Del Rio & Winter Garden Telephone Co.

National Labor Relations Board - Board Decisions

Jul 14, 1949

85 N.L.R.B. 199 (N.L.R.B. 1949)

In the Matter of DEL RIO & WINTER GARDEN TELEPHONE COMPANY,
EMPLOYER and SOIITIIwESTERN DIVISION No. 20, COMMUNICATION
WORKERS OF AMERICA, PETITIONER
Case No. 39-RC-36.Decided July 14,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this matter was held at Del Rio,
Texas, on March 9, 1949, before James P. Wolf, 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
National Labor Relations Act.
2. The Petitioner, Southwestern Division No. 20, Communication
Workers of America, is a labor organization claiming to represent
,employees of the Employer.
3. A question affecting commerce exists concerning the. representa-
tion of certain employees of the Employer, within the meaning of
.Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a system-wide unit of all employees in the
Plant, Traffic, and Commercial-Accounting Departments of the Em-
ployer. The Employer contends that the employees of the three de-
partments should not be grouped together in a single unit. Instead,
the Employer proposes that two units be established, one limited to
the employees of the Plant Department, and the other including the
employees of the Traffic and the Commercial-Accounting Departments.
The parties agree that chief operators are proper unit exclusions. The..
parties, however, disagree as to the following classifications : agents
and employees at agency exchanges, field plant men and their helpers,
85 N. L. R. B., No. 34.
199
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cashiers, and private secretaries ; the Petitioner would include these
disputed classifications, whereas the Employer would exclude them.
The Employer admits, and the record shows, that its operations fo1-
low the norm in the telephone industry. In accordance with the pre-
vailing custom in this industry, the Employer divides its operations
into three departments:' (1) the Plant Department, which installs
and maintains the Employer's, equipment; (2) the Traffic Department,
which operates the equipment; and (3) the Commercial-Accounting
Department, which handles the Employer's business relations with the
public and keeps the books and records. Although each department
performs a separate and distinct function, the Board has frequently
recognized the highly integrated and interdependent character of the
operations of similar departments in the telephone industry.2 Further-
more, although the working conditions and wages of the employees in
the various departments of the Employer differ in some respects, the
Board has nevertheless noted the community of interest among em-
ployees in such departments because of their common interest in ren-
dering a public service.3 Accordingly, in view of the integrated nature
of the Employer's operations and the community of interest among the
employees of the three departments, and in the absence of any history
of collective bargaining among the employees of the Employer,4 we
conclude that a single unit embracing the employees of the Plant,
Traffic, and Commercial-Accounting Departments of the Employer is
appropriate for the purposes of collective bargaining.
There remains for consideration the question of including or ex-
cluding the disputed classifications.
Agents and Employees at Agency Exchanges: The Employer has its
general offices and main exchange at Del Rio, Texas, where its largest
labor group is employed. In addition, the Employer maintains 21
other exchanges in communities throughout southwestern Texas, which
are staffed for the most part by telephone operators and clerical em-
ployees. Approximately 12 of these exchanges, which for convenience
we shall term agency exchanges, are in charge of individuals designated
by the Employer as agents. Under oral agreements, these agents are
engaged to operate the Employer-owned exchange switchboard 24
hours a day, and responsibly to perform on behalf of the Employer
whatever other services are necessary to insure efficient telephone
service to the communities. The services performed include collecting
s Matter of, The Ohio Associated Telephone Company, 82 N. L. R. B. 972 ; and
Matter of San Marcos Telephone Company , 81 N. L . R. B. 314.
2 Ibid.
8 Matter of The Ohio Associated Telephone Company, supra , and cases cited.
4 Cf. Matter of Interstate Telephone Company, 77 N. L. it. B . 637 ; and Matter of The
Chesapeake and Potomac Telephone Company of Virginia, 82 N. L. it. B. 810.
DEL RIO & WINTER GARDEN TELEPHONE COMPANY 201
revenue, handling complaints, receiving subscriptions, keeping office
files, and supervising operators employed to assist the agents. Each
agent, in turn, is paid a fixed monthly sum by the Employer. In
addition, living quarters are furnished the agent in the building where
the switchboard is located, the Employer paying the rental and utility
expenses incurred by the agent.
