Ohio Associated Telephone Co.

National Labor Relations Board - Board Decisions

Oct 16, 1950

91 N.L.R.B. 932 (N.L.R.B. 1950)

In the Matter of OHIO ASSOCIATED TELEPHONE COMPANY and OHIO
FEDERATION OF TELEPHONE WORKERS, INC., LOCAL 503
Case No. 8-CA^257.Decided October 16, 1950
DECISION AND ORDER
On June 29, 1950,1 Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. More specifically, he found that the Respondent
had not discriminatorily discharged Elnora Beveridge, Gene L. Eding-
ton, John F. Hachten, Charles C. Kibler, Virginia M. Spires, Virgil
Hollis, and Gladys Erow within the meaning of Section 8 (a) (3),
and that the Respondent had not engaged in any conduct violative
of Section 8 (a) (1) of the Act. Thereafter, accompanied by a sup-
porting brief, the Union filed exceptions to the Intermediate Report
insofar as it recommended dismissal of the complaint as to Hachten,.
Kibler, Spires, and Erow and as to the alleged independent violations
of Section 8 (a) (1) of the Act. The Respondent filed a brief in
support of the Intermediate Report.
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 Houston, Reynolds, and
Styles].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the briefs and exceptions, and the entire record in
the case, and hereby adopts the findings and conclusions of the Trial
Examiner only in so far as they are consistent herewith,2 and with
the following additions and modifications :
I The Intermediate Report inadvertently refers to this date as 1949. The error is hereby
corrected as set forth above.
2 We adopt the Trial Examiner's findings , conclusions , and recommendations as to
Elnora Beveridge , Gene L. Edington , and Virgil Hollis, as no exceptions have been filed
as to them . Accordingly , we shall dismiss the compaint as to them.
91 NLRB No. 162.
932
OHIO ASSOCIATED TELEPHONE COMPANY 933
1. The Trial Examiner found that the Respondent discharged
Gladys Erow in substance because she failed to pass her probationary
period as an operator trainee, and recommended that the complaint
be dismissed as to her. On the basis of the facts detailed in the Inter-
mediate Report, we find that the record does not establish that the
Respondent discharged Erow because of her union membership or
activity. We shall therefore dismiss the complaint as to her.
2. When bargaining negotiations to renew a contract between the
Union and Respondent for the Marion, Ohio, operating district proved
unsuccessful, a strike was called on April 7, 1949, and a picket line was
established at the Respondent's premises. Approximately all the
employees in the appropriate unit participated in the strike. The
picket line was maintained at least until June 15, 1949, when a restrain-
ing order was issued by the Court of Common Pleas of Marion County,
Ohio. On July 12,,1949, the Union terminated the strike and notified
the Respondent to that effect. Upon receipt of this notice, the Re-
spondent immediately notified the bulk of the striking employees by
letter of the Union's action and advised them that their jobs were
still open and requested that they return to work. However, the Re-
spondent did not so notify strikers John F. Hachten, Charles C. Kib-
ler, and Virginia M. Spires, among others, although their jobs were
still available.
The complaint in substance alleges that the Respondent discharged
Hachten, Kibler, and Spires on or about July 12, 1949, because of their
participation in the strike and concerted activities. At the hearing
before the Trial Examiner, Clare E. Williams, the Respondent's presi-
dent, admitted in his testimony in substance that the Respondent
refused to reinstate Hachten, Kibler, and Spires and discharged them
at the end of the strike because their conduct during the course of the
strike was "so reprehensible" and "outside any conceivable justification
of normal picketing. ..."
At the hearing management representatives testified that during
the course of the strike they received written and oral statements from
nonstriking employees as to misconduct of Hachten, Kibler, and
Spires as strikers and pickets,. and that the Respondent determined to
terminate their employment as a result of these reports.3 On the
basis of. this testimony the Trial Examiner found that Kibler, Spires,
and Hachten had in fact engaged in the conduct attributed to them
in these reports. He concluded that such misconduct was not pro-
tected by the Act and hence that the Respondent was justified in dis-
charging them for having engaged in such misconduct.
' The written reports are part of the record in this case.
1934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree that the Respondent would not have violated the Act in
discharging these three strikers had they in fact engaged in the mis-
conduct attributed to them 4 However, the record does not establish
- that .any of the three.strikers engaged in misconduct. The only pos-
sible basis for affirmative findings of misconduct is contained in testi-
•.mony of management representatives to the effect that they received
reports of misconduct from employees who claimed that they observed
'the misconduct, and in the reports themselves .5 In no instance did
any of the reporting. employees testify as to any misconduct on the
part of Spires, Hachten, or Kibler 6 The testimony of management
representatives that they received reports of misconduct is nothing
more than hearsay while the reports themselves are unsworn state-
-nients, made outside the hearing, by persons not subject to cross exami-
nation. Although the three strikers involved here did not testify in
this case, the absence of a denial of the alleged misconduct does not
-raise hearsay testimony, uncorroborated by evidence of any kind, cir-
.cumstantial or otherwise, to the stature of evidence having probative
weight.
The Board has recently affirmed its earlier holding that the dis-
charge of employees for engaging in.concerted activity such as a
strike, is in itself violative of the lict unless it is afrmatively proved,.
not that the employer in good faith believed that the strikers engaged
in misconduct, but that they had in fact done so.7 'On the basis of the
record before us, we cannot find as a fact that these three strikers mis-
conducted themselves. We are no more empowered to make findings
of misconduct here than we would be at liberty to rest findings of un-
fair labor practices on wholly uncorroborated hearsay testimony.
With reference to the latter situation, the Supreme Court has stated :
" . . -Mere uncorroborated hearsay or rumor does not constitute sub-
4 The misconduct related in the oral and written reports is detailed in the Intermediate
Report.
5 In one instance , the employee making the - report stated therein that he learned, of
alleged misconduct of Kibler from a neighbor who claimed to have observed the miscon-
duct . Neither the reporting employee nor the neighbor testified as to such misconduct.
Thus the report in this instance constitutes double hearsay.
a The Trial Examiner found that the Respondent arrived at its decision not to rehire
the employees involved here on the basis of "statements secured from nonstriking em-
ployees" and on the basis of "personal observation of Vice-President Williams' and other-
supervisory employees of the Respondent ." However , neither Williams nor anyone else
testified that they observed any misconduct on ,the part of Kibler , Hachten , or Spires,
although they did testify to observing misconduct on the part of those strikers with respect
to whom the Union did not except to the Trial Examiner's dismissal of the complaint..
The Trial Examiner also found that Hachten made .threats of bodily injury on many occa-
sions in the presence of Feris H . Platt, district plant superintendent . While Platt was a
witness in the case , he did not testify as to any misconduct by Hachten.
T Porto Rico Container Corporation, 89 NLRB 1570 ; Standard Oil of California, 91
NLRB 783';.Mid-Continent Petroleum Corp ., 54 NLRB 912, 933-934.
The Respondent does not contend that it discharged .the strikers because , of a good -faith,
although mistaken , belief that they had engaged in misconduct.
OHIO ASSOCIATED ' TELEPHONE. COMPANY 935
stantial evidence." 8 Mucli less does it constitute a preponderance.:
Recently, in holding ex parte statements 'of individual employees as'
to why they left their employment inadmissible to support an em-
ployer's defense to a charge that the employer refused to bargain with
a union in violation of the Act, the Court of Appeals for the Seventh
Circuit stated :
. .. The Act, Section 10 (b), provides that the proceedings be-
fore the Board, so far as practicable , should be conducted "in
accord with the rules of evidence applicable to the district courts
of the United States." The rule excluding hearsay is a basic
rather than a technical rule. The reason for the rule is that the
unsworn statement of a person not called as a witness or sub-'
jected to the test of cross -examination is not recognized as having
sufficient probative effect to, raise an inference that.ahe fact is as
stated. 31 C. J. S. 924.
