Mountain States Telephone and Telegraph Co.

National Labor Relations Board - Board Decisions

May 23, 1949

83 N.L.R.B. 773 (N.L.R.B. 1949)

In the Matter of MOUNTAIN STATES TELEPHONE AND TELEGRAPH COM-
PANY, EMPLOYER and PHILIP K. DUNCAN , PETITIONER and MOUNTAIN
STATES DIVISION #17, COMMUNICATION WORKERS OF AMERICA,
UNION
Case No. 30-RD-10.-Decided May 23,1919
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition for decertification , duly filed , a hearing
in this case was held at Denver, Colorado, on February 4, 5, and 7,
1949, before William J. Scott, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is an employee of the Employer and asserts that
the Union is no longer the bargaining representative, as defined in
Section 9 (a) of the amended Act, of the Employer's employees desig-
nated in the amended petition.,
The Union is a labor organization recognized by the Employer as
the exclusive bargaining representative for the employees, among
others, designated in the amended petition.
3. The question concerning representation :
The Union and its predecessors have, for a number of years, been
recognized as the exclusive collective bargaining representative of a
comprehensive, system-wide unit of employees of the Employer,
1 The Union moved to dismiss the petition on the ground that the Petitioner is in fact a
labor organization , or the representative of a labor organization , and is not in compliance
with Section 9 (f), (g), and (h) of the Act. The Petitioner has never attempted to act as
the collective bargaining representative of the employees seeking decertification and expressly
denies any such intention . There is no evidence in the record to support the Union's con-
tention, and the motion to dismiss on this ground is, therefore , denied. See Matter of
Illinois Bell Telephone Company, 77 N. L. R. B. 1073.
83 N. L. R. B., No. 117.
844340-50-vol. 83-50 773
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including the employees covered by the present petition. The Union
and the Employer had a contract with an expiration date of May 15,
1948, which was automatically renewable in the absence of 30 days'
notice by either party of a desire to modify the agreement. In Feb-
ruary 1948, the Union notified the Employer that it desired to amend
,and modify the agreement. Accordingly, negotiations toward this
;end were begun and finally resulted in the parties executing a new
agreement, on January 10, 1949, expressly superseding the last agree-
ment between the Union and the Employer.2 In the meantime, the
petition in this.case was filed.
The Union contends that its contractual relations with the Em-
ployer constitute a bar to this proceeding. However, whether or not
the contract under which notice was given expired on May 15, 1948,8
it was expressly superseded by the terms of the January 10, 1949, con-
tract, and cannot, therefore, operate as a bar.4 The current contract
is clearly no bar because the petition in this case was duly filed before
that contract was executed. The Union's motion to dismiss the peti-
tion on a contract bar theory is, therefore, denied.
4. The appropriate unit :
The Petitioner requests decertification for all outside plant engi-
neers, protection engineers, right-of-way engineers, estimate engineers,
junior engineers, material engineers, office engineers, surveyors, and
transitmen, in the Plant Departments of the Employer in the area,
except for the State of Montana,5 in which the Employer operates e
The Petitioner contends, and the Union denies, that employees in the
above categories are professional employees within the meaning of
Section 2 (12) of the Act, and that such employees together consti-
tute an appropriate unit separate from the unit covered by the Union's
contract with the Employer. The Employer took no position in this
matter.
The Employer is engaged in furnishing telephone service in 8
States. It employs approximately 18,000 persons, of whom about
2 During the course of the negotiations which preceded the execution of the 1949 agree-
ment, the Union and the Employer agreed that, in view of the pendency of this proceeding,
the wage provisions of the new contract would not be applied to the employees seeking
decertification therein.
3 We find it unnecessary to determine whether , as contended by the Union , the contract
between the Union and the Employer continued in effect after its-expiration date and pend-
ing the execution of the new agreement.
4 Matter of Radio Corporation of America, etc., Si N . L. R. B. 643.
5 The Montana employees of the Employer are not covered by the Union 's contract.
6 Transmission engineers , and transmission and protection engineers were originally
included in the petition for decertification . Since it appeared at the hearing that there was
no such category on the Employer 's pay roll as transmission engineers , and that the trans-
mission and protection eggineers were clearly supervisors , the hearing examiner granted
the Petitioner 's motion to strike these two classifications from the requested decertification
unit.
MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY 775
3,500 are covered by the Union's contract. There are 102 persons in
the -decertification unit requested by the Petitioner.
