Michigan Bell Telephone Co.

National Labor Relations Board - Board Decisions

Feb 27, 1975

216 N.L.R.B. 806 (N.L.R.B. 1975)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michigan Bell Telephone Company and Communica-
tions Workers of America, AFL-CIO. Case 7-
CA-10185
February 27, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, KENNEDY,
AND PENELLO
On June 11, 1974, Administrative Law Judge
Sidney Sherman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions, a supporting brief, and a motion for oral
argument .' Both the General Counsel and the
Charging Party filed briefs answering the Respond-
ent's exceptions and in support of the Administrative
Law Judge's Decision. The Charging Party also filed
a brief opposing the Respondent's motion for oral
argument.
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, for the
reasons set forth herein.
On January 26, 1971, the Regional Director for
Region 7 issued a Decision and Direction of Election
in Case 7-RC-10176 in which he found appropriate
the Petitioner's requested unit of all commercial
department employees employed by the Respondent
at its Battle Creek, Michigan, Commercial Office. In
finding that the requested unit was appropriate, the
Regional Director found that there was no inter-
change among these employees and those at other
offices of the nature which would warrant finding the
unit inappropriate. He also found that although
commercial employees are interviewed for hire by an
employment office employee in the traffic depart-
ment at Battle Creek, the applicant is afterwards
directed to the commercial office at Battle Creek for
further interview. Although' the commercial office
manager at Battle Creek may not add to his staff
without approval of his recommendation by the
district manager at Kalamazoo, he does exercise
discretion as to whom he would hire. In his report the
Regional Director discussed at great length the role
of the commercial office manager in personnel
matters which demonstrated that the office manager
had a substantial degree of autonomy in directing the
day-to-day operations of the Battle Creek office.
After having initially denied the Respondent's
request for review of the Regional Director's Deci-
sion , the Board granted its subsequent motion for
reconsideration and stayed the election, pending a
decision on review.
On review, a majority of the Board affirmed the
Regional Director's Decision.2 The Board in so
doing stated that it has long believed that because of
the highly integrated nature and centralized control
of public utility operations, the optimum unit for
collective bargaining is one which is systemwide in
scope. It recognized, however, that the optimum unit
is not necessarily the only grouping of employees
which may be appropriate in all cases . Rather it
depends, of course, upon the facts of each particular
case . Agreeing with the Regional Director's descrip-
tion and characterization of the Employer's adminis-
trative structure in this case, the Board also agreed
that the record did indeed show that the commercial
office manager had a substantial degree of autonomy
in directing the day-to-day operations of the office. It
went on to further state:
A commercial office in a telephone utility,
engaged as it is in soliciting and servicing
telephone subscriptions in a well defined geo-
graphic area, may be compared with an outlet or
territory in a selling operation. Viewed in this
light, the requested unit confined to employees at
the Battle Creek Commercial Office is presump-
tively appropriate ... .
The Board reasoned further that there were no facts
weighty enough to rebut the presumptive appropri-
ateness of a single-office unit. Summarizing the
record it concluded:
On the basis of the record facts, which indicate
that the Battle Creek Commercial Office serves a
self-contained economic unit of the utility organi-
zation, that the manager of the Office has
substantial autonomy in controlling the day-to-
day activities of the employees sought, that these
employees have only telephonic contact and no
interchange with employees in other commercial
offices, that there has been no history of bargain-
ing for Commercial Department employees in the
last 20 years, and that no labor organization seeks
to represent a broader unit of such employees
... that the requested employees share a suffi-
cient community of interest, apart from that
which they share with other employees . . . [and]
that they constitute a unit appropriate for
bargaining.3 Accordingly, the Board directed an
election in that unit.
The Respondent's motion for oral argument is hereby denied because
the record , the exceptions , and the briefs adequately present the issues and
the positions of the parties.
216 NLRB No. 145
z
3
192 NLRB 1212(1971)
In reaching this conclusion , the Board stated that while the fact that
commercial office employees were represented in a systemwide unit some 20
(Continued)
MICHIGAN BELL TELEPHONE COMPANY 807
In the election, the Union failed to obtain a
majority. One year later, however, it filed a new
petition in Case 7-RC-11334, seeking an election in
the same unit. After another hearing on August 29,
1972, the Regional Director, relying on 192 NLRB
1212, found that the requested unit was appropriate
and directed another election. The Respondent's
request for review was denied by a majority of the
Board, and a subsequent motion for reconsideration
was denied as lacking in merit. The election was held
and this time a majority of employees voted for the
Union. After the Union was certified and the
Respondent refused to bargain with it, the instant
complaint was issued, alleging that by refusing to
bargain with the certified Union the Respondent was
in violation of Section 8(a)(5) of the Act.
In its answer to the complaint, the Respondent
admitted the refusal to bargain but contended that
the unit was inappropriate for bargaining. It alleged,
inter alia, that "evidence relating to the change in the
hiring process which occurred in September 1972,
and which was unavailable at the time of the hearing
in Case 7-RC-11334 would have a material effect on
the underlying certification." The General Counsel
moved the Board to grant summary judgment. In
opposing that motion, the Respondent argued inter
alia that since the hearing in Case 7-RC-1 1334, there
had been a change in Respondent's organizational
structure which rendered the certified unit inappro-
priate; that this change had occurred on September
1, 1972 (3 days after the hearing); that it consisted of
the fact that as of that date the managers of
Respondent's commercial office, including the Battle
Creek office, ceased to play a significant role in the
hiring process. On December 5, 1973, the Board
denied the General Counsel's motion for summary
judgment and ordered that a hearing be held "for the
purpose of adducing evidence concerning Respond-
ent's contentions that changed circumstances since
the representation hearing render the Battle Creek
commercial office inappropriate for bargaining."
The hearing was held before ' the Administrative
Law Judge on February 20, 1974. Meanwhile, the
Regional Director found appropriate a unit limited
to the Respondent's Jackson Commercial Office
(Cases 7-RC-11581 and 7-RC-11603). The Union
had also petitioned for an election in a unit of
commercial office employees at Grand Rapids (Case
7-RC-12170). In each case the Respondent opposed
the units sought on grounds identical to those
advanced in opposition to the appropriateness of the
Battle Creek unit. At the hearing in Case 7-CA-
10185, the transcripts from the Jackson and Grand
Rapids hearings were introduced into evidence.
After the hearing, the Administrative Law Judge
issued his Decision finding, on the basis of all the
evidence before him, inter alia, that the Battle Creek
unit had remained appropriate and that by refusing
to bargain with the Union the Respondent violated
Section 8(a)(5) of the Act. For the reasons stated in
that decision, we agree with the Administrative Law
Judge.
Our dissenting colleague gives great weight to
evidence establishing centralized control of labor
policy in Respondent's Detroit headquarters and
states that there is no evidence in the records, of
Cases 7-RC-10176, 7-RC-11334, or 7-CA-10185
suggesting that the commercial office manager has
any role in the determination of labor policy.
In Case 7-RC-10176 the Regional Director made
the following pertinent findings which, with certain
"additions and modifications," were adopted by a
majority of the Board:
The Employer asserts that the Battle Creek
manager is tightly controlled and exercises ex-
tremely limited discretion in personnel matters.