As the record contains no more than uncorroborated hearsay or
rumors as to the alleged misconduct of the three strikers involved here,,
the Respondent has not met its burden of affirmatively establishing
that they had engaged in misconduct . In view thereof , the record be-
fore us discloses only that the Respondent refused to reinstate and
discharged Kibler, Hachten, and Spires on July 12, 1949, because
they engaged in concerted strike activity . Accordingly, we find that
by such conduct the Respondent discriminated with regard to their
hire or tenure of employment to discourage membership in the Union,
in violation of Section 8 (a) (3) 'of the Act, thereby interfering with,
restraining , or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act, in violation of Section 8 (a) (1)
thereof.l°
3. During the strike, on July 6, 1949 , the Respondent sent a letter
to all its striking employees , except those employees named in the
complaint as having been discriminatorily discharged on July 12, 1949,
in which it advised the strikers that their jobs were still open, solicited,
them to apply for work assignments , and warned them that new em-
ployees would be hired in their stead unless they returned to. work.
The letter also advised the strikers in substance that the Union was
8 Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197, at 230.. See, also, Willapoint
Oysters, Inc . v. Ewing, 174 F. 2d 676 (C. A. 9), cert. denied (Administrative Procedure
Act does not forbid litigation of probative hearsay, but findings "cannot be based upon
hearsay alone, nor upon hearsay corroborated by a mere scintilla").
° Superior Engraving Co. v. N. L. R. B„ 183 F. 2d 783 (C. A. 7).
10 We also find that the Respondent' s' discharge of these three strikers independently
interfered with, restrained , and coerced the discharged strikers in the exercise of their
right to engage in concerted activity and therefore independently constituted a violation
of Section _ 8 '.(a)' (1) of the . Act., Whether Respondent 's conduct be viewed as a violation
of Section 8 (a) (1) or 8 ( a) (3), we find that effectuation of the policies of, the ,Act
requires the remedy hereinafter provided.
936 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
misguiding. them and stated- that the Respondent would not meet again
with the Union"ulitil it notifies, .us that its position has changed suf-
ficiently to make further negotiations worth while." At. the time of
this solicitation, the Union had the support of all the strikers and
thus was still the majority collective bargaining representative of the
Respondent's employees. Where, as here, the employees, have duly
designated their collective bargaining representative, the employer
is obligated to deal with that representative, and cannot treat with
the employees individually. Accordingly, by its appeals to the indi-
vidual strikers to take action in derogation of their designated repre-
sentative, unlike the Trial Examiner, we find that the Respondent's
conduct had the necessary effect of undermining the Union's authority
and thereby, in violation of Section 8 (a) (1) of the Act, interfering,
with, restraining, and coercing its employees in the exercise of the
rights guaranteed to them in the Act."'
4. When the strikers returned to work upon termination of the
strike, the Respondent's supervisors, including J. H. Lehan, district
traffic superintendent, told the returning strikers that "there would
be no mention of union affairs on company premises" 12 and instructed
them not to discuss union affairs on company property. The Trial
Examiner recognized that the Board and the courts have held that
rules established by employers which prohibit discussion of union
affairs on an employer's premises on the employees' own time are too
broad and thereby interfere with basic rights guaranteed to employees
by Section 7 of the Act 13 However, he concluded that the statements
in question here did not violate the Act because : (1) They were isolated,
standing in a background of no other unfair labor practices; (2) the
Respondent made no effort to enforce the rule; and (3) the Respond-
ent endeavored to repudiate Lehan's remarks. We have found that
the Respondent discriminatorily discharged three strikers and unlaw-
fully solicited strikers to abandon the strike. So far as appears, the
Respondent did not communicate any disavowal of the instructions
either to the Union or the employees. Nor does it appear that any
occasion arose which called upon the Respondent to enforce its in-
structions. Moreover, the prohibition against discussing union affairs
on the Respondent's premises on the employees' time is per se violative
11 See, for example, Cathey Lumber Company , 86 NLRB 157; Sam'l Bing ham's Son Mfg.
Co., 80 NLRB 1612. Cf. The W. T. Rawleigh Company, 90 NLRB No. 271.
12 In the Intermediate Report the Trial Examiner stated that Lehan admitted making
this statement to employee Wanda Mossbarger , a union steward . At the hearing, Lehan
denied that he made the statement . However, like the Trial Examiner, we find that Lehan
made such a statement to Mossbarger in 'view of ' a letter , dated Sulu 18. 1949, written by
Lehan , in which be referred to ... "my remarks " as to "cessation of union activity on
the Company 's premises."
13 Le Tourneau Company of Georgia and Republic Aviation Corp . v. N. L. R. B., 324
U. S. 793.
OHIO ASSOCIATED TELEPHONE COMPANY, 937
of the Act, as it had the necessary effect of restraining employees in
the exercise of rights guaranteed by the Act. Accordingly, we find
that by such conduct the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act, in'violation of Section 8 (a) (1) thereof.
The Remedy
Having found that the Respondent unlawfully discharged John F.
Hachten, Charles C. Kibler, and Virginia M. Spires on July 12, 1949,
we find it necessary to order their immediate reinstatement to their
former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges, and to award them back pay.
- Consistent with our new policy recently promulgated in F. W. Wool-
worth Company, 90 NLRB 289, we shall order that the loss of pay
be computed on the basis of each separate calendar quarter or portion
thereof during the period from the Respondent's discriminatory con-
duct to the date of a proper offer of reinstatement. 14 The quarterly
periods, hereinafter called "quarters," shall begin with the first day
of January, April, July, and October. Loss of pay shall be determined
by deducting from a sum equal to that which each employee would
normally have earned for each quarter or portion thereof, his net
earnings,15 if any, in other employment during that period. Earn-
ings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter.
We shall also order the Respondent to make available to the Board,
upon request, payroll and other records to facilitate the checking of the
amount of back pay due and to determine the right to reinstatement 16
Finally, in view of the Respondent's discriminatory discharges and
its other acts of interference, restraint, and coercion, there is danger
that the commission of unfair labor practices generally is to be antic-
ipated from the Respondent's unlawful conduct in the past. We shall
therefor order the Respondent not only to cease and desist from the
unfair labor practices found, but also to cease and desist from in any
manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
In accordance with our usual practice , we shall exclude the period from the date of
service of the Intermediate Report upon the Respondent to the date of our Order herein
in computing the amount of back pay due, as the Trial Examiner did not recommend rein-
statement of Hachten, Kibler, and Spires, or an award of back pay to them.
16 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondent Company, which would not have been incurred but for
the unlawful discrimination and the consequent necessity of his seeking employment else-
where . See Crossett Lumber Company , 8 NLRB 440 . Monies received for work performed
upon ' Federal , State, county, municipal ; or other work-relief, projects shall 'be1_consideted
as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
'OF. W. Woolworth Company, supra.
938' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Ohio Associated
Telephone Company, Marion, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Ohio Federation of Telephone
Workers, Inc., Local 503, or any other labor organization of its em-
ployees, or discouraging its employees in the exercise of their right
to act concertedly in support of a lawful strike, by discriminatorily
discharging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of employment;
(b) Instructing its employees to refrain from engaging in union
activity on company premises during the employees' own time;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Ohio Federation of Telephone
Workers, Inc., Local 503, or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act..