Outside plant engineers-These engineers do all engineering work
outside the central offices. They design and plan the construction,
extension, rearrangement, and removal of pole lines, cable lines, and
underground conduits. They handle right-of-way problems if there
is no available right-of-way engineer. The outside plant engineers
are required to exercise a great deal of independent discretion, and
they must learn to get along with a minimum of supervision. They
must have a knowledge of civil, mechanical, and electrical engineering,
mathematics, and economics. They must know thoroughly the Em-
ployer's engineering, construction, and accounting practices. These
engineers are not required to have college training; some come up
through the various crafts, usually having reached supervisory status
therein. However, of the 66 engineers in this category, 27 have college
degrees (23 of these have engineering degrees), and 24 have had
some college training.
Protection engineers-The job of the protection engineer is to desig-
nate and specify methods to be used on telephone circuits to prevent
injury to equipment and personnel. This is a rather technical engi-
neering job, and there are but two protection engineers on the Em-
ployer's pay roll. Where there is no protection engineer, the work
he would normally do is absorbed by the outside plant engineer.
Since the Employer operates mobile radio equipment, the protection
engineer, in addition to his general engineering qualifications, is re-
quired to have a good knowledge of radio engineering. Both pro-
tection engineers hold electrical engineering degrees.
Right-of-way engineers-These employees are closely associated
with the outside plant engineers, and, in general, must be similarly
qualified. Their primary function is to conduct right-of-way nego-
tiations with public officials and private property owners; they must
have a general knowledge of outside telephone plants, engineering,
construction and installation practices, right-of-way policies, and the
fundamentals of real estate law, and, finally, city, State, and Federal
requirements affecting the construction of telephone plants and the
plants of other companies. There are five such engineers involved,
two of whom have had some college training.
Equipment engineers-These employees must have a technical
knowledge of intricate communication systems and be able to pre-
pare detailed specifications for installing or making changes in such
systems. Their job is to specify the type of equipment to be used
on the various projects; they must work closely with other engineers
of the Employer and also with such outside persons as builders, archi-
776 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
tects, etc. Although neither of the two equipment engineers on the
Employer's pay roll has a college degree, they have an equivalent
amount'of- practical -experience.'
Estimate engineers-Estimate engineers have usually had outside
plant engineering experience. They review the plans prepared by the
outside plant engineers , and then prepare detailed cost estimates
therefrom as well as a report on what the project covers, why it is nec-
essary, and what it will accomplish. They also prepare completion
reports, in which they analyze expenditures actually made, condi-
tions encountered, -and. a general history. of the project from a cost
standpoint. Of the three estimate engineers, one has a college de-
gree , one had 3 years of college engineering, and one is a high school
graduate . The latter has had 38 years' service with the Employer,
including extensive supervisory duties.
Junior engineers-These employees do work similar to the outside
plant and protection engineers , but usually on the less involved jobs.
Since their experience is more limited, they require closer supervision
than the other engineers. They are selected for these jobs because they
have engineering degrees or because they have had broad experience in
the various telephone crafts. The employer expects that, in time they
will be promoted to the full-fledged engineering jobs." Nine of the 18
junior engineers have college engineering degrees, 4 have had some
college training, and the other 5 are high school graduates.
Material engineer-The job of this employee is to determine the
kind and amount of material necessary to complete the work pre-
scribed by the outside plant engineers. He must be thoroughly qual-
ified to interpret construction and engineering drawings, and to un-
derstand accounting procedures. Material engineers are usually se-
lected from among the outside plant engineers. There is only one
such engineer now; the number depends on the amount of work to
be done. The outside plant engineer or the estimate engineer does
the job of the material engineer at locations where there is no em-
ployee in this category.
It is clear from the record that the work of the engineers in the
above seven categories is predominantly intellectual and varied in
character, involves the consistent exercise of discretion and judgment,
cannot be standardized in relation to a given period of time, and re-
4 The record discloses that the two men now filling these jobs have an average employment
service of 32 years, having come up through the crafts. They finally filled supervisory
craft positions before they were promoted to their present jobs. The general plant personnel
supervisor testified at the hearing that persons occupying the position of equipment engi-
neer would be superior to those supervising craft operations , and that the Employer, while
not requiring an engineering degree for this job, would consider the long and specialized
experience obtained with the Employer as at least the equivalent of the academic training.
s See Matter of E. W. Bliss Company, etc., 81 N . L. R. B. 428.
MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY 777
,quires the type of knowledge usually acquired in scientific courses in
institutions of higher learning. We find that these engineers are
professionalkemployees^within the meaning of.the Act-and,may con-
stitute a unit appropriate for the purposes of collective bargaining,
and, therefore, may properly be the subject of a decertification peti-
tion."
