The Pacific Telephone and Telegraph Co.

National Labor Relations Board - Board Decisions

Mar 16, 1950

88 N.L.R.B. 1142 (N.L.R.B. 1950)

In the Matter of TILE PACIFIC TELEPHONE AND TELEGRAPH COMPANY
and OFFIE O. PATRICK, AN INDIVIDUAL
Case No. 21-CA-455--Decided March 16, 1950
DECISION
AND
ORDER
On November 2, 1949, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in any unfair labor practices and recom-
mnending that the complaint be dismissed, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the charging party
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs. The Respondent filed an original and a reply
brief in support of the Intermediate Report.
The Board 1 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 exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent, the Pacific Telephone and Telegraph Company, Santa
Monica, California, be, and it hereby is, dismissed.
1 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
[Chairman Herzog and Members Houston and Reynolds].
2 On January 24, 1950, the charging party filed with the Board a motion to reopen the
hearing for the purpose of adducing testimony which the General Counsel's representa-
tives allegedly withheld. This motion was opposed by the Respondent.. As it contains no
particulars concerning the testimony in question, and as it is conceