The New England Telephone and Telegraph Co.

National Labor Relations Board - Board Decisions

Jun 29, 1950

90 N.L.R.B. 639 (N.L.R.B. 1950)

In the Matter of NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY,
EMPLOYER and NEW ENGLAND FEDERATION Or TELEPHONE OPERA-
TORS, PETITIONER
Case No. 1-RC-1330.Decided June 29, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert E. Greene, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner, the recognized bargaining representative of oper-
ating and clerical employees in the central offices of the Employer's
traffic department since 1948, seeks herein formal certification by the
Board as their; exclusive bargaining representative within the meaning
of Section 9 (a) of the Act., Communication `Yorkers of America,
CIO, the Intervenor herein, contends that, notwithstanding the history
of collective bargaining limited to these employees in the central offices,
the appropriate unit for these employees should embrace operating
and clerical employees in the entire traffic department, including the
central offices and the district, division, and general offices.' The Em-
ployer takes the position that either unit is appropriate.
i The Petitioner presently represents these employees under a current contract not urged
herein as a bar.
2 The Petitioner concedes that the departmental unit urged by the Intervenor is an appro-
priate unit for bargaining , and desires certification in this larger unit if the Board rejects
its contention for the narrower unit covered by the Petitioner' s current contract.
90 NLRB No. 102.
639
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer with its general. office and place of business at Boston;
Massachusetts, is engaged in the business of transmitting and receiving
local and long distance telephone messages throughout the States, of
Massachusetts, Maine, New Hampshire, Vermont, and Rhode Island.
The Employer operates 320 exchange offices and 185 agency exchange
offices.
Like lnost.telepholle companies, the Employer generally divides its
operations into four system-wide departments: (1) The plant depart-
ment, which installs and maintains the Employer's telephonic equip-
ment; (2). ;thee. trdepartment, which operates that equipment;
(3) the commercial department, which handles the Employer's busi-
ness relations with, the public, including the collection of bills; and
(4) the accounting department, which handles the Employer's pay-
rolls, disbursements, and billing.3 Employees in the traffic depart-
ment are primarily involved in this proceeding.
The Employer's basic organizational unit is the central office. At
the time of the hearing, the Employer had approximately 290 central
offices with more than 15,000 employees. The Employer's central
offices are integrated within about 27 administrative districts, and
these, in turn, are concentrated within approximately 7 administra-
tive divisions. The Employer's general office is located at Boston.
Thus, the'Employer within its traffic departmei'it maintains district
and division offices and a general office, coordinating its basic central
offices.
The central office unit, proposed by the Petitioner on the ground
of its past bargaining history, corresponds to no administrative
division of the Employer's operations. and constitutes but the largest
sector of the traffic department of which it forms the base. On
numerous occasions, the Board has considered and rejected as inap-
propriate for employees in this industry, proposed units smaller in
scope than a system-wide departmental unit. It has, on the other
hand, held to be appropriate system-wide or multidepartment-wide
units, even in the face of a contrary bargaining history; and when
such contrary bargaining history has, at least in part, been the result
of prior Board determination.4 These broader unit findings have been
predicated upon the highly integrated and interdependent nature of
public utility operations, the centralized control of major policies-
re-lating to labor relations, and the public interest involved. The fac-
tors which the Board found to be controlling in earlier cases are pies-
ent and controlling in this case. We therefore find that operating
° The Employer also maintains certain smaller, specialized departments, such as the legal
department, the financial department, and the personnel department.
4 Southwestern Associated Telephone, Company and Prescott Arkansas Telephone Car
poration, 76 NLRB 1105, 1109-1112.
NEW ENGLAND TELEPHONE. AND TELEGRAPH COMPANY 641
and clerical employees in the Employer's traffic department, including
the central, district, division, and general offices, constitute an appro-
priate unit for the purposes of collective bargaining.'
Categories Included and Excluded
The parties agree that employees in the categories listed in Ap-
pendix A, attached hereto, should be included in the appropriate
unit. The parties further agree that employees and supervisors in
the categories listed in Appendix B, attached hereto, should be ex-
cluded from the appropriate unit. On the following categories, the
parties reached no agreement.
(1) Agents and employees at agency exchanges; employees on agency
leaves of absences
Agents and employees at agency exchanges operate the Employer's
185 agency exchanges as an integral part of its communication service,.
under separate but standardized contracts between the agents and the
Employer, and on premises owned or leased either by the agents or
by the Employer .6 . They do, in agency exchanges, the same work as
do those who are admittedly employees of the Employer at the so-
called company-operated exchanges, who, the parties agree, fall within
the unit. The Employer would exclude, and the Intervenor include,
these categories. The Petitioner takes no position.
A typical agency agreement provides, among other things, that
.in return for a specified weekly payment made in arrears, the agent
agrees-: (1) To .furnish all necessary light, heat, and water; (2) to
provide the necessary operators and to keep such records as the Em-
ployer requires ; (3) to keep the exchange in continuous operation ;
(4) to furnish service conforming to the Employer's standards; (5)
to receive payment of bills for telephone service, promptly deposit
collections. to the Employer's account, in a bank designated by the
Employer, remit collections to the Employer, take applications for
telephone service, and perform such other incidental commercial
transactions as the Employer may require. The agreement is.for a
term of 30 days from its effective date, "and thereafter' until termi-
nated by thirty (30) days' notice in writing from either party to the
other." The Employer, however, under the terms of the agreement,
5 The Chesapeake and Potomac Telephone Company of Virginia, 82 NLRB 810, and
cases cited therein. .
I The Employer uses two types of contracts : One for company-owned or -leased property
and the other for agent-owned or -leased property. In all essentials, the contracts are
substantially the same.
903847-51-vol. 90-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specifically reserves to itself the right to terminate .the agrremeiit, if
the agent violates any,of its terms, by giving 1 day's written notice to
the agent. In this event, the Employer may operate the switchboard
for a period of 30 days at all hours and without hindrance by the
agent.
Although the topics are not the subject of treatment in the agency
agreements , the Employer , as a matter of practice, pays social security
taxes on the agents and any other workers at the agencies, withholds
Federal income taxes with respect both to the agents and such other
workers, deducts the amounts of these taxes from the amounts due the
agents under the contracts, and pays the premiums on policies of
Workmen's Compensation Insurance, insuring the agents and covering
other agency workers.
Employees on agency leaves of absence, approximately 29 in number,
differ from other workers at agency exchanges in that they formerly
worked at company-operated offices, and now work either as (1) agents
or (2) employees at agency exchanges . The Employer would exclude,
and the Intervenor include, employees on agency leaves of absence.
The Petitioner takes no position. The employees on agency leaves of
absence from company-operated offices remain eligible for retirement
under the Employer's pension plan and continue to accumulate sen-
iority under that plan, although they are working at the agency ex-
changes and no longer in so-called company-operated offices. When
employees on agency leaves of absence retire, their periods of service
at company-operated offices and their periods of service at agency
exchanges are used in computing their pensions.' Employees on agency
leaves of absence generally do the same kind of work as employees at
company-operated exchanges and agents and employees at agency
exchanges.
The Employer contends that the agents, including those on agency
leaves of absence, should be excluded from the unit as, in its view, they
are independent contractors who under the Act are not included in the
category of "employee." The record before us, in our opinion, demon-
strates the existence of an employment relationship rather than that of
independent contractor. In particular we are persuaded by (1) the
close similarity of and interrelationship between the functions per-
formed by the employees at agency exchanges and those performed
by employees at the company-operated exchanges; (2) the continuing
character of the functions performed by the agent; (3) the fact that
some of the agents and employees at agency offices are recruited from
employees of company-operated exchanges performing the same func-
tions; (4) the fact that the agents are paid on a fixed weekly basis,
thus subjecting the Employer, rather than the agents, to risk of.loss;
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY 643
^(5) the fact that the Employer, and.not the agent, takes the responsi-
bility for the collection of bad debts in the agency territory; (6) the
fact that the Employer controls the work premises at some of the
exchanges; (7) the fact that the Employer retains control over the
agent's delegation of supervision over the agency switchboard; (8) the
fact that the Employer possesses the power to terminate the relation-
ship on short notice and, in some instances, with the immediate right
of entry upon the premises and operation of the exchange by the Em-
ployer; (9) the fact that the Employer credits the service of those
:agents and employees who formerly worked at company-operated
exchanges toward their retirement pensions as employees of the Em-
ployer; and (10) the fact that, with respect to all agency exchange
'employees, the Employer, rather than the agent, performs the usual
employer functions of paying social security taxes, withholding Fed-
eral income taxes, and paying the premiums on policies of Workmen's
Compensation Insurance. No one of these elements standing alone is
determinative. Taken together, however, they persuade us that the
relationship involved falls short of what has been considered to con-
:stitute a.n independent contractor. We find therefore that an employ-
lnent relationship exists between the agents and the Employer.? We
:shall however exclude as supervisors from the unit those agents who
have operators working under them. Because the agents are not inde-
pendent contractors, we find that the operators at agency exchanges
.are employees of the Employer and we shall also include them in the
unit. We shall also include in the unit employees on agency leaves of
absence.
Q
(2) Disputed status
Chief clerks in the larger central of ees: The Employer would ex-
elude, and the Intervenor include, chief clerks in the larger central
offices. The Petitioner takes no position. These chief clerks were not
within the contract unit for central office employees. There are 15
7 See, e . g., Del Rio & Winter Garden Telephone Company , 85 NLRB 199 ; San Marcos
Telephone Company , 81 NLRB 314.
Southwestern Associated Telephone Company, 76 NLRB 1105 , relied on by the Employer,
is distinguishable on its facts from the instant case. Thus, for example, in the South-
western case, unlike here, the written contracts specifically provided that the agents
were to act as independent contractors ; agents were not, as here, recruited from employees
performing similar services at company-operated exchanges ; as stressed by the Board, the
agents were not paid a fixed weekly sum as in the instant case , but were paid according
to a schedule based upon the amount of revenue collected by the agent and the number of
telephones and stations serviced by the exchange; unlike here, agents were required to
perform at their own expense all work involved in the making and accepting of contract
orders and the collection of revenues resulting therefrom ; the Employer took no responsi-
bility for the collection of bad debts in the agency territory ; the Employer imposed no
restrictions on the right of the agent to delegate his power of supervision ; and no retire-
ment pensions were paid to any of the agents for services performed in the agency
exchanges.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chief clerks in the larger central offices who coordinate the work of
clerical employees and have' authority to adjust the grievances of
employees working under their direction. We find that the chief
clerks in the larger central offices are supervisors within the meaning
of the Act and shall exclude them as such from the bargaining unit.,,
Chief line assigners: The Employer would exclude, and the Peti-
tioner and the Intervenor include, chief line assigners. Chief line
assigners, in charge of groups of line assigners, specify the locations
to which particular telephone lines should be assigned and the equip-
ment necessary for their maintenance. The duties of chief line as-
signers are fairly routine. A chief line assigner may recommend that
a line assigner in her group is not qualified for that type of work and
that her training as line assigner should not be continued. The
resulting personnel action on this recommendation is, however, entirely
reserved to the discretion of others. In the absence of clear evidence
that chief line assigners have any of the powers of a supervisor as
set forth in Section 2 (11) of the Act, we find that chief line assigners
are not supervisors within the meaning of the Act and shall include
them in the unit.
Engineers-junnior: The Employer would exclude, and the Peti-
tioner and the Intervenor include, engineers-iunior. Engineers-
junior are in charge of engineering personnel and have the authority
effectively to recommend the hire, discharge, and discipline of em-
ployees under them. We therefore find that engineers-junior are
supervisors within the meaning of the Act and shall exclude therm
from the unit.
District force coordinators: The Employer would exclude, and the
Petitioner and the Intervenor include, district force coordinators.
District force coordinators estimate the Employer's future-traffic loads
and prepare work schedules covering workdays, days off, Sundays,
and holidays. On the basis of established formulas in the "Bell Sys-
tem Practices Manual," these coordinators determine for such periods
the total number of hours and the number and types of "tricks,"
or tours of duty, to be worked by operators, and the number of opera-
tors to be employed. Their determinations are subject to approval or
disapproval by management. They do not assign specific operators
to specific work hours or tours of duty, such assignments being
governed by the seniority of the operators. The work duties, of dis-
trict force coordinators are therefore found to be essentially clerical
in nature. Under these circumstances, we shall include them in the
unit.
8 The parties agree that the 21, chief clerks in the smaller central offices are not super-
visors within the meaning of the Act and should be included in the unit.
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY 645
P. B. X. instructors: The Employer would exclude, and the Peti-
tioner and-the Intervenor include, P. B. X. instructors. The Employer
assigns P. B. X. instructors to specific private branch exchanges op-
erated by the Employer's customers to improve the customers' tele-
phone service as it relates to the operation of the private branch ex-
,changes by the customers' telephone operators. In the performance of
their work, the Employer's P. B. X. instructors advise customers on
the operation of their private branch exchanges, and train and instruct
their operators. On occasion, they accompany the customers' opera-
tors to the Employer's central offices in order to insure a higher degree
cf cooperation between these operators and the Employer's work
force. P. B. X. instructors make work contacts for the most part with
the chief operators at the Employer's central offices, and with man-
agerial employees both within the Employer 's own organization and
within the organizations of customers of the Employer. Although
P. B. X. instructors may make personnel recommendations with re-
spect to the fitness of customers' employees, they have no authority
over such employees or over employees of the Employer.
We have previously considered the unit placement of P. B. X. in-
structors with work duties admittedly identical with those involved
herein, and we have found that such P. B. X. instructors are not
managerial employees. We shall, therefore, include the P. B. X. in-
structors in the appropriate unit.9
T. W. X. instructors: The Employer would exclude, and the Pe-
titioner and the Intervenor include, T. W. X instructors. T. W. X.
instructors have work , duties and responsibilities with respect to tele-
type service similar to those of P. B. X. instructors with respect to
telephone service. In some of the Employer's administrative divisions,
P. B. X. instructors and T. W. X. instructors interchange. Under
these circumstances, we find that T. W. X. instructors are not man-
agerial employees and shall include them in the unit .10
Central office instructors: The Employer would exclude, and the
Petitioner and the Intervenor include, central office instructors. Cen-
tral office instructors observe the manner in which the operators handle
calls, keep records of their observations and discuss their observations
with the operators and their supervisors. So far as the record dis-
closes, central office instructors do not act in a confidential capacity
to persons in charge of the Employer's labor relations and do not
have access to labor relations policy data. We find that central office
s Northwestern Bell Telephone Company, 79 NLRB 549.
10 Northwestern Bell Telephone Company, supra.
646 DECISIONS OF NATIONAL LA$OR RELATIONS BOARD
instructors are not confidential employees and shall include them in.
the unit.1
District personnel visitors: The Employer would exclude, and the
Petitioner and the Intervenor include, district personnel visitors..
District personnel visitors visit employees who, because of illness or
injury, are not at work. They arrange with the Employer's welfare
supervisor to furnish such medical or nursing attention as these
employees may require and make medical reports to the Employer,
which determine, in part, the eligibility of such employees for
payment from the Employer's benefit department. In appropriate
cases, these reports may result in disciplinary action. They do not,
however, bear on the Employer's general labor relation policy. The
record does not disclose that district personnel visitors are confidential
employees within the meaning of that term and we shall, therefore,
include them in the bargaining tulit.12
Interviewers: The Employer would exclude, and the Petitioner
and the Intervenor include, interviewers. Interviewers work in the
central employment office in the Employer's metropolitan division as
assistants to the person in charge of the office. Interviewers talk with
applicants seeking employment with the Employer, grade their ap-
plications, and reject applicants who appear clearly unqualified for
available jobs, although a rejected applicant may, on his own initiative,
appeal his rejection to higher authority. It is nevertheless clear
that interviewers exercise authority and judgment in the hiring proc-
ess on behalf of the Employer. We shall, therefore, exclude inter-
viewers from the appropriate unit 13
Traffic managers' clerks : The Employer and the Petitioner would
exclude, and the Intervenor include, traffic managers' clerks. Traffic
managers' clerks act as assistants to traffic managers, who are in
charge of large central offices or groups of smaller central offices..
Service and attendance records and personnel recommendations re-
garding employees within their respective territories are available to
traffic managers. Traffic managers' clerks have access to and in the'
course of their duties handle these records and recommendations 14
We find that traffic managers' clerks are confidential employees 15 and
shall exclude them from the unit.
Upon the entire record in the case, we find that the following em-
ployees of the Employer constitute a unit appropriate for the purposes
11 Inter-Mountain Telephone Company , 79 NLRB 715 , and cases cited therein ; Ford
Motor Company ( Chicago Branch ), 66 NLRB 1317.
? Cf. Inter-Mountain Telephone Company, supra.
American Stove Co., Harvey Division, 70 NLRB 1059.
14 Our findings reflect the recent changes made in the duties of the traffic managers'
clerks.
1 1 Southeastern Telephone Company , 70 NLRB 4.
