eckrich testified at the hearing that he hoped that "after speaking to . . . [Julyan],
I could appeal to what I considered common sense , [ and] better nature, that he would
reconsider bidding" and would change his mind and not bid.
SOUTHWESTERN BELL TELEPHONE COMPANY 81
the Union argues in its brief to the Board that it was not required to
give Julyan any assurance of being placed on the Union's list because
it cannot be "assume[d] the steward would put Julyan's name on the
list and that the steward was obligated to do so regardless of why or
.how many men may have submitted their names." In these circum-
stances, it can hardly be argued that Julyan's failure to make the
futile gesture of submitting his name to the steward was the motivat-
ing reason for being denied the right to "trade into" a night tour
.assignment. Moreover, in view of the nature of Eckrich's remarks
to Julyan, it is readily understandable why Julyan did not give his
name to the steward but instead told his supervisor that he wanted to
apply for the night tour as he did not believe that the Union would
submit his name.8
Accordingly, we find, as did the Trial Examiner, that the Respond-
ent Company and the Respondent Union respectively engaged in un-
fair labor practices within the meaning of Section 8 (a) (3) and (1)
and Section 8 (b) (2) and (1) (A) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that :
I. The Respondent, Southwestern Bell Telephone Company, St.
Louis, Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in Southwestern Division No. 20,
Communications Workers of America, CIO, or in its successor, Com-
munications Workers of America, CIO, or in any other labor organi-
zation of its employees, by discriminating against any of its employ-
ees with respect to work assignments, or by discriminating against
them in any other manner in regard to their hire or tenure of em-
ployment or any term or condition of employment, except to the extent
permitted by Section 8 (a) (3) of the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
S Although Julyan testified at the hearing that he did not go to see the steward because he
did not believe that the Union had any jurisdiction in the case, he also explained that the
long-established practice did not require him to do so. It is clear from his entire testimony
that Julyan actually meant, and correctly so, that the Union could not deprive him of his
right to bid and be considered by the Company for a trade of tours because of his nonmember-
ship in the Union.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment
records, time cards, personnel records and'reports,,and all other rec-
ords necessary to analyze the amount of back pay due under the terms
of this Order.
(b) Post at its plants at St. Louis, Missouri, copies of the notice
attached hereto as Appendix A.9 Copies of such notice, to be fur-
nished by the Regional Director for the Fourteenth Region, shall,
after being duly signed by Respondent Company's representative, be
posted by the Company immediately upon receipt thereof and main-
tained 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 Company
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order as to what
steps the Respondent Company has taken to comply herewith.
II. The Respondent, Southwestern Division No. 20, Communica-
tions Workers of America, CIO, its officers, representatives, agents,
successors, and assigns, including Communications Workers of
America, CIO, shall :
1. Cease and desist from :
(a) In any manner causing or attempting to cause Southwestern
Bell Telephone Company, its officers, agents, successors, and assigns,
to discriminate against employees because of their nonmembership
in its organization, except as authorized in Section 8 (a) (3) of
the Act.
(b) In any other manner restraining or coercing employees of
Southwestern Bell Telephone Company, its successors or assigns, in
the exercise of their right to self-organization, to form, join,-or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid and protection,
and to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring member-
9 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order" the words "A Decree of the
United States Court of Appeals Enforcing."
SOUTHWESTERN BELL TELEPHONE COMPANY 83
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its headquarters at St. Louis, Missouri, copies of the
notice attached hereto as Appendix B.10 Copies of said notice, to
be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by an official representative of the Re-
spondent Union, be posted by the Respondent Union immediately
upon receipt thereof and maintained by it for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Fourteenth Region
signed copies of the notice attached hereto as Appendix B, for post-
ing, if the Respondent Company is willing, at the Company's plants
in St. Louis, Missouri, in places where notices to employees are
customarily posted.
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent Union has taken to comply herewith.
III. The Respondent, Southwestern Bell Telephone Company, its
officers, agents, successors, and assigns, and the Respondent, South-
western Division No. 20, Communications Workers of America, CIO,
its officers, representatives, agents, successors, and assigns, including
Communications Workers of America, CIO, shall jointly and severally
make whole Claude Julyan for any loss of pay he may have suffered
by reason of the discrimination against him, in the manner set forth
in "The remedy" section of the Intermediate Report.
Appendix A
NOTICE TO ALL EMPLOYEES
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, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in SOUTHWESTERN DIVI-
SION No. 20, COMMUNICATIONS WORKERS OF AMERICA, CIO , or in
its successor, COMMUNICATIONS WORKERS OF AMERICA, CIO , or in
any other labor organization of our employees, by discriminating
against any of our employees in work assignments, or by dis-
10 See footnote 9.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminating against them in any other manner in regard to their
hire or tenuire of employment or any term or condition of em-
ployment, except to the extent permitted by Section 8 (a) (3) of
the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organ-
ization, to form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or-all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WE WILL make Claude Julyan whole for any loss of earnings
he may have suffered as a result of the discrimination against
him.
All our employees are free to become, remain ,. or to refrain from
becoming or remaining, members in good standing of the above-
named union or any other labor organization, except to the extent
that this right may be affected by an agreement authorized by Section
8 (a) (3) of the Act.
SOUTHWESTERN BELL TELEPHONE COMPANY,
Employer.
By ------------=---------------------------------
Dated .-----------.
------ (Representative ) ( Title)
This notice must remain posted for 60 consecutive days and must
not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF SOUTHWESTERN DIVISION No. 20, COM-
MUNICATIONS WORKERS OF AMERICA, CIO, AND ITS SUCCESSOR, COM-
MUNICATIONS WORKERS OF AMERICA, CIO, AND TO ALL EMPLOYEES OF
SOUTHWESTERN BELL TELEPHONE COMPANY
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, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause SOUTHWESTERN BELL
TELEPHONE COMPANY, its officers, agents, successors, or assigns, to
discriminate against Claude Julyan or any other employee, be-
cause of nonmembership in our organization, except as authorized
by Section 8 (a) (3) of the Act.
SOUTHWESTERN BELL TELEPHONE COMPANY 85
WE WILL NOT in any other manner restrain or coerce employees
Of SOUTHWESTERN BELL TELEPHONE COMPANY, its successors or
assigns, in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8 (a) (3) of
the Act.
WE WILL make Claude Julyan whole for any loss of earnings
he may have suffered by reason of the discrimination against
him.
SOUTHWESTERN DIVISION No. 20,
COMMUNICATIONS WORKERS OF AMERICA, CIO,
Labor Organization.
COMMUNICATIONS WORKERS OF AMERICA, CIO,
Successor Labor Organization.
By -------------------------------------------------
Dated .------------------
(Representative) (Title)
This notice must remain posted for 60- consecutive days and must
not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This case involves charges of violation by the Southwestern Bell Telephone
Company, hereinafter called the Company, of Section 8 (a) (1) and (3) of the
National Labor Relations Act, as amended, herein called the Act. The com-
plaint issued against the Southwestern Division No. 20, Communications Workers
of America, CIO, hereinafter called the Union, charges that the Union violated
Section 8 (b) (1) (A) and (2) of the Act. The complaints allege in substance
that the Company on or about September 1, 1950, refused to permit Claude
Julyan to trade his work assignment with other employees, contrary to the
policies and practices of the Company then and thereafter in force, and that
the Union at about the same time caused or attempted to cause the Company
to refuse, in violation of Section 8 (a) (3), to permit said Julyan to trade his
said work assignment because he was not and is not a member of the Union and
in order to encourage membership in the Union. The Respondents' answers
denied the commission of any acts constituting unfair labor practices.
Pursuant to notice, a hearing was held before the undersigned Trial Examiner
at St. Louis, Missouri, on June 25 and 26, 1951. Upon the conclusion of the
General Counsel's case, the Union and the Company moved to dismiss for want
of proof, and the motions were denied without prejudice to the right to renew
said motions at the conclusion of the hearing. At the conclusion of the hearing,
the Union and the Company renewed their motions to dismiss on the merits.