The Employer contends that the agents should be excluded from
the unit as, in its view, they are independent contractors who under the
Act are not included in the category of "employees." 5 In recent cases,
when faced with this contention the Board has applied the common-
law "right of control" test to determine whether an employment rela-
tionship or an independent contractor status exists .r Under this test
an employment relationship exists where the person for whom the serv-
ices are performed reserves the right, even though not exercised, to
control the manner and means by which the result is accomplished T
In this case, the record shows that the Employer retains the right
to control the operations of the agency exchanges and, moreover, that
it effectively exercises that right. The Employer owns all the tele-
phonic equipment used by the agents and furnished them their places
of work, living quarters, and utilities. Although the Employer does
not minutely supervise all details of the exchange operations, such
lack of supervision is not unexpected where the operations involved
are small and in widely separated communities. The Employer does,
however, outline the general methods followed by the agents in col-
lecting revenues, handling complaints, and processing subscriptions
for installation of telephone service. Over and above control of the
work premises and techniques, the Employer has decisive control over
the tenure and remuneration of the agents and of the operators who
assist the agents. The Employer may terminate the agents at any
time with or without cause and it may increase or decrease the num-
ber of operators employed at the exchanges ; it sets the monthly in-
come of the agents and determines the rates of pay for the operators,
pays the operators, and makes payments on Social Security coverage
for the operators. This control over both operations and personnel
is, in our opinion, amply indicative of the existence of an employ-
ment relationship between the agents and the Employer. Accord-
ingly, we find that the agents are not independent contractors.
In the Southwestern Associated Telephone Company case, upon
which the Employer relies, the Board found that the agents who op-
5 Section 2 (3) of the Act provides that "the term 'employee' . . . shall not include
. . . any individual having the status of an independent contractor."
Matter of Can Marcos Telephone Company, supra ; and Matter of Steinberg d Co.,
78 N. L. R. B. 211 . See Matter of Toledo Scale Company, 82 N. L. It. B. 826.
7 Singer Manufacturing Co. v Rahn, 132 U. S. 518 ( 1889).
:202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crated the agency exchanges were independent contractors." In reach-
ing that conclusion the Board found "most persuasive" the fact that
the employer had no right of control over the hiring, disciplining, and
discharging of the operators under the agents. Also, in the South-
western case the Board was particularly impressed by the broad dis-
cretionary powers given most agents with respect to setting the wages
.of the operators, and by the relative freedom of the agents in connec-
tion with the operation of the exchanges especially since the agents
paid all expenses for heating, lighting, and servicing without being
reimbursed therefor by the employer. In the present case, as pointed
out above, the Employer has the right to control the tenure of the
operators under the agents; and as hereinbefore noted the agents do
not set the wages of the operators, nor do the agents possess more than
nominal freedom in the operation of the exchanges. It is clear that
those factors upon which the Board most heavily relied to find an in-
dependent contractor status in the Southwestern case are missing
here. The cases are therefore distinguishable.9
Although we here find that an employment relationship exists be-
tween the agents and the Employer, we shall not include all the agents
in the unit. The record shows that several of the agents have one
or more operators working under them and that these agents have
the power, coextensive with some management representatives, to hire
:and discharge the operators ; we shall, therefore, exclude such agents
from the unit as supervisors. As the remaining agents possess no
supervisory authority, we shall include them in the unit. Moreover,
because the agents are not independent contractors, we find that the
operators at the agency exchanges are employees of the Employer,
and we shall also include them in the unit.
Exchange Plant Department Men: As stated above, the Plant De-
partment is charged with the installation and maintenance of the
Employer's properties. There are approximately 35 persons in the
Plant Department. About 25 of these are permanently assigned to
the Del Rio headquarters, and 10 are assigned to exchanges outside
Del Rio. Of the latter number, the Employer contends that 5, namely,
Trliea, Dodson, Wallen, Gagnee, and McDonald, are supervisors. The
other 5 men, herein called helpers, are assigned to assist 4 of the 5
named individuals-Trlica, Dodson, and Wallen having 1 helper
apiece, and Gagnee 2 helpers. As Trliea, Dodson, Wallen, and
Gagnee hire and discharge their helpers only when the officer in charge
at Del Rio is unavailable to handle these functions, and as the direc-
tion by these 4 men of the activities of their respective helpers is
76 N . L. R. B. 1105, 1115 . ( Chairman Herzog dissenting.)
Cf. Matter of San Marcos Telephone Company, supra.
DEL RIO & WINTER GARDEN TELEPHONE COMPANY 203
routine in nature, we are of the opinion that the authority of the 4 over
their helpers does not exceed that of a skilled craftsman with respect
to his helper. Such authority is not sufficient to make Trlica, Dodson,
Wallen, and Gagnee supervisors within the meaning of the Act.lo
Trlica, Dodson, Wallen, and Gagnee also have the authority, as does
McDonald, to hire additional laborer help for the duration of special
installation jobs. However, we do not believe that this authority con-
stitutes them supervisors within the meaning of the Act as the author-
ity is only irregularly and sporadically exercised 11 Accordingly we
shall include Trlica, Wallen, Dodson, Gagnee, and McDonald in the
unit. We shall also include in the unit the helpers who regularly
assist Gagnee., Trlica, Dodson, and Wallen for, although the Employer
states that the helpers are probationary employees, it appears that
these helpers have a community of interest with other employees as
they can normally anticipate, and are regularly promoted to, steady
employment.12 However, we shall exclude from the unit, as tem-
porary employees, those laborers who are hired by these exchange
plant men for the duration of special installation jobs because, as
indicated above, such jobs occur infrequently and generally last for
only a few days.13
Cashiers: The Employer would exclude Imogene Oden and An-
gelita Ramos from the unit as supervisors and management repre-
sentatives. Oden and Ramos are in effect managers of the business
offices at the Crystal City and Hebbronville exchanges, respectively,
where they act as cashiers and bookkeepers. Both Oden and Ramos
are assisted in their duties for a few hours daily by a switchboard
operator. During these daily periods, Oden and Ramos assign and
direct the work of the operator assisting each of them. Even then,
however, the operators remain ultimately responsible to the chief
operators who are their normal supervisors. Under these circum-
stances, we do not believe that the supervisory duties of Oden and
Ramos are sufficiently great to make them supervisors as defined by
the Act.14 Moreover, as Oden and Ramos are not responsible for the
formulation of management policy or the handling of the Employer's
labor relations, we find that they are not management representa-
tives.15 Accordingly, we shall include Oden and Ramos in the unit.