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to John F. Hachten, Charles C. Kibler, and Virginia M.
Spires immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or
other rights and privileges;
(b). Make whole John F. Hachten, Charles C. Kibler, and Virginia
M. Spires for any loss of pay each may have suffered by reason of
the Respondent's discrimination, in the manner set forth in the section
of the Decision herein captioned, "The Remedy" ;
(c) Post at its offices in Marion, Ohio, copies of the notice attached
hereto, marked Appendix A 17 Copies of said notice, to be furnished
.by the Regional Director for the Eighth Region, shall, after being,
signed by the Respondent's representative, be posted by the Respond-
17 In the event that this Order is enforced by decree of, a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," on this notice, the
words, "A Decree of the United States Court of Appeals Enforcing."
OHIO ASSOCIATED TELEPHONE 'COMPANY 939
ent, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material ;
(d) . Notify the Regional Director for the Eighth Region in writing,
within ten (10)_ days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint with respect to Elnora
Beveridge, Gene L. Edington, Virgil Hollis, and Gladys Erow, be,
and it hereby is, dismissed.
APPENDIX A
NoTIcE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National. Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations- Act, as amended, we hereby notify our employees that:
WE WILL NOT prohibit our employees from engaging in union
activity on company property during their own time.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist OHIO FEDERATION
OF TELEPHONE WORKERS, INC., LOCAL 503, or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
WE WILL offer John F. Hachten, Charles C. Kibler, and Vir-
ginia M. Spires immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to any
seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the
discrimination.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the above-named union or ' any
other labor organization, except to the extent that such right may.
hedafected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)'
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) of the National Labor Relations Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in.or
activity on -behalf of any such labor organization.
OHIO ASSOCIATED TELEPHONE COMPANY,
Employer.
By ---------=---------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
John H. Garver, Esq ., for the General Counsel.,
Power, McConnaughey cE Griffith, by Sidney D. Griffith , Esq., of Columbus, Ohio,
for the Respondent.
. Howard Metzenbaum, Esq., of Cleveland , Ohio, Thomas C. Petter, Esq., of
Marion , Ohio, and Thomas Mitchell, of Cleveland , Ohio, for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by the Ohio Federation of Telephone Workers, Inc.,
Local 503, herein called the Union, the General Counsel of . the National Labor
Relations Board,' by the Regional Director for the Eighth Region (Cleveland,
Ohio), issued his complaint, dated March 30, 1950, against Ohio Associated Tele-
phone Company, herein called the Respondent, alleging that the Respondent had
engaged and was engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, as amended (June 23, 1947, Public Law 101, 80th Congress, Chapter
120, 1st Session, 61 Stat. 136), herein called the Act. Copies of the original
charge, the first amended charge, the complaint, and notice of hearing thereon
were duly served upon the Respondent and, the Union.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) That the employees of the Respondent at its Marion District, including em-
ployees Elnora Beveridge, Gene L. Edington, John F. Hachten, Charles C.
Kibler, Virginia M. Spires, Virgil Hollis, and Gladys Erow, remained away
from work concertedly, instituted a picket line outside Respondent's principal
office and place of business in Marion, Ohio, and engaged in a strike. On or
about July 12, 1949, the Respondent terminated the employment of all the above-
named employees, with the exception of Gladys Erow, whose employment was
terminated by it on or about July 30, 1949, and has at all times since said dates
refused to reinstate, ,and continues to refuse to reinstate to their former or
substantially equivalent positions or employment for the reason that said em-
ployees assisted, supported, or became members of the Union, and participated
in the strike or picketing, refused to work during said strike, and engaged. in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection; and (2) that the Respondent has since on or about April 7,
The General Counsel and the attorneys representing him at the hearing are referred to
herein as, the General Counsel ; the National Labor Relations Board as the Board.
OHIO -ASSOC'IATED TELEPHONE COMPANY 941
1949 , interfered with , restrained , and coerced its employees by (a) threatening
and warning its employees that their continuation of, support of, or participation
in, the strike would result in economic loss to them , ( b) urging and . appealing
to Its employees individually to abandon the strike and return to work, and to
cease supporting the Union and participating in any concerted activities for the
purpose of collective bargaining or other mutual aid or protection , and (c)
threatening and warning its employees against engaging on Respondent 's prop=
erty in activities on behalf of the Union or in any other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
In its answer timely filed the Respondent admitted certain facts with respect
to its business operations , and that it had terminated the employment of the
employees named in the complaint on or about the dates stated therein, but
denied that it had committed any unfair labor practices.
Pursuant to notice , a hearing was held on May 9, 10, and 11, 1950 , at Marion,
Ohio, before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner . The General Counsel , the Respondent , and the Union were repre-
sented by counsel . All parties were afforded opportunity to be heard , to examine
and cross-examine witnesses , and to introduce evidence bearing on the issues.
At the close of the hearing the General Counsel moved to conform the pleadings
to the proof as regards minor matters such as names, dates , and the like. The
motion was granted by the undersigned . Counsel for the Respondent moved that
the complaint be dismissed for lack of proof. Ruling thereon was reserved by
the undersigned . The motion is hereby granted in its entirety by the undersigned
for reasons which will be set forth hereinafter . Opportunity was afforded all
parties to argue orally before the undersigned , and to file proposed findings of
fact, conclusions of law, and briefs in support thereof . The parties waived
oral argument . Briefs were received from the General Counsel and the Re-
spondent on or about June 22, 1950 . They have been carefully considered by
the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ohio Associated Telephone Company is an Ohio corporation with its principal
office and place of business in Marion, Ohio. It is engaged in maintaining and
operating telephone communication facilities. In the course and conduct of its
business it operates 138 telephone exchanges in the State of Ohio including the
area in and about Marion, Ohio, known as and hereinafter referred to as the
Marion District. Its lines connect with those of the Home Telephone and
Telegraph Company, Fort Wayne, Indiana, also the Michigan Associated Tele-
phone Company, and The Ohio Bell Telephone Company. In addition to local
calls which pass over wires of the Marion District, a substantial number of
long distance interstate calls originate over such lines to be transmitted over
lines of the connecting companies and calls originating outside of the State of
Ohio are received and transmitted over such lines. The lines of Respondent
are the sole means of making or receiving long distance telephone calls in the
Marion District. Respondent annually purchases and receives at its Marion
District substantial amounts of equipment, materials, and supplies from outside
the State' of Ohio.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
' The complaint alleges, the answer admits, and the undersigned finds-that
the Respondent is engaged in commerce within the meaning"of,'Section 2 (6)
of the Act.
II. THE LABOR, ORGANIZATIONS INVOLVED
,.Ohio Federation of Telephone Workers, Inc., Local 503, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
At the time the events herein occurred the Respondent's operations in Marion
were housed in 2 buildings, the "Main Exchange" building located on South Main
Street in the business section of the city, and the "Plant" building located about
3 blocks from the Main Exchange building on North Prospect Avenue. At the
Main Exchange' building the Respondent maintained its general offices and
traffic department. Approximately 100 people were employed there. including
among :others the toll operators. , In the rear of the Main Exchange building,
the Respondent maintained a parking lot. At the Plant building the Respondent
employed about 50 people, including among others the maintenance employees
such as linemen and repairmen. In addition the Respondent's warehouse was
located there.
