Illinois Bell Telephone Co.

National Labor Relations Board - Board Decisions

Mar 21, 1977

228 N.L.R.B. 942 (N.L.R.B. 1977)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois Bell Telephone Company and Marie Collins.
Case 13-CA-15436
March 21, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 30, 1976, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding . Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I In agreeing with the Administrative Law Judge's finding that Respon-
dent did not violate Sec. 8(aX3) and ( 1) of the Act by transferring the
Charging Party from the Pioneer Group to the Safety Group , we do not
adopt his Decision insofar as it implies that proof of actual loss is necessary
to establish a violation . However, the fact that the Charging Party was not
transferred to a more onerous job and did not suffer a pecuniary loss is
relevant in assessing Respondent 's motivation and supports the Administra-
tive Law Judge's finding that the action was taken for a legitimate business
reason and not to discourage union activity.
Nor do we adopt the Administrative Law Judge 's statement that "[t]he
presumption that one with access to confidential material aught leak it where
there is a conflict of interest is respectable." We think there is no such
presumption of misconduct on the part of employees, but the fact that the
possibility does exist in a more than conjectural sense entities the Employer
to protect himself against it.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard before me at Chicago, Illinois, on November 15,
1976. The complaint alleges that Marie Collins was
transferred to a "less desirable and more onerous position
of employment" effective May 24, 1976, because she is the
sister of the chief shop steward of a labor organization with
which the Respondent has a collective-bargaining agree-
ment. The transfer is alleged to be violative of Section
8(axl) and (3) of the National Labor Relations Act, as
amended (29 U.S.C. § 151, et seq).
228 NLRB No. 114
All parties appeared and presented evidence . Upon the
record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel , I hereby make
the following:
Fmmiaos OF FACT
1. BUSINESS OF RESPONDENT
Respondent is an Illinois corporation engaged in the
business of providing telephone service . During the calen-
dar year preceding the issuance of the complaint herein, in
the course and conduct of its business , Respondent derived
gross revenues in excess of $100,000. During the same
period Respondent received goods and services valued in
excess of $50,000 delivered to its Illinois facilities directly
from outside the State of Illinois.
Respondent admits , and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Factual Background
The material facts were stipulated as follows:
Marie Collins has been employed by Respondent from 2-
1741 to the present. Her assignments there included
Chicago area pioneers group from April 1971 to September
1973, the suburban plant results from September 1973 to
May 1975, the suburban safety group from May to July
1975, the suburban area pioneer group from July 1975 to
May 1976, and the suburban safety group from May 1976
to the present.
During her employment tenure, Collins has not engaged
in any conduct which gave Respondent cause to question
her loyalty or trustworthiness.
As a clerical employee in the suburban area pioneer
group, Collins' main duties consisted of handling the paper
work and making the necessary arrangements for various
special events and sending letters of condolence and
flowers to the families of deceased suburban area employ-
ees who have completed 20 years service with Respondent.
Clerical employees in the Chicago area pioneer group have
substantially the same duties , and work in the same
building, the major difference being that they deal with
employees who work in the geographical division of the
Company known as Chicago area.
On or about March 1, 1976, pursuant to a company
reorganization plan, the suburban area pioneer group
became part of the suburban area labor relations and
personnel staff and, therefore , was put under the general
supervisions of Paul Sizemore . Sizemore, in addition to
being the personnel manager for suburban area, is also
Respondent's chief management representative for labor
relations for suburban area.
At all times material herein , the suburban area pioneer
group has been located on the eighth floor of Respondent's
headquarters building . However, at the time it was trans-
ferred under his jurisdiction, Sizemore planned to move this
group to the 40-by-50 foot area on the 16th floor where the
rest of the employees under his supervision work. This
move has not taken place as of yet.
ILLINOIS BELL TELEPHONE COMPANY
On or about April 23 , 1976, Sizemore learned that Collins
is the sister of Alex McGlynn , chief 'Steward and executive
board member of Local 336, IBEW. Respondent has had a
collective-bargaining relationship with Local 336 since
1947. Local 336 represents approximately 4,800 of Respon-
dent's suburban area employees in the plant switching and
C. & E. departments . Collins has never been in a job
represented by Local 336 and she is not a member of the
Union . In his capacity as chief steward , McGlynn is
regularly involved in grievance matters with Sizemore
and/or his subordinates and frequently visits Sizemore's
area on the 16th floor.
Sizemore's personal office is enclosed and is located
adjacent to the 40-by-50 foot area referred to above, which
is partially enclosed. There are approximately 20 desks in
the open in this area where various personnel employees
work . Outside of Sizemore 's office are four desks of
management employees involved in labor relations, in
addition to two personal secretaries. These employees
report either directly to Sizemore or to someone who does
so report . Their duties include interviewing supervisors in
connection with grievance investigations and in prepara-
tion for arbitration cases . Sizemore also performs these
functions . In addition, he handles grievances from subur-
ban area at the fifth step and above, serves on Respondent's
negotiating team , formulates labor relations policies for
suburban area , as well as prepares bargaining proposals,
counterproposals, and strategy. Labor relations informa-
tion, including grievance investigation reports, drafts of
posthearing arbitration legal briefs, notes on negotiations
sessions, potential company contract proposals, and res-
ponses to union anticipated proposals are kept in the area
outside of Sizemore 's office.
On or about May 24 , 1976, Collins was transferred from
the suburban area pioneer group to the suburban safety
group . Sizemore caused this transfer to be made because,
due to Collins' familial relationship to McGlynn , he did not
want her in a job that would give her access to confidential
labor relations material.
The safety group occupies a section of the eighth floor
which is adjacent to the section of the eighth floor where the
suburban area pioneer group is located . The safety group
does not come under the general supervision of Sizemore
but reports to Fred Meese-general supervisor-plant. As a
clerical employee in the safety group, Collins' duties
include the typing of memos and reviewing safety surveys
made by safety inspectors . Her rate of pay, hours, and
fringe benefits are the same as if she had remained with the
pioneer group . Collins prefers working with the suburban
area pioneer group . But for her relationship with McGlynn,
Collins would have retained her position with the Suburban
Area Pioneer Group.
In mid-August 1976, Respondent offered Collins a
clerical position in the Chicago area pioneer group , which is
substantially similar to the position she held in the
suburban area pioneer group . This offer was rejected.
B. Issue
The issue here is whether , absent evidence of a discrimi-
natory motive, the Company may laterally transfer a
nonbargaining unit employee who might have access to
943
confidential material concerning the Company 's relation-
ship with a labor organization where that employee's
brother is a high officer in the labor organization.
C. Analysis and Concluding Findings
The Board has held that discharge or other discrimina-
tion of an employee because she has a familial relationship
with a union activist is violative of Section 8(a)(1) and (3) of
the Act. Hickman Garment Company, 216 NLRB 801
(1975); Forest City Containers, Inc., 212 NLRB 38 (1974);
American Buslines, Inc., A Division of Continental Trailways,
211 NLRB 947 (1974); Champion Papers, Inc. (Ohio
Division) v. N.LRB., 393 F.2d 388 (C.A. 6, 1968), enfg. 158
NLRB 978 (1966); Golub Bros. Concessions, 140 NLRB 121
(1962).
In each of these cases, however, there was a substantial
amount of union animus, as well as a factual finding that
the companys took action against the family members, or
perspective family member in the case of Forest City
Containers, in order to discourage union activity . In each
case there was a specific fording of a discriminatory motive,
for which there was ample factual support.
In this matter, however, there is no evidence of union
animus or discriminatory motive . There is no evidence, for
instance, that the Company was seeking to retaliate against
the Charging Party's brother because of his union activity.
In fact there is no indication that the Company and Alex
McGlynn had anything but a good relationship.
In American Ship Building Co. v. N.LRB., 380 U.S. 300
(1965), the Supreme Court, in discussing Section 8(a)(3)
said (at 311):
It has long been established that a fording of violation
under this section will normally turn on the employer's
motivation . Thus when the employer discharges a union
leader who has broken shop rules, the problem posed is
to determine whether the employer has, acted purely in
disinterested defense of shop discipline or has sought to
damage employee organization . It is likely that the
discharge will naturally turn to discourage union
membership in both cases, because of the loss of union
leadership and the employees ' suspicion of the employ-
er's true intention. But we have consistently construed
the section to leave unscathed a wide range of employer
actions taken to serve legitimate business interests in
some significant fashion , even though the act commit-
ted may tend to discourage union membership. Such a
construction of § 8(a)(3) is essential if due protection is
to be accorded the employer 's right to manage his
enterprise.