986209-52-vol. 97-T
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruling was reserved thereon . For the reasons hereinafter stated both motions
are now denied . The parties waived oral argument and the privilege of filing
briefs.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
E. THE BUSINESS OF THE COMPANY
Southwestern Bell Telephone Company is a Missouri corporation with its
principal office in the City of St. Louis, Missouri . The Company is engaged in
the business of furnishing wire and radio telephone communication service in
the States of Missouri, Kansas, Arkansas , Oklahoma , Texas, and a portion of
Illinois, and has direct telephone connections throughout the continental United
States and most foreign countries . More than 99 percent of the common stock is
owned by the American Telephone & Telegraph Company. The Company con-
cedes and I find that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Southwestern Division No. 20 , Communications Workers of America, CIO,
before April 2, 1951, was a labor organization within the meaning of Section
2 (5) of the Act . After that date , pursuant to constitutional amendment, said
Union went out of existence and was supplanted by Communication Workers of
America, CIO , also a labor organization.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Contract provisions and practice of trading assignments
Switchmen at the Respondent Company's plant received assignments of -work
called "tours of duty." These assignments were made on a quarterly basis.
Each quarter a certain number of the switchmen would be assigned to night
tours. This work carried premium pay over day work . Some of the employees,
especial ly the older ones, disliked working the night hours , whereas others, in
order to earn more, preferred to work nights . In 1945, the Union held a meet-
ing with the Company to determine if something could be done to relieve the
older employees of the requirement of working nights. Following a detailed
discussion of the problem, the parties reached the following agreement :
A. Management to continue the existing plan of scheduling craftsmen for
coverage the same as in the past . The plan now in effect and to be con-
tinued provides for a quarterly rotation of central office craftsmen for all
coverage , including evening, night, Sunday and regular day tours. This
rotating of coverage is made from the total craftsmen in the group qualified
for coverage without regard to seniority . The schedules are available for
review in advance of the effective date.
B. After a tentative schedule has been reviewed by the men involved
and it is found that some wish to trade tours, this may be done if mutually
agreeable to the employees concerned and provided the supervisor is satisfied
that each employee has the required qualifications for the tour he requests.
C. The Union agrees that no employee shall be deprived of his regular
scheduled assignment without his personal concurrence.
D. The Union agrees in respect to the scheduling of craftsmen that the
interchange or trading of tours shall be for the quarterly rotation period.
SOUTHWESTERN BELL TELEPHONE COMPANY 87
E. This agreement to be made effective March 1, 1945, for application in
connection with the posting of schedules for Central Office craftsmen begin-
ning April 1, 1945.
This agreement continued in effect unrevoked through the period involved in
the present case despite the making of new general contracts . On June 4, 1950,
the parties entered into a 1-year contract which included a separate document
called " Supplemental Statements ." In the latter it was provided , so far as
is pertinent here, as follows :
Scheduled tours or any of the hours of such tours may with the approval
of the supervisor be changed , if, for personal reasons, other than sickness,
an employee . . . wishes to change any of the hours of his scheduled tour
or session , provided service and coverage requirements as determined by
Management permit . . . . If replacement of the employee making the
request is necessary , it will , with the approval of his Supervisor, be the
responsibility of that employee to arrange an exchange of tours or hours
with some other employee having the necessary qualifications . In order
to prevent misunderstandings , a form or memorandum shall be signed by
the supervisor and the employee or employees involved , acknowledging the
fact that the change of tours or hours is made at the employee 's request .. . .
It was the Company 's practice , in giving effect to the foregoing provisions, to
prepare a list of the names of those switchmen who were assigned to a night
tour of duty at least 30 days in advance of the time when the new quarterly
schedule would go into effect. This form contained four columns , in the first
of which was the name of the employee assigned. The second column
was headed "trade-out name" and contained blank spaces following each name.
In these blank spaces it was contemplated that a new name would be inserted
in the event that the assigned employee traded with another employee. The
third and fourth columns are unimportant to the issues in this case . It was the
practice of the chief switchman to sign this form and to deliver it to the Union
for posting on its bulletin board. This was left posted for about 2 weeks, during
which time employees assigned night tours were able to effect trades.
In practice , employees receiving night tours sometimes preferred not to work
them. In such case it was customary for such employee to make it known to
other employees that he was willing to trade, because it was his responsibility
to see that someone worked his tour for him. Ordinarily he indicated his in-
tention by writing the words "will trade" in the left-hand margin of the posted
form , although this was not a necessary requirement . If any other employee
wished to trade his day tour for a night tour he would then write his name in
the second column opposite the name of the man trading out. Occasionally
more than one employee wrote his name in such space . In such instances the
employees generally understood that the senior employee got preference , although
it does not appear with certainty whether the two claimants decided that be-
tween themselves, whether the union steward made the decision , or whether
the decision was made by management representatives. At the expiration of the
period of posting, the steward would remove the list from the bulletin board,
sign his name thereto , and return it to management . The final assignment of
tours would be prepared therefrom. Although the provisions of the contract
quoted above called for the signing "by the supervisor and the employee or em-
ployees involved , acknowledging the fact that the change of tours or hours is
made at the' employee 's request," this practice appears to have been followed
only in the case of nonscheduled days and was not used in the exchange of night
tours, where the trade-out employee did not sign anything. If the "trade-in"
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee signed following the name of a "trade-out" employee, all parties, in-
cluding the Company's supervisors, assumed that a trade had been properly
effected. Ordinarily the supervisors were satisfied with any indication on the
paper showing that the employee originally assigned was willing to trade and that
another employee had inserted his name in the space following that of the
employee receiving the original assignment. There is no evidence that anyone
ever attempted to claim a night tour of an assigned employee who was unwilling
to relinquish his tour, and therefore it appears to have been assumed that if
a trade-in employee's name appeared on the form it appeared there with the
consent of the trade-out employee.
B. The discrimination against Julyan
On about September 1 there was issued a list of names of employees scheduled
for night duty during the four quarters of 1950. This form stated that all
trade-outs were to be completed by noon, September 15, 1950. Among the names
thereon was that of R. D. Thom. At that time Thom was absent from work.
It was generally known that, because of the condition of his health, he did not
like to work at night. Claude Julyan, a nonmember of the Union, telephoned
Thom to learn if he was willing to trade. Thom answered that he would trade
with anyone. Julyan said he would sign up for it. Thereafter, and while the
space was still blank, Julyan went to the union bulletin board and inserted his
name in the space following the name of Thom.
Within a day or so thereafter Allan Eckrich, secretary of the local of the
Union, saw Julyan's name on the list. He immediately erased it and went to
Julyan and told him in substance that since he was not a member of the Union
it was an imposition on his part to take advantage of the list to get the benefit
of the differential in pay which the Union had worked to get. He told Julyan
that he had erased his name. Julyan questioned Eckrich's right to do so, and
Eckrich replied that as a union representative he had access to the bulletin
board and felt that it was within his jurisdiction and right to do so. Eckrich
added that if Julyan still desired to trade after this conversation he should see
the steward. He did not assure Julyan that the steward would put his name on
the list. Shortly after this conversation, Julyan, seeing that his name had in
fact been removed from the list, went to his supervisor, August Telker, and told
him that he wanted to apply to him for the tour because he did not believe the
Union would submit his name. Telker said that he would take it up with his
superior, Raymond Schultz, and that he thought there would be no trouble
about it.'
The next day the name of one Bentley appeared in the second column of the
posted list opposite the name of R. D. Thom. It does not appear who wrote
Bentley's name there. Later the same day Bentley's name was erased by some-
one unknown and Julyan's name was reinserted. Eckrich did not again speak
with Julyan, but again erased his name together with the names of other trade-in
employees which had been inserted opposite the names of other trade-out em-
ployees. He then printed in pencil on the posted form :
• NOTICE
Anyone interested in bidding on above jobs please notify your steward
in order to qualify for trades (this includes those desiring to trade out of
above assignments).