Sometime in the latter part of December 1947, the Union as a result of a consent
election was certified by the Board as the sole collective bargaining representa-
t`ive for the Respondent's nonsupervisory employees in the Marion operating
district. On January 3, 1948, the Union and the Respondent entered into a
collective bargaining agreement. Under the terms of the agreement it was to
continue in full force and effect until December 31, 1948, and .continue from
year to year unless either party advised the other in writing at least 60 days prior
to the termination date that it desired to terminate the agreement either in
whole or in part. On October 27, 1948, the Union wrote the Respondent that
it desired to terminate the agreement and negotiate for a new one. Negotiations
for a new agreement began on December 3, 1948, and continued at regular inter-
vals thereafter -until January 17, 1949, when they were abruptly broken off by
the Union. The record indicates 2 that the principal issue that led to the breaking
off of negotiations was the Union's demand for a union shop, which the Re-
spondent refused to accept.
.
On April 7, 1949, the Union struck the Respondent's operations in the Marion,
Ohio, operating district.' Approximately all of the employees in the appropriate
unit participated in the strike at least for the first few weeks. A picket line
was established in front of the Main Exchange building. In addition, picket
lines were established at various times at the front and rear of the Plant
building. Picketing continued until June 15, 1949, when it stopped as a result
of a restraining order issued by the Marion County, Ohio, Court of Common
Pleas. 'Though the restraining order permitted limited 'picketing, the Union
did not choose to take advantage of this provision in the court's order, but chose
to' withdraw all of its pickets. The restraining order was the result of numerous
acts of violence committed by the striking employees both on and off the picket
line, which will be more fully described hereinafter.
2 See letter of C. ;E. Williams, then the, Respondent's vice president, to Mr. Chester A.
Dye which is set forth in toto hereinafter.
3 The parties concede that the strike was economic in origin and continued as such'until
it was terminated by the Union on July 12, 1949.
OHIO ASSOCIATED TELEPHONE COMPANY 943
On July 6 1949, the Respondent sent the following letter to all of its striking
employees, except those employees named in the complaint as having been dis-
criminatorily discharged by the Respondent on July 12, 1949, for 'engaging in
union or other concerted activities 4
01110 ASSOCIATED TELEPHONE COMPANY
MARION, Oiiio, July 6, 1949.
Mr. CHESTER A. DYE,
561 Blaine Avenue, Marion, Ohio.
DEAR MR. DYE: On. April 7th, the Company published an announcement
that it would continue, to furnish, telephone service to the general public
during the period of any emergency. That position remains. unchanged.
Much wdrk isathead for•us to meet our obligation to serve the public in our
community and we must meet that obligation.
Since the strike started, we have met repeatedly with the Union repre-
sentatives and the U. S. Conciliation and Mediation Service in an effort
to resolve our contract differences. The last meeting was held on June
29, 1949 and ended with a complete stalemate.
The Conciliators were told by the Union that any contract was "out the
window" unless the Union secured its demand as to Union Shop. We would
not sell out our employees and refused to grant more than the present
Maintenance of Membership clause.
As a result, it appears unlikely that any agreement can be reached in
the near future.
Where do we go from here? Our obligation to serve the public must be
met. Your job is still open. Your direct supervisor will discuss immediate
work assignment with you if you will communicate with him at once. You
may call him at your convenience or make arrangements by telephone for
a personal interview.
If • sufficient of our former employes do not return-promptly to work, we
will start hiring new employes so that our expansion program can proceed
without delay and the demands of the public can be met.
We regret that all. our negotiating efforts have gone in vain. We believe
that the Union was short sighted in pulling you out on strike and keeping
you out on strike over this issue of Union Shop. Therefore, we will not
meet with it again until it notifies us that its position has changed sufficiently
to make further negotiations worth while.
Yours very truly,
C. E. WILLIAMS,
Vice President.
CEW : MAB
As indicated in the above letter the Respondent continued to meet with
representatives of the Union.
On July 12, 1949, the Union terminated the strike, and notified the Respondent
-to that effect. Upon receipt of notice of the Union's action in this regard the
Respondent immediately notified the striking employees to this effect by letter
and advised them that their jobs were still open and requested that they return
to work. As in the case of the letter of July 6, 1949, supra, the Respondent did
° Gladys Erow was sent the above letter by the Respondent and was recalled to work
on July 21, 1949, as will be shown in detail hereinafter . She was allegedly discriminatorily
discharged on July 30, 1949.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not send this letter to the following striking employees : Elnora Beveridge, Gene
L. Edington, John F. Hachten, Charles C. Kibler, Virginia M. Spires, and Virgil
Hollis. The reason Respondent gave for not notifying the above. employees to.
return to work was that they had engaged .in such violent and reprehensible
conduct during the course of the strike that rendered their reinstatement as
employees impossible under the circumstances. The alleged conduct of the fore-
going striking employees will be,discussed in detail hereinafter. Suffice it to
say however in this section of the Intermediate Report that during the course
of the strike the Respondent as a public utility was required by the laws of Ohio
to maintain telephone service if it was to retain its franchises and license to do
business from the Public Utilities Commission of Ohio. In order to render such
service to the public the Respondent was forced to draft the services of its
supervisory employees not only in the Marion District but also from other
points in Ohio and neighboring States. Again the strike was called while the
Respondent was in the midst of a $1,500,000 expansion program. This likewise
imposed an additional burden on the Respondent during the strike for the reason
that as a part of the program the Respondent was replacing its switchboards
and other facilities in its traffic department.
Upon receipt of the Respondent's letter in regard to the termination of the
strike the striking employees reported en masse at the Main Exchange building
for work. They were advised by the Respondent that due to the fact that there
had been numerous changes made in its operations, such as a change in toll
rates and the installation of new switchboard equipment, that it would he im-
possible to put all of the employees to work at once. They were informed how-
ever that they would be integrated into their old jobs as rapidly as iwssibie.
In order to accomplish this the Respondent advised the employees that they
would be returned to their jobs in groups of three in the following manner.
The employees would be notified by letter as to the time they were to appear for
a briefing from their supervisors as regards the changes that had been made
in the Respondent's operations so that they could enter upon their duties in an
intelligent and efficient manner. It required about 10 days to interview the
striking employees and place them back on the job.
Representatives of the Respondent and the Union continued to negotiate for a
new agreement after the termination of the, strike. That their efforts in this
regard came to naught is evidenced by the following letter which was sent to
.each employee by the Respondent:
01110 ASSOCIATED TELEPHONE COMPANY
MARION, OHIO, August 24, 1949.
MRS. ALCA DANA DYE,
561 Blaine Avenue, Marion, Ohio.
DEAR MRS. DYE: Many months, many meetings and extensive efforts have
been expended 'by -your Company-in attempting ,to negotiate a new Union
contract with the Ohio Federation of Telephone Workers. As is well known,
the period included a strike lasting 96 days for enforcement of Union
demands.
Following termination of the unsuccessful strike on July 12, further nego-
tiation meetings were held on August 2, 4, and 5. During these meetings
tentative agreement was reached on the terms of the new contract covering
hours, working conditions and revised grievance machinery. The Union,
however, rejected the Company's wage proposal for increases in the previ-
ous wage schedules. The Union insisted that the Company's offer was in-
OHIO ASSOCIATED TELEPHONE COMPANY , 945
adequate and broke off negotiations with the implication that further action
would be taken to enforce Union demands.