This is not to deny that there are some practices
which are inherently so prejudicial to union interests
and so devoid of significant economic justification that
no specific evidence of intent to discourage union
membership or other antiunion animus is required. In
some cases, it may be that the employer's conduct
carries with it an inference of unlawful intention so
compelling that it is justifiable to disbelieve the employ-
er's protestations of innocent purpose . Thus where
many have broken a shop rule, but only union leaders
have been discharged , the Board need not listen too
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long to the plea that shop discipline was simply being
enforced. In other situations, we have described the
process as the "far more delicate task ... of weighing
the interests of employees in concerted activity against
the interest of the employer in operating his business in
a particular matter...."
Tested by these standards, absent evidence of antiunion
motivation , the question here is whether either the Compa-
ny's conduct was so inherently prejudicial to employees'
union activity as to be violative of the Act. Or, because the
General Counsel has alleged the transfer to be indepen-
dently violative of Section 8(axl), the transfer interfered
with the rights of Collins under Section 7.
Given the facts of this case, I cannot conclude that
transfer implied an unlawful intention, or that it necessarily
interfered with Collins ' protected, concerted activity.
In the first place, there is a substantial question as to
whether or not Maria Collins was in fact discriminated
against with regard to hire or tenure of employment. She
continued to work on the same floor a few feet from the job
that she held previously . While her duties are somewhat
different there are many similarities . She makes the same
wages and fringe benefits and has the same basic working
conditions. While the parties stipulated that she feels that
the pioneer job is superior to the safety group job, this to a
large extent is subjective . In any event it does not appear
that transfer from the pioneer group to safety group is the
type of discrimination with regard to hire and tenure of
employment that Congress had in mind when writing
Section 8(a)(3). Pay, fringe benefits, and working condi-
tions of the two jobs are essentially identical. Indeed the
Charging Party declined a later offer of transfer to her
former position but in a different pioneer group.
The Company contends that as an employee under direct
supervision of Paul Sizemore , Collins would have had
access to confidential documents concerning its relations
with the union in which her brother is the chief steward.
The Company argues that to prevent the possibility of
Collins leaking this information to her brother to the
detriment of the Company it was necessary to transfer her
to another job.
The General Counsel contends that Collins would not
have been a "confidential employee " had she remained in
the pioneer group ; and, there is no evidence that she
actually had access to confidential material . It is true that in
the pioneer group job Collins would not be a "confidential
employee" within the meaning of that phrase in determin-
ing inclusion or exclusion from a bargaining unit . Minneap-
olis-Moline Co., 85 NLRB 597 (1949), and B. F. Goodrich
Co., 115 NLRB 722 (1956).
Nevertheless, if in her job she would potentially have
access to confidential material, the possibility that she
would leak such information to her brother is not so
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
unreasonable that the Company could not take precautions
to avoid it. The presumption that one with access to
confidential material might leak it where there is a conflict
of interest is respectable . Indeed such is precisely the basis
on which the Board has held that individuals in a
confidential relationship with the company with regard to
labor matters should be excluded from bargaining units.
It may very well be that the Company's determination to
transfer Collins was weak-that her potential access to
confidential material is too remote to be of concern, and
was premature, in that the pioneer group had not yet been
moved to the sixteenth floor. The question, however, was
not the reasonableness of the decision, but whether the
transfer was an unfair labor practice, and this hinges on
whether or not the transfer was inherently prejudicial to the
union interest of Collins' brother and other members of his
union or somehow interfered with activity protected by
Section 7. Given a legitimate business reason , the total lack
of union animus and the fact that Collins was not actually
harmed, I conclude that her transfer was not discriminatory
within the meaning of Section 8(a)(3). Nor is there any
reasonable basis for concluding that the transfer somehow
independently violated Section 8(a)(1).
On balance, I conclude that the General Counsel failed to
establish by preponderance of the credible evidence that
the Company either interfered with, restrained, or coerced
Marie Collins in the exercise of any rights guaranteed her
by Section 7 of the Act , or discriminated against her with
regard to her employment in order to discourage the union
activity of her brother or any one else. I accordingly
conclude that the Company did not violate the Act as
alleged.
CONCLUSIONS OF LAW
1. Illinois Bell Telephone Company is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The allegation that Marie Collins was transferred to a
..more onerous position" set forth in paragraph IV(a) of the
complaint has not been sustained.
3. The allegation set forth in paragraph V of the
complaint has not been sustained.
THE REMEDY
Having been found that Respondent has not engaged in
any activity violative of the Act, upon the foregoing
findings of fact and conclusions of law , the entire record in
this case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER1
The complaint is dismissed in its entirety.
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.