I On September 25, 1950 , Julyan made a written report of the facts to Telker.
SOUTHWESTERN BELL TELEPHONE COMPANY 89
Eckrich also went to the people whose names were on the trade -in list , other than
Julyan , and called their attention to the penciled notice which he had just
written.
On about September 15, 1950, the local union steward removed the posted list
from the bulletin board , attached a separate list with the names of applicants for
trade-ins , without indicating which one was to trade for any other particular
employee 's job , and turned it over to management . On this list , I infer, there
was nothing signed by both employees to any of the proposed trades.
Telker , Julyan 's supervisor , spoke to Raymond Schultz , his immediate su-
perior, about Julyan's application to him to receive the trade. From what
Telker told him, Schultz concluded that Julyan had effected a trade with Thom
and was entitled to the tour , but he decided to refer the matter to Walter Rohan,
district plant superintendent . Rohan discussed the matter with Schultz and
stated that it was his opinion that Julyan should have the assignment. Julyan
had seniority over Bentley, and this, in addition to the fact that Julyan had
made first application and was qualified , influenced Schultz and Rohan in their
belief that Julyan should receive the assignment.
On September 15, William Quigley, chairman of the local of the Union, having
heard that the Company was inclined to give Julyan the assignment, telephoned
Rohan to ask him about the matter. Rohan replied that he had not yet re-
ceived the names turned in by the Union, and Quigley said that he would call
later. About September 19 Quigley called again and asked if the Company
had decided the names of those to be assigned. Rohan replied that the Com-
pany had had an application from another employee for a trade-in and that it
would have to consider the matter. Rohan promised to call Quigley. Rohan
discussed the matter with Paul Hall , division plant superintendent , his superior,
told him all the facts, and said that he thought Julyan should be assigned. At
that time Hall agreed. Rohan called Quigley and said that the Company had
considered the names on the list turned in by the Union and the name received
by Telker (i. e., Julyan's), and felt that the Company was obliged to give con-
sideration to the latter, but that if Quigley wished to meet to discuss the matter
the Company would be glad to do so.
On September 26, Rohan and Schultz met with representatives of the local
Union. Those representatives asked that the Company assign the night tours
to the three men whose names they had turned in on the list attached to the
trade-out form. This list did not include Julyan 's name . Rohan said that the
Company had a requgst from a man whose name was not on the list. The union
representatives claimed that the Company had always accepted the list turned
in by the Union and that it should do so in this instance. Rohan said that the
Union had departed from past practice in not using the list supplied by the
Company and that therefore they had to use the names of those who applied
separately . Rohan read Article 13 of the existing contract as a possible basis
for deciding the matter. This provision reads as follows:
SENIORITY
Section 1. Length of service shall be taken into account in the treatment
of employees covered by this Agreement insofar as the conditions of the
business and the abilities of the employees permit.
Section 2 . The Company shall decide the necessity for and shall determine
the extent of force adjustments.
No agreement was reached at this meeting . Rohan said that the final list of
assignments would not be posted until Friday, September 29, and that if the
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union wanted to take any matter up before then the Company would be glad to
talk to them.
Hall discussed the matter with Rohan on September 26 and also, sought the
advice of Harrison, the plant personnel man who handles labor relations. Har-
rison consulted his superior, Allan Quigg, labor relations supervisor. Mean-
while Eckrich informed Telker that if Julyan received the assignment the other
men would not work with him. Word of the possible work stoppage was re-
ceived by other members of management, including Harrison and Quigg. Quigg
expressed his opinion that the Company should accept the Union's list. Har-
rison reported back to Hall that he and Quigg did not wish to influence him,
but that in view of the past practice of taking the Union list "perhaps we should
accept it this time." On September 28, another meeting was held with repre-
sentatives of the Union by Rohan, Hall, and Earl Fisher, plant training super-
visor. The local had apparently referred the matter to its parent, the Respond-
ent Union, and representatives of the latter attended this meeting. The Union's
principal spokesman was its vice president, DiProspere. DiProspere took the
position that trading tours was a union matter, that the management's sole
responsibility was either to accept or reject the names submitted by the Union,
and that the Company was departing from past practice. The Company took the
position that the Union was the one who had changed the method of presenting
the names of applicants and that in all the time in which the forms for trades
had been used, there had never been an erasure, as there was in the instant case.
