Illinois Bell Telephone Co.

National Labor Relations Board - Board Decisions

Mar 16, 1950

88 N.L.R.B. 1171 (N.L.R.B. 1950)

In the-Matter Of ILLINOIS BELL TELEPHONE COMPANY and ILLINOIS
TRAFFIC DIVISION 14, COMMUNICATIONS WORKERS OF AMERICA,
SUCCESSOR OF ILLINOIS TELEPHONE TRAFFIC UNION, N. F. T. W.
Case No. 13-C-3187.-Decided March 16, 1950
DECISION
AND
ORDER
On September 30, 1949, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, 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. The Trial Examiner
also dismissed certain allegations of the complaint without making
findings with respect thereto, on the ground that these allegations
were barred by Section 10 (b) of the amended Act.2 Thereafter the
parties filed exceptions to the Intermediate Report, and supporting
briefs. The Respondent's request for oral argument is hereby denied,
as the record and briefs, in our opinion, adequately present the issues
and'the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection wtih this proceeding to a three-
member panel [Chairman Herzog and Members Houston and
Murdock].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.3 The Board has considered the Intermedi-
' The provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which
the Trial Examiner found were violated , are continued in Section 8 (a) (1) and 8 (a) (3)
of the amended Act.
See, section 1. infra.
At the hearing , the Trial Examiner denied a motion by the Respondent , made in advance
'of,the hearing, to dismiss the complaint in its entirety on the ground , among others, that
prosecution of the alleged unfair labor practices was barred by the 6-month statute of
limitations in Section 10. (b) of the Act. The Respondent 's argument in support of its
exception -to the Trial Examiner ' s ruling on this matter runs substantially as follows : The
Illinois Telephone Traffic Union (ITTU) changed its name and its affiliation after filing
88 NLRB No. 191.
1171
882191-51-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent with our Decision
and Order herein.
1. The original charge filed in this proceeding on April 14, 1947,
alleged illegal discrimination against a number of the Respondent's
employees, including the eight "supervisors" named in the complaint,
in violation of Section 8 (1) and (3) of the Act. The charge was
then amended on June 30, 1948, by removing the names of all em-
ployees except the eight "supervisors," and by adding a general alle-
gation of violation of Section 8 (1) "by these and other acts." The
complaint alleged violation of Section 8 (1) and 8 (3) by discrimina-
tion against the eight "supervisors," and independent violations of
Section 8 (1) by threatening statements on the part of agents of the
Respondent made at the time of and in connection with the acts al-
leged as discrimination. At the hearing, the Respondent moved to
strike that portion of the complaint which alleged independent viola-
tions of Section 8 (1) on the ground that it was not sustained by the
original charge and was therefore barred by Section 10 (b) of the
Act. The Trial Examiner granted the motion in his Intermediate
Report, and accordingly made no findings as to the facts alleged in
this part of the complaint.
the original charge in this case, but before the filing of the First Amended Charge. The
.result of this change of name and affiliation was to extinguish the charging party, so that
no person or organization remained in existence with legal capacity to amend a charge
filed with the Board. The First Amended Charge, therefore, filed by Illinois Traffic
Division 14 (ITD-14), must be regarded as an entirely new charge , which , because it was
filed more than 6 months after the effective date of the amended Act , cannot serve as
the basis for the issuance of a complaint.
The Respondent 's contentions are without merit . The timely filing of the original
charge tolled the statute of limitations with respect to any matters which might properly
be included in a complaint in the proceeding so initiated . Weaver Wintark , 87 NLRB
351 ; Cat hey Lumber Company , 86 NLRB 157 ; Jaques Power Saw Company , 85 NLRB 440.
In so doing , it conferred on the Board exclusive jurisdiction of the proceeding, which
could not thereafter be divested by organizational changes affecting the title or affiliation
of the original charging party. See Continental Oil Company v. N. L. R. B., 113 F. 2d 473
(C. A. 10) ; cf. N. L. R. B. v. Revlon Products Corp ., 144 F. 2d 88 ( C. A. 2). Under these
circumstances the Respondent 's additional contentions in support of its motion, based
on the compliance status of ITTU and its affiliate , the National Federation of Telephone
Workers, with respect to Section 9 (f), (g), and ( h) of the amended Act , are likewise
without merit . See Marshall and Bruce Company, 75 NLRB 90. The Trial Examiner's
denial of the motion to dismiss was correct and is hereby affirmed.
The Respondent also excepts to rulings by the Trial Examiner at the hearing excluding
evidence relating to the compliance of the charging union with Section 9 (f), (g), and (h)
of the Act and granting the General Counsel 's motion to revoke subpoenas issued at the
Respondent ' s request for the purpose of securing such evidence . These rulings are
affirmed . As the Trial Examiner pointed out , compliance is a matter for administrative
determination by the Board and need not be shown on the record . The Red Rock Company,
84 NLRB 521 ; Shawnee Milling Company , 82 NLRB 1266 . In any event we are satisfied
that ITD-14 and its affiliate , Communications Workers of America , are now and at all
times material to this proceeding have been in compliance with the affidavit and filing
requirements of the Act.
ILLINOIS BELL TELEPHONE COMPANY 1173
We agree with the Union and the General Counsel that, under the
Board's decision in Catltey Lumber Company,- the Respondent's mo-
tion should not have been granted. Under the circumstances of this
case, however, we shall limit ourselves to reversing, the Trial Exami-
ner's ruling as a matter of law, and shall not pass upon the issues
raised by the erroneously stricken allegations.-'
2. The Trial Examiner found, and we agree, that by demoting the
eight "supervisors" named in the complaint because they refused to
cross the ITTU picket line, under the circumstances set forth in full
in the Intermediate Reports the Respondent illegally discriminated
against them in violation of Section 8 (1) and 8 (3) of the Act.' The
Respondent does not challenge the accuracy of the Trial Examiner's
findings as to the events which took place, but takes the position, in
substance, that the demotion of these employees was lawful because
the demotees, by their actions, had forfeited the protection of the Act.
The Respondent's principal argument in support of this position is
that the refusal of the eight demotees to cross the picket line estab-
lished by the ITTU amounted to a strike in violation of an existing
no-strike agreement, regardless of the legality of the picket line or the
strike which it accompanied.8 As appears more fully in the Inter-
mediate Report, the demotees were all in the Chicago area bargaining
unit, whose representative, the Chicago Telephone Traffic Union
(CTTU), did not participate in the strike. At the time of the strike,
in fact, negotiations were in progress between the Respondent and
CTTU looking toward the execution of a new collective bargaining
agreement. The previous agreement between them had expired on
March 29, 1947, and the parties were operating under an extension
agreement continuing the provisions of the original contract pending
* 86 NLRB 157 . The Board 's decision in that case had not been issued at the time
the Trial Examiner issued his Intermediate Report in the present proceeding.
Both the Union and the General Counsel specifically requested that this proceeding
should not be remanded to the Trial Examiner for findings in the event their exception
to his ruling should be sustained.
G The record sustains the Trial Examiner 's findings that the demotions took place on
April 11 , 1947 ( April 12 in the case of Dorothy Jungbluth ) and that promotions of operators
to fill the supervisor vacancies were not made until April 27 or thereabouts . Accordingly
we agree with the further finding of the Trial Examiner that the unfair labor practices
herein found to have been committed occurred before the demotees were permanently
replaced , and while they were still entitled to return to their old jobs. See N. L . R. B. v.
Mackay Radio t Telegraph Company , 304 U. S. 333 ; N. L. R. B. v. Remington Rand, Inc.,
130 F. 2d 919 ( C. A. 2).
7 In view of the fact that the unfair labor practices here involved were committed prior
to the amendment of the Act , it is unnecessary for us to pass on the question whether
the demotees were supervisors as defined in the amended Act. Cf . Eastern Coal Corp. V.
N. L. R. B., 176 F. 2d 131 (C. A. 4) ; N. L. R. B. v. Edward G. Budd Mfg. Co., 169 F. 2d
571 (C. A. 6), cert. den. 69 S. Ct. 411 (erroneously cited by the Trial Examiner as Budd
Mfg. Co . v. N. L. R . B., 332 U . S. 840 ). We therefore do not adopt the Trial Examiner's
finding as to the supervisory status of these individuals.
b There is no contention that the ITTU strike or picket lines were illegal, and the parties
stipulated that the picketing involved was peaceful.
1174 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations." The Respondent urges us to find that this extension
agreement obligated the members of the Chicago bargaining unit not
to strike during its effective period, under the ruling of the Board in
the Fafnir Bearing Company case.-
We cannot agree with either of the two possible theories upon which
the Respondent appears to contend that the Fafnir case is controlling
in the present situation. In the first place, we do not interpret that
case as holding that any short term extension of an expired collective
bargaining agreement pending negotiation of a new agreement as a
matter of law implies an agreement by the union not to strike while
the extension is in effect. Whether a union has surrendered the right
to strike, and the extent to which it may have done so, are questions
of fact to be determined in each instance on the basis of all the relevant
evidence in the record 11
Nor, on the record before us, can we find that the facts in the present
case parallel those in the Fafnir case so closely that the inference the
Board there drew of the existence of an agreement not to strike follows
with equal persuasiveness here. In the Fafnir case, the Board found
(1) that the original agreement, by its terms, prohibited at least cer-
tain types of strikes; 12 (2) that the extension agreement clearly indi-
cated that if, at the expiration thereof, certain issues had not been
settled, either party would be free on that date to take whatever steps
it deemed necessary to adjust such issues; and (3) that, contemporane-
ously with the execution of the extension agreement, the Union issued
a statement clearly revealing its understanding that it was obligated
thereunder not to strike for a definite period of time, but was free to
do so thereafter. That case is thus patently distinguishable from the
case now before us. No mention of an agreement not to strike is
made in the express provisions of any of the relevant agreements be-
tween the Respondent and CTTU, and we have no evidence that the
9 This agreement provided that it should be effective from March 25, 1947, to April 28,
1.947 . Negotiations not having been concluded on the latter date, the parties further
extended the original agreement , in substantially identical terms , until June 2, 1947. A
new collective bargaining agreement was, however , executed on May 15, 1947, a week after
the end of the ITTU strike.