11 See Matter of William C. Meredith Company , Inc., 74 N. L . R. B. 1064, 1067-1068;
Matter of Rodgers-Wade Manufacturing Company, 69 N. L. R. B. 264, 266-267; and
Matter of Duval Texas Sulphur Company, 53 N. L. R. B. 1387 , 1390-1391.
" Matter of Fred H. Cole, d/b/a Cole Instrument Company, 75 N. L. R. B . 348, 350, and
cases cited ; and Matter of Rocky Mountain Pipe Line Company et at, 79 N. L . R. B. 1119.
12 See Matter of Crossett Chemical Company , 71 N. L . R. B. 433, 435.
12 Matter of Interstate -Trinity Warehouse Company, 74 N. L. R. B . 521, 522.
14 See Matter of United States Gypsum Company, 81 N. L. R. B. M; and Matter of
Rocky Mountain Pipe Line Company , et al, supra.
16 Matter of The Ohio Associated Telephone Company, supra.
204 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD
Private Secretaries: The Employer contends that Josephine Barry,
Ruth McCulley, and Tanella Harlan should be excluded from the
unit as confidential employees. Barry is secretary to both the field
operations supervisor and the assistant plant superintendent. McCul-
ley and Harlan are employed in the office of the secretary-treasurer
where they perform bookkeeping, accounting, and stenographic work.
Although McCulley and Harlan in the course of their duties have
access to many of the Employer's pay-roll and other financial records,
it does not appear that they have access to confidential data pertaining
to general labor relations. Nor does it appear that the supervisors of
Barry, McCulley, or Harlan #ormulate the Employer's labor relations
policies. Accordingly, we find that Josephine Barry, Ruth McCulley,
and Tanella Harlan are not confidential employees within the Board's
definition.16 We shall therefore include them in the unit.
We find that all employees in the Plant, Traffic, and Commercial-
Accounting Departments at the various exchanges of the Del Rio and
Winter Garden Telephone Company, and in its general offices at Del
Rio, Texas, including the agents at the Comstock, Spofford, Bates-
ville, Asherton, Encinal, Bruni, and Zapata, Texas, exchanges; the
operators including the so-called "probationary" operators at all ex-
changes; the Plant Department employees including the so-called
"probationary" helpers at the Hebbronville, Crystal City, Sabinal,
Devine, and Carrizo Springs, Texas, exchanges; the cashiers at the
Crystal City and Hebbronville, Texas, exchanges; the secretary to the
field operations supervisor and the assistant plant superintendent; and
the bookkeeping, accounting, and stenographic assistants in the sec-
retary-treasurer's office; but excluding temporary employees, the
agents at the Big Wells, La Pryor, Lytle, Devine, and Marathon,
Texas, exchanges; chief operators; and all other supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
5. The determination of representatives :
It appearing from the record that all probationary employees are
hired with the expectation that they will become regular employees,
we find that they have a sufficient interest in the present election to
entitle them to a voice in the choice of bargaining representatives.
We find, therefore, that probationary employees are eligible to vote
in the election.17
Because of the distances between the exchanges, the parties are
in agreement that the election be conducted by mail,*except at Del Rio,
1B Matter of Inter-Mountain Telephone Company , 79 N. L. R. B. 715. See Matter of
The Firestone Tire and Rubber Company, 73 N. L. R. B . 691, 695.
17 Matter of Crossett Chemical Company, supra.
DEL RIO & WINTER GARDEN TELEPHONE COMPANY 205
'Texas, where they agree a manual ballot should be held. As the
Regional Director is authorized to conduct elections in such manner
as he deems advisable and expedient under the circumstances pre-
sented, we shall leave the determination of the method to be employed
in the conduct of the instant election to the Regional Director's
,discretion.18
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
:secret ballot shall be conducted as early as possible, but not later than
.30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees described in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
.of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, and also excluding employees on strike
who are not entitled to reinstatement, to determine whether or not they
desire to be represented, for purposes of collective bargaining, by
Southwestern Division No. 20, Communication Workers of America.
Is Matter of Kentucky Central Life and Accident Insurance Company, 72 N. L. R. B.
548, 549.