Pacific Telephone & Telegraph Co.

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1064 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Telephone and Telegraph Company and Tele-
phone Commercial Employees Union, Petitioner.
Case 20- RC- 14630
April 20, 1979
DECISION ON REVIEW AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND TRUESDALE
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 20 on July
10,' an election was conducted August 9. The tally of
ballots showed that, of approximately 250 eligible
voters, 81 cast valid ballots for the Petitioner (herein
referred to as TCEU), 12 cast valid ballots for the
Intervenor, 2 and 87 cast votes against the participat-
ing labor organizations. There were 47 challenged
ballots, which were sufficient in number to affect the
results of the election.3 In accordance with Section
102.69 of the Board's Rules and Regulations, Series 8,
as amended, the Regional Director conducted an in-
vestigation of the challenges and, thereafter, on Octo-
ber I 11, issued a Supplemental Decision and Order, in
which she sustained the 36 remaining challenges.4
The Employer, joined by CWA, filed a request for
review as to these rulings of the Regional Director.
By telegraphic order dated November 28 the Em-
ployer's request was granted. The Employer and
TCEU filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
On or before May 17 the Employer decided to reor-
ganize its San Francisco, California, business service
center district (herein referred to as the BSC District).
The BSC district at this time was composed of BSC I,
BSC II, the high demand unit, and the order process-
ing unit, all located at 633 Folsom Street, San Fran-
cisco. The reorganized district would include the em-
ployees of the San Rafael, California, BSC and the
San Rafael service order completion office (herein re-
ferred to as SOC). The reorganization also provided
for the transfer of the special accounts work group
located at 153 Kearny Street in San Francisco to the
I All dates herein refer to the calendar year 1978 unless otherwise noted.
2 Communications Workers of America, AFL-CIO (hereinafter referred to
as CWA).
CWA filed timely objections to the election, which objections were with-
drawn on September 6.
Challenges to I I ballots were withdrawn prior to the investigation. The
opening and counting of these ballots were postponed.
BSC district. This reorganization was to be effective
July 1.
On May 22, subsequent to the decision to reorga-
nize, the CWA filed a petition in Case 20-RC-14616,
seeking a unit limited to service representatives and
clericals employed in BSC II. On June 8, the day of
the hearing herein, TCEU filed a petition in Case 20-
RC- 14630 seeking a unit of all service representatives
and clericals employed in the district. The reorganiza-
tion of the district was discussed between the parties,
but the hearing concerned itself with whether the unit
might appropriately be limited to BSC II or whether
it must be district-wide, as sought by TCEU.
On July 10 the Regional Director issued her Direc-
tion of Election finding that a unit of "[a]ll employees
employed by the Employer in its San Francisco, Cali-
fornia Business Service Center District including ser-
vice representatives and clerical employees . .. " was
appropriate, dismissing the petition in Case 20-RC-
14616.
The payroll eligibility date was established as July
1, the date on which the Employer's reorganization of
the district became effective. On July 12, the Em-
ployer discussed the reorganization with the TCEU
and informed the Board of this fact. From July 13
until August 9, the day of the election, both Unions
campaigned not only at the Employer's Folsom Street
location but also at the Employer's San Rafael and
Kearny Street locations. The Board's notice of elec-
tion also included the times and places for the em-
ployees at the San Rafael and Kearny Street locations
to vote.
At the preelection conference on August 8, the
TCEU announced that it would challenge these em-
ployees, as they had not been "physically" added to
the unit on or before the eligibility date. At the Au-
gust 9 election the TCEU did in fact challenge the 30
employees employed at the San Rafael location and
the 6 employees employed at the Kearny Street loca-
tion.
The Regional Director conducted an administra-
tive investigation and issued a Supplemental Decision
and Order on October I 11, sustaining all 36 challenges.