10 73 NLRB 1008.
It The Respondent suggests in its brief that not only short term extension agreements but
even formal collective bargaining agreements for periods of less than 2 years , such as the
expired agreement in this case , should be read as containing an implied no-strike clause.
It would, of course, follow from such a construction of the original agreement that the
extension agreement continued the union 's obligation not to strike. In our opinion, how-
ever, neither the Act nor ordinary principles of contract construction requires us to adopt
this position.
12 We agree with the Respondent that the existence of this provision was not the crucial
factor in the Fafi+ it decision , but that does not impair its value in the context of that case
as part of the evidence from which the intent of the parties was inferred.
ILLINOIS BELL TELEPHONE COMPANY 1175
recitals in the preambles to the extension agreements, referring in
general terms to the desirability of maintaining the stability of labor
relations during negotiations and of avoiding the "possible economic
repercussion" of a contractless interregnum, were in fact understood
to imply that the Union was binding itself not to strike. Under these
circumstances, we read the extension agreements to mean exactly what
they say : that the provisions of the original agreement-which did not
include a no-strike clause-were continued in full force and effect
during the period of the extension "the same as if they were fully set
forth herein." 13
Accordingly, we agree with the Trial Examiner that the Fafnir case
is inapplicable to the situation now before us, as there was not in
existence any agreement by the CTTU not to strike which might have
been violated by the conduct of the eight demotees.14
The second principal ground upon which the Respondent defends
its demotion of the eight supervisors is that their refusal to cross the
ITTU picket lines amounted to an illegal strike in derogation of the
statutory duties and responsibilities of their own bargaining agent,
within the meaning of the Draper case,15 and was therefore not entitled
to the protection of the Act.
We find no merit in this contention. The Draper case holds that
the Act does not protect strikers who, by striking, seek to reclaim from
their authorized bargaining representative any part of the duty dele-
gated to it to manage and conduct bargaining negotiations for them.
An essential part of the basis for this holding is that when such a
bargaining representative has been selected, the employer is under a
duty, enforced by legal sanctions, to bargain with it exclusively ; thus
minority groups within the unit are not privileged to interfere with
the progress of bargaining being carried on by their representative on
their behalf. But these principles are entirely inapposite in a situa-
tion such as the one in the present case, where the concerted activity
engaged in by the demotees bore no relationship, other than mere
temporal coincidence, to the then current bargaining negotiations be-
tween the CTTU, their representative, and the Respondent. Designa-
tion of a bargaining representative does not automatically strip
"The fact that an extension agreement may, as the Respondent points out, sometimes
vary the terms of the agreement it extends in no way compels the conclusion that in
agreeing to the extension the Union impliedly has agreed not to strike, despite the absence
of a no-strike clause in the original contract. Variations in the terms of the original
agreement effected by an extension agreement-and particularly so substantial a concession
by the union as the relinquishment of its right to strike-would normally be the subject of
negotiation by the parties before they were embodied in the extension.
11 In view of our finding that the CTTU agreement did not include a no-strike provision,
we need not pass upon the Trial Examiner's statement in the Intermediate Report that a
no-strike clause would not necessarily prohibit employees covered by the agreement from
refusing to cross a picket line established by another union.
15 N. L. R. B. v. Draper Corp., 145 F. 2d 199 (C. A. 4).
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minority groups of the privilege of assorting, by any form of concerted
activity not in itself illegal,16 protected interests outside of and uncon-
nected with the bargaining process or its results 17 The general
concern of employees with mutual aid and support in their efforts to
improve their working conditions, even when not directed to the
immediate achievement of economic benefit for themselves, has long
been regarded as such a protected interest 18 This concern is tradi-
tionally expressed in the form of respect for the picket lines of striking
unons, and a refusal to cross such picket lines has repatedly been held
by the Board and the courts to be a kind of concerted activity against
which an employer may not retaliate by discriminatory measures 19
Finally, the Respondent argues that under the Board's decision in
the Carnegie-Illinois case 20 the demotees in the present case must be
held to have struck in violation of a special duty to the Respondent
and to the public, to which they were subject by virtue of their posi-
tion, thereby placing themselves outside the protection of the Act. We
cannot agree. Even assuming that the employees in question were
supervisors,21 whose right to engage in concerted activity may in special
circumstances be circumscribed by the allegiance they owe to manage-
ment,22 the record in the present case fails to disclose any of the special
circumstances which, in the Carnegie-Illinois case, the Board found
should have evoked that allegiance. The crucial fact in that case was
"the peculiar susceptibility of the Respondent's plant to crippling
damage from an abrupt shut-down of its operations," which was held
to give rise to a particular need on the employer's part for supervisors
who could be depended on for "emergency duty to forestall destruc-
tion of key plant facilities." In the present case, however, no such
peculiar susceptibility to crippling damage has been shown to exist.
Indeed, this question did not even arise, as a practical matter, as there
was no rank-and-file strike in the Chicago area central offices which
31 Cf. Pinaud, Inc., 51 NLRB 235.
17 See Hamilton v. N. L. R. B., 160 F. 2d 465 (C. A. 6) ; Nu-Car Carriers, Inc., 88 NLRB
75.
is Cf. N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503, 505, 506
(C. A. 2). There is thus no merit to the Respondent's suggestion that the refusal of the
eight demotees to cross the picket lines was tantamount to a strike for the assertion of
interests not properly their own, as was found by the Board to be the case in Fontaine
Converting Works, Inc.; 77 NLRB 1386.
19 See Carter Carburetor Corp. v. N. L. R. B., 140 F. 2d 714 (C. A. 8) ; N. L. R. B. V.
Montag Brothers, Inc., 140 F. 2d 730 (C. A. 5) ; Potlatch Forests, Inc., 87 NLRB 1193;
Columbia Pictures Corporation, of al., 82 NLRB 568. It is immaterial that the employees
who refused to cross the picket line were not in the bargaining unit represented by the
striking union. N. L. R. B. v. Montag Brothers, Inc., supra; Fafnir Bearing Company,
73 NLRB 1008.
20 Carnegie-Illinois Steel Corporation, 84 NLRB 851.
21 A finding of supervisory status would be a prerequisite to holding the Carnegie-Illinois
case applicable here. We have, however, refrained from making any finding with respect to
the status of the demotees in this case. See in. 7, supra.
12 Cf. Hazel-Atlas Class Co. v. N. L. R. B., 127 F. 2d 109 (C. A. 4).
ILLINOIS BELL TELEPHONE COMPANY 1177
might have threatened an abrupt shut-down of operations, so as to
require the emergency services of supervisors.23 The Respondent calls
our attention to the importance to the community of continuity of tele-
phone service, and to the importance to its own organization of having
trained personnel to handle calls falling outside the ordinary routine.
But the first of these considerations would be equally applicable to a
rank-and-file strike, and the second to a work stoppage by any group
of skilled craftsmen or specialists. Neither is sufficient to bring this
case within the Carnegie-Illinois rule.
For all the reasons given above, and upon consideration of the
entire record, we agree with the Trial Examiner that the Respondent's
defenses are without merit, and that the demotion of the eight "super-
visors" constituted illegal discrimination against employees within
the meaning of Section 8 (1) and 8 (3) of the Act.
TILE REMEDY
We have found that the Respondent discriminatorily demoted the
eight employees named in the complaint for refusing to cross the
ITTU picket line. The demotion of these employees because they
engaged in concerted activity protected by Section 7 of the Act vio-
lated Section 8 (1) of the Act. Because such demotion amounts to
discrimination in regard to hire and tenure of employment, thereby
discouraging membership in a labor organization, it also violated
Section 8 (3). Moreover, whether the demotions be regarded as
violations of Section 8 (1) or of Section 8 (3), we find it necessary to
order, as hereinafter provided, reinstatement with back pay in order
to effectuate the policies of the Act.24
In its exceptions and brief, the Respondent argues that it lawfully
replaced the eight "supervisors," not because of their concerted activity
but because of their continued absence from work, and that in fact
they suffered no prejudice because they were taken back to work in
available vacancies upon their own application, without loss of senior-
ity and with a promise of promotion when possible. In view of our
finding that the demotions constituted illegal discrimination, the sub-
sequent replacement of the employees in question can have no effect
upon their right to reinstatement to their old jobs. This right, condi-
tional at the outset upon an unqualified application to return while
their jobs were still unfilled,25 became unconditional at the point where
23 A number, of operators in these offices also refused to cross the picket lines, but so
far as appears in the record, they were a small minority of the Chicago area traffic em-
ployees, and neither caused nor threatened to cause any serious curtailment of telephone
service in that area.
24 The Sandy Hill Iron d Brass Works, 55 NLRB 1, enfd. 145 F. 2d 631 (C. A. 2).
25 See Max Sax d / b/a Container Mfg. Corp. v . N. L. R. B., 171 F. 2d 769 (C. A. 7).
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent committed unfair labor practices against them.26 The
Respondent's reasons for replacing these employees, and the method
by which the replacements were accomplished, are thus immaterial so
far as concerns the existence of the right to reinstatement.
The Respondent also argues that it was not in any event required
to reinstate the eight "supervisors" until they made unconditional
application to return to work. For the reasons given above, this con-
sideration does not affect the substantial rights of the demotees, which
became fixed as of the dates of the unfair labor practices. It does,
however, relate to the date as of which we award back pay to the
demoted employees, and we find that the Trial Examiner appropri-
ately took it into account in making his recommend.ations.27 We shall
therefore direct that the Respondent make each of the demotees whole
for any loss in wages, pension rights, or sick benefits suffered in
consequence of the discrimination against them, in the manner set
forth in the section of the Intermediate Report entitled "The remedy."
Under the circumstances of this case, however, including the fact
that we have made no finding with respect to independent violations
of Section 8 (1) of the Act,28 we shall not follow the Trial Examiner's
recommendation that we issue a broad cease and desist order. Instead,
we shall limit that portion of our order to a requirement that the
Respondent cease and desist from violating Section 8 (a) (1) of the
Act in any manner like or related to the violations herein found to
have been committed.29
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 hereby orders that the Respondent, Illinois Bell
Telephone Company, Chicago, Illinois, and its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Illinois Traffic Division 14, Com-
munications Workers of America, successor of Illinois Telephone
28 See N. L. R. B. v. Remington Rand, Inc., 130 F. 2d 919 (C. A. 2) ; N. L. R. B. v. Mackay
Radio ci Telegraph Co., 304 U. S. 333; and cf. Allis -Chalmers Mfg. Co. v. N. L. R. B., 162
F. 2d 435 (C. A. 7). As we have found that the Respondent actually did make promotions,
purporting to be permanent , to the jobs left vacant by the supervisors , the present case is
distinguishable from cases such as Union Drawn Steel Co. v. N. L. R. B., 109 F. 2d 587
(C. A. 3), cited by the Respondent , where the employer decided as a business matter not to
make any replacements to fill vacancies left by strikers but to redistribute the work among
his remaining employees , and the court held that this action was as effective as replace-
ment to foreclose the rights of strikers to immediate reinstatement.
27 See Kallaher and Mee, Inc., 87 NLRB 410; Massey Gin and. Machine Works, Inc.,
78 NLRB 189.
28 See supra, section numbered 1, of this opinion.
29 Cf. May Department Stores Co . v. N. L. R. B., 326 U. S. 876 ;.T. I. Case Co . v. N. L. R. B.,
321 U . S. 332.
ILLINOIS BELL TELEPHONE COMPANY 1179
Traffic Union, N. F. T. W., or any other labor organization of its
employees, by discriminating in regard to the hire and tenure of
employment or any term or condition of employment of its employees;
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist Illinois Traffic
Division 14, Communications Workers of America, successor of Illi-
nois Telephone Traffic Union, N. F. T. W., or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized 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) Offer to Catherine E. Brophy, Edith Holmes, Lillian Jensen,
Dorothy Jungbluth, Irene Keuther, Helen Macellaio, Rose Winder,
and Frances Regan Gaittens immediate and full reinstatement to
their former or substantially equivalent positions,30 and make them
whole for any loss of pay, pension rights, or sick benefits they may
have suffered by reason of the discrimination against them," in the
manner described in the section of the Intermediate Report entitled
"The remedy" ;
(b) Post at each of its exchanges or business offices in Chicago,
Illinois, where the eight employees named above were employed prior
to April 7, 1947, as well as those where they are presently employed,
copies of the notice attached hereto and marked Appendix A.32 Copies
of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon re-
ceipt thereof and maintained by it for sixty (60) consecutive days in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
a°In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is Intended to mean "former position wherever
possible , and if such position is no longer in existence , then to a substantially equivalent
position ." The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
" See Crossett Lumber Company, 8 NLRB 440.
as In the event that this Order is enforced by a decree of a United States Court of Appeals.
there shall be inserted In the notice before the words, "A DECISION AND ORDER" the
words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to see that the notices are not altered , defaced, or covered
by any other material;
(c) Notify . the Regional Director for the Thirteenth Region
(Chicago, Illinois) in writing within twenty (20) days from the date
of this Order what steps the Respondent has taken to comply here-
with.
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, we hereby notify our employees that :
WE WILL NOT discourage membership in Illinois Traffic Divi-
sion 14, Communications Workers of America, successor of Illi-
nois Telephone Traffic Union, N. F. T. W., or any other labor or-
ganization of our employees by demoting employees or in any
other manner discriminating against them in regard to hire or
tenure of employment or any term or condition of employment.
AVE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist Illinois
Traffic Division 14, Communications Workers of America, suc-
cessor of Illinois Telephone Traffic Union, N. F. T. W ., or any
other labor organization , to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, ex-
cept 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 in Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tion without prejudice to any seniority or other rights previously
enjoyed, and make them whole for any loss of pay , sick benefits, or
pension rights suffered as a result of the discrimination against
them : -
Catherine E. Brophy Irene Keuther
Edith Holmes Helen Macellaio
Lillian Jensen Rose Winder
Dorothy Jungbluth Frances Regan Gaittens
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union , or any other labor organ-
ILLINOIS BELL TELEPHONE COMPANY 1181
ization, except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the amended Act.
ILLINOIS BELL TELEPHONE COMPANY,
Employer.
By ------------------------------
(Representative ) ( Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Philip Licari, for the General Counsel.
Mr. Howard P. Robinson, of Sidley, Austin, Burgess d Harper, and Mr. Gordon
W. Winks, of Chicago, Ill., $or Respondent.
Mr. Edwin R. Hackett, for the Union.
STATEMENT OF THE CASE
Upon charges filed on April 14, 1947, and August 3, 1948, by Illinois Telephone
Traffic Union, N. F. T. W. and Illinois Traffic Division 14, Communications Work-
ers of America, respectively, herein called the Union,' the General Counsel of the
National Labor Relations Board, by the Regional Director for the Thirteenth
Region (Chicago, Illinois) issued a complaint dated January 24, 1949, against
Illinois Bell Telephone Company, herein called Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, and Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, both herein called the Act. Copies of the complaint, the charges,
and notice of hearing thereon were duly served upon Respondent. With respect
to the unfair labor practices, the complaint alleged that on or about April 11,
1947, Respondent suspended from work and demoted eight named individuals 2 be-
cause of their union membership and activities as well as their concerted activi-
ties, thereby violating Section 8 (1) and (3) of the original Act and Section 8
(a) (1) and (3) of the amended Act .3
Respondent's answer admitted the allegations of the complaint with respect
to the nature and extent of its business operations and admitted that it had
suspended and demoted on or about April 11, 1947, the eight individuals named in
the complaint. The answer denied the commission of any unfair labor practices
and alleged affirmatively that the eight individuals were suspended and demoted
because they failed to report for work, that their work was necessary to the
urgent public service rendered by Respondent, that as a result each was replaced
in her position prior to her offer to return to work, and that each upon her offer
to return was tendered and accepted employment with Respondent.
1 The name of the charging Union was amended at the hearing to appear as set forth above.
2 Their names are
Catherine E. Brophy Helen Macellaio
Edith Holmes Rose Winder
Lillian Jensen Frances Regan ( whose married name is
Dorothy Jungbluth now Gaittens).
Irene Keuther
s Another allegation of the complaint has been stricken upon motion by Respondent.
See Section III A (2), infra.
0
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held at Chicago, Illinois, from June 7 to 14,
1949, before the undersigned Trial Examiner; Martin S. Bennett, duly designated
by the Chief Trial Examiner. All parties were represented by counsel, each of
whom participated in the hearing. Full opportunity to be beard, and to examine
and cross-examine witnesses, was afforded all parties. During the hearing, the
undersigned granted motions by counsel for Respondent for the sequestration of
witnesses' and that a view be taken of certain of Respondent's premises. The
undersigned denied and reserved ruling on various motions proffered at the
hearing by Respondent; they are discussed and disposed of hereinafter. At the
close of the hearing a motion by the General Counsel to conform the pleadings
to the proof with respect to purely formal matters was granted. The parties
were afforded an opportunity, at the conclusion of the hearing, to argue orally
before the undersigned as well as due time to submit briefs and/or proposed
findings and conclusions. The General Counsel argued orally on the record and
in due course a brief was received from Respondent. o
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Illinois Bell Telephone Company is an Illinois corporation, which maintains its
principal office at Chicago, Illinois, where it is engaged in the communications
industry. In the course and conduct of its business, Respondent annually pur-
chases materials valued in excess of $30,000,000, of which in excess of $7,000,000
is shipped to the State of Illinois from points outside thereof. It annually earns
and receives as revenue from telephone services $160,000,000, of which approx-
imately 16 percent is derived from telephone service rendered between points
within the State of Illinois and points outside the State of Illinois.
The undersigned finds that Respondent is engaged in commerce within the
meaning of the Act a
II. THE ORGANIZATIONS INVOLVED
Illinois Telephone Traffic Union, herein called ITTU, at the time of the
incidents set forth herein was affiliated with National Federation of Tele-
phone Workers, herein called N. F. T. W., a federated group of autonomous labor
organizations. After June 1947, and before January 1948, N. F. T. W. was
succeeded by the Communications Workers of America, an international union,
in which successor international union ITTU continued its membership.
4 At the close of the hearing, the undersigned reserved rulings on a motion by counsel for
Respondent to strike the testimony of the witness Johnson on the ground that it was taken
in violation of the rule. Johnson did not testify for the General Counsel during his case-
in-chief but was present in the hearing room during most if not all of the hearing. She
was not under subpoena as was the case with the other witnesses for the General Counsel
who announced that he had not intended to call her as a witness until immediately prior
to calling her as his only rebuttal witness.
The undersigned finds that there was no connivance by the General Counsel to violate
the rule and that it was not knowingly disobeyed. Accordingly, Respondent' s motion is
denied. People v. Godsey, 334 111. 11 ; People v. Scott, 261 Ill. 165; Goon Bow v. People,
160 Ill. 438 ; and Bulliver Y. People, 95 Ill. 394. In any event , as appears below, Johnson's
testimony was on an issue found to be beyond the purview of the complaint.
6 The findings herein are based upon allegations of the complaint and admissions in
Respondent ' s answer which are in substantial agreement.
6
ILLINOIS BELL TELEPHONE COMPANY 1183
The name of ITTU was changed upon its affiliation with Communications
Workers of America, to Illinois Traffic Division 14, but its offices and structure
remained unchanged. That this was the same labor organization as ITTU,
under a different name was expressly recognized by Respondent on January. 9,
1948, when it entered into a contract with Division 14 describing it as "successor"
to ITTU and as the "successor Union" of the latter.
The undersigned finds that Division 14 is a successor labor organization to
ITTU ; that Division 14 is the same labor organization as ITTU under a new
name; and that ITTU prior to its change of name was and that Division 14 pres-
ently is a labor organizatipon admitting to membership employees of Respondent.
The undersigned further finds that Chicago's Telephone Traffic Union, herein
called CTTU, is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's motions to dismiss and strike
1. Section 9 (f), (g), and (h)
The undersigned denied a motion by Respondent to dismiss the complaint on
the ground that ITTU had gone out of existence prior to the issuance of the
complaint and that neither it nor N. F. T. W. was currently in compliance with
the filing requirements of Section 9 (f), (g), and (h) of the amended Act.
As found above, the labor organization known as ITTU is still in existence
with offices and structure unchanged but under a different name. This is
obviously not such a change in the structure or affiliation of ITTU as to
create a doubt whether it is the labor organization chosen by the employees to
represent them. See Michigan Bell Telephone Co., 85 NLRB 303, and Harris-
Woodson Co., Inc. (Supp. Decision), 85 NLRB 1215. In fact, as noted above, Re-
spondent expressly recognized Division 14 as a successor to ITTU. Furthermore,
the fact that a charging party is deceased, if an individual, or out of existence, if
a corporation or association, is of no import. The Rules and Regulations of the
Board do not provide that the continued existence of a charging party is essential
to the validity of a complaint issued upon the charge.
In addition, it is well established, in both unfair labor practice and representa-
tion cases, that compliance with the filing requirements of Section 9 (f), (g),
and (h) is a matter for administrative determination by the Board and is not
litigable by the parties. The Red Rock Company, 84 NLRB 521; and Pauls Valley
Milling Co., 82 NLRB 1266. In any event counsel for the General Counsel an-
nounced on the record that the General Counsel had administratively determined
that the charging Union was in compliance with said filing requirements.`
It may also be noted that the instant case is not one where there may have
been fronting for a noncomplying labor organization in order to permit it to
use the services of the Board, but is solely one where there has been a change in
name but not in structure of a labor organization. Cf. Augusta Chemical Co.,
83 NLRB 53, and Campbell Soup Company, 76 NLRB 950.
6 At the request of counsel for Respondent, the undersigned issued subpoenas for service on
officers of various labor organizations, the members of the Board, and the Secretary of
Labor requiring the production of all records establishing the compliance if any of the
organizations herein involved, as well as others, with Section 9 (f), (g), and (h). Subse-
quent thereto, the undersigned granted motions by the General Counsel and by counsel
for the Union to quash the subpoenas . See The Red Rock Company, supra.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Section 10 (b)
The undersigned denied a motion by Respondent to strike certain portions of
the complaint on the ground that they were not supported by the original charge
or the first amended charge as required, by Section 10 (b) of the amended Act.
Insofar as this motion referred to the allegation of the complaint that Respond-
ent suspended and demoted 8 named individuals for their union and concerted
activities, an inspection of the original and first amended charge discloses that
both set forth this factual matter and that the complaint contains substantially
a restatement of the language appearing in both charges. Accordingly, the
undersigned ruled that this portion of Respondent's motion lacked merit. See
Jaques Power Saw Co., 85 NLRB 440.
The complaint, dated January 24, 1949, also contained in paragraph 6 thereof an
allegation that certain gfficers and agents of Respondent threatened the eight
alleged demotees in April of 1947 with loss of employment, pension rights, emolu-
ments, and other reprisals if they continued their union and concerted activities,
thereby violating Section 8 (1) and 8 (a) (1) of the original Act and amended
Act, respectively. The original charge, dated April 14, 1947, is silent as to this
alleged conduct which is raised for the first time in the first amended charge
filed on August 3, 1948, and then only in a very general sense. As the above
dates reveal, the first amended charge was filed more than 6 months after the
date of the alleged events and also more than 6 months after the effective date
of the amendments to the Act.
At the hearing, the undersigned denied Respondent's motion to strike para-
graph 6 of the complaint but, in effect, upheld the position of Respondent by
announcing that any evidence as to the alleged threats would be considered only
in support of the other allegation of the complaint with respect to the alleged
discriminatory demotion and suspension. Upon further consideration, the
undersigned is of the belief that consistency with this ruling requires that
Respondent's motion as to paragraph 6 be granted outright. Because this allega-
tion of independent 8 (1) by various threats, referring to alleged threats in
April 1.947, is untimely raised for the first time in the first amended charge dated
August 3, 1948, it is found that the complaint insofar as it contains this allegation
is not based upon a timely charge. Accordingly, it is hereby ordered that para-
graph 6 of the clamint be stricken. Cf. Electric Auto-Lite Co., 80 NLRB 1601,
and Itasca Cotton Manufacturing Co., 79 NLRB 1442.
B. The facts
1. Background ; the issue
Respondent, which is engaged in the communications industry throughout the
State of Illinois, has a table of organization which divides it'into two divisions
along geographical lines. The first is the Chicago area, including the city of
Chicago, and the second is the State area including the remainder of the State
outside the boundaries of Chicago. These two divisions are operated under sepa-
rate lines of authority and have been represented for the purposes of collective
bargaining by different labor organizations.
The collective bargaining representative for a large number of the employees
in the State area in 1947 was the charging union herein. This contract expired
7 The State area includes two counties in Indiana and excludes a small area in Illinois
adjacent to St. Louis, Missouri . It also includes a portion of certain long distance facili-
ties in the city of Chicago known as Chicago Toll.
ILLINOIS BELL TELEPHONE COMPANY 1185
on or about March 1, 1947, and on April 7, 1947, ITTU commenced an economic
strike against Respondent for various changes in working conditions as well as
a wage increase. Picket lines were set up at Respondent's installations through-
out the State area, and also at all Company installations and exchanges within
the Chicago area on the morning of April 7.8 The strike lasted through May 8,
1947, and picket lines were maintained at all central office exchanges within the
Chicago area, until that date, although in some locations the picket lines were
removed several days earlier.
Prior to this strike by ITTU, the Chicago area was represented for the purposes
of collective bargaining by another independent labor organization, Chicago Tele-
phone Traffic Union (CTTU). This contract was entered into on July 25, 1946,
and its duration was until March 29, 1947. It was duly terminated as of that
date by notice sent on February 28, 1947. On March 25, 1947, CTTU and Re-
spondent signed an "Extension Agreement" extending the old agreement until
April 28, 1947. A new contract was not arrived at during this period and another
"Extension Agreement" was entered into on April 25, 1947, extending the old
agreement to June 2, 1947; a new contract was signed on May 15, 1947, however.
CTTU did not engage officially or unofficially in the strike commenced by ITTU
on April 7, 1947, but, as appears above, it met with Respondent during the strike
period and ultimately signed a new contract on May 15.
The sole issue in this proceeding involves eight "supervisors" within the CTTU
bargaining unit who advised Respondent's officials, prior to or at the outset of the
ITTU strike on April 7, that they would not cross picket lines established at their
respective central exchanges.' On and after April 7, when the picket line
was established, these eight employees did not report for work. It is clear,
and the undersigned finds, that Respondent was aware that the sole reason
,for their absence from work was their refusal to cross the picket lines at their
respective places of employment. It may also be noted that, although all eight
were represented by CTTU, only three were then members thereof, Regan, Jensen,
and Macellaio. Seven of the eight were then members of ITTU, and the eighth,
Jensen, had participated in some solicitation of members for the ITTU.
Between April 7 and 11, attempts were made by Respondent's officials to per-
suade these eight employees to return to work. Their uniform reply was that
they would return as soon as the picket lines were removed. On April 11, indi-
vidual letters were sent by the various Division Traffic Superintendents to these
"supervisors," with the exception of Jungbluth, stating:
In previous contacts we have. informed you that your continued absence
from work would place your job with the Illinois Bell Telephone Company in
jeopardy.
We are taking this means of informing you that you are being demoted
effective immediately from your present authority as Supervisor to that of
Operator and that if you should fail to contact us immediately or to return
to work on the first day upon which you are assigned to work following
delivery of this message, your employment with the Company will, until
8 Other labor organizations affiliated with the National Federation of Telephone workers
(N. F. T. W.) also struck against Respondent on this date.
9 Dorothy Jungbluth, as appears below, was employed at a•business office in the Chicago
area, which was picketed by ITTU.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further notice, be suspended effective as of the first day of continuous
absence.10
On April 12, a similar letter was sent to Jungbluth which referred to her by
her title of "P. B. X. Placement Supervisor." This letter was similar to that
sent to the other seven but it also directed Jungbluth to report for work on
April 14, as an operator.
None of the eight reported for work during the remainder of the strike and
until the picket lines were removed from their respective buildings. All except
Jensen reported for work on May 9, the day after the strike ended, and each
upon presenting herself for work in her particular exchange was reinstated but
discovered that she had been reduced to the grand of rank-and-file operator and
assigned to the duties of that position." Jungbluth was notified during the strike
to report to an exchange where she formerlly worked as operator, prior to her
promotion to P. B. X. Placement Supervisor. She too reported for work on
May 9, and was given employment at the reduced rate and salary of an operator.
In each case, the positions to which these employees were assigned were lower
paid than those they had occupied prior to the strike. The case of Jensen is
slightly different, inasmuch as on April 18 or 19, she entered a hospital and
remained there for a period of 5 weeks. After her convalescence, she returned
to work in early September and was reinstated to the position of operator as were
the other seven. In her case as well, this meant a demotion and a reduction in
salary.
The sole issue herein is whether or not Respondent discriminatorily suspended
and demoted these eight employees because of their union membership and
activity and because of their concerted activity of not crossing validly established
picket lines set up at their respective exchanges by a labor organization.
2. Duties of the eight employees
The eight employees alleged to have been discriminated against were classified
by Respondent as "supervisors." All received salaries in excess of those paid
rank-and-file telephone operators. Seven were central exchange employees and
the eighth, Dorothy Jungbluth, as set forth above, was a P. B. X. Placement
Supervisor at a business office.
The seven central exchange supervisors were employed at various central
exchanges within the city of Chicago, and Mrs. Jungbluth was employed at a
business office in Chicago operated by Respondent as a procurement office for
the recruitment and placement of telephone operators in private business offices.
Her duties included the interviewing of applicants for such employment as well
as their referral to appropriate customers.
The 7 central exchange supervisors performed relatively important duties.
They were known as "floor" or ",Ralking supervisors," or on the other hand,
as "seated supervisors." The floor supervisor was responsible at times for the
further training at the exchange of new operators introduced to the exchange
after a brief initial training period elsewhere. This training included the actual
observation of the new operator by the supervisor who would take a position
behind the operator as she sat at the switchboard and handled calls. Appropriate
recommendations would then be made by the supervisor to higher officials of
10 The letters to six were identical . The seventh letter, to Regan, was substantially the
same as the others.
11 In the case of Winder, it appears that she may have reported for work several days
prior to the end of the strike when the picket line was removed from her particular exchange.
ILLINOIS BELL TELEPHONE COMPANY 1187
the exchange concerning the performance of the operator. Each floor supervisor
also handled certain telephone calls relayed to her by the various operators as-
signed *to her, whose number generally varied from 12 to 17, although it appears
that when floor supervisors were engaged in training new operators, such train-
ing occupied a substantial portion of their time. These relayed telephone calls
consisted of emergency calls and complaints on service which, upon entering
the switchboard, were taken over by the supervisor. The method of doing this
was for the operator to attract the attention of the supervisor who customarily
walked along the floor of the exchange behind the girls assigned'to her, follow-
ing which the supervisor would plug her cord into that operator's switchboard
and take over the call. In addition, when particular operators were overbur-
dened, these supervisors would arrange to transfer calls to other operators for
handling.
Several of the girls involved herein were known as "seated" supervisors.
Their duties were apparently confined to handling the important emergency
calls and complaints which came to the exchange as well as unusual situations
which arose. These calls were transferred by the operator receiving the call
to the position of the supervisor who occupied a particular seated position at the
exchange. Unlike the floor supervisors, this group did not perambulate in the
exchange and did not perform training duties ; nor for that matter did they take
such calls at the switchboard of the operator receiving the call.
Although the positions of these "walking" and "seated" supervisors are obvi-
ously vital to Respondent's operations, it does not appear that they are super-
visors within the definition of the original or the amended Act. Respondent
makes no such contention, and, in fact, it has entered into contracts with CTTU,
as set forth above, which expressly describe Supervisors and P. B. X. Place-
ment Supervisors as nonsupervisory employees to be included within the
scope of the contract. The Board has also included employees whose positions
are comparable or similar to those of these seven central exchange supervisors
in units with other rank-and-file employees. See Southeastern Telephone Com-
pany, 70 NLRB 4, and Illinois Consolidated Telephone Company, 61 NLRB 447,
453. Accordingly, the undersigned finds the eight employees herein involved
to be employees within the meaning of the Act.
In any event, assuming that these employees were supervisors under the Act,
this would not affect the power of the Board to enter an appropriate order
remedying any unfair labor practices that may have been committed against
them under the original Act. Budd Manufacturing Co. v. N. L. R. B., 332 U. S.
840; Eastern Coal Corp. v. N. L. R. B. (C. A. 4), 176 F. 2d 131; N. L. R. B. v.
Mlylan-Sparta Co. (C. A. 6), 166 F. 2d 485; and N. L. R. B. v. National Garment Co.
(C. A. 8), 166 F. 2d 233.
3. Status of the strikers ; their demotion
As found above, the strike of April 7 by ITTU was not a strike by the labor
organization which was the collective bargaining representative of the eight
"supervisors." It was, however, a concerted activity by fellow employees of
those eight employees in support of a demand for various economic benefits
from their common employer. As such, it was a concerted activity which ren-
dered those strikers within the State unit represented by ITTU subject to the
full. protection, of Section 7 of the Act.
The eight employees involved herein apparently adopted the position ex-
pressly recognized by the Board in L. A. Young Spring and Wire Corp., 70 NLRB
868, ivhere it stated, "It is almost a rule of trade union ethics for one labor
882191-51-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union to respect a picket line established by another." They notified the Re-
spondent that they would not report for work until the picket lines established
by ITTU were removed and that they would respect the picket lines established
by ITTU.12 By so doing, these eight employees placed themselves in the position
of sympathy strikers who made common cause with those engaged in the eco-
nomic strike against their common employer. As a result, their legal status
became identically that of the striking employees of the ITTU State unit, namely
economic strikers." As such economic strikers they were given the protection
of the Act against discharge or demotion by the employer for engaging in this
concerted activity"
The undersigned will next consider the course of conduct which Respondent
adopted toward these eight employees. After attempting in vain from April 7
to 10 to persuade the eight girls to cross the picket line and report to work,
it decided to take other steps. On April 11, and on April 12 in one case,
it sent to each of the girls the letter set forth above which stated in part, "You
are being demoted effective immediately from your present authority as Super-
visor to that of Operator .... It is clear and the undersigned finds
that Respondent decided on April 11 and did on April 11 and 12 demote these
strikers to the position of operator because of their participation in a concerted
activity. This is shown by the testimony of Gordon Aller, General Traffic Per-
sonnel Supervisor for the Chicago area, whose decision it etas to send the letters
of April 11 and 12 and who drew them up for the respective District Traffic
Superintendents. Ile testified that "We wanted them [the eight employees]
to come to work. We stated in the letter [of April 11 and 12] that we wanted
them to come to work as operators . . . [Emphasis supplied.]
He elsewhere testified as follows :
By Mr. LICARI:
Q. If they had come back in response to your letter, they would not have
been placed as supervisors; they would have been placed as operators, is
that correct?
A. That is correct.
Q. Trial Examiner BENres rr. In other words, if I understand you cor-
rectly, when you sent these letters on April 11 and the one on April 12 so
far as you were concerned, they were then demoted from supervisors to
operators?
A. That is right.
By Mr. LicARI:
Q. On that date they were actually demoted ; were then not?
A. That is correct.
Q. And they were actually suspended?
A. That is right.
The testimony of Aller also makes clear that this demotion letter was not a
maneuver to get the eight girls to return to work as supervisors, the positions
12 It will be recalled that seven of the eight were then members of ITTU and that the
eighth had been active in its behalf.
11 Black Diamond S. S. Corp. v. N. L. R. B., 94 F. 2d 875 (C . A. 2), cert. denied 304 U. S.
579 ; N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503 (C. A. 2) ;
N. L. R. B . v. Lund, 103 F. 2d 815 ( C. A. 8) ; and Carter Carburetor Corp. v. N. L. R: B.,
140 F. 2d 714 (C. A. 8).
14 N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333 . It is true , of course,
as Respondent states in one of its contentions , treated hereinafter , that Respondent could
have permanently replaced these economic strikers prior to a discharge or demotion.
ILLINOIS BELL TELEPHONE COMPANY 1189
they occupied prior to the strike, because he stated that had the eight employees
returned to work after April 11, they would have been taken back, but only as
operators. That this was indeed Respondent's intention is further shown by
what took place on and after May 9 when the eight girls applied for work and
were reinstated as operators.
The undersigned accordingly finds (1) that the eight strikers were in fact
demoted on April 11,u and (2) assuming that the letter of April 11 also constitutes
an attempt to persuade the strikers to return to work, it does not amount to a
bona fide tactical maneuver to procure their return, because the record makes
clear that on and after April 11 the eight strikers would have been reinstated
only to the reduced grade and salary of operator and not to the positions they
occupied at the outset of their strike. Accordingly, having been demoted while
engaging in a concerted activity, these eight employees have suffered a discrim-
ination and interference with the rights guaranteed by the Act unless Respond-
ent's ably argued defenses and contentions which are discussed below have
merit.
4. Contentions and conclusions
(a) Respondent contends firstly that these eight employees should be denied
any relief because they, as strikers, did not comply with the requirements of
the War Labor Disputes Act, 50 U. S. C. A. App. Section 1508, for the filing of
advance strike notices with certain Federal agencies. Respondent concedes
that such a strike notice was filed by the ITTU with respect to that labor or-
ganization's own dispute. Assuming arguendo that the notice filed by ITTU
would not cover the concerted activity of these eight, Respondent's position is
nevertheless not well taken. The Board has decided that failure to comply with
the filing requirements of that statute does not deprive employees of their pro-
tection under this Act. This contention is therefore rejected.18
(b) Respondent further contends that the eight employees herein lost the
protection of the Act by engaging in unprotected conduct within the meaning
of the Sands case.11 In that case the employees were irrevocably committed to
compel their employer to take action contrary to the terms of their contract then
in effect and the Court held that the company ". . . was at liberty to treat
them as having severed their relations with the Company because of their
breach ..." The instant case is decidedly different, however, because the
eight sympathy strikers who refused to cross the picket line were not attempting
to compel Respondent to take any steps in derogation of the contract between
CTTU and Respondent ; nor was there any contract then in effect between ITTU
and Respondent whose breach these eight employees were attempting to procure.
They were merely refusing to cross a validly established picket line set up as
a result of a legitimate labor dispute. Accordingly, the Sands case is not in
point and Respondent's contention is rejected.
(c) Respondent also contends that the action of the eight sympathy strikers
was in conflict with the plans of their own bargaining agent and that they as
a minority had no right to refuse to cross a picket line when the majority agent
was bargaining with Respondent. In support thereof it cites primarily N. L. R. B.
v. Draper Corp., 145 F. 2d 199 (C. A. 4), and also N. L. R. B. v. Indiana Desk Co.,
149 F. 2d 987 (C. A. 7), and N. L. R. B. v. Reynolds Pen Co., 162 F. 2d 680 (C. A. 7).
11 Cf. Home Beneficial Life Insurance Co. v. N. L. R. B., 159 F. 2d 280 (C. A. 4), cert.
den. 332 U. S. 578, and Fafnir Bearing Co., 73 NLRB 1001.
16 Bohn Aluminum & Brass Co., 67 NLRB 847, and Republic Steel Corp. ( 98" Strip Mill),
62 NLRB 1008.
11 N. L. R. B. v. Sands Manufacturing Co., 306 U. S. 332.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Draper case is not in point because here, and unlike that case, these eight
employees who refused to cross the picket line were not attempting to persuade
Respondent to bargain with them ; there was not any defiance of or interference
with the collective bargaining by CTTU ; and they were not attempting to usurp
the function of CTTU by taking collective bargaining out of its hands. In the
Indiana Desk case, the Court denied the protection of the Act to strikers who
(1) sought a wage increase, the granting of which by their employer would
have violated the provisions of the wartime Stabilization Act, and (2) conducted
"unlawful" picketing. It is obviously not in point. In the Reynolds Pen case,
the Court held that a walkout of employees in protest over the demotion of a
foreman was not a protected concerted activity within the meaning of the Act.
It is clear that the facts in the instant case are entirely different and this con-
tention is rejected.
(d) Respondent further contends that the refusal of the eight employees to
cross the picket lines at their respective offices on and after April 7, 1947, was a
breach of the "no strike provisions of the contract which their bargaining agent,
the CTTU, had made with the Company on March 25, 1947."
It will be recalled that the 1946 contract between Respondent and CTTU,
which was due to terminate on March 29, 1947, was extended to April 28, 1947,
by an "Extension Agreement" signed by Respondent and CTTU on March 25, 1947.
Respondent urges that the action of these eight employees in respecting the picket
line during the period of this extension agreement is a breach of an implied
"no-strike clause" contained in that extension and that the Board's decision in
Fafnir Bearing Co., 73 NLRB 1008, is controlling herein. In the latter case, a
1944 collective bargaining contract which expired in 1945 was extended by the
parties for approximately 2 months. The Board there found that this written
extension agreement evidenced an intent and agreement by the union in that
case not to strike during the extension period and that, for breach of that agree-
ment, the company was justified in discharging the strike leaders.
In the view of the undersigned, there are certain significant and controlling
distinctions between the facts in the Fafnir case and the instant case. In the
Fafnir case, the Board was persuaded by certain factual elements in the record
that by the 2 months' extension agreement, the union did agree to a no-strike
commitment.
The original contract in the Fagnir case contained a clause which required
construction to determine whether it was an unqualified no-strike clause or a
no-strike clause limited only to certain types of strike action. Although the
Board did not decide the exact construction to be accorded the language of the
clause in the original 1944 contract, it in effect took note of the questioned no-
strike clause in the original contract by stating that the case did not turn upon
a construction of the 1944 "no-strike" clause "standing alone." [Emphasis
supplied.] The Board also relied upon a contemporary interpretation placed
upon the extension agreement by the union in its official publication ante litern
motam. That story, as the Board construed it, indicated that the union con-
sidered itself bound not to strike until after the expiration of the 2-month ex-
tension agreement. A further element in that case was that on the first day of
the strike, the company expressly claimed that the union had violated its promise
not to strike. In effect then, all these factors must have been considered by the
Board in its construction of the extension agreement in that case.
Turning to the instant proceeding, the factual history is quite different. Firstly
the original contract between Respondent and CTTU is completely silent on the
subject of a no-strike clause. There is absolutely no language in it remotely
ILLINOIS BELL TELEPHONE COMPANY 1191
resembling a commitment of this nature by the CTTU.18 There is also no evi-
dence of any contemporary interpretation in the nature of an admission placed
upon this extension agreement by officials of CTTU as was done in the Fafnir
case. Nor is there any evidence that the clause in the extension agreement was
ever construed or intended by the Union to contain a no-strike commitment.
Furthermore, at no time prior to the instant hearing was there any claim by
officials of Respondent that the activities of the eight employees herein were in
violation of an implied no-strike clause; as noted above in the Fafnir case, the
company officials promptly and expressly made a claim of this nature. Per-
suasive herein is the fact that officials of Respondent in writing to these em-
ployees on April 11 and 12, and in their various communications with them, at
no time claimed that a no-strike clause had been violated. It is clear then that
the history and context of the signing of the extension agreement in the instant
case differ considerably from those in the Fafnir case on several grounds, as
outlined above.
Of course, if the Fafnir decision of the Board stands for the principle that
a brief extension of an expired or expiring contract, which contract does not
contain a no-strike clause, is in itself an implied agreement not to strike,
then Respondent's position has merit . The undersigned believes, however, that
this construction of reading into an extension of an expired contract language
not contained in the original which it extends is contrary to the normal law
of construction of contracts in that it would make the extension broader than
the original.
Persuasive to the undersigned is the recent pronouncement by the Board that
"we are reluctant to deprive employees of the rights guaranteed them by the
Act in the absence of a clear and unmistakable showing [of] a waiver of such
rights.19 Elsewhere, relatively recently, the Board has been even more specific
on this subject and has stated, "We have no reluctance in denying the protection
of the Act to employees who strike in the face of such a [no-strike] commitment.
But we are unwilling to visit this extreme penalty upon employees and thereby
deprive them of a right guaranteed by the Act, in the absence of a clear showing
of such a waiver by them." [Emphasis added.] 20
In view of the factual picture in the instant case, the Board' s recent pro-
nouncements on the subject, and under all the circumstances outlined above,
the undersigned finds that the contract extension in this case does not contain
an implied no-strike clause. Accordingly, Respondent's contention is rejected 21
(e) Respondent further contends that in view of the decision in Car-
negie-Illinois Steel Corp., 84 NLRB 851, the actions of these eight employees
in not reporting for work constituted a serious breach of their duty to Respondent
78 Respondent apparently relies upon the language in Section 4 of the extension agree-
ment which states : "That if the parties hereto fail to enter into a new agreement on or
before April 28, A. D. 1947, it is understood that all existing agreements between the parties
covering the rates of pay, hours of labor , and conditions of employment of the employees
herein involved shall be cancelled , and either party may take whatever legal action it
deems proper."
"Tidewater Associated Oil Co., 85 NLRB 1096.
20 Dorsey Trailers , Inc., 80 NLRB 478. See also The Iron Fireman Manufacturing Co.,
69 NLRB 19 , and Hammond Lumber Co ., 85 NLRB 1320.
21 Assuming that this extension agreement is construed to contain a no-strike commit-
ment, within the meaning of the Fafnir case , it does not necessarily follow that it must
also be construed to contain an agreement by the employees in the unit that they will,
during the period of the extension , cross any validly established and legal picket line at their
places of business.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the public, as a result of which their concerted activity was not protected
by the Act.
In the Carnegie-Illinois case, the Board found that supervisory employees who
failed to report for working during a rank-and-file strike engaged in conduct which
constituted a threat to the company's physical plant and was a serious breach
of their duty to protect the plant from imminent danger and destruction. It
found that the failure of the supervisors to report to work contrary to the
employer's instruction created an immediate danger to the company's blast
furnaces and ovens, which, unless banked and closed down, would have suffered
serious damage. It is clear that the Board relied on the fact in that case that
the company's plant was peculiarly susceptible to crippling damage from an
abrupt shutdown of operations and that the supervisors were required for
emergency duty to forestall destruction of these key plant facilities. There too,
some of the supervisors led the employer to believe by promises or conduct
that they would stay in the plant throughout the strike and the Board found
that they had engaged in "deceptive conduct inconsistent with their duty to
the Employer as supervisors."
In the instant case the facts are quite different. Firstly, the eight individuals
herein were not supervisory employees. Secondly, assuming that they were,
their absence from work did not create the hazard of crippling damage to
Respondent's facilities as was the situation in the Carnegie--Illinois case. The
only loss that may have resulted herein was a reduction in Respondent's business
operations as is characteristic of most strikes. Thirdly, there is no evidence
that any of these eight employees deceived the Respondent by leading it to believe
they would appear for work, as was done in the Carnegie-Illinois case. In fact
they followed exactly the opposite course of conduct inasmuch as they expressly
notified their superiors that they would not cross a picket line to appear for work.
This contention is therefore rejected.`
(f) Respondent further contends that the eight employees herein were eco-
nomic strikers who were lawfully replaced. It is true, as Respondent states,
that these employees made common cause with the economic strikers engaged
in the ITTU strike by refusing to cross the ITTU picket line, and it also follows
that Respondent had the right to permanently replace such strikers, with the
added qualification which the undersigned believes to be controlling herein, that
such permanent replacements must be carried out prior to any demotion for
engaging in a concerted activity, for by engaging in such concerted activity the
eight employees have acquired the protection of Section 7 of the Act, prohibiting
discharge or demotion for engaging in concerted activities. 21 The cessation of
work by the group is no less a concerted activity because the group may not have
labeled it as such or engaged in the additional activities which usually accompany
a strike or concerted activity.24
It has previously been found that the eight employees were in fact demoted
on April 11 and 12.26 The precise issue is therefore what was the status of the
eight employees at the time Respondent demoted them on April 11, 1947, and in
the case of Jungbluth on April 12. If they, as economic strikers, had been per-
22 It may be noted that elsewhere in the Carnegie-Illinois case , the Board found that the
demotion of a supervisor who Joined rank -and-file employees in a concerted protest of the
suspension of a group of supervisors was discriminatory . The Board there held that this
supervisor was engaging in concerted activities protected by the Act.
