The Elyria Telephone Co.

National Labor Relations Board - Board Decisions

Aug 5, 1952

100 N.L.R.B. 491 (N.L.R.B. 1952)

THE ELYRIA TELEPHONE COMPANY 491
tions as an integrated part of a larger, interstate enterprise consisting
of several companies, all of which constitute a single employer, we find
that it would not effectuate the policies of the Act to assert jurisdiction
in this case .3
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
' Toledo ;Service Parking Company, 96 NLRB 263.
THE ELYRIA TELEPHONE COMPANY and COMMUNICATIONS WORKERS
OF AMERICA, CIO, PETITIONER. Case No. 8-RC-1263. August 5,
1953
Supplemental Decision , Amended Description of Unit, and
Certification of Representatives
On September 13, 1951, the Board issued its Decision and Direction
of Election herein 1 in a unit composed generally of all the Employer's
employees, excluding, among others, the service assistants, who were
found to be supervisors. On October 2, 1951, the Petitioner filed a
petition for further testimony and reconsideration of the Board's
exclusion of the service assistants. The Employer, by letter of October
8, 1951, objected to the Petitioner's petition. On October 9, 1951, the
Board denied the Petitioner's request without prejudice to the service
assistants voting subject to challenge.
Subsequently, on October 10, 1951, an election by secret ballot was
conducted under the direction and supervision of the Regional Director
for the Eighth Region among the employees of the Employer in the
unit found appropriate by the Board in its decision. Upon completion
of the election, a tally of ballots was furnished the parties. The tally
shows that, of the approximately 110 eligible voters, 98 cast ballots,
of which 60 were cast for the Petitioner, 26 against, and 12 were
challenged.2
On October 12, 1951, the Employer filed an objection to the election
on the grounds that the service assistants, whom the Board had found
to be supervisors, organized and were the leaders of the Petitioner, and
that such conduct by its supervisors interfered with the election.
Thereafter, in accordance with the Board's Rules and Regulations, the
Regional Director conducted an investigation and, on December 10,
196 NLRB 162.
2 The challenged ballots were cast by service assistants.
100 NLRB No. 81.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1951, issued and duly served upon the parties a report on objections,
in which he recommended that a hearing be held to determine : The
supervisory status of the service assistants; the nature and extent of
their activities on behalf of the Petitioner; and any conduct of the
Employer tending to show condonation of the service assistants' union
activities. The Employer timely filed a brief in the nature of excep-
tions to the Regional Director's report and recommendations. The
Petitioner, by letter of December 12, 1951, concurred in the Regional
Director's recommendations.
Subsequently, on February 15, 1952, the Board issued its order
directing that a hearing be held to resolve the issues raised by the
objections, including (1) the supervisory status of the service assist-
ants, (2) the extent of the service assistants' union activities, and (3)
the Employer's condonation of such activities. The Board further
ordered that the hearing officer designated for the purpose of conduct-
ing the hearing prepare and cause to be served upon the parties a
report containing resolutions of the credibility of witnesses, findings
of fact, and recommendations to the Board as to the disposition of
said objections.
Pursuant to the Board's direction, a hearing was held in Elyria,
Ohio, from March 11 through 13, 1952, before Bernard Marcus, hear-
ing officer . Both the Petitioner and the Employer appeared and par-
ticipated. On May 23, 1952, the hearing officer issued and had served
upon the parties his report on objections to election. In his report,
the hearing officer found that the Employer, by failing to take timely
action to dissipate the service assistants' activities before the election,
in effect waived any right to have the election set aside because of these
activities, and recommended that the objections be overruled. He
further found that the service assistants are not supervisors and recom-
mended that the Board certify the Petitioner in the unit previously
found appropriate, but including the service assistants . Thereafter
the Employer filed timely objections to the hearing officer's report,
and the Petitioner submitted a brief in support of the hearing officer's
recommendations.
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 [Members Houston, Styles, and Peterson].
The Board has reviewed the rulings made by the hearing officer at
the hearing and finds that no prejudicial error was committed.3 The
rulings are hereby affirmed. The Board has considered the hearing
officer's report, the Employer's objections, 'the Petitioner's brief, and
3 The Employer asserts, in its objections to the hearing officer 's report, that the
hearing officer demonstrated hostility to the Employer at the hearing. However, careful
examination of the record fails to reveal any conduct by the hearing officer to support
the Employer 's allegation.
THE ELYRIA TELEPHONE COMPANY 493
the entire record in this case, and hereby adopts the findings,4 and rec-
ommendations of the hearing officer with the following modification :
For the reasons fully set forth in the hearing officer's report, and
upon the entire record now before us, we find, as did the hearing officer,
that the service assistants neither are vested with, nor exercise, super-
visory authority within the meaning of the Act and, accordingly, that
they are not supervisors. In view of this determination, we find,
unlike the hearing officer, that it is unnecessary to pass upon whether
the activities of the service assistants on behalf of the Petitioner were
condoned by the Employer.
As the service assistants are not supervisors, we shall include them in
the unit found appropriate in our original Decision and Direction of
Election, and shall order that the unit description be amended accord-
ingly. Also, in view of the service assistants' nonsupervisory status,
we find that the Employer's objections to the election, based on their
union activities, are without merit and the objections are hereby
overruled .5
The tally of ballots shows that the Petitioner has secured a majority
of the valid votes casts We shall, therefore, certify the Petitioner
as the bargaining representative of the employees in the unit herein
found appropriate.
Amended Description of Unit
IT IS HEREBY ORDERED that the unit description be, and it hereby is,
amended to read as follows :
All employees of the Employer, including office and clerical em-
ployees, service assistants, and the LaGrange agency personnel, but
excluding professional employees, confidential employees, guards, the
contract agent at the LaGrange agency exchange, and all other super-
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
Certification of Representatives
IT IS HEREBY CERTIFIED that Communications Workers of America,
CIO1 has been designated and selected by a majority of the employees
4 The hearing officer inadvertently found that the operators ' maximum earnings are
$1 rather than $ 1.02, per hour . This inadvertency affects neither the hearing officer's
ultimate conclusions , nor our concurrence therein.
G The Employer 's contention that the election should be set aside because of a sub-
stantial turnover of personnel in the traffic department and the proposed addition of
equipment which would increase the number of operators from approximately 49 at the
time of the election in September 1951 to approximately 75, is clearly without merit. See
S. H. Kress & Company , 88 NLRB 292, enforced 194 F. 2d 444 (C. A 6) ; cf. Goodall Com-
pany, 80 NLRB 562.
As the challenged ballots will not affect the results of the election , we will not order
them opened and counted.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Employer in the unit herein found appropriate by the Board,
as their representative for the purposes of collective bargaining and
that, pursuant to Section 0 (a) of the Act, the said organization is the
exclusive representative of all employees in such unit, for the purposes
of collective bargaining, with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
CAYEY MANUFACTURING CO., INC. and CONFEDERACION GENERAL DE
TRABAJADORES DE PUERTO RICO
CAYEY MANUFACTURING CO., INC . and CONFEDERACION GENERAL DE
TRABAJADORES DE PUERTO Rico (CIO) . Cases Nos. 24-CA-79 and
24-RC-44. August 6,1952
Decision and Order
On January 15, 1952, Trial Examiner Ralph Winkler 1 issued his
Intermediate Report in the above-entitled consolidated proceedings
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. He also recom-
mended that the election held on October 17, 1950, among the Re-
spondent's employees be set aside. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended that the complaint be dismissed as.
to them. Thereafter, the General Counsel filed exceptions and a sup-
porting brief.
The Board L has reviewed the rulings of Trial Examiner MacCullen
made at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modification :
The Trial Examiner found that Supervisor Roquet by standing at a
window in the Respondent's plant and taking notes during a rally of
the Union held on a public street fronting on the Respondent's prem-
ises did not engage in unlawful surveillance. We do not agree.
1 As Trial Examiner MacCullen , before whom the hearing was held , had become unavail-
able for further participation in the case, the Chief Trial Examiner designated Mr. Winkler
to prepare the Intermediate Report in the above -entitled consolidated proceedings.
Pursuant to the provisions of Section 8 (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, Murdock, and Styles].
100 NLRB No. 83.