O'ff'ice engineers-Although the Petitioner requested the inclusion
of office engineers in the decertification unit, this matter was not fully
developed at the hearing when it was discovered that office engineers
were not represented by the Union nor covered by the Union's con-
tract. As this is a decertification proceeding, we are not required to
consider, as would be the case where the certification of a bargaining
representative was sought in a representation proceeding, the pro-
priety of including office engineers with the other engineers in an
appropriate professional unit. It is sufficient, for the purposes of this
case, that office engineers are not covered by the Union's contract, and
that there is no need, therefore, for decertification as to them. In
our opinion it would be anomalous to permit office engineers to vote
in an election the purpose of which is to determine whether the Union
shall continue to represent a group of employees, of which the office
engineers have never been a part, for purposes of collective bargain-
ing.10
Accordingly, we shall direct an election by secret ballot to be held
among the outside plant, protection, right-of-way, equipment, esti-
mate, junior, and material engineers, and the surveyor and transitmen,n
in the Plant Departments of the Employer in the area covered by the
Employer's operations other than the State of Montana. If the em-
ployees in this voting group do not select the Union, the Union will
be decertified as to them ; if, on the other hand, they select the Union,
they will be taken to have indicated their desire to be included with
Matter of Northwestern Bell Telephone Company, 79 N. L . R. B. 549 ; Matter of Southern
Bell Telephone and Telegraph Company, Inc, 78 N. L. R. B . 814; and Matter of Illinois Bell
Telephone Company, supra.
io As the dissenting opinion points out, it is true that the Board generally makes no dis-
tinction between certification and decertification proceedings insofar as appropriate units
are concerned . In the present case, however , the fact that there is no need to decertify
office engineers is the dominant consideration . This proceeding will not lead to the certifi-
cation of the engineering group; we can deal with the inclusion of office engineers in an
appropriate professional unit when that question is presented to us.
" The surveyor has an electrical engineering degree, and does surveying jobs for the
Employer from time to time. The two transitmen have had some college training ; they do
work closely allied to that of the surveyor . Although the record indicates that these
employees spend considerable time in non-professional work , they also do a substantial
amount of work that is professional in character . Furthermore , both the surveyor and the
transitmen perform duties which are an integral part of the professional activities of the
other engineers in this group . The surveyor and transitmen are, therefore , included in the
voting group of professional employees established in this proceeding . Matter of Westing-
house Electric Corporation, Lamp Division, 80 N. L . R. B. 591.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the non -professional employees in the system -wide unit of the Em-
ployer now represented by the Union.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Mountain States Telephone and
Telegraph Company, Denver, Colorado, an election by secret ballot
shall be conducted as early as possible , but not later than 30 days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Seventeenth Region, and subject to
Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, as amended, among the employees in the
voting group described in paragraph numbered 4 , above, who were
employed during the pay-roll period immediately preceding the date
of this Direction , including employees who did not work during said
pay-roll period -because they were ill or on vacation or temporarily
laid off , but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election , and also excluding employees on strike who
are not entitled to reinstatement , to determine whether or not they
desire to be represented by Mountain States Division #17, Com-
munication Workers of America, for the purposes of collective
bargaining.
MEMBER M- RDOCK , dissenting in part :
The majority is directing a decertification election in a unit of
engineers who are currently included in a comprehensive system-wide
unit of the Employer 's employees; but they are excluding office engi-
neers from the unit in which the election is directed . The latter
clearly belong in any unit of professional engineering employees if
one is to be carved out of the more comprehensive unit. The reason
stated by the majority for the exclusion of the office engineers is the
fact that they have not been included under the contract covering
the comprehensive unit. The argument that, accordingly, they have
no interest in a vote to decertify the present representative, is not
without some appeal . But the inescapable fact remains that we must
find a unit appropriate before we can direct an election either in a
certification or a decertification proceeding ; and a unit of less than
all the Employer 's engineers is not an appropriate unit,
The suggestion of the majority that the appropriate unit for de-
certification purposes may be different from that appropriate for
certification purposes is contrary to established Board law. In the
MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY 779
first decision in which the Board permitted severance of professional
employees by means of a decertification petition,12 it pointed out that
the Act "makes no distinction between certification and decerti-
fication proceedings insofar as appropriate units are concerned." Ac-
cordingly, the Board there said: "In determining the propriety of the
proposed unit in the present decertification case, we shall, therefore,
apply,the same principles of severance as must be applied to certifi-
cation cases involving professional employees. The question is, there-
fore, whether, under ordinary representation principles, we would
permit the employees in the proposed unit to be severed from the ex-
isting contract unit."
Since under ordinary representation principles we would not per-
mit less than all the engineers to be severed from the existing con-
tract unit, I would include the office engineers in order to make appro-
priate the unit which our direction of election permits to be carved out.
Whatever logical difficulties inhere in that course I find easier to sur-
mount than to accept the majority's alternative of proceeding to an
election in a unit which is not appropriate.
"Illinois Bell Telephone Company , 77 N. L . R. B. 1073.