The company representatives stated that they understood Julyan was not a
union member, that he had put his name on the list, and that it had not been
submitted.' The meeting concluded with the Company's agreement to take the
names submitted by the Union in this instance, in the expectation that such an
instance could be avoided in the future.
Hall testified that his decision to accept the list (which excluded Julyan)
was based upon advice from Harrison, and Rohan testified that nothing that
came out in the meeting of September 28 appeared to influence the ultimate
decision. Quigg, who had consulted with Harrison, testified that, although
he considered the rumor that there might be a work stoppage, he gave very
little consideration to the possible work stoppage and based his advice on the
ground that he thought it would be a violation of the contract to do other than
accept the list offered by the Union. There Is nothing in the evidence to indicate
that his conclusion that failure to accept the Union's list would be a breach of
contract was communicated to anyone else. Harrison had merely stated to
Hall that in view of the fact that the Company had accepted the Union's list
in the past it would "probably be better" to accept it in this instance. I have
examined the language of the contract and all related agreements and I find
no language therein which gives the Union the exclusive right to present names
to the Company or obliges the Company to accept only names submitted by
the Union. On all the evidence I find it incredible that Quigg would have con-
strued the contract otherwise. However, even if he had, it does not appear
that he made the ultimate decision. As testified by Hall, Harrison, who gave
Hall the benefit of his and Quigg's advice, did not explain that a failure to
follow the advice would result in a breach of contract and he stated that they
did not wish to influence Hall in his decision but left it entirely to Hall to make
the final decision. In view of Hall's previous attitude of resisting the Union's
2 The Union's conduct belies its assertion at this meeting that it was not its intention to
discriminate against anyone.
SOUTHWESTERN BELL TELEPHONE COMPANY 91
request, I am led to the conclusion that he wavered and sought advice from
Harrison only because of the word of a probable work stoppage . I further
conclude that the Company considered it not necessary, but expedient , to decide
the issue in favor of the Union , in view of the probabilities of a work stoppage.
That the Company would not have discriminated against Julyan except for
apprehension induced by the information of a possible work stoppage given
by Eckrich , is no justification for a discrimination . The Company had good
reason to believe that the reason why Julyan 's name had been erased from
the original trade-out list was because he was not a member of the Union.
It had good reason to believe that the Union was attempting to institute a
practice which would place it in the hands of the stewards to repeat such
discriminations against nonunion members. On all the evidence , I conclude
that the Company succumbed to pressure and fell in with the Union's dis-
criminatory conduct. By discriminating in regard to the conditions of Julyan's
employment , thereby encouraging membership in the Union , the Respondent
Company has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act , and has violated
Section 8 ( a) (1) and ( 3) of the Act.
Eckrich , in removing Julyan 's name from the list of applicants for trading
tours, did so , I find, because of the fact that Julyan was not a member of the
Union . As secretary of the local Union , his conduct would be binding upon
the local Union . The local Union, however , was not made a party respondent.
In the absence of evidence of prior authorization or later ratification by the
Respondent Union , the latter would not be responsible for Eckrich 's acts. I
have found that Eckrich gave the Respondent Company reason to believe that
there would be a work stoppage if Julyan received the assignment . Eckrich
testified that this was intended not as a threat , but merely as information.
