New York Telephone Co.

National Labor Relations Board - Board Decisions

Apr 13, 1950

89 N.L.R.B. 383 (N.L.R.B. 1950)

In the Matter of NEW YORK TELEPHONE COMPANY and GLORIA
TRIESTMAN
Case No. 2-C-7032.-Decided April 13, 1950
DECISION
AND
ORDER "
On January 17, 1950, Trial Examiner Allen McCullen issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter the
Respondent filed exceptions to the Intermediate Report and a support-
ing brief, and the General Counsel filed a brief.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner,2 with the following additions.
We agree with the Trial Examiner that the Respondent, by dis-
charging Gloria Triestman, a supervisor, for participating in a strike
of the Respondent's nonsupervisory employees during April and May
1947, violated Section 8 (1) and (3) of the National Labor Relations
Act, and did not violate Section 8 (a) (1) and (3) of the Act, as
amended. The Respondent contends that Triestman was not dis-
charged because of any concerted activity on her part, on the ground
that her refusal to work during the strike was caused not by a desire
to act in concert with the strikers, but due to her fear of picket line
I Pursuant to Section 3 (b) of the National Labor Relations Act, as amended , the Board
has delegated its powers in connection with this proceeding to a three -member panel [ Chair-
man Herzog and Members Houston and Murdock].
2 The Respondent states in its brief that "should the Board feel that it requires further
information before deciding this matter, the respondent would welcome an opportunity to
present, such further information and respectfully requests another hearing." As the record
and exceptions and briefs , in our opinion , adequately present the issues and position of the
parties , the Respondent's request for further hearing is denied.
89 NLRB No. -45.
383
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violence. While it is true that Triestman at the hearing initially
stated that fear of violence was the reason for her refusal to work
during the strike and later added that aversion to acting as a strike-
breaker was also a reason, the truth of her later claim is borne out by
the Respondent's own witnesses. These witnesses, supervisors of
Triestman, testified that Triestman had niformed them that she would
not work during the strike because she was firmly opposed, as a matter
of principle, to crossing a picket line. Under these circumstances, we
find that Triestman's refusal to work during the strike was motivated
by her desire not to cross the picket line. She therefore allied herself
with the protected activity of the rank-and-file employees. In any
event, whatever her motive was, the record shows that the Respondent
discharged Triestman because of its belief that her failure to report
for work during the strike was due to her strong opposition to crossing
picket lines. We have always held that when an employee is dis-
charged because his employer believes him to be engaged in concerted
activity, the discharge is violative of the Act, whether or not such
belief is well founded.3 Accordingly, we find that the Respondent
discharged Triestman for joining in concerted activities of the non-
supervisory employees.
The Respondent contends that it was justified in discharging Triest-
man under the doctrine of the Carnegie-Illinois Steel case4 In that
case, the Board held that an employer did not violate Section 8 (1)
and (3) of the National Labor Relations Act by discharging super-
visors who had joined in a strike of production employees, where the
work of such supervisors was essential to protect the employer's prop-
erty. Triestman was a supervisor in the Respondent's cafeteria. The
record contains no evidence that Triestman's refusal to work in any
way endangered the Respondent's property or franchise. At the most,
it caused inconvenience to those supervisors who were working during
the strike to maintain telephone service .5 Accordingly, we find that
the Respondent, by discharging Triestman, violated Section 8 (1)
and (3) of the National Labor Relations Acts
The Respondent objects to the recommended order of the Trial
Examiner requiring it to make Triestman whole for any loss of pay
she may have suffered by reason of the Respondent 's discrimination
a Republic Aviation Corporation, 61 NLRB 397.
4 84 NLRB 851.
5 Member Murdock , who was a member of the majority in the Carnegie-Illinois Steel case,
regards that case as unique . There the work requested of the supervisors was essential to
prevent almost irreparable damage totaling millions of dollars to steel mill equipment and
to insure continuance of a gas supply to'the city of Gary. Only extraordinary circumstances
can invoke the doctrine of that case . They are clearly not present here.
6 In making this finding, we do not rely upon the Trial Examiner 's dictum that Triestman's
discharge would have been justified if she had been "a supervisor in charge of any part of
the work incident to the maintenance of telephone service."
NEW YORK TELEPHONE COMPANY 385
against her since May 6, 1947.7 The Respondent contends that any
liability it might have toward Triestman must terminate on August
22, 1947, the date of enactment of the Labor Management Relations
Act. For the reasons set forth in Republic Steel Corporation (Upson
Division )8 we find no merit in this contention.
As none of the parties objected to the Trial Examiner 's dismissal of
the complaint insofar as it alleged that the occurrences involved herein
constituted a violation of Section 8 (a) (1) and (3) of the amended
Act, we shall dismiss this allegation of the complaint.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, New York Tele-
phone Company, New York, New York, its officers, agents, successors,
and assigns shall:
Take the following affirmative action which the Board finds will
effectuate the policies of the Act and the amended Act :
(a) Offer Gloria Triestman immediate and full reinstatement to
her former or a substantially equivalent position, without prejudice
to her seniority or other rights and privileges ;
(b) Make Gloria Triestman whole for any loss of pay she has suf-
fered because of the Respondent's discrimination against her, by pay-
ment to her of a sum of money equal to the amount she would normally
have earned as wages during the period from May 6, 1947, to the, date
of the Respondent's offer of reinstatement, less her net earnings during
said period;
(c) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
It is further ordered that the complaint, insofar as it alleges a vio-
lation of Section 8 (a) (1) and (3) of the Act, as amended, be, and it
hereby is, dismissed.
The complaint alleges that the Respondent discharged Triestman on or about April 18,
1947. The Trial Examiner makes no specific finding as to the date of Triestman's discharge,
but orders the Respondent to pay her back pay from May 6, 1947. On that date , the strike
having ended, Triestmah reported back to work and was told that she was discharged for
participating in the strike. This discharge confirmed a conversation between Triestman
and her supervisor , which had taken place on the telephone about 2 weeks prior to the end
of the strike , in which the supervisor informed Triestman that she was discharged. Under
these circumstances , we find that the Respondent did not become liable for any pay lost by
Triestman until May 6, 1947, the time at which she ceased voluntarily to withhold her
services from the Respondent . Kallaher and Mee, Inc., 87 NLRB 410.
8 77 NLRB 1107. See also Universal Camera Corporation, 79 NLRB 379, enforced 179
F. 2d 749 (C. A. 2, 1950).
386 DECISIONS OF NATIONAL LABOR, REL_ATIONS BOARD
INTERMEDIATE 'REPORT
Mr. Vincent M. Rotolo, for the General Counsel.
Mr. John G. Ross, 140 West Street, New York, N. Y., for the Respondent.
STATEMENT OF THE CASE
Upon a charge duly filed by Gloria Triestman, an individual, the General
Counsel of the National Labor Relations Board, called herein respectively the
General Counsel and the Board, by the Regional Director of the Second Region
(New York, New York), issued a complaint dated November 28, 1949, against
New York Telephone Company, New York; New York, herein called the Re-.
sponclent, alleging that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section S (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act (49 Stat. 449),
herein called the Act, and Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the Labor Management Relations Act, 1947 (61 Stat. 136), herein called the
amended Act. Copies of the charge and the complaint, together with notice of
hearing, were duly served upon the Respondent.
With respect'to unfair labor practices, the complaint in substance alleged that
Respondent, on about April 18, 1947, discharged Gloria Triestman and has since
refused to reinstate her to her former or substantially equivalent position for the
reason that she refused to work during a strike and other concerted activities of
Respondent's employees sponsored by the Traffic Employees Association, herein
called the Association, in violation of Section 8 (1) and (3) of the Act, and
Section 8 (a) (1) and (3) of tl}e amended Act.
In its duly. filed answer, Respondent denies the commission of the alleged
unfair labor practices.
Pursuant to notice a hearing was held in New York, New York, on December
13, 1949, before the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel and Respondent were represented by
counsel and participated in the hearing. Full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. After the taking of evidence, the undersigned granted
the General Counsel's motion to conform the pleadings to the proof in formal
matters, and reserved decision on Respondent's motion made at the conclusion
of the hearing to dismiss the complaint on the grounds that General Counsel had
not made out a case. This motion is disposed of in accordance with the findings
of fact and conclusions of law made below. Arguments were made by both
parties at the close of the hearing. Both parties waived the right to file briefs.
Upon the entire record in the case, and from my observation of the witnesses,
I, the undersigned Trial Examiner, make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation, and at all times herein mentioned,
maintained its principal office and place of business at 149 West Street, New
York, New York, where it is now and has been continuously engaged in the
business of furnishing local and long distance telephone communication service
to its subscribers throughout the State of New York and in Greenwich, Con-
necticut. In the operation of its business, Respondent, using the facilities,
equipment, and services of associate companies and of its parent organization,
NEW YORK TELEPHONE COMPANY 387
American Telephone & Telegraph Company, which are located throughout the vari-
ous States of the United States, and as a member of a nationally organized com-
munications network popularity known as the Bell System, furnished and is
furnishing its subscribers with long distance telephone service to all parts of the
United States and to, many foreign countries. The Respondent admits, and I
find, that it is engaged in commerce within the meaning of the Act and the
amended Act.
U. THE LABOR ORGANIZATION INVOLVED
The Traffic Employees Association is and has been at all times material hereto
a labor organization within the meaning of Section 2 (5) of the Act and of the
amended Act.
III. THE UNFAIR LABOR PRACTICES
Discharge of Gloria Triestman
General Counsel offered one witness, Gloria Triestman, and Respondent offered
two witnesses, Clare Dunn, division dining room supervisor, who was directly in
charge of Triestnlan's work, and Dunn's immediate supervisor, Vernette Murphy,
dining room manager for the Long Island central office employees. As there is
no material variation in the testimony of these three witnesses, and it is all
credited, the facts adduced by such testimony are summarized as follows without
reference to the testimony of each individual witness.
On April 7, 1947, all of the operating employees- of Respondent went on a
strike, which lasted until May 5, 1947. Picket lines were established at some
of Respondent's exchange buildings for approximately 2 weeks after the strike
started, and were then discontinued. For approximately a year prior to the
strike, Triestinan was employed by Respondent as supervisor in charge of a
cafeteria maintained at the Rockaway Avenue Branch in Brooklyn. Her duties
consisted in supervising from 6 to 10 employees in the cafeteria, ordering the
food, taking care of the cash, making up daily receipts at the end of the day,
and general supervision of the preparation of the food and cleaning up. During
the period of the strike limited service was provided in the cafeteria for meals
for supervisory employees who continued to work to furnish limited emergency
telephone service. Some of these supervisory employees remained in the ex-
change buildings for 24 hours a day.
The week before the strike started, Clare Dunn, the immediate supervisor of
Triestman, in a conversation with the latter stated that if the employees did go
on strike that "we as members of the management would be required to come to
work," and Triestman replied that she would not, that "she would not cross the
picket line, that she did not believe in crossing the picket line, and that her
family would not let her cross the picket line." Dunn replied that she thought
she should work that it was her duty to the company. Triestman was not a
member of the Union. After this conversation, Dunn reported to Murphy that
Triestman would not report for work in the event of a strike, and Murphy tele-
phoned Triestman and confirmed this fact.
Triestman did not report for work on Monday, April 7, 1947, nor did she go
to the exchange building at any time during the strike to determine if picket
lines were being maintained. Dunn was assigned by Murphy to take care of the
cafeteria service at the Rockaway Avenue Branch in place of Triestman, which
work she did during the time of the strike.
About 2 weeks after the strike started, Murphy called Triestman on the tele-
phone and informed her that inasmuch as she had failed to report for duty when
889227-51-vol. 89-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was needed, that the company would no longer require her services. On May
6, 1947, after the strike, Triestman called on Murphy to ask her about her posi-
tion, and was again told she had been discharged because she refused to come
in to work during the strike, and she immediately reported the matter to the
Regional Office of the Board in New York, filing a charge that afternoon.
There was some testimony that some of the supervisory employees remained at
the exchanges 24 hours a day during the strike, and meals were supplied to them
in the cafeterias. It was conceded by counsel that Respondent, as a public util-
ity, was charged with a public duty to maintain at least a minimum of telephone
service for emergencies during the strike, and to render such service, it was
necessary for supervisors to work during the strike. General Counsel contends
that is was not necessary to maintain dining room service during the strike in
order to enable the Respondent to fulfill its public duty as a utility company.
Respondent, on the other hand, contends that the operation of dining room serv-
ice was essential to maintain this limited service. I do not agree.
In Carnegie-Illinois Steel Corporation, 84 NLRB 851, the Board said that
The supervisors were instructed by Respondent to work during the steel
workers strike at nonsupervisory jobs, but, in their case, however, the pur-
pose of the work assignment was solely to prevent serious damage to plant
equipment during the steel workers strike and to maintain essential service
.to the City of Gary. Apart from this, the Respondent made no effort during
the rank and file strike to continue its normal production operations. As-
suming, without deciding, that in all cases the supervisors, in refusing to
work, engaged, as the examiner found, in concerted activities, we do not
agree that on the facts in this case such activities are protected by the Act.
. .. We find that, whatever the reason for their action, under the special
circumstances of this case, the supervisors failure to report for, or remain
at, work was such a serious breach of their duty to the Respondent as to
remove them from the protection of the Act. (Emphasis supplied.)
It is clear in the present case that Respondent was not attempting to maintain
its normal telephone service, but only an emergency service as was required of
it as a public utility. If Triestman was a supervisor in charge of any part of
the work incident to the maintenance of telephone service, Respondent's action in
discharging her would be justified under the doctrine established in the Carnegie-
Illinois case. However, it is difficult for me to see that the operation of the
dining room service was an essential part of maintenance of the limited telephone
service which Respondent was required to render during the strike. Respondent
offered no testimony disclosing the number of supervisors who remained at the
exchanges for the full period of 24 hours a day, nor was it shown that it was
necessary to supply meals at the exchanges. Dunn and Murphy testified that
they crossed the picket lines during the short time they were maintained and
they experienced no difficulty. If this was true in their case, there is no reason
to assume that other employees working at the exchanges would have had any
difficulty in leaving the exchanges to get meals. While this may have been an
added burden, it seems clear that the maintenance of the dining rooms was but
an accommodation to these employees, and certainly not an essential element of
the telephone service Respondent was obliged to render. I find, therefore, that
Respondent's request to the supervisors in the dining service to work during the
strike was not reasonable.
Respondent urges that Triestman was a disloyal employee, that she was the
only one out of a large number of supervisors who did not report for duty during
NEW YORK TELEPHONE COMPANY 389
the strike, and that she was just AWOL, and points to her testimony that she
did not want to cross the picket lines because she feared bodily harm ; that she
did not have any particular sympathy with the Union as such and its strike action
or demands, but that she had made up her mind that if a strike was to take
place, she had decided not to come in. At the time of the discharge, the only
reason for Triestman's failure to report for work known to Respondent, as testi-
fied by both of Respondent's witnesses was that "she would not cross the picket
line, that she did not believe in crossing the picket line, and that her family
would not let her cross the picket line." Respondent made no further investiga-
tion, nor did it make any inquiry as to why she did not wish to cross the picket
line, but acted on these facts alone, and discharged her about 2 weeks after the
strike started and made it rather clear to her that the reason for her discharge
was because she refused to cross the picket line and report for work. Respondent
relies upon the decision of the Circuit Court in Hazel Atlas Glass Company v.
N. L. R. B., 127 F. (2d) 109, where the Court said :
The undisputable fact is that there was a good reason for discriminating
between Carder and the strikers that had no relation to union organization
or collective bargaining. Carder's disloyalty in refusing to help his employer
in an emergency, in contrast with the willing assistance of his brother fore-
men of equal standing, was an all-sufficient reason for his discharge. To cast
this established fact aside and to hazard the conjecture that the employer
was actuated by an unlawful motive is merely to indulge in a speculation
that furnishes no legal basis for the Board's order.
Respondent, however, has overlooked the fact that on consideration of a petition
for rehearing, the Court modified the quoted statement for the reason that it
"is too broad and may, on that account, be subject to misinterpretation." The
Court said :
A petition for rehearing complaints of the action of the court with respect
to that portion of the order. relating to the reinstatement of Carder. It is
said that, since Carder's refusal to work was because of the existence of
a strike, that refusal cannot furnish the basis of a lawful discharge, even
though the company may have felt that Carder was guilty of disloyal
conduct in refusing to work and may have discharged him for that reason.
... It was not our intention to make such a holding. We think, however,
that certain language in the last paragraph of the opinion discussing the
discharge of Carder is too broad and may, on that account, be subject to
misinterpretation, and that therefore the basis upon which the discharge
of Carder was justified should be restated. The strike of the site operators
was illegal and would have constituted sufficient justification for their
discharge. National Labor Relations Board v. Sands Mfg. Co., 306 U. S.