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY 647
of collective bargaining within the meaning of Section 9 (b) of the
Act; all operating and clerical employees in the Employer's traffic
department, including the employees in the categories set forth in
Appendix A, agents and employees at agency exchanges and em-
ployees on agency leaves of absence, chief line assigners, district force
coordinators, P. B. X. instructors, T. W. X. instructors, central office
instructors, and district personnel visitors, but excluding those in the
categories set forth in Appendix B, interviewers, traffic managers'
clerks, and chief clerks in the larger central offices, engineers-juiiior,
and other supervisors within the meaning of the Act.
DIRECTION OF ELECTION 16
As part of the investigation to ascertain representatives. for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
75 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining,
by New England Federation of Telephone Operators, or by Commu-
nication Workers of America, CIO, or by neither.
APPENDIX A
Categories which the parties agree to include
Central office clerks Operators (part-time)
Central office senior clerks Public telephone attendants
Junior operators P. B. X. operators (nonofficial)
Junior supervisors Schedule clerks
Night operators' companions Senior schedule clerks
Operators (full-time) Students
10 Either"participant in the election directed may, upon its prompt request to, and ap-
proval thereof by, the Regional Director , have its name removed from the ballot.
648 . DECISIONS OF NATIONAL
Supervisors
Central office messengers
Check room girls
Rest room matrons,
Other dining service employees
Messengers
Typists-clerks
General clerks-junior
District payroll clerks
General clerks-senior
Junior engineering clerks
Marker board clerks
Stenographers
T. W. X. supervisors-district
offices
District and division office sales
supervisors
Assistants to division service ob-
servers 1
Service observers
Service observing sumniarizers
Chief clerks-dining service
Chief records clerks
Force clerks
General office dial service results
clerks
General office other quarters clerks
General office personnel clerks
General office rate and route clerks
Hostesses in charge of company-
operated dormitories
Records supervisors
Senior engineering clerks
LABOR RELATIONS BOARD
Supervisory facilities clerks
Supervisory line assigning clerks
Division cashiers
Division payroll clerks
Engineering assistants
General and division office force.
assistants
General office local and toll results
assistants
Receptionists-secretaries
Supervisors-district force
bureaus
Assistant expense supervisors-
general
Assistant force supervisors-divi-
sion
Assistant force supervisors-gen-
eral
Facilities clerks
Line assigning clerks
Ticket clerks-district and divi-
sion offices
Supervising service observers
Supervising stenographers-divi-
sion
Student: instructors
Janitor (dining service)
Male night operators
Customer instructors 2
Chief clerks in the smaller central
offices 3
Secretarial stenographers
Supervising engineering assistants
APPENDIX B
Categories which the parties agree to exclude
Chief operators Assistant chief operators (day,
Evening chief operators evening, and night)
1 There were no employees in this category at the time of the hearing.
2In its brief , the Employer withdrew its contention, made at the hearing, that this
category should he excluded from the unit.
3 See footnote 8, above.
NEW ENGLAND, TELEPHONE' AND _ TELEGRAPH COMPANY 649
Chief matrons
Chief clerks and assistants to di-
vision and general staff heads
Assistant dining service super-
visors
Assistant traffic employment prac-
tice supervisors
.Chief clerical supervisors
Chief clerks-senior
Chief school instructors
Chief stenographers-division
District chief clerks
District instructors
District personnel supervisors
District results supervisors
Division chief clerks
District chief P. B. X. employ-
ment supervisors
Division chief service observers
Division chief summarizers
Division chief T. W. X instruc-
tors
Division employment supervisors
Division instructors
Division service criticism super-
visors
Division welfare supervisors
Employment supervisors for
women
Force supervisors-division
General expense supervisors
General force supervisors
General toll instructors
General traffic personnel staff
assistants
General private branch exchange
instructors
Induction placement supervisors
Operating methods assistants
Operators' quarters assistant
Secretaries
Service observing methods super-
visors
Supervisors of Government
P. B. X.'s
Supervisors of operators' quarters
Supervising chief operators
Supervising P. B. X. instructors
Test, supervisors
Traffic benefit supervisors
Training methods supervisors
Metropolitan traffic superin-
tendent
Division traffic superintendents
District traffic superintendents
Traffic managers
District traffic supervisors
Staff specialists (except engi-
neers) in general, division, and
district offices
Engineers in general and division
offices
Night traffic managers
Male students prior to assignment