2 N. L. R. B. v. Mackay Radio and Telegraph Co., supra. N . L. R. B. v. Remington Rand
Co., 130 F. 2d 919 (C. A. 2).
24 Massey Gin and Machine Works, 78 NLRB 189.
25 Cf. Massey Gin and Machine Works, supra.
ILLINOIS BELL TELEPHONE COMPANY 1193
manently replaced prior to April 11, as Respondent had a right to do, the case
must be dismissed, because after permanent replacement they would no longer
be subject to the protection of Section 7. If they were demoted while in a strike
status and prior to permanent replacement, it is clear that Respondent has violated
the Act. The undersigned will now take up the mechanics of their replacement.
As Respondent points out in its brief, there is in each exchange a pool of
"supervisors" which is fixed in number and may vary as high as 26 or 27, accord-
ing to the particular exchange involved. This pool of supervisors consists of
girls who are capable of handling all supervisory duties at an exchange. The
supervisors are rotated periodically according to assignments which are posted
each Thursday to take effect on the following Sunday. The assignments are not
made for any particular length of time, but may be changed during the same
week or continue indefinitely . These assignments include assignments as (1)
regular supervisors, who are assigned to a particular trick at the exchange;
(2) replacement supervisors, who are assigned to substitute for the regular
supervisors on their days off; and (3) incidental replacement supervisors, who
regularly report at the exchange and substitute for supervisors who are absent
or ill. It is the practice when there is an unprecedented number of absences for
supervisors to be called in to work on their scheduled days off in order that the
service may be covered at all times. This is perforce the only method by which
such emergencies can be handled because, as Respondent points out, the selection
of an operator for promotion to supervisor is not an easy matter. When Respond-
ent contemplates the selection of supervisors, all eligible operators are given
consideration at such time and their records studied by the District Traffic Super-
intendent, the Chief Operator, the Assistant Chief Operators and the central
office instructors. This study is necessary because no single person is in contact
with the work of all the operators who are eligible. It further appears that in
each office there are 150 or more operators who may merit consideration for
filling the vacancy of supervisor when it arises, with the result that the study for
the selection of an operator for promotion to supervisor is a lengthy one and
2 to 3 weeks will elapse before a decision is made as to who shall be selected for
promotion. .
As found above, General Traffic Personnel Supervisor Gordon Aller of the
Chicago area traffic department made the policy decision to replace the eight
girls. He testified as follows :
By Mr. LICARI:
Q. When did you decided that [to permanently replace the eight girls.]?
A. I believe that was the 11th.
Q. On the 11th?
A. Yes.
Q. Up to the 11th you had not replaced them, is that correct?
A. We had temporarily replaced them.
Q. Temporarily?
A. That is right.
Q. But no permanent replacement had been made on the 11th?
A. That is correct. "
a c a c. c a a
Q. But you didn't make any permanent replacement?
A. Not on the 11th.
Q. You did not make any permanent replacement on the 12th , did you?
A. No sir.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You did not make any permanent replacement on the 13th?
A. Right.
Q. You did not make any permanent replacement on the 14th?
A. No Sir.
Q. As a matter of fact, you did not make any permanent replacement
until the end of the strike.
A. That is incorrect.
Q. When did you make your permanent replacement?
A. Well, it was the latter part of April. I don't recall the exact date.
Q. The latter part of April?
A. That is right.
Q. That was the first permanent replacement?
A. That is correct.
Elsewhere Aller's testimony corroborated his earlier version. He testified
as follows :
By Mr. LICARI:
Q. I think you said something about people being promoted to supervisors,
or something of that sort.
A. That is correct.
Q. I don't mean just who was promoted, but will you tell us what oc-
curred in that connection, generally?
a m e a a a o
A. Well, going back to the time they were temporarily replaced, it was
decided, I believe I said, on the 11th to permanently replace them. The
supervisors were demoted, and then the offices involved set about to find
replacements who would be permanently authorized to take their place and
those replacements were made the latter part of April. I don't recall the
exact date or the individuals. [Emphasis added.]
a a o a s o e
Q. Trial Examiner BENNETT. When you referred to temporary replace-
ments, just what did you mean?
A. The WITNESS. Well, when these people failed to come in, I believe,
in general, the absentee replacement supervisors, the one or two individuals
that are available to fill in vacancies that occur, which are not foreseen,
they were used to fill the gaps of the supervisors who failed to come in.
However, that reduced our supervisory organization by the fact that they
were not part of the group and temporarily we could get along with sort
of being short handed, you might say, but we did not know how long the
strike was going to last, we did not know when they would return, and we
decided that we would have to replace them permanently, which is the thing
we do when anyone fails to come in for an extended period.
* a * a a o s
Q. Trial Examiner BENNETT. And these promotions that you referred to,
what were they?
A. The WITNESS. Those were promotions from operators to supervisors.
Q. Trial Examiner BENNETT. In the latter part of April?
A. The WITNESS. That is correct.
Q. Trial Examiner BENNETT. And which positions did those people pro-
moted fill in the latter part of April?
ILLINOIS BELL TELEPHONE COMPANY 1195
A. The WITNESS. Specifically I don't know as to which individuals were
replaced.
Mr. I ICARI. We will wait until the proper individual comes in. I think
I asked the question who might know.
Q, Trial Examiner BEN NEW. Can you answer in general? Do I under-
stand those who were promoted the latter part of April took the positions
of the individuals named herein [in the complaint]? Can you answer that?
A. The WITNESS. In effect they did. They were added to the supervisory
organization. As to specifically which places they took, I don't know.
The testimony of Respondent's other witnesses only served to bolster Aller's
testimony that there was no permanent replacement of the eight strikers until
after they had been demoted. The record shows that no new supervisors were
promoted or introduced into the pools of supervisors in the respective exchanges
at which the strikers save Jungbluth worked, until April 27, 1947. In other
words, by cancelling days off and presumably working longer hours, the existing
pools of supervisors at each exchange extended themselves to take in and cover
the duties of the eight sympathetic strikers. This is obviously not a permanent
replacement and it is questionable whether it even amounts to a temporary
replacement. What happened here was actually the dividing up of the duties of
the absent employees among those who reported for work. In any event, how-
ever, it is clear that this was not a permanent replacement of any of the strikers
by other employees because that did not take place until April 27, when for the
first time a sufficient number of new supervisors was introduced to each exchange
to bring the pool of supervisors in each case up to the full complement prior to
the demotion of the eight.
Thus, Respondent's records do not reveal precisely who took the places of
Jensen, Keuther, Macellaio, and Winder during the week of April 7. During the
week of April 13, certain supervisors who had been members of the respective
pools in each exchange prior to the strike filled the tricks of these four girls.
Turing the week of April 20 another change was made and certain other super-
visors from the respective supervisory pools filled the jobs of all but Winder.
In her case the same supervisor who covered her post for the week of April 13
also covered it for the week of April 20.26
With respect to Regan (Gaittens), her particular assignment was apparently
covered by various supervisors in the pool for the remainder of the week of April
6. On April 13, one of the pool was assigned to that trick and remained on it
thereafter.21
In the cases of Brophy and Holmes, Supervisors McGinty and Small were as-
signed to their respective tricks in their respective exchanges on and after April
7 and continued in these posts thereafter. However, as noted above, McGinty
and Small were members of the supervisory pool, and were employed prior to
the strike ; they covered the posts vacated by Brophy and Holmes as was the
custom in any absence. Not until April 27 after Respondent had extensively
"The tabulation with respect to these four , as well as the other four , is presented only
up to April 20. These figures are adequate, in the view of the undersigned, to reflect what
took place during the crucial period prior to the demotion on April 11, as well as immedi-
ately thereafter.
27 This is not to say that this constituted a permanent replacement of Regan on April 13,
for, as found above, no new supervisors were introduced to the unit until April 27, the date
of the permanent replacement. The replacement for Regan was temporary until April 27
when, with a full complement of supervisors for the first time, Regan's job was then covered
on a permanent or semipermanent basis.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
canvassed its employees and decided upon a selection of permanent replacements
to be added to the supervisory pool were Brophy and Holmes permanently
replaced.
With respect to Jungbluth , the facts are slightly different . She and her
assistant were the only two supervisors in the PBX office. On April 7, the first
day of Jungbluth 's absence , a Miss LeTourneau was assigned to Jungbluth's
duties. LeTourneau had previously been a PBX training instructor in the office,
who trained girls to operate a PBX board. She has remained in Jungbluth's
position ever since and it is Respondent 's contention that LeTourneau perma-
nently replaced Jungbluth on April 7. The facts , however, disclose that such
was not the case. Division Traffic Superintendent Robert Halladay testified
that he telephoned Jungbluth at her home on April 9 and told her that Respond-
ent desired her.to return to work; that LeTourneau had been put in her job "for
those 3 clays" (April 7-9) ; and that Respondent was desirous of procuring
Jungbluth 's return, but "if she failed to return to work . . . we would have
to put Miss LeTourneau on a permanent basis, and we would find it necessary
to replace Airs. Jungbluth - permanently." [Emphasis added.]
There is some conflict as to whether Jungbluth on this occasion indicated a
desire to return to the Chicago Toll office where she had formerly worked.
According to Halladay, Jungbluth expressed such a preference and indicated
that if she were to be replaced as a supervisor and reduced to the grade-of
operator , she would prefer to return to her former assignment, namely as an
operator at Chicago Toll. According to Jungbluth she did not request such a
transfer but maintained she would not cross the picket line. The undersigned
deems it unnecessary to resolve this conflict because it is clear that if Jungbluth
did ask for a transfer it was only after it had been made clear to her that she
would be reduced to the grade of operator.
Halladay also telephoned Jungbluth on April 12 to report to her that he had
arranged her transfer to Chicago Toll at the reduced grade of operator . This, it
may be noted, was consistent with the language contained in the demotion letter
sent that day to Jungbluth by Halladay. Halladay also testified that he did
not replace Jungbluth on a permanent basis until April 14 and that was done
as a result of the conversation he held with Jungbluth on April 12.
It is apparent from the above that Halladay , as he admitted , threatened Jung-
bluth with permanent replacement and demotion on April 9 if she did not return
to work. Jungbluth insisted that sl'ie would continue to refuse to cross the
picket line at her exchange and indicated , according to Halladay , that if Respon-
dent did reduce her to the grade of operator she would prefer an assignment at
another exchange where she had formerly worked. Then , after sending Jung-
bluth the demotion letter on April 12 , pursuant to Aller's decision of April 11,
Halladay telephoned Jungbluth on April 12 , and announced that he had arranged
for her transfer to Chicago Toll. He also proceeded to carry out his threat to
permanently replace Jungbluth and on April 14, as he testified , he permanently
assigned LeTourneau to Jungbluth 's job. The course of conduct followed by
Halladay in not permanently replacing Jungbluth until April 14 was consistent
with the treatment of the other seven girls , who, as found above, were demoted
prior to the selection of employees to permanently replace them at their posts.
It is accordingly found that Jungbluth was demoted on April 12 , 1947, and that she
was not permanently replaced at her post until April 14. In view of the findings
above, the undersigned rejects Respondent 's contention herein.
It is found that all eight employees named in the complaint were demoted
because they had engaged in a concerted activity and that such demotion was car-
ILLINOIS BELL TELEPHONE COMPANY 1197
ried out prior to their permanent replacement. As noted by the Board in the
Massey Gin and Machine Works case, supra, the discharge of employees who have
engaged in concerted activity protected by Section 7 of the Act violates Section
8 (a) (1) of the Act and because such a demotion amounts to a discrimination
in hire and tenure of employment and thereby discourages membership in a labor
organization it also violates Section 8 (a) (3) of the Act. In any event, whether
the discharge be regarded as a violation of Section 8 (a) (1), or of Section 8
(a) (3), the undersigned is of the belief that an identical remedy of reinstate-
ment and making whole is necessary, as set forth below, in order to effectuate
the policies of the Act.28
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in Section III, above, occurring in con-
nection with the operations of Respondent described 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. TIIE REMEDY
Having found that Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act. It has been found that
Respondent has discriminated against and has interfered with, restrained, and
coerced the employees named in Appendix A attached hereto. It will, therefore,
be recommended that Respondent make them whole for any loss of wages suf-
fered as a result of the discrimination, as well as the interference, restraint, and
coercion.
Ordinarily, employees who have been discriminatorily discharged or demoted
are entitled to back pay and are made whole from the date of their discharge
or demotion as the case may be. In the instant case, the demotion took place
while the employees were on strike. Until, therefore, they had abandoned
the strike by indicating their desire to work, it cannot be said that their loss
of wages was caused by the demotion in grade. On May 9, 1947, all except
Jensen, who was ill, returned to work and were reinstated as operators. It is
found, therefore, that they were entitled to reinstatement on that date to their
positions as supervisors with the corresponding salary for those positions on
and after that date. It is recommended, therefore, (1) that they be reinstated
to their former positions as supervisors and (2) that they be made whole for
any loss of wages suffered by the reduction in grade from supervisor to operator
on and after May 9, 1947.29
The record further indicates that after the strike, Respondent instituted
various salary' increases for the supervisory classifications in which these girls
28 There was some testimony concerning bargaining conferences between ITTU and
Respondent in an effort to settle the strike and the fact that the case of these eight employees
was one of the items in dispute between the parties. The General Counsel contends that
the failure of Respondent to agree, during these conferences , to unconditionally reinstate
them to their supervisory positions , served to prolong the strike. The undersigned has
not set forth the controverted testimony on the subject because, in his view, the case rises or
falls with an analysis of the conduct of Respondent on April 11 , 1947 , as has been done above.
11 In the case of Winder , as noted above , her return to work may have taken place several
days earlier than May 9 , 1947 . In that event the remedy as to her is to commence on such
earlier date.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were employed . Because, in the absence of the discriminatory demotion of
these employees, they would have received these increases, proper allowances
should be made in computing restitution to these eight employees of the salary
increases in effect on and after May 9, 1947.
It appears that Dorothy Jungbluth was promoted to the position of supervisor
at Chicago Toll on July 29, 1947. It is not clear whether this position is
substantially equivalent to that which she occupied prior to the strike, but in
order to effectuate the purposes of the Act, it will be recommended that she be
offered a transfer to her former position as PBX Placement Supervisor. It is
also not clear whether her pay as supervisor at Chicago Toll was and is equal
to that which she would have received as PBX Placement Supervisor. It is
accordingly recommended that she be made whole in the same manner as the
other employees for the period up to July 20, 1947, and, if it develops that her
salary as supervisor at Chicago Toll was and is below that of PBX Placement
Supervisor, that she also be made whole for any loss of wages suffered after
July 20, 1947.
In the case of Jensen, she did not apply for work until September 6 or 8
because of intervening illness commencing on April 18 or 19. It appears that
she spent a number of weeks in the hospital as well as some weeks convalescing,
at the conclusion of which she returned to work and was reinstated as an
operator on one of the above-indicated dates. Accordingly, it will be recom-
mended that she be reinstated to her former position in the same manner as the
other employees in the group and that she be made whole for any loss of pay
she has suffered as the result of the demotion in the same manner as the
others, but only from September 6 or 8, 1947, whichever date Respondent's
records reveal to be the actual date of her return to work. It also appears
that during her illness, Respondent paid Jensen disability pay, based upon an
operator's salary ; but for the discrimination against and interference with
Jensen by demoting her on April 11, such disability pay would have been based
upon her salary as a supervisor. It is therefore recommended that Jensen
be made whole for such loss as she has suffered by receiving reduced disability
pay based upon an operator's salary, rather than that of a supervisor"
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Illinois Traffic Division 14, Communications Workers of America, successor
of Illinois Telephone Traffic Union, N. F. T. W., and Chicago Telephone Traffic
Union, are labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating with regard to the hire and tenure and the terms and
conditions of employment of the employees named in "Appendix A" hereof,
thereby discouraging membership in Illinois Traffic Division 14, Communications
Workers of America, successor of Illinois Telephone Traffic Union, and in a labor
organization, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (3) and Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
80 Respondent 's employees are subject to a retirement plan, the benefits of which are
computed by taking a certain percentage of the individual ' s earnings . Consistent with the
recommendations herein that the employees be made whole , it is assumed that the records
of Respondent 's retirement plan will be conformed to show the additional earnings.
ILLINOIS BELL TELEPHONE COMPANY 1199
is engaging in unfair labor practices within the meaning of Section 8 (1) and
Section 8 (a) (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Illinois Bell Telephone Company, Chicago, Illinois, its officers,
agents, successors , and assigns shall:
1. Cease and desist from :
(a) Discriminating in regard to the hire and tenure of its employees for
the purpose of discouraging membership in Illinois Traffic Division 14, Com-
munications %Vorkers of America, successor of Illinois Telephone Traffic Union,
N. P. T. W., or any other labor organization of its employees, because they
engage in collective or concerted activities ;
(b) Interfering with, restraining , or coercing its employees in the exercise of
their right to self-organization, to form labor organizations, to join or assist
Illinois Traffic Division 14, Communications Workers of America, successor of
Illinois Telephone Traffic Union, N. P. T. W., or any other labor organization,
and to engage in concerted activities for their mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act :
(a) Offer to the employees named in Appendix A immediate and full rein-
statement to their former or substantially equivalent positions,33 and make them
whole for any loss of wages and benefits in the manner described in the sec-
tion above-entitled "The remedy" ;
(b) Post immediately at each of its exchanges or business offices in the city
of Chicago, Illinois, where the eight employees named in Appendix A were em-
ployed prior to the strike on April 7, 1947, as well as those where they are
presently employed, copies of the notice attached hereto and marked "Appendix
A." Copies of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by Respondent's representa-
tive be posted by Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to see that the notices are not altered, defaced, or covered
by any other material ;
(c) Notify the Regional Director for the Thirteenth Region (Chicago, Illi-
nois)" in writing 'within twenty (20) days from the date of receipt of this
Intermediate Report what steps it has taken to comply therewith. '
It is further recommended that unless on or before twenty (20) days from
receipt of this Intermediate Report, Respondent notifies the said Regional Direc-
tor in writing that it will comply with the'foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
"In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wher-
ever possible , and, if such position-is no longer in existence, then to a substantially equivalent
position ." The Chase National Bank of the City of New York, ,an Juan, Puerto Rico,
Branch, 65 NLRB 827.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or objec-
tions) as he relies upon, together with the original and six copies of a brief in
support thereof ; and any party may, within the same period, file an original
and six copies of a brief in support of the Intermediate Report. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. Statements of exceptions and briefs shall
designate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed and if mimeographed shall be double spaced.
As further provided in said Section 203.46, should any party desire permission
to argue orally before the Board, request therefor must be made in writing
to the Board within ten (10) days from the date of service of the order trans-
ferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and. order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
Dated at Washington, D. C., this 30th day of September 1949.
MARTIN S. BENNETT,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organizations, to
join or assist Illinois Traffic Division 14, Communications Workers of
America, successor of Illinois Telephone Traffic Union, N. F. T. W., or any
other labor organization, and to engage in concerted activities for their
mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination
against them and the interference with their right to self-organization and
to engage in concerted activities for their mutual aid or protection :
Catherine E. Brophy Irene Keuther
Edith Holmes Helen Macellaio
Lillian Jensen Rose Winder
Dorothy Jungbluth Frances Regan (Gaittens)
ILLINOIS BELL TELEPHONE COMPANY 1201
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
ILLINOIS BELL TELEPHONE COMPANY,
Employer.
By----------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.
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