Thus with respect to demotions, discharge,
granting of normal wage progressions, he is
limited to making effective recommendations to
his superior, the District Manager, but the
[record] is not entirely clear as to this. It appears
that his recommendations are relied upon without
an independent investigation being made. The
District Manager unquestioningly approves the
normal wage progressions increase recommended
by the Commercial Office Manager. Commercial
office hours are determined by the General
Personnel Department in Detroit but the Com-
mercial Office Manager can recommend overtime
where localized conditions so require. Commer-
cial employees are interviewed for hire by an
employment office employee in the traffic depart-
ment at Battle Creek . . . . Afterwards the
applicant is directed to the Commercial office in
Battle Creek for further interview. Although the
Commercial Office Manager may not add to his
staff without approval of his recommendation by
the District Manager at Kalamazoo, he does
exercise discretion as to whom he would
hire. . . . The Battle Creek Commercial office
manager utilizes his discretion as to the appropri-
ate mode of dress to be worn by the employees
and effectively recommends merit increases and
promotions. The Battle Creek office manager also
years earlier , and that other employees of Respondent were currently
represented in systemwide units, were factors to be considered, they were
not of controlling significance in that case
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uses his discretion in setting vacation sched-
ules... .
In Case 7-RC-11334, the Acting Regional Direc-
tor's Decision which the Board majority declined to
review contained the following pertinent findings:
Thus, despite the Employer's contention that the
Battle Creek Commercial Manager and those
management employees who report to him
exercise limited discretion in personnel matters,
the record evidence reflects that they, in fact,
exercise substantial authority and autonomy with
regard to such matters. The Employer's District
Commercial Manager testified that five superviso-
ry employees report directly to the Battle Creek
Manager and that these five supervisory employ-
ees inspect, assign and redistribute work to the
employees. They recommend the hiring and
discharge of employees to the Manager who in
turn effectively recommends such action to the
District Commercial Manager. Thus, with regard
to discharges, the record establishes that the
District Commercial Manager relies wholly on the
assertions and records submitted to him by the
Battle Creek Manager and that no independent
investigation is made by said District Commercial
Manager. The sole occasion in which the local
Manager was reversed occurred prior to the filing
of the previous petition in 1970 and flowed totally
from the affected employee's initiative. Also,
although additions to a local office's work force
have to be approved by the District Commercial
Manager and as noted heretofore a centralized
employment office has been established which
refers applicants to the Battle Creek office, said
employees, upon referral, are additionally inter-
viewed locally at the Battle Creek office where the
five supervisors and the Commercial Office
Manager retain final veto power regarding the
hiring of said applicants. Further, the five
supervisors recommend promotions and merit
increases to the local Manager who in turn
effectively recommends such personnel action to
the District Commercial Manager. Additionally,
the supervisors possess authority to suspend
employees and issue verbal or written warnings
which are placed in said employees' personnel
files and affect these employees' opportunity for
future promotion. Moreover, applications by
employees for leaves of absence and furloughs are
made locally and effective recommendations
regarding such requests are made by the Battle
Creek Commercial Manager. Vacation schedules
are determined locally, as are decisions to grant
employees "excused" days... .
Thus, as of the date of the hearing in Case 7-RC-
11334, the record clearly showed that the Battle
Creek commercial office manager had the responsi-
bility (1) to effectively recommend discharges,
promotions, merit increases, and overtime; (2) to
schedule vacations; (3) to suspend employees for
disciplinary reasons; (4) to issue warnings; and (5) to
direct the work of employees. The evidence present-
ed at the instant hearing (Case 7-CA-10185) was
limited to the alleged change in the hiring role of
commercial office managers. There was no attempt
to show that the five foregoing areas of responsibility
had been altered in any way.
In our judgment the responsibility of the Battle
Creek office management constitutes participation in
the determination and effectuation of labor policy.
Regarding the evidence which shows certain degrees
of the ultimate centralized control exercised by
Respondent's Detroit headquarters, such evidence
was considered by the Board in its adoption of the
Regional Director's report in 192 NLRB 1212, and in
its denial of the request for review of the Regional
Director's Decision in Case 7-RC-11334. It is well
established that centralized administrative control by
itself does not militate against the finding that the
employees are a homogeneous identifiable group.4
Accordingly, upon a complete and thorough review
of all the litigation which has been involved in this
case, we do not believe that the Respondent, or our
dissenting colleague, has pointed to facts weighty
enough to rebut the findings that the instant unit is
appropriate for purposes of collective bargaining.
Therefore, for the reasons stated therein, we adopt
the Administrative Law Judge's Decision that the
Respondent's refusal to bargain with the Union
constitutes a violation of Section 8(a)(5) of the Act.
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 Respondent, Michigan Bell
Telephone Company, Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
MEMBER KENNEDY, dissenting:
I would dismiss the complaint. The unit in which
the election was directed in the underlying represent-
4 See Pacific National Bank of Washington, 192 NLRB 1046 (1971)
MICHIGAN BELL TELEPHONE COMPANY 809
ation cases constitutes a departure from the Board's
established criteria for unit determination in the
public utility industry. A finding of violation of
Section 8(a)(5) in that unit is unjustified.
The unit described in the complaint does not
conform to any administrative district or division of
the Respondent. It consists of the employees of a
single commercial office. There are 63 commercial
offices in the Respondent's commercial department.
The Union has presently pending before the Board
three additional petitions seeking certification for
other single commercial offices at other locations.
The inevitable result of the unit determination herein
is piecemeal organizing and the fragmentation of
Respondent's commercial department into numerous
bargaining units . Such a multiplicity of bargaining
units scattered among the commercial offices of the
Respondent's commercial department does not lend
itself to efficient, stable collective bargaining. It is a
sharp contrast to the pattern of collective bargaining
for the Respondent's other employees during the past
25 years. The Union involved here represents the
employees of four other departments of the Respond-
ent. Bargaining is conducted for separate depart-
mentwide units which include all the employees of
the department regardless of location. I think it
significant that employees of the commercial depart-
ment were previously represented for purposes of
collective bargaining on the basis of a single
departmentwide unit.
In the underlying representation case, in attempt-
ing to justify its unit finding, the majority state that
"A commercial office in a telephone utility, engaged
as it is in soliciting and servicing telephone subscrip-
tions in a well-defined geographic area, may be
compared with an outlet or territory in a selling
operation." I am sure that the Respondent (as well as
the state and Federal regulatory agencies) were
surprised to learn that this highly centralized and
integrated telephone company is comparable to a
retail store or other retail outlet. The majority further
found that the local commercial office manager had
"a substantial degree of autonomy in directing the
day-to-day operations of the Battle Creek Commer-
cial Office." The majority totally ignore the uncon-
troverted evidence of the centralization of labor and
;i A majority of the Board directed the election in Michigan Bell
Telephone Company (Case 7-RC-10176), 192 NLRB 1212, with Chairman
Miller and me dissenting . The Union failed to obtain a majority, and I year
later the Union again petitioned for the same unit . The Regional Director
found the unit appropriate citing the prior Board Decision A request for
review filed by the Employer was denied by a majority of the Board with
Chairman and me again dissenting . The election resulted in a certification
(Case 7-RC-11334) which gives rise to the present proceeding . My reference
to the underlying unit determination refers to the initial unit determination
made in Case 7-RC-10176.