I find no distinction . Even as information , the only purpose in passing it along
would be to influence the Company 's decision . This was clearly an attempt
on the part of the local to cause the Company to discriminate against Julyan,
in violation of Section 8 (a) (3). When the Respondent Union , through Di-
Prospere , supported the local 's position with respect to its effort to change
the previously existing procedure , the result of which would have been the
exclusion of Julyan from the list of employees submitted to the Company for
trading purposes , the Union ratified the conduct of the local which sprang
from its effort to discriminate against Julyan. I find that Eckrich 's act in
removing Julyan's name twice from the trade -out list and informing him that
as a nonunion member he should not use the union bulletin board , thereby
depriving him of the currently established procedure for effecting a trade of
tours, and the local 's establishment of a new procedure to circumvent Julyan's
effort and right was conduct which the Respondent Union ratified in advancing
the local's position , thereby restraining and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act in violation of Section 8 (b)
(1) (A) of the Act.
I have found that the local Union notified management of the probability
of a walkout in the event that the Company gave the night tour to Julyan to
influence the Company in discriminating against Julyan . There is no evi-
dence that the Respondent Union itself took any official steps toward calling a
walkout or that it expressly ratified Eckrich 's prediction. However, the Re-
spondent Union did , by its conduct , cause the Company to discriminate against
Julyan . Under the terms of the contract this was not justified , and I consider
it immaterial whether the Union brought about this result by threat of a strike
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or not.3 As the Respondent Union did in fact cause the Company to discrimi-
nate against Julyan, it has violated Section 8 (b) _(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of the Respondent Company, set forth 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.
V. THE REMEDY
Since I have found that the Respondents, and each of them, have engaged
in and are engaging in unfair labor practices, I will recommend that they cease
and desist therefrom ; and in order to effectuate the policies of the Act, I will
recommend that the Respondents rectify the unfair labor practices by taking
certain affirmative action, including jointly and severally' paying to Claude
Julyan the difference between what he actually earned on the day shift for the
last quarter of 1950 and the amount he would have received had he received
the assignment of the night tour. It will also be recommended that the Com-
pany be ordered to make available to the Board, upon request, payroll and other
records to facilitate the computation.of the amount of back pay due to Julyan.6
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLUSIONS or LAW
1. Southwestern Bell Telephone Company is an employer engaged in com-
merce within the meaning of Section 2 (2) (6) and (7) of the Act.
2. Southwestern Division No. 20, Communications Workers of America, CIO,
was at the time of the unfair labor practices herein found a labor organization
within the meaning of Section 2 (5) of the Act, and its successor, Communica-
tions Workers of America, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Claude
Julyan, thereby encouraging membership in a labor organization, the Respond-
ent Company has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
4. By the conduct stated in paragraph numbered 3 hereof, the Respondent
Company has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, and has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By causing the Respondent Company to discriminate against Claude Julyan
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(b) (2) of the Act.
6. By restraining and coercing employees of the Respondent Company in the
exercise of the rights guaranteed in Section 7 of the Act, the Respondent Union
8 Air Products, Inc., 91 NLRB 1381.
4 H. M. Newman, 85 NLRB 725.
OF. W. Woolworth Company, 90 NLRB 289.
A. R. TOHL 93
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
A. R. TOHL 1 and COLUMBIA RIVER DISTRICT COUNCIL No. 5, INTERNA-
TIONAL WOODWORKERS OF AMERICA , CIO, PETITIONER . Case No. 36-
RC-633.' November ^?3, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before R. J. Wiener, hearing officer.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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 [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved- claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer has, since May 1950, engaged in the logging business
in and around Idanha, Oregon. On May 18, 1951, the date on which
the petition in this proceeding was filed, the Employer's only logging
operations were, carried on at Boulder Creek, about 5 miles from
Idanha, Oregon. In June 1951, before the hearing was held in this
proceeding, this logging operation had ended. In the meantime the
Employer had commenced the construction of a forest service access
road,2 approximately 17 miles from Idanha, employing, among others,
6 of some 15 employees used in its earlier logging operations.
1 The name of the Employer appears as amended at the bearing.
2 This road Is being built on U. S. Forest Service land for two companies purchasing
timber from this Service . In the lumber industry , it Is customary for the purchaser of
timber from the Forest Service to bear the cost of and be responsible for the construction
of a road to the tract on which the timber is located , even though the road will be owned
by the Forest Service.
97 NLRB No. 18.