332, 344, 59 S. Ct. 508, 83 L. Ed. 682. Carder's discharge was justified on
this ground, for certainly if the discharge of operators who have struck il-
legally, is justified, the discharge of one who refuses to work because the
strike is on is also justified. (Emphasis supplied.)
In the present case, there was no unlawful strike. Triestman was participat-
ing in the concerted activities of other employees who were engaged in a lawful
strike. The fact that she was not a member of the Union is immaterial. Re-
spondent places some emphasis upon the mental reasoning of Triestman as to
why she did not want to cross the picket lines. I can find no merit in this.
It was not considered by Respondent at the time of the discharge for the reason
that it did not develop until the hearing. Triestman also testified that she
390 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
did not want to be a strikebreaker, and her conduct rather clearly shows that
that was one of the principal reasons why she did not report for work. She
testified that she did not go to any of the exchanges to ascertain if picket lines
were being maintained, and even after Murphy called her 2 weeks after the
strike and informed her she was discharged, she made no attempt to go to the
exchange until after the strike terminated. Based upon all of the testimony,
I find that she was participating in the concerted activities of the striking
employees, and was entitled to the protection of the Act, and that Respondent
by, discharging her contravened Section 8 (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation. to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that Respondent has engaged in certain unfair labor prac-
tices in violation of Section S (1) and (3) of the Act. Such practices, however,
are not violative of the amended Act, and it is not necessary to recommend that
Respondent cease and desist from engaging in a course of future conduct which
is no longer unlawful.
Having found that Respondent discriminated against Gloria Triestman because
she participated in concerted activities, the undersigned will recommend that
Respondent offer Triestman immediate and full reinstatement to her former
.or a substantially equivalent position, without prejudice to her seniority or
other rights and privileges, and' make whole to her any loss of pay she has
suffered by reason of Respondent's discrimination against her, for the period
from May 6, 1947, to the date of her reinstatement.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Traffic Employees Association is a labor organization within the mean-
ing of Section 2 (5) of the Act and amended Act.
2. By discriminating in regard to the hire and tenure of employment of Gloria
Triestman, thereby discouraging the formation of, and membership in, a, labor
organization, the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By such discriminatory discharge the Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act and thereby engaged in unfair labor practices within the meaning of
Section 8 (1) of the Act.
4. By the discharge of Triestman Respondent did not violate Section 8 (a) (1)
and (3) of the amended Act as charged in the complaint'
It was conceded that Triestman was a supervisor.. Under the circumstances of the
present case, I do not find that her discharge affected any employee, as that term is defined
in the amended Act. As a supervisor, she had no rights under Section 7 of that Act.
Hence my finding that there Was no violation of Section 8 (a) (1) and (3) of the amended
Act.
NEW YORK TELEPHONE COMPANY 391
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the Respondent, New York Telephone Company, New
York, New York, its officers, agents, successors, and assigns, shall:
1. Take the following affirmative action which the undersigned finds will.
effectuate the policies of the Act and the amended Act:
(a) Offer Gloria Triestman immediate and full reinstatement to her former or
.a substantially equivalent position, without prejudice to her seniority or other
rights and privileges ;
(b) Make Gloria Triestman whole for any loss of pay she has suffered because
of Respondent's discrimination against her, by payment to her of a sum of money
equal to the amount she would normally have earned as wages during the period
from May 6, 1947, to the date of the Respondent's offer of reinstatement, less her
net earnings during said period;
(c) Notify the Regional Director for the Second Region in writing, within
twenty (20) days from.the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from the
,date of the receipt of this Intermediate Report the Respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respond-
ent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National Labor
Relations Board, any party may, within twenty (20) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.45 of said
Rules and Regulations, file with the Board, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record of proceedings (including
rulings upon all motions or objections) as he relies upon, together with the orig-
inal and six copies of a brief in support thereof ; and any party may, within the
same period, file an original and six copies of a brief in support of the Intermedi-
ate Report. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the other
parties. Statements of exceptions and briefs shall, designate by precise citation
the portions of the record relied upon and shall be legibly printed or mimeo-
graphed, and if mimeographed shall be double spaced. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46 should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 17th day of January 1950.
ALLEN MACCULLEN,
Trial Eranniner.