6 Almost every representation case decided by the Board in the public
personnel policies in the Employer's principal office
in Detroit.
In my view, the unit determination made in this
case cannot be reconciled with the Board's stated
policy of recognizing the economic reality of the high
degree of interdependence of its various segments in
the public utility industry and direct and indirect
interest of the public in uninterrupted operations.6
We recently stated in Baltimore Gas & Electric Co.,
206 NLRB 199 (1973):
The Board has therefore been reluctant to
fragmentize a utility's operations. It has done so
only when there was compelling evidence that
collective bargaining in a unit less than system-
wide in scope was a "feasible undertaking." and
there was no opposing bargaining history... .
As stated by the Board in Kalamazoo Paper Box
Corporation, 136 NLRB 134, 137 (1962),7
... each unit determination, in order to further
effective expression of the statutory purposes,
must have a direct relevancy to the circumstances
within which collective bargaining is to take
place. For, if the unit determination fails to relate
to the factual situation with which the parties
must deal, efficient and stable collective bargain-
ing is undermined rather than fostered.
The proliferation of the commercial department into
numerous minute bargaining units in the face of the
established pattern of bargaining that has been
followed by the parties for many years cannot be
characterized as a "feasible undertaking" likely to
produce efficient and stable collective bargaining.
Admittedly, the manager of the commercial office
at Battle Creek has sufficient authority to make him
a supervisor within the meaning of Section 2(11) of
the Act. However, there is no evidence in the records
in Cases 7-RC-10176, 7-RC-11334, or 7-CA-10185
suggesting that the commercial office manager has
any role in the determination of labor policy. Quite
the contrary, the evidence establishes that there is
centralized control of labor policy in the Respond-
ent's Detroit headquarters including the determina-
tion of such matters as wages and fringe benefits
which would be the subject of collective bargaining.
utility industry contains a statement to the effect that "the Board has
generally held that, because of the inherent integration and interdependence
of operations in public utilities, a systemwide unit is the optimum unit for
purposes of collective bargaining ." See, e g, Montana-Dakota Utilities Co.,
115 NLRB 1396, 1398 (1956).
7 See also N L.R.B v. Pinkerton 's, Inc, 428 F 2d 479 (C.A 6, 1970), in
which the court cited this case as the Board's own recognition of its
discretionary limitations in determining the appropriateness of a bargaining
unit and refused enforcement of a bargaining order in a unit limited to the
employees at a single facility where the history of bargaining between the
company and union had been on a district officewide basis.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact that there is evidence that commercial office
managers may possess supervisory authority or have
some ministerial responsibilities does not furnish a
sufficient basis for the Board's unit determination in
the case of a highly centralized and integrated
enterprise as is involved here.
The observations of the U.S. Court of Appeals for
the Sixth Circuit in The Wayne Oakland Bank v.
N. L. R. B., 462 F.2d 666 (1972), denying enforcement
of 192 NLRB 362 (1971), are applicable to the
instant case. After acknowledging that the Board has
wide discretion in its unit determinations, the court
stated at 669:
In this case the Regional Director appeared to
find that the employees of the individual branches
form appropriate bargaining units principally
because they "are responsible for the day-to-day
operations [of their respective branches] and the
effective implementation of the employer's poli-
cies at the branch office level." This is true of
virtually every department in every business
operation of any kind and is certainly not a
sufficient basis for the determination of appropri-
ate bargaining units. The record in this case in
fact reveals a banking operation which is a highly
centralized and fully integrated system quite
different from that in the Banco case.
For the reasons herein stated we conclude that
the Director's determination that the Troy-Liver-
nois Branch was an appropriate bargaining unit
amounted to an abuse of discretion. Accordingly,
the Board's order is set aside and enforcement is
denied.
The comment of the same court in the Pinkerton
case cited above has special application herein. The
court stated that "An employer is entitled to a
reasonably adequate protection from the results of
piecemeal unionization." But this Respondent is now
being subjected to "piecemeal unionization" of its 63
commercial offices. In my opinion, my colleagues'
unit determination is directly contrary to the con-
gressional command in Section 9(c)(5) of the Act that
"the extent to which the employees have organized"
shall not be given controlling weight.
I adhere to the view that former Chairman Miller
and I expressed in the penultimate paragraph of our
dissent in the underlying representation case.8 We
stated:
Nor do we think the majority has, in the long
run, furthered the interests of the employees
involved. While giving sanction to an individual
office may serve the expedient purpose of making
organization of employees easier, it is difficult to
conceive of meaningful bargaining taking place if
the employees choose to designate the Petitioner
as their agent for this purpose. An employer who
has consistently established wage levels, fringe
benefits, and the entire gamut of labor relations
policies on a much broader basis, both for
organized and unorganized groups of employees,
is hardly likely to be willing to let a tail this size
wag the dog. We are likely, therefore, by
pronouncing that this single office is, by our
lights, an appropriate bargaining unit, to have
conferred an illusory privilege upon these employ-
ees. This, in turn, may well produce just that kind
of employee frustration, and resultant instability,
which truly effective collective bargaining hopes
to prevent.
I conclude that while the unit finding in this case
may accommodate the Union' s desires for piecemeal
organizing of the Employer's commercial depart-
ment, the record does not justify the unit found
appropriate in this case. Accordingly, I would
dismiss the complaint.
10 In the event that the Board 's Order is enforced by a Judgment of a
8 192 NLRB 1212, 1213
DECISION
STATEMENT OF THE CASE
SIDNEY SHERMAN, Administrative Law Judge: The
instant charge was served on March 5, 1973,1 the
complaint issued on March 20, and the case was heard on
February 20, 1974. The only issue litigated was the
continuing validity of the Board's certification of the
Union. After the hearing briefs were filed by Respondent
and the Union.
Upon the entire record,2 the following findings and
recommendations are made:
I. RESPONDENT'S OPERATIONS
Michigan Bell Telephone Company, herein called
Respondent, is a Michigan corporation with a principal
office in Detroit, Michigan. It furnishes telephone service
throughout the State of Michigan. It sufficiently appears
from the allegations of the complaint, as admitted by
Respondent 's answer, that Respondent is engaged in
commerce within the meaning of the Act.
II. THE UNION
Communications Workers of America , AFL-CIO, herei-
nafter called the Union , is a labor organization under the
Act.
I All dates hereinafter are in 1973, unless otherwise shown.
2 For a correction of the transcript , see the order of April 25, 1974.
MICHIGAN BELL TELEPHONE COMPANY 811
III. THE MERITS
The only issue raised by the pleadings is whether
Respondent violated Section 8(a)(5) and (1) by refusing to
honor the Union's certification.
A. Sequence of Events
Respondent serves subscribers throughout the State of
Michigan. Its operations are divided functionally into six
departments (plant, traffic, switching systems, marketing,
corporate services, and commercial) and geographically
into three divisions - Metro (Detroit), Southern, and
Northern.
It has about 30,000 employees, most of whom are
covered by contracts between Respondent and the instant
Union, which were negotiated on a systemwide basis.
However, none of the employees in Respondent's commer-
cial department are so covered and the instant case
involves the only segment of Respondent's commercial
employees for whom a union has so far been certified -
the Battle Creek commercial office, located in Respond-
ent's Southern Division.
A recital of the relevant events begins with the Union's
filing of a petition on September 20, 1970, for an election in
a unit limited to the Battle Creek commercial office (Case
7-RC-10176, hereinafter cited as Battle Creek I). After
hearing, the Regional Director on January 26, 1971, issued
a Decision and Direction of Election finding the unit
sought appropriate, and on August 27, 1971, the Board
(Chairman Miller and Member Kennedy dissenting)
affirmed that finding.3 However, in the election held on
September 21, 1971, the Union failed to obtain a majority.
Another petition for the same unit was filed by the Union
in Case 7-RC-11334 (hereinafter cited as Battle Creek II)
and a hearing thereon was held on August 29, 1972. On
September 27, 1972, the Acting Regional Director found
the unit appropriate and the Board denied review of that
finding. This time the election held on November 17, 1972,
resulted in certification of the Union on November 28,
1972. A request by the Union for bargaining pursuant to
that certification was rejected by Respondent on January
22, 1973, and the instant complaint issued on March 20,
1973. In its answer to that complaint Respondent admitted
the refusal to bargain but contended that the bargaining
unit was inappropriate, alleging, inter alia, that "evidence
relating to the change in the hiring process which occurred
in September 1972, and which was unavailable at the time
of the hearing in 7-RC-11334 would have a material effect
on the underlying certification." The General Counsel
moved the Board to grant summary judgment. In opposing
that motion , Respondent argued , inter alia, that since the
hearing in Battle Creek II there had been a change in
Respondent's organizational structure which rendered the
certified unit inappropriate; that this change had occurred
3 Michigan Bell Telephone Co., 192 NLRB 1212.
4 Cases 7-RC-1158 and -11603 . The transcript of the hearing in that
case was received in evidence in the instant proceeding and is hereinafter
cited as "J Tr."
5 Case 7-RC-12170. Ruling on receipt of the transcript of that hearing in
evidence was reserved at the instant hearing . It is hereby admitted in
evidence and will be cited hereinafter as "GR Tr."
6 S. S. Kresge Company, 169 NLRB 442, 443 (1968); The Borden
on September 1, 1972 (3 days after the hearing in Battle
Creek II); that it consisted of the fact that as of that date
the managers of Respondent 's commercial offices , includ-
ing the Battle Creek office , ceased to play a significant role
in the hiring process . On December 5, 1973, in denying the
General Counsel 's motion for summary judgment, the
Board ordered that a hearing be held "for the purpose of
adducing evidence concerning Respondent's contentions
that changed circumstances since the representation
hearing render the Battle Creek commercial office inappro-
priate for bargaining."
In the meantime, on April 23, 1973, in a related
representation proceeding, the Regional Director found to
be appropriate a unit limited to Respondent's commercial
office in Jackson , Michigan, but the Board granted
Respondent 's request for review , and the matter is now
pending before the Board .4 Also pending before the Board
is the Union's petition for an election in Respondent's
commercial office in Grand Rapids , Michigan.5
B. Discussion
It is well settled that, where, as here, the General Counsel
has shown a refusal to honor a Board certification, a prima
facie case has been made of a violation of Section 8(a)(5),
and that, where the respondent defends on the ground that
the certification was vitiated by some development after
the representation hearing, the burden is upon him to
adduce sufficient proof thereof to rebut the General
Counsel's prima facie case.6 We turn now to the specific
issues raised by Respondent.
1. The "transfer" issue
In its answer to the complaint and opposition to the
General Counsel's motion for summary judgment, Re-
spondent alleged as a change in circumstances the
curtailment of the hiring power of commercial office
managers since September 1, 1972.7 As the Board's remand
order authorizes only litigation of Respondent's conten-
tions regarding "changed circumstances" and is silent as to
any of the other prehearing contentions made by Respond-
ent,8 it would seem necessary to find that consideration of
such other matters is precluded. In fact, the evidence
presented at the instant hearing was limited to the alleged
change in the hiring role of commercial office managers.
Nevertheless , in its brief, Respondent contends, inter alia,
that consideration should be given to evidence at the
hearing held in March 1973 in the Jackson case regarding
the number of transfers during 1972, within Respondent's
commercial department .9
Even if one were to construe the Board's order herein as
authorizing litigation of every change in circumstances
since the August 29, 1972, hearing, there was insufficient
showing that the above evidence (a) reflected transfers
Company, 127 NLRB 309 (1960); Frito-Lay, Inc., 177 NLRB 820 (1969).
r Respondent also cited the filing of the petitions in the Jackson and
Grand Rapids cases as new developments , which demonstrate that the
instant unit is based solely on extent of organization , and Respondent
further urged that the Board reconsider its prior rulings on the merits.
8 See preceding fn.
8 Among 1,800 employees there were 120 such transfers, only 3 of which
involved nonsupervisory employees at Battle Creek.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurring after that date or (b) any change in transfer
policy since that date.
As to (a), above, Respondent contends in its postheanng
brief that the evidence as to the rate of transfers during
1972 reflects a "relatively high rate." Even if that be so,
there is nothing in the record to show which, if any, of the
1972 transfers occurred after the August 29 hearing. As to
(b), above, it is noted that in Battle Creek I the Regional
Director discussed in detail evidence as to the frequency of
interchange between commercial offices and discounted
such evidence because it did not reflect a policy of
temporary transfers for operational reasons but of accom-
modating employees who desired to relocate themselves on
a permanent basis. 10 In Battle Creek II, the Acting
Regional Director again distinguished between involun-
tary, temporary transfers and voluntary, permanent trans-
fers and found that "interchange" involving the Battle
Creek office was "at best minimal ." It is inferred from the
foregoing that the primary consideration in the prior cases
was not the rate of movement from one office to another
but whether the moves were voluntary and permanent for
the convenience of the employee or involuntary and only
for the duration of some temporary need for the employ-
ee's services at the new location. There is no showing, here,
as to whether the alleged increase in the rate of "transfers"
in 1972 reflected any increase in the rate of "interchange,"
as defined above, or merely an increase in the number of
permanent, voluntary moves by employees for personal
reasons . Accordingly, even if there were more transfers in
1972, and all or a substantial number occurred after
August 29, it could not be found, absent any evidence as to
the reason for, and duration of, such transfers, that they
reflected a change in one of the circumstances upon which
the Board based its unit finding."
2. The strike-impact issue
No evidence was presented in either of the prior Battle
Creek hearings (or at the instant hearing) as to the possible
effect of a strike at a commercial office on Respondent's
other operations. However, in Battle Creek I the Board did
find that it was "clear that a work stoppage at the Battle
Creek commercial office would not impair the operations
of other commercial offices of the Employer." 12 In Battle
Creek II, a like conclusion was drawn by the Regional
Director on the basis of the "operational aspects" of the
commercial offices.
At the Jackson hearing, in March 1973, Respondent
adduced testimony by one of its supervisors that, because
all Respondent's switchboard operators are represented by
the instant Union, there was danger that those in Battle
iO In its decision the Board cited the absence of "interchange" between
commercial office employees in Battle Creek and those in other offices.
Since the Regional Director had found that there were a number of
voluntary permanent "transfers" to the Battle Creek commercial office, for
the convenience of the transferred employee, it is evident that, in finding no
"interchange ," the Board was adopting the Regional Director's distinction
between a permanent transfer for the convenience of the employee and a
temporary change of station for operational reasons.
11 Respondent cites the fact that there were seven involuntary transfers
in 1972 as a result of the closing of a commercial office in Fenton. However,
the record shows that this occurred in April 1972, well before the August 29
hearing, and no reason appears why that evidence could not have been
Creek would join in any strike by the commercial
employees in that office, thereby affecting long-distance
service to and from Battle Creek. Respondent now urges
that in the light of that evidence the Board reconsider its
prior finding on the issue . It is clear that the proffered
evidence does not fall within the scope of the instant
remand order. This is so not only because of the apparent
limitation of the remand to the matter of the alleged
change in hiring procedure but also because there was no
showing that the proffered evidence related to a new
development since the August 1972 hearing. Indeed, it is
clear that such evidence was available at that hearing.13
Moreover, even if one were to consider such evidence, it
could not affect the Board's aforenoted finding that a
strike in one commercial office would not impair the
operations of another commercial office and it is clear, in
any event, that a sympathy walkout by the Battle Creek
switchboard operators would affect only those long-dis-
tance calls (relatively few nowadays) that are not handled
by automatic equipment.
3. The alleged change in hiring procedure
There is no dispute that prior to September 1, 1972,
applicants for jobs in the Battle Creek commercial office
were first interviewed by personnel in another office, and,
if deemed qualified, referred to the commercial office
manager, who had discretion to accept or reject them.
There was no dispute, moreover, that this procedure was in
accord with instructions contained in a volume entitled
"Employment Interviewer's Manual," 14 hereinafter called
the Manual, which instructions were issued in November
1971 and were administered in the Southern Division until
September 1, 1972, by a unit in Respondent's traffic
department. There was serious dispute, however, as to
whether such instructions continued to be observed after
September 1, 1972, when the function of screening and
referring applicants for jobs at Battle Creek was assigned
to Respondent's personnel relations department. Admit-
tedly, there was no written revision of the foregoing
instructions until December 1973, when Respondent
adopted one which purported to vest final authority over
the hiring of an applicant in its personnel staff rather than
in the commercial offices. However, Respondent contends
that such revision did not represent a change in, but merely
a codification of, procedures already in effect on an
informal basis since September 1, 1972, at Battle Creek.
Thus, the issues before the Board under its remand order
appear to be (a) whether there was in fact a change in
circumstances with regard to hiring procedure after August
29, 1972, and, if so, when that change occurred, (b)
presented at that hearing . At any rate, such evidence would not seem to
require rejection of the Regional Director 's finding in the first Battle Creek
case that there was no policy of regularly interchanging employees for
operational reasons.
12 This finding was presumably based on the absence of any functional
interdependence among such offices.
13 The record in the Jackson case shows that the representation of
Respondent 's switchboard operators by the Union goes back at least as far
as July 1971, when Respondent and the Union entered into a contract
covering, inter aha, all such operators.
14 J Tr. Petitioner's Exh. 8.
MICHIGAN BELL TELEPHONE COMPANY
whether such change was so significant as to render the
instant unit inappropriate, and (c) whether such change
was effected for legitimate reasons or to circumvent the
Board's certification.
a. Was there a change in hiring procedure after
August 29, 1972?
As already related, there is no dispute that before
September 1, 1972, the commercial office manager at
Battle Creek had an absolute veto power over the hiring of
applicants referred to him, and that the revision of the
Manual prepared in December 1973 purports to take this
power away from him. There is, however, sharp disagree-
ment as to what happened between those dates, Respond-
ent contending that the veto power was in fact taken from
the Battle Creek commercial office manager on September
1, 1972, and that the December 1973 revision of the
Manual merely recognized that fact.15
Respondent's principal witness in this area was Stone,
who had, also, testified at the Jackson and Grand Rapids
hearings . He had been for some years a general supervisor
in Respondent's personnel relations department and
testified that he was the operating head of a unit therein
referred to in the record, and hereinafter, as "Centralized
Employment," which had certain responsibilities with
regard to recruitment of nonmanagement personnel.
He testified that until September 1, 1972, centralized
employment handled such recruitment only for Respond-
ent's Metro Division and that, in so doing, it began in
January 1972 to take away from commercial office
managers in that division the power to reject applicants
referred by centralized employment, and that when, on
September 1, 1972, its jurisdiction was extended to the
Southern Division, including Battle Creek, centralized
employment curtailed in the same manner the hiring role
of the commercial office manager in that division.16
The Union, on the other hand, contends that there was
never, in fact, any change in the hiring role of the Battle
Creek commercial office manager, as outlined in the
following instructions regarding new hires , incorporated in
Respondent's Manual in November 1971:
In an attempt to reduce force losses among short
service employees , it was decided in certain depart-
ments to allow the local management to make the final
hiring decision . At this time, the following departments
will have the hiring decision.
There follows a list of departments, which includes the
commercial department.
In Battle Creek I, the Regional Director found, in
pertinent part, as follows:
15 If there was a change in the Battle Creek commercial office manager's
hiring power at least by December 1973, it may seem immaterial whether
this change was initiated in December 1973 or on September 1, 1972.
However , if it began in December 1973, the change would postdate the
initial refusal to bargain herein and would therefore not be a defense to a
violation finding, although a finding that the unit ceased to be appropriate
in December 1973 would preclude the issuance of a bargaining order.
Moreover , if there was no change until December 1973, that circumstance
might be deemed to reflect on Respondent 's good faith . Accordingly,
whether or not one would find a critical change in circumstances by
813
Commercial employees are interviewed for hire by an
employment office employee in the traffic department
at Battle Creek . . . . Afterwards the applicant is
directed to the commercial office in Battle Creek for
further interview. Although the commercial office
manager may not add to his staff without approval of
his recommendation by the district manager at Kala-
mazoo, he does exercise discretion as to whom he
would hire.
For this and other reasons, the Regional Director found
that the instant unit was appropriate. In agreeing with that
unit finding, the Board adopted, but did not advert
specifically to, the Regional Director's account of the
responsibilities of the commercial office managers with
regard to hiring.
In Battle Creek II, the hearing was held as already noted
on August 29, 1972, and there the Acting Regional
Director's decision, which the Board declined to review,
found, inter alia, that the commercial office at Battle Creek
retained the "final veto power regarding the hiring" of
applicants referred to it.
In December 1973, Respondent adopted a revision of the
Manual 17 which was transmitted to the staff of centralized
employment by letter of January 8, 1974, and which
provided in pertinent part as follows:
The Employment Interviewer will make the hiring
decision. However, a visit to the work location will be
arranged prior to placement whenever it is requested by
the hiring department. No department may reject a
candidate without the prior approval of Centralized
Employment.
The department shall call the interviewer immediately
following the visit with the information as to whether or
not the applicant is acceptable.
11
If the interviewer feels the applicant is a good hire, and
the department still objects, it should be referred to the
employment supervisor for further consideration and
final disposition.
The employment interviewer, when appropriate, will
try to find the applicant another job opening. If this is
not possible, the employment interviewer will then have
to reject the applicant.
According to Stone, the foregoing revision merely
codified the practice which had been followed since
January 1, 1972, in administering hiring procedures for the
December 1973, it would still be relevant to consider what happened before
that date.
16 There was an apparent conflict between Stone's foregoing testimony
about the relation of centralized employment to the personnel relations
department and certain testimony at the hearing in the instant representa-
tion case by Murray, a district commercial manager , that centralized
employment was part of the traffic department until September 1, 1972,
when it was transferred to the personnel relations department . However,
there is no need to resolve this conflict, as it does not affect the result herein.
17 GR Tr., Emp.'s Exh. 1.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metro Division, and which had been extended on
September 1, 1972 to Battle Creek.18 This was corroborat-
ed by Guarisco, who testified that in 1969 she became an
employment interviewer in the Battle Creek office of the
traffic department; that in February 1972, that office
began to interview applicants for jobs at the Battle Creek
commercial office; that until the fall of 1972 the procedure
was that a promising applicant for a commercial office job
would be referred by her to the manager of that office, who
would again interview the candidate and make the final
decision with regard to hire; that since the fall of 1972 the
procedure has been to send an applicant to a commercial
office only for the purpose of enabling him to observe the
working conditions there and decide whether they were
acceptable to him. However, under cross-examination she
acknowledged that in her work as an employment
interviewer she was instructed to follow the Manual, that
she did follow it, and that she could not recall receiving
any oral instructions with regard to any of the matters
covered by the Manual. Respondent did not attempt on
redirect to elicit from her any testimony as to any such oral
instructions and Stone conceded that no written instruc-
tions on the instant matter had been issued between
November 1971 and January 8, 1974. Under the circum-
stances , one is at a loss to understand how Guartsco
learned at any time before the latter date that she was no
longer to follow the hiring procedures laid down in the
Manual. Nor was there any evidence as to how the alleged
departure from the Manual was communicated to any of
the 64 other employment interviewers scattered throughout
the State of Michigan.ia
The record abounds in exhibits consisting of handbooks,
memoranda , and bulletins governing the minutest details
of Respondent's operations, including the 200-page Manu-
al under consideration , and Stone conceded that a business
of such size and complexity as Respondent's could not
function without written instructions. Yet Respondent
would have one believe that its published instructions
defining the role of local office managers in the hiring
process had been superseded by a procedure which was not
reduced to writing for over 2 years, and which, so far as the
record shows, was not even the subject of any oral
communications to those administering the procedure.
18 A covering letter attached to that revision dated January 8, 1974, also
refers to the revision as merely reflecting existing practice . However, as such
letter was clearly prepared post !item motam, and, in view of the
circumstances under which it was prepared , as described by Stone in the
Grand Rapids hearing , it is not deemed competent evidence of the truth of
the matters of fact asserted therein.
1e The only other employment interviewer whose testimony appears in
the record was Walters, who testified in the Grand Rapids case . She was
silent as to any instructions on hiring procedure, oral or written, other than
were contained in the Manual , and it is not clear from her testimony at what
point, if any, there was a change in the hiring role of the commercial office
managers or what that change was.
20 J Tr. pp. 359-360.
21 J Tr. pp 381 -382. See also GR Tr pp. 127-128.
22 Stone sought to minimize the significance of the action of the
commercial offices in such cases, repeatedly insisting that since September
I. 1972, the role of the Southern Division commercial office managers in the
hiring process was limited to feeding back to centralized employment for its
evaluation any derogatory information about the candidate that might come
to light during his prehire visit. However, elsewhere Stone acknowledged
that such managers may make "recommendations" against the hiring of an
Absent any persuasive evidence to the contrary, one
would have to infer that, whatever Stone's (or Guarisco's)
understanding of the matter may have been, such under-
standing was not communicated to anyone else on Stone's
staff and, apart from the November 1971 instructions in
the Manual, that staff had no guidance as to what
procedure to follow in case of a rejection of an applicant
by a commercial office manager, and, hence, in case of
such a rejection, would have followed such instructions
and given controlling effect to such rejection.
Respondent attempted to substantiate Stone's testimony
that there was a change in hiring procedure at Battle Creek
on September 1, 1972, by eliciting from him testimony
about the relative number of cases in which, since that
date, applicants referred by centralized employment to
commercial offices in the Southern Division had actually
been hired over the objection of those offices. In this
regard, Stone testified at the Jackson hearing in March
1973, that during the previous 6 months no applicants
referred by centralized employment had been "rejected" by
a commercial office manager in the Southern Division 20
However, whatever the value of such testimony, it was
apparently neutralized by his admission at the same
hearing that during the same period commercial office
managers were still making "recommendations" against
the hiring of an applicant referred by centralized employ-
ment and no such recommendation had been overruled to
his knowledge.21 Later, on January 15, 1974, at the Grand
Rapids hearing, Stone averred that, although there had
been about 130 new hires since September 1, 1972, he was
..not aware of any case where the commercial department
refused to take" an applicant referred to it. However, he
gradually retreated from that position, acknowledging at a
later point in that hearing that there were a few instances
during that period where a candidate referred by central-
ized employment was not hired after receipt of an adverse
recommendation 22 from a commercial office, and, finally,
at the instant hearing, admitting that since September 1,
1972, the commercial department had objected "numerous
times" to applicants dispatched by centralized employ-
ment.
While he insisted that most of those objections had been
overruled by centralized employment, he was able to give
details as to only one such case. That case, according to the
applicant (GR Tr. 127); that such recommendations are considered ; that (as
related above) during the 6 months from September 1, 1972, to March 1,
1973, no such recommendation had been overruled to his knowledge; that
such managers still had a "voice" in the hiring decision; and that that
decision was "discussed jointly" between the manager and centralized
employment (J Tr 360). Moreover, if one is to accept Respondent's
contention that the latest revision of the Manual merely reflects the practice
since September 1, 1972, it would be necessary to find that commercial
office managers were not only authorized, but required, at all times to make
recommendations with regard to hiring ; for, that revision directs them to
advise centralized employment whether an applicant is "acceptable" and
prescribes a procedure for resolving any disagreement between the
employment interviewer and the commercial office manager over the merits
of an applicant ; namely, submission of the matter to the interviewer's
supervisor for "final disposition ," which might involve rejection of the
applicant . It is, therefore , found that the commercial office manager's role
was never limited to merely reporting any derogatory information that
might come to light during a prehire visit but that he was obliged , even after
the current revision of the Manual , to make a recommendation for or
against the hiring of a candidate , which recommendation was given
consideration and might lead to his rejection.
MICHIGAN BELL TELEPHONE COMPANY 815
testimony of Stone , as corroborated by Guarisco, involved
the referral by centralized employment to the Battle Creek
commercial manager, Bieach , of a female applicant, to
whom he objected after a prehire visit , because she was
overweight. Stone related that, because of such objection,
centralized employment gave the applicant a medical
examination and, when she passed it, insisted upon her
hire; and that the commercial department acceded and she
was hired . There was no contradiction of the foregoing
testimony and it is credited.
However, initially it should be noted that the above
incident occurred either late in December 1973 (according
to Stone) or about January 1, 1974 (according to
Guarisco). The current revision of the Manual instructions
here under consideration is dated "December 1973," was
admittedly prepared by Stone during that month and,
according to his own testimony , became effective during
that month23 (although apparently not given general
distribution until January 8, 1974). If, as may well be the
case , the status of the above applicant was resolved after
the effective date of the Manual revision, the incident
would have no value as evidence of the practice in effect
before that date. Moreover, even if one assumes that the
matter was disposed of before the effective date of the
revision , such an isolated case would be a slender reed on
which to extrapolate a general practice and the circum-
stances of that case , as described by Stone , would not, in
any event , negate a finding that substantial weight was
given to the recommendations of the commercial office
manager, since Bieach's objection had to be taken to Stone,
himself, before the matter could be resolved and admitted-
ly could have been appealed to even higher authority by
the commercial department , if it had desired to do so.
There was no other probative evidence concerning
specific instances where between September 1, 1972, and
the effective date of the revision of the Manual an
)bjection by a commercial office manager to an applicant
was overruled by centralized employment.24
Further detracting from the force of Stone's foregoing
generalization about the extent to which commercial
)ffices had been overruled on hiring was the fact that no
;xplanation was offered for his failure to submit any
locumentation in the form of personnel records.
All things considered, Stone's foregoing testimony is not
seemed sufficiently cogent to rebut the effect of the
-ircumstances cited above; - namely, the admitted absence
Af any written advice to Stone's staff to disregard the 1971
instructions in the Manual and the fact that the only
evidence with regard to oral instructions on the point is
that none was given.
It is found, therefore, that it has not been sufficiently
shown that there was any change in the hiring role of the
commercial office managers on September 1, 1972, or at
any time before December 1973.
b. Significance of any change in hiring procedure
The question next to be considered is whether any
change in the hiring role of the commercial office managers
such as is delineated in the December 1973 revision of the
Manual would render the instant unit inappropriate.
It is clear that the control over hiring exercised by the
Battle Creek commercial office manager was not the only
factor relied on by the Board in Battle Creek I in finding
the instant unit appropriate. In fact, it is not even clear
whether the Board gave any weight to that factor. In that
case, the Regional Director made the following, pertinent
findings:
The Employer asserts that the Battle Creek manager is
tightly controlled and exercises extremely limited
discretion in personnel matters. Thus, with respect to
demotions, discharge, granting of normal wage progres-
sions, he is limited to making effective recommenda-
tions to his superior, the district manager, but the
record is not entirely clear as to this. It appears that his
recommendations are relied on without an independent
investigation being made. The district manager unques-
tioningly approves the normal wage progressions
increase recommended by the commercial office
manager. Commercial office hours are determined by
the general personnel department in Detroit but the
commercial office manager can recommend overtime
where localized conditions so require. Commercial
employees are interviewed for hire by an employment
office employee in the traffic department at Battle
Creek . . . . Afterwards the applicant is directed to the
commercial office in Battle Creek for further interview.
Although the commercial office manager may not add
to his staff without approval of his recommendation by
the district manager at Kalamazoo, he does exercise
discretion as to whom he would hire . . . . The Battle
Creek commercial office manager utilizes his discretion
as to the appropriate mode of dress to be worn by the
employees and effectively recommends merit increases
and promotions. The Battle Creek office manager also
uses his discretion in setting vacation schedules.
The Regional Director's Decision was adopted by the
majority of the Board with certain "additions and
modifications," which contained only the following refer-
ence to the duties of the commercial office managers:
The commercial office manager represents the Employ-
er in the communities which the Battle Creek office
services, and he has below him several immediate
23 GR Tr pp. 59-60
24 Two instances were cited by Guarisco where Bleach , the commercial
office manager at Battle Creek, withdrew his objection to a referral but there
was no evidence as to the reason for his change of heart nor could Guarisco
say what the final disposition of the matter would have been had Bleach
persisted in his objection.
Respondent cites certain testimony by Lawford, head of commercial
operations in the Southern Division , that on two occasions , one before, and
another after , September 1, 1972, he received complaints from subordinates
about the referral to them of unqualified applicants , and that, after
investigation , he decided that the facts did not warrant taking the matter up
with the source of the referrals Respondent would have the inference drawn
that such complaints reflected the inability of Lawford's subordinates to
cope with the situation , themselves , because they had been shorn of the
power to reject applicants outright. However, if that be so, it would be
necessary to find, contrary to Stone's testimony, that the power of Southern
Division commercial office managers to reject applicants was curbed even
before September 1, 1972, and that we are dealing here, not with a
development subsequent to the hearing in the instant representation case,
but with evidence that might have been presented at that hearing.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors of the employees sought . Employees at the
office direct their inquiries concerning personnel
matters to the managers, and, if change of status is
involved , he recommends a disposition which is
channeled through the administrative hierarchy to the
headquarters office in Detroit . The record establishes
that his recommendations are effective. We are
satisfied that he has a substantial degree of autonomy
in directing the day-to-day operations of the Battle
Creek Commercial Office.
In Battle Creek II, the Acting Regional Director's
Decision , which the Board declined to review , contained
the following pertinent findings:
Thus, despite the Employer's contention that the Battle
Creek Commercial Manager and those management
employees who report to him exercise limited discretion
in personnel matters , the record evidence reflects that
they, in fact , exercise substantial authority and autono-
my with regard to such matters . The Employer's
District Commercial Manager testified that five super-
visory employees report directly to the Battle Creek
Manager and that these five supervisory employees
inspect , assign and redistribute work to the employees.
They recommend the hiring and discharge of employ-
ees to the Manager who in turn effectively recommends
such action to the District Commercial Manager. Thus,
with regard to discharges , the record evidence estab-
lishes that the District Manager relies wholly on the
assertions and records submitted to him by the Battle
Creek Manager and that no independent investigation
is made by said District Commercial Manager . The sole
occasion in which the local Manager was reversed
occurred prior to the filing of the previous petition in
1970 and flowed totally from the affected employee's
initiative . Also, although additions to a local office's
work force have to be approved by the District
Commercial Manager and as noted heretofore a
centralized employment office has been established
which refers applicants to the Battle Creek office, said
employees, upon referral , are additionally interviewed
locally at the Battle Creek office where the five
supervisors .and the Commercial Office Manager retain
final veto power regarding the hiring of said applicants.
Further, the five supervisors recommend promotions
and merit increases to the local Manager who in turn
effectively recommends such personnel action to the
District Commercial Manager . Additionally, the super-
visors possess authority to suspend employees and issue
verbal or written warnings which are placed in said
employees ' personnel files and affect these employees'
opportunity for future promotions. Moreover , applica-
tions by employees for leaves of absence and furloughs
are made locally and effective recommendations
regarding such requests are made by the Battle Creek
Commercial Manager. Vacation schedules are deter-
mined locally, as are decisions to grant employees
"excused" days.
It appears from the foregoing excerpts that as of the date
of the second Battle Creek hearing, in addition to the veto
power with regard to hiring , the commercial office
managers and the supervisors reporting to them had the
following responsibilities:
1. Effectively to recommend discharge.
2. Effectively to recommend promotions and merit
increases.
3. To recommend that overtime work be per-
formed.
4. To schedule vacations.
5. To suspend employees for disciplinary reasons.
6. To issue warnings to employees, which became a
part of their permanent record.
7. To direct the work of employees.
Moreover, in finding that the commercial office manag-
ers had a substantial degree of autonomy, the Board
majority made no specific reference to their role in the
hiring process. Thus, it is not clear to what extent, if any,
the Board relied on that role rather than on the other
matters appearing in the record, in finding that the
commercial office managers enjoyed "a substantial degree
of autonomy."
At the instant hearing there was no evidence nor
contention that any of the foregoing seven areas of
responsibility had been altered in any way.
In view of this, it is not believed that the Board would
now consider any curtailment since August 29, 1972, of the
Battle Creek commercial office manager 's power over
hiring sufficient reason, in itself, to find that he no longer
enjoyed a substantial degree of autonomy with regard to
the day-to-day operations of his office or sufficient reason
to invalidate the instant certification.
c. The good faith issue
In Frito-Lay, Inc.,25 the respondent defended its refusal
to bargain with a certified union on the ground that a
recent change in organizational structure had rendered the
unit inappropriate. In vacating the certification in that case
upon a sufficient showing of a change in circumstances, the
Board stressed the fact that such change had been effected
"for legitimate business purposes , and without intent to
evade the Respondent's obligation under the certification
Here, as already stated, the evidence appears to
preponderate against a finding that there was in fact any
relevant change in hiring procedure until December 1973.
Even if it be assumed, contrary to the views expressed
above, that the change made at that time, in itself, rendered
the instant unit inappropriate, it would still be necessary to
determine whether the change was effected for legitimate
reasons.
The Union contends that the sole reason for the issuance
of the December 1973 revision of the Manual was to afford
a basis for contesting the Board's certification both in the
impending hearing in the Grand Rapids case, which was
held on January 15, 1974, and in the instant hearing, which
was held on February 20, 1974.
25 177NLRB820(1969)
MICHIGAN BELL TELEPHONE COMPANY
Stone, who assumed responsibility for instigating the
revision, conceded that he was aware of the pendency of
the Union's petition in the Grand Rapids case at the time
that he was involved in preparing the revision. However,
the thrust of his testimony was (1) that the revision was
merely a codification of the preexisting unwritten practice,
dating back to January 1972, (2) that, although Stone had
long considered reducing such practice to writing, he had
not done so sooner because there was no "compelling"
reason therefor and there were other matters to attend to,26
and (3) that, in addition, there was an internal "political
situation" which held up any action on the matter.27 With
regard to the last item, Stone explained that the original
procedure giving commercial office managers the veto
power over applicants was sponsored by a former vice
president of Respondent and endorsed by its former
president, and that, although that procedure proved
unworkable, he did not deem it politic to publicize any
change therein until those two officers had departed.
As to (1), it has already been found that the December
1973 revision was not a codification but an innovation. As
to (2), Stone indicated that he did not perceive any
compelling reason to formalize the change in hiring
procedure because such change was already being ob-
served in practice. However, it has been found that that
was not the case Moreover, the record shows that, despite
the alleged press of other business, Respondent found time
during 1972 and 1973 to adopt a number of revisions of the
Manual with regard to matters that do not appear to have
had any greater moment than the matter of changing the
final hiring authority,28 which Stone conceded was an
"important activity."29 The credibility of Stone's final
reliance on the "political situation" is weakened by his
failure to advert thereto in the Grand Rapids hearing,
when he was asked about the reason for delaying the
revision of the Manual. It defies belief, moreover, that, if,
as he claimed, the original procedure proved unworkable,
Stone would make no effort to bring that fact to the
attention of higher management and prefer, instead, to
wait for a change of administration before undertaking any
reforms. The only explanation offered by Stone for his
protracted silence was that "he was not going to run out
and start fighting when I didn't need to." The implication
here is that there was no need for a confrontation with top
management on the issue because in actual practice
commercial office managers no longer had any veto power
over hiring. Thus, even this "political" explanation is
linked to the discredited premise that since January 1,
1972, there was a practice known to the entire staff of
centralized employment which was at variance with their
written instructions.
Absent any other credible explanation for the timing of
the December 1973 revision in hiring procedure, it is found
that it was promulgated solely for the purpose of affording
a basis for relitigating, and invalidating, the instant
certification, and may therefore not be given any weight.
26 GR Tr pp 86, 123-124
27 Tr p 125
28 J Tr . Petitioner's Exh 8 , passim
2"GRTrp86
10 In the event no exceptions are filed as provided by Sec 102 46 of the
817
Concluding Findings
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization under the Act.
3. The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining:
All commercial department employees at its Battle
Creek commercial office, including service representa-
tives, clerical employees and outside representatives,
but excluding marketing and directory sales employees,
guards and supervisors as defined in the Act.
4. On November 28, 1972, the Union was duly certified
by the Board as the exclusive representative of such
employees.
5. Since January 22, 1973, Respondent has refused to
recognize and bargain with the Union as such representa-
tive.
6. By such refusal, Respondent violated Section 8(a)(5)
and (1) of the Act.
7. Such violations are unfair labor practices affecting
commerce within the meaning of the Act.
THE REMEDY
It having been determined that Respondent unlawfully
refused to recognize and bargain with the Union, it will be
recommended that it be ordered to cease and desist from
such refusal and take appropriate affirmative action.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
ORDER 30
Respondent, Michigan Bell Telephone Company, of
Detroit, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize or bargain with Communica-
tions Workers of America, AFL-CIO, as the representative
of its employees in the following appropriate unit:
All commercial department employees at its Battle
Creek commercial office, including service representa-
tives, clerical employees and outside representatives,
but excluding marketing and directory sales employees,
guards and supervisors as defined to the Act.
(b) In any like or related manner interfering or
restraining employees in the exercise of their right to
bargain collectively through their chosen representative
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the abovenamed Union
as the exclusive representative of the employees in the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 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
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abovedefined unit , and, if an understanding is reached,
embody it in a signed contract.
(b) Post at its commercial office in Battle Creek,
Michigan , copies of the attached notice marked "Appendi-
x." 31 Copies of said notice , on forms provided by the
Regional Director for Region 7, after being duly signed by
an authorized representative of Respondent , shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
31 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL bargain , upon request , with Communica-
tions Workers of America , AFL-CIO, as the exclusive
representative of our employees in the following unit,
and, if an understanding is reached , embody it in a
signed contract.
All commercial department employees at its Battle
Creek commercial office, including service representa-
tives , clerical employees , and outside representatives;
but excluding marketing and directory sales employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner restrain
or interfere with the exercise by our employees of the
right to engage in collective bargaining through their
chosen representative.
MICHIGAN BELL TELEPHONE
COMPANY