In so doing, the Regional Director described the unit
in which the election was directed as service represen-
tatives and clerical employees in the San Francisco,
California, BSC district employed at 633 Folsom
Street and stated that the Direction of Election did
not contemplate the inclusion of any groups of em-
ployees other than those employees employed at the
Folsom Street location; there was no evidence pre-
sented by any of the parties at the hearing concerning
the inclusion of these two additional groups of em-
ployees; and, while the Employer's counsel admits
that he was aware of the impending transfers and dis-
cussed it with the counsel for the TCEU and CWA at
241 NLRB No. 172
1064
PACIFIC TELEPHONE & TELEGRAPH CO.
the time of the hearing, the Employer gave no reason
for its failure to present evidence with respect to these
two additional groups of employees at the hearing.
In our opinion the Regional Director's supplemen-
tal decision does not address the issue raised by the
challenges filed herein. The issue is whether the em-
ployees in question were employed in the unit, as de-
scribed in the Direction of Election, on the payroll
eligibility date and on the day of the election. If so,
they are eligible to vote, and the challenges to their
ballots should be overruled.
On the record it appears that the decision to reor-
ganize and to include these two groups of employees
in the San Francisco district was made on or before
May 17, to be effective July 1. The matter of reorga-
nization was discussed between the parties at the
hearing, but no evidence was presented, possibly be-
cause, as contended by the Employer, it was not rel-
evant to the sole issue in dispute. In any event, on
July I the San Rafael and Kearny Street employees
bacame part of the Employer's administrative subdi-
vision known as the San Francisco district, which is
the unit described as appropriate in the Decision and
Direction of Election.
It is clear that subsequent to the issuance of the
decision defining the unit as district-wide, the TCEU
and CWA made no objection to the inclusion of, and
at least TCEU attempted to organize, all employees
in the district, including those at the San Rafael and
Kearny Street locations. Moreover, TCEU on July
13, in a letter specifically addressed to San Rafael
marketing employees, stated in pertinent part that:
I'd like to take this opportunity to welcome you
to the San Francisco Marketing District.... The
National Labor Relations Board has ruled that
the entire District, rather than just one BSC at a
time, as CWA wanted, was the only appropriate
unit.... PT&T ... is now claiming that since
San Rafael was added to this District as of July
I, you should also be included in the election.
We have absolutely no objection to this, but WE
NEED YOUR HELP! You may not have the
same or as many problems that we have but now
as part of the same District under the same man-
ager things are bound to change.
It is equally clear that the Regional Director was cog-
nizant of the existence of these two groups of employ-
ees, as the notice of election sets forth the voting
times and locations for these employees.
We are satisfied that the employees involved were
administratively transferred into the appropriate unit
on the payroll eligibility date, July , and remained in
the unit through the date of the election. Thus, in
accord with our practice for establishing voting eligi-
bility, these employees were eligible, and the chal-
lenges to their ballots are hereby overruled.5
As we have overruled these challenges, we shall re-
mand the case to the Regional Director for the pur-
pose of opening and counting ballots of the employ-
ees employed at the Employer's San Rafael and
Kearny Street locations,6 along with the ballots of the
employees to which challenges have been withdrawn.
DIRECTION
It is hereby directed that the Regional Director
open and count the ballots to which challenges have
been overruled or withdrawn and thereafter take
whatever action is deemed appropriate.
In its brief on review, TCEU takes issue with the Employer's claim that
there was an off-the-record or "side-bar" agreement to include the San Ra-
fael and Kearny Street employees in the unit. TCEU argues that there was
no agreement, that if the San Rafael and Kearny Street operations had been
physically merged into the Folsom Street operation before July , there
might have been presented a different situation. It states that the physical
transfer of employees was not unexpected, and it was not until the preelec-
tion conference that it became apparent that there would be merely a "pa-
per" transfer.
A finding of an agreement by the parties is not critical to our resolution of
this case. There is nothing in the record to show that TCEU had any reason
to believe that the transfer of employees would involve a physical transfer to
Folsom Street, nor was there any overt indication by them of such an under-
standing. It is, however, clear that the parties as well as the Regional Office
proceeded as if the San Rafael and Kearny Street operations were included
in the described unit.
6 In view of our finding herein, the appropriate unit is as described in the
original Decision and Direction of Election.
1065