For your protection , all wage schedules are being continued in effect with-
out change except that time not worked or as a result of the strike
will not be credited for wage and vacation purposes. The Union has been
notified to this effect on several occasions. Until the new contract is finally
negotiated, wage payments will be based on the previous wage schedules.
No general wage increase can occur until a contract is negotiated.
Your Company will continue to attempt to manage its business according
to the best interests of the public, the employes, the investors and the general
welfare of the Company.. Your Company is ready and willing to continue
negotiations with the Union.
Yours very truly,
CIIW : IBS
(S) C. E. Williams,
C. E. WILLIAMS,
Vice President.
B. The alleged discriminatory discharge of Elnora Beveridge, Gene L. Edington,
John F. Hachten, Charles C. Kibler, Virginia M. Spires, and Virgil Hollis 6
As indicated above the Respondent refused to reinstate the above employees
to their former or substantially equivalent positions after the termination of the
strike. The Respondent advanced as a reason for its action in this regard that
these employees engaged in such reprehensible conduct during the strike that
it was impossible to retain them in its employ. The record is clear that the em-
ployees named above as well as others engaged. in conduct both on and off the
picket line did engage in conduct that either went beyond the protection of the
Act or the cloak of immunity usually granted strikers for outbursts of "animal
exuberance" under the stress and strain of a strike.
Some of this conduct was of such a foul, obscene, and violent nature that the
Respondent's officials of necessity were forced to take cognizance of it for their
own protection, as well as that of their employees, and the public in general.
Faced with such a situation Vice-President and General Manager Williams,`
suggested to the employees that they report in writing to the Respondent all acts
of violence and the like which were either directed at them personally or occurred
in their presence. From the statements thus secured from nonstriking employ-
ees and from the personal observation of Vice-President Williams and other
supervisory employees of the Respondent it arrived at its decision not to rehire
.the above-named employees. The ease of each of the above-named employees,
as well as that of 14 others who were reinstated by the Respondent, was care-
fully reviewed and considered not only by Williams but by all the following
supervisors : Harry Fair, general plant superintendent ; Joseph Lehan, general
traffic superintendent ; Edward Kimball, general commercial superintendent ;
6 The findings of fact in this section of the Report are based upon the credible and un-
denied testimony of the following witnesses called by both the General Counsel and the
Respondent, all of whom were either officials of the Respondent or employed by it in a
supervisory capacity vice-President Williams ; General Plant Manager Harry Fair; Gen-
eral Traffic Superintendent Joseph Lehan ; General Commercial Superintendent Edward
Kimball District Plant Superintendent Feris Pratt ; Chief Operator, Marion District, Mary
Severns ; District Traffic Supervisor Esther Stafford ; and Personnel Director Frank A.
Lennberg. The General Counsel did not choose to call any of the alleged discriminatory
dischargees named above ,. nor did he make any showing at the hearing herein that they
were unavailable as witnesses.
6 At the time of the hearing herein Williams was president of the corporation.
946 DECISIONS OF, NATIONAL LABOR -RELATIONS -BOARD
Mary Severns, chief operator, Marion District; Esther Stafford, district traf-
fic supervisor ; and Frank Lennberg, personnel director. The factors taken into
consideration by the Respondent in its decision not to rehire the above-named
,employees will be set forth hereinafter as to each individual employee.
Charles Kibler was not recalled to work by the Respondent because of his
general course of conduct during the strike. Specific examples of his conduct
both on and off the picket line were as follows :
On Saturday, April 9, 1949, Kibler spat upon Irenaeu Norris, an employee of
the Respondent, as she was walking to her car from the Respondent's offices in
the Main Exchange building. On June 6, 1949, Kibler in concert with other pick-
ets threw eggs through an open window into the ,switchboard room. This inci-
dent was witnessed by employee John A. Guthrie who was on duty at the time.
Kibler on May 5, 1949,.scratched and marked the automobile of employee C.
Bryce Downs, a nonstriking plant employee.
Virginia Spires, like Kibler, was active on the picket line. While so engaged
she indulged in the usual name calling and hurled epithets at the nonstriking
employees as they went to and from work through the picket line which was
massed in front of the Main Exchange building. The undersigned is not
concerned with this sort of conduct, and is of the opinion that it is not of such
a reprehensible nature to'warrant the discharge of a striking employee while
on the picket line. It is the sort of conduct that is to be expected under the
exigencies of the moment and in the final analysis is nothing more than an
annoyance. Be that as it may, however, the undersigned is concerned with
Spires' conduct on May 24, 1949. On that date she threw a foul mess of
garbage consisting of spoiled chilli, horseradish, catsup, and other litter on
Clara Kannel and other nonstriking and supervisory employees as they were
leaving the Main Exchange building. Kannel's coat was ruined. Other girls
who were littered with the garbage became ill and nauseated from the stench.
This. is the sort of conduct that .the undersigned cannot condone for reasons
that. will, be set forth hereinafter.
The determining factors considered by the Respondent in reaching its decision
'to discharge John Hachten were as follows. On April 22, 1949, lachten accom-
panied by three other strikers went over to the Richwood terminal where two
linemen were at work ; one of them, Donald J. Moran, was on the ground and
the other, Ed Furstenberger, was up on a telephone pole working on a line.
Hachten and the others circled around Moran and threw stones at Furstem
berger. In addition Hachten spit on Moran. At about this time Bond, the
division supervisor of operations, came up and Hachten and those with him
left the scene. On May 26, 1949, Hachten accompanied by a strike sympathizer
followed E. C. Kimball, general commercial superintendent, and R.. E. Bond,
an official of the Respondent, to the parking lot in the rear of the Main Ex-
change building. When Hachten and the sympathizer reached the parking lot
they were joined by others and, all 'proceeded to heckle Kimball and Bond.
Kimball-and.-Bond got in their respective:cars and started to drive out of the
parking lot. Kimball was forced to back his car into the alley. As he did so
one of the sympathizers or strikers opened the car door and attempted to jerk
Kimball out of the car, but was unable to do so. Kimball succeeded in par-
tially shutting the door. As he again started to drive away one of the strikers or
sympathizers threw a piece of paving brick at the car and hit the left door
window and splintered the glass. Kimball was not injured because the glass
was shatterproof. While it is true that Kimball did not identify the person
who threw the brick, nevertheless the record is clear that Hachten was one of
OHIO ASSOCIATED TELEPHONE COMPANY 947
the instigators of the incident and as such is equally guilty with the person
who did so.
In addition to the above incidents Hachten was prone to threaten nonstrikers
and supervisors with threats of bodily, harm couched in foul and abusive
language. On numerous occasions he engaged in this conduct in the presence
of Feris H. Pratt, district plant superintendent. Moreover his conduct in this
regard was not confined to the picket line alone, but on the streets of Marion
as well.
At the time the officials of the Respondent were considering the case of
Elnora Beveridge they had before them numerous statements from nonstriking
and supervisory employees relative to her conduct both off and on the picket
line. On April 7 and 27, 1949, Vice-President Williams personally saw Beveridge
deflating the tires on the Respondent's car. The incident .on April 27 occurred
in the parking lot at the rear of the Hotel Harding in Marion, Ohio. It had
been parked there by officials of the Respondent while they were engaged in
bargaining negotiations with representatives of the Union.
On April 20, 1949, Beveridge and another striker, Patricia B. Randolph, in an
attempt to thwart Shirley L. Baker's entrance into .the Main Exchange building
interfered with her in the following manner. Randolph-hit her on the right
side below the ribs, and Beveridge shoved her with such violence that she lost
her balance and crashed into the wooden scaffolding that was near the doorway.
The scaffolding had been erected by the contractor who was building an extra
story on the building.
On another occasion, Friday, June 10, 1949, Beveridge along with other
pickets formed a double line and forced Margaret Watt to "run the gauntlet"
in order to enter the Main Exchange building. As she passed through the
double line she was shoved from side to side by the pickets. Among those who
participated with Beveridge in the above-described conduct were Gladys Erow
and Virgil Hollis.
The record clearly shows that Beveridge on numerous occasions accompanied
by other strikers followed nonstrikers and supervisory employees about the
streets in Marion, and interfered with their passage thereon by bumping into
them and at the same time indulged in name calling and the like. She along
with other strikers also had a propensity of following nonstrikers and super-
visors into cafes and restaurants and interfered with their eating by throwing
water-soaked bread, napkins, and other litter on their food and person. Though
this type of conduct standing alone is not of such a serious nature to justify
the discharge of a striker, nevertheless when it is considered in the light of
Beveridge's over-all conduct during the strike it becomes a factor which the
Respondent's officials could not ignore in considering her continued status as
an employee.
In considering the case of Virgil Hollis for reinstatement or discharge the
Respondent had before it numerous statements and complaints from its non-
striking employees and supervisors in regard to his misconduct both on and.
off the picket line during the course of the strike. Hollis was most active on
the picket line, and participated in numerous incidents which will be described
in detail hereinafter.
On Saturday, April 9, 1949, Hollis spit on the back of Florence T-Layman's
coat as she was going to enter the Main Exchange building to report for work.
It was necessary for Hayman to send the coat to the cleaners to remove the stain.
Again on April 10, 1949, Hollis threatened Albert.Best, a nonstriking employee
in the plant department, with an iron bar or pipe and a knife while he was
917572-51-vol. 91-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
walking on North Main Street in Marion. At the same time Hollis used abusive
and threatening language.
On various dates between April 12 and 20, 1949, Hollis, accompanied by other
strikers , interfered with Floyd Jacobs, a plant employee , while he was at
work and tried to force him to quit and go home. On each occasion Hollis
threatened Jacobs with bodily harm and used abusive language towards him.
As Paul L. Wiley, a nonstriking employee , was walking alone in the alley
by the Main Exchange building , he was accosted by Hollis , who grabbed his:
right arm with both hands and dared-Wiley to hit him. Wiley finally broke
loose and continued on his way to Main Street . Hollis followed him and'
cursed him until they got to the picket line, at which time Hollis joined the
other pickets and permitted Wiley to go on his way unmolested.
On the night of June 2, 1949 , at about 9 p. m:, E. C. Kimball, general com -
mercial superintendent of the Respondent , and R. E. Bond, one of the Respond-
ent's officials , went to the parking lot in the rear of the Main Exchange build-
ing to get their respective cars. They were followed by Hollis and another.
striker, Clyde Lytle. Both Hollis and Lytle closely followed Kimball and Bond
down the alley and called them obscene names. As they approached the parking
lot which was well lighted Ifollis and Lytle- withdrew into the shadows and hurled
bricks at Kimball and Bond. Bond started after them and Hollis and Lytle
fled down the alley.
After one of the bargaining conferences Hollis, who at the time was on the
picket line , in the presence of other striking employees addressed foul and abusive
language at several of the female employees as they were leaving the Main
Exchange building . Among other epithets hurled at them he called them "pros-
titutes." This incident occurred in the presence of Sidney D. Griffith , Esq., of
counsel for the Respondent.
Hollis' conduct , particularly his use of foul, obscene , and abusive language
addressed to the female employees of the Respondent in the presence of other
strikers and the general public who passed to and fro along the street in front
of the Main Exchange building , became so bad that 10 of these employees pro-
tested- to the Respondent and addressed a signed letter to the Respondent in
which they set forth 3 specific instances of his conduct in this regard. They
are as follows :
(1) Upon one occasion at the noon hour, in the presence of other pickets
and passers-by, he threw fifty cents on the sidewalk and remarked loudly:
"Fifty cents, that's all its worth ; that's what niggers get!"
(2) During one evening he remarked , "Well , here comes the God -damned
dirty whores!"
(3) On another occasion he remarked : "Look at 'em, just like whores
coming out of a whore house !"
On April 14 , 1949, the Pure Oil Company delivered a tank of fuel oil to the
Respondent ' s Main Exchange building . When the truck driver attempted to
back the truck up to the filler pipe so that ' he could connect the hose and unload
the oil, Hollis and Gene Edington ° got behind the truck and refused to move.
Of the two, Hollis was the most determined . He refused to move and the truck
driver was thus thwarted in his attempt to deliver the oil. The Respondent
called the police who upon arrival forced Hollis to move.
Among the striking employees whom the Respondent refused to reinstate or
discharge was Gene L. Ellington . When the Respondent was considering his
' See infra.
OHIO ASSOCIATED TELEPHONE COMPANY 949
case it had.before it numerous statements of nonstriking and supervisory em-
ployees relative to his conduct during the strike both on and off the picket line.
In addition some of his misconduct was witnessed by high officials of the Re-
spondent. The incidents of Edington's misconduct which were compelling factors
in the Respondent's refusal to reinstate him or discharge are set forth herein
below.
On the night of April 14, 1949, Donald Brotherson attempted to leave the
Respondent's parking lot in one of its cars for the purpose of taking home several
nonstriking employees during a storm. He was unable to leave the lot because
Edington and others blocked the driveway. At the same time other strikers
under the direction of Thomas Mitchell, business agent of the Union, marched
back and forth across the driveway. Brotherson was unable to drive away from
the lot without endangering the pickets. The police were called and. upon
arrival dispersed the pickets.
Lillian Garush and several other nonstriking employees were stopped by
pickets as they attempted to enter the Main Exchange building at noon on
June 13, 1949. The pickets left them a space approximately 1 foot wide to walk
through as they tried to go through the line ; Gladys Erow and Virgil Hollis
shoved them back and forth. As Garush attempted to go through the line the
pickets closed in behind her. As she passed through the line she felt a sharp
pain in her hip. She looked around and Gene Edington was immediately behind
her. After she got through the line, one of the nonstrikers, Mrs. Howard,
pulled a large safety pin which had been straightened out, out of her hip-the
pin having penerated her clothing and stuck in her hip. Mrs.. Howard and a
Miss Bonen. witnessed the incident. Shortly thereafter Garush• went to the
Marion Municipal Court and swore out a warrant for Edington's arrest. Eding-
ton was arrested and brought.:before the judge of the municipal court. Suffi-
cient evidence was adduced by Garush and other witnesses to satisfy the court
that a crime had been committed and Edington was bound over to the grand
jury. His bail was placed at $5,000.8
Concluding Findings
The above incidents were considered by the Respondent following the termina-
tion of the strike, and in its opinion the conduct of the employees involved was
so reprehensible that they could not be considered as satisfactory employees.
Consequently they were refused reinstatement or in other words discharged by
the Respondent, not because they had engaged in a strike or served on the picket
line, but on account of their conduct as individuals during the course of the
above-described strike. The undersigned has carefully reviewed the testimony
adduced at the bearing in this regard and he is convinced and finds that the
Respondent was fully justified in refusing to reinstate the.above-named em-
ployees.
Here we are not dealing with mere persuasion or occasional outbursts of
"animal exuberance" which the Board and courts have long recognized. as
being the outgrowth of a strike due to pent-up emotions caused by the resulting
tension between the parties, but we are confronted with such reprehensible
conduct as found above such as the use of foul and obscene language, assaults
on the persons of nonstrikers, threats of bodily harm, property damage, physical
8 The case was later considered by the grand jury who refused to return an indictment
against Edington.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obstruction to egress and ingress to the Respondent 's property, and sundry acts
of malicious mischief.
The record is clear that throughout the strike, or at least from April 7 to
June 15, 1949, the nonstrikers and supervisory employees were under an
apprehension of a "clear and present danger" of bodily harm every time they went
to and from .work. The conduct of the employees which has been described
above went far beyond peaceful persuasion and constituted concerted activity
which is not protected by the Act s
In view of the foregoing and upon the record as a whole the undersigned
finds that the Respondent did not discriminatorily discharge Elnora Beveridge,
Gene L. Edington, John F. Hachten, Charles C. Kibler, Virginia M. Spires, and
Virgil Hollis because said employees assisted, supported, or became members of
the Union, or participated, in the strike or picketing, or refused to work during
the strike, or 'engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
Consequently he will recommend that this allegation in the complaint be dis-
missed in its entirety.
C. Gladys Erow
. Gladys Erow was employed by the Respondent as a trainee operator on Jan-
uary 24, 1949. At that time she was 18 years of age. At the time she was em-
ployed she was informed by the Respondent that for the first 90 days she was
considered as a probationary employee, and that if her work was satisfactory
then she would receive the status of a permanent employee with all the rights
and privileges attached thereto, such as paid vacations, progressive wage in-
creases, and the like. When she reported for work she .was put under the direct
supervision of Mrs. Mary Severns, chief operator. Severns in turn placed Erow
under the supervision of Josephine Coffee for training purposes. Under the Re-
spondent's training program a prospective employee is, given 90 days' training.
When accepted as a trainee the girls are put under one of the supervisors who
stays with her for several weeks. They are first shown the numerous mechanical
and electrical devices that are required to operate a telephone office. They are
next trained to operate a calculograph and to read tickets. The trainee is next
taught.how to rate tickets, which requires a good knowledge of mathematics.
The third step is information training. This is very important and requires
approximately, 3 weeks to complete. When on information duty an operator
receives numerous requests for telephone numbers and rates to various points
throughout the country. Consequently a trainee. must have a knowledge of
geography and be a good speller. She must know for example whether a certain
town is spelled with an "i" or an "e." Otherwise she might give the customer
the wrong rate or connect him with the wrong town. This is of the utmost im-
portance because in the telephone business time is of the essence. The next step
in her training is called inward training which deals with the taking of incom-
ing calls at the switchboard. This usually requires about 3 weeks' training. The
fifth and final step is long distance training.
Erow went out on strike April 7, 1949, with the other employees. During the
course of the strike she was active on the picket line; she likewise engaged in
several acts of misconduct during this period. They were more of an annoying
nature rather than vicious or violent, such as name calling, following nonstrik-
ing and supervisory employees around the city, and simple assaults such as shov-
B See International Nickel Company , Inc., 77 NLRB 286; Dearborn G lass Company, 78
NLRB 891 ; Socony Vacuum Oil Company, Inc., 78 NLRB 1185 ; Porto Rico Container
Corporation, 89 NLRB 1570.
OHIO ASSOCIATED TELEPHONE COMPANY 9511,
ing and pushing nonstrikers around. As indicated above, Erow was one of the
14 employees whom the Respondent had under consideration at the time the
other strikers were discharged for misconduct. The Respondent considered her
conduct and finally decided to recall her to work. There were several factors
in her favor, particularly her age, she was only 18 at the time and was a girl
that was easily led by the older strikers. Again, she was a trainee and the Re-
spondent had a financial investment involved. She was recalled on July 21,
1949, and was put back in training under 2 supervisors, Mrs. Zeigler, and Mrs.
Wetzel. Since she had lost more than 3 months' work as a result of the strike,
she was put back on information and one or the other of the two supervisors were
plugged in on her line constantly thereafter until her discharge on July 30, 1949.
During this period the supervisors kept a record of her mistakes. She had par-
ticular trouble with spelling, and made several errors in giving numbers to people
who called for information. She also had trouble in locating towns for the rea-
son that if she did not know how to spell the town she would be unable to look it
up in the directory, thus delaying the call. Mrs. Severns discussed her case with
all the supervisors who had worked with Erow during her training. They were
all of the opinion that she would not make a good operator. Her worst drawback
was her spelling. She also had trouble hearing which is of course important to
a telephone operator. Mrs. Severns then discussed Erow's case with J. H. Lehan,
division traffic superintendent. On the morning of July 30, 1949, Mrs. Severns
after carefully considering all factors decided to discharge Erow. She was then
called into Lehan's office. Present were the following: Mrs. Severns, Lehan,
Erow, and Miss Mossbarger, shop steward. Mrs. Severns went over Erow's
work and pointed out her weaknesses and told her in substance that the Re-
spondent after due deliberation had decided that she would not make a competent
operator, and for this reason had reached the decision to discharge her. Erow
quite naturally took her discharge pretty hard, and asked Mrs. Severns if the
Respondent would permit her to work until September because she needed the
work until then, at which time she intended to quit and enter college. This was
of course impossible for the.reason that the expense of training her would be-
come a complete loss to the Respondent.
Concluding Findings
The record is clear that Erow's progress in her training course was not up
to par. Her supervisors were patient with her and made every reasonable
effort to help her. The 97 days that she was away from work did not help
her in her efforts to qualify as an operator. In fact her training was set back
to the information phase, when but for the strike she should have been ready
for her long distance training period. Who shall or shall not be deemed qualified
as an operator, or permitted to serve out the full training period, is clearly a
prerogative of management. In fact such a provision was provided for in the
agreement with the Union.
The undersigned is convinced and finds that the Respondent discharged Gladys
Erow on July 30, 1949, for just cause, and not because of her membership in
and activities on behalf of the Union, or because she served on the picket line
during the strike. There is no reliable, probative, or substantial evidence in
the record to sustain the General Counsel's contention that Erow was discharged
for membership in-and activities on behalf,of the Union. In fact the evidence
is to the contrary. The only evidence adduced by the General Counsel in this
regard is in the nature of innuendo, and the rankest kind of speculation, suspicion,
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conjecture. Findings of fact cannot be predicated on such flimsy evidence
as this, if such can be given the dignity of that appellation.
Upon the entire record in the case, the undersigned finds that by discharging
Gladys Erow on July 30, 1949, the Respondent did not violate the Act. The
undersigned will accordingly recommend that the complaint as to Gladys Erow
be likewise dismissed.
D. Alleged acts of interference with, restraint, and coercion
The complaint alleges inter alia that the Respondent threatened and warned
its employees that their continuation of, support of, or participation in, the
strike described above would result in economic loss to them. The evidence
adduced at the hearing herein by the General Counsel in support of the above
allegation is,- to say the least, of such a vague nature that the undersigned after'
having carefully read the record has found it extremely difficult to find sub-
stantial evidence to support the General Counsel's contention in this regard.
As near as. the undersigned can ascertain from the evidence adduced by the
General Counsel in support of this allegation it consists of three documents :
(1) The letter of C. E. Williams, then vice -president and general manager, ad-
dressed to all striking employees; (2) Williams' letter of August. 24, 1949,
sent all employees who were then working; and (3) a letter from Williams dated
September 9, 1949, addressed to certain supervisory employees regarding the
computation of vacation time."'
In the considered opinion of the undersigned the only substantial evidence
offered in support of the above allegation in the complaint is Williams' letter
of July 6, 1949. The two other letters referred to above were written after the
strike was officially abandoned by the Union on July 12, 1949. Hence they
would be of no probative value in support of the allegation. An examination
of Williams' letter of July 6, which has been set forth above in toto shows that
it merely points out to the striking employees that their jobs were still available,
and that if they desired to return to work they might do so, and that if they
did not desire to take advantage of.the Respondent's offer, then it would replace
them with new employees, which was its prerogative. Technically the letter
does contain a threat of reprisal in that it points out to the employees that
failure to take advantage of the Respondent's offer would place their jobs in
jeopardy. The Board and courts have held that under certain circumstances
such letters are violative of Section 8 (a) (1) of the Act on the theory that by
such conduct an employer is in reality attempting to persuade the striking em-
ployees to abandon the strike and thus circumvent their designated collective
bargaining representative.'
On the other hand however there are decisions to the contrary. An examina-
tion of.these cases shows that where as herein there is no evidence showing that
10 The General Counsel elicited considerable. testimony at the hearing herein from Vice-
President Williams to the effect that the Respondent deducted from the vacation time that
would have accrued to the striking employees but for the strike the proportionate time
spent on strike. Thus if a striking employee participated in the strike for 96 days then
his vacation would be computed on the basis of 96/365 days of the total vacation he would
have been entitled to but for the strike. The Respondent was within its legal rights to
adopt such a plan, since it has been well settled that vacation and pension benefits are
wage benefits and strikers are not entitled to such. See General Electric Company, 80
NLRB' 310, and cases cited therein.
11 See Harris-Woodson Co., Inc., 77 NLRB 819 ; Sam'l Bingham's on Mfg. Co., 80
NLRB 1612.
OHIO ASSOC'IATRD. TELEPHONE COMPANY . 953
the Respondent engaged in any other acts violative of the Act either prior to
the strike, during the strike, or thereafter, coupled with a past history of good
;relations with its employees, and their designated bargaining representative,
then under such circumstances such statements are not violative of the Act.
In view of the foregoing and upon the record as a whole tha undersigned will
:recommend the dismissal of this allegation in the complaint.
In addition to the above allegation the General Counsel in his complaint
alleged that the Respondent in substance urged and persuaded its employees
individually to abandon the strike and return to work, to cease supporting the
Union, and cease engaging in concerted activities for the purpose'of collective
bargaining or other mutual aid or protection: In support of this allegation the
only evidence offered by the General Counsel was Williams' letter of July 6,
1949, addressed to the striking employees. The undersigned has discussed this
letter herein immediately above and its legal effect on the issues involved. For
the reasons stated therein he has found that the Respondent by sending the
letter of July 6 to its striking employees did not violate Section 8 (a) (1) of
the Act.
For the reasons stated above and upon the record as a whole the undersigned
will recommend that this allegation in the complaint be likewise dismissed.
In his complaint the General Counsel also alleges a third specific violation of
Section 8 (a) (1) of the Act, in that it threatened and warned its employees
against engaging on Respondent's property in activities on behalf of the Union
or in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection. In support of his contention in this regard the. Gen-
eral Counsel offered the testimony of Wanda Mossbarger, one of the union
stewards.'. She testified credibly that when she was interviewed by J. H. Lehan,
district traffic superintendent, following the abandonment of the strike on July
12, 1949, he advised her and two other striking employees that after they returned
to work "there would be no mention of union affairs on company premises."
Lehan admitted that he made the remark attributed to him by Mossbarger. Sub-
sequently complaints concerning Lehan's statements in this regard were lodged
with Vice-President Williams who in turn took the matter up with Lehan by
letter dated June 16, 1949: Lehan's reply to this letter is set forth below :
To acquaint you with a possible protest against some of my remarks while
interviewing operators who were inquiring about their return to duty on
July 14-15, 1949, I wish to state that all references to cessation of Union
activity on the Company's premises were intended to develop harmony and
maintain the general level of telephone service by avoiding possible incidents
between employees who remained on duty during the period April 7-July 12,
1949 and those who saw fit ncit to report for duty. .
The actions and remarks of a group which included nearly all of the strik-
ing Traffic Department operators while they were on the premises at ap-
proximately 4:15 P. M. on July 12, 1949 and at various times on July 14-15,
1949 seemed to indicate the advisability of suggesting such a precaution.
According to the credible and undenied testimony of Gladys Erow, she was
told by a Mrs. Craig, one, of the supervisors,- at the time she reported for work
on July 12, 1949, that discussion of union affairs on company property would not
be permitted.
22 See Pacific Gamble-Robinson Company, 88 NLRB 482; Sam'd Bingmam's Son Mfg. Co.,
supra; N. L. R. B. V. Pen,okee Veneer Co.,, 168 F. 2d 868 (C. A. 7) 1918, denying enforce-
ment of 74 NLRB 1683.
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The undersigned is cognizant of the fact that the Board and courts have held
that rules established by employers which prohibit the discussion of union affairs
on an employer's premises on the employees' own time are too broad and thereby.
interfere with the basic rights of employees guaranteed them by Section 7 of the
Act 13 Yet, where as here the evidence in support, of the establishment of such
a rule consists of isolated remarks made against a background of no evidence
of the commission of other unfair labor practices the Board has deviated from
the rule laid down in the Republic Aviation and Le Tourneau cases 14
In the considered opinion of the undersigned the remarks of Lehan and Craig
were isolated and unrelated to any other issues considered at the hearing herein.
Morover there is no evidence in the record that the Respondent ever made any
effort to enforce the rule as stated by Lehan and Craig: But on the other hand
there is some evidence to the effect that the Respondent endeavored to repudiate
Lehan's remarks. This is evidenced by Williams' inquiry of Lehan as regards
the making of the remarks attributed to him by Mossbarger. Under all the
circumstances the undersigned is not convinced that the record in this proceeding
warrants a finding based solely on these statements that the Respondent thereby
violated Section 8 (a) (1) of the Act.
Accordingly the undersigned will recommend that this allegation in the com-
plaint be likewise dismissed.
Having found as above the undersigned recommends the dismissal of the com-
plaint in its entirety insofar as it alleges that the Respondent herein committed
certain unfair labor practices.
CONCLUSIONS OF LAW
1. The operations of the Respondent, Ohio Associated Telephone Company,
Marion, Ohio, constitute trade, traffic, and commerce among the several States
within the meaning of Section 2 (6) and (7) of the Act.
2. Ohio Federation of Telephone Workers, Inc., Local 503, is a labor organiza-
tion within the meaning of the Act.
3. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) and (3) of the Act.
[Recommended Order omitted from publication.in this volume.]
13 See Le Tourneau Company of Georgia, 54 NLRB 1253, 143 F. 2d 67, (C. A. 5) setting
aside Board 's Decision and Order , 324 U . S. 793, reversing . 143 F. 2d 67 ; Republic Avia-
tion Corp. v. N. L. R. B., 142 F. 2d 193 (C. A. 2) enforcing 51 NLRB 1186, 324 U. S. 793,
affirming 142 F. 2d 193.
14 See The Pure Oil Company, 75 NLRB 539 , 542; Goldblatt Bros., Inc., 77 NLRB 1262,
1264 ; Rice-Stir of Arkansas, Inc., 79 NLRB 1333, 1334; Opelika Textile Mills , Inc., 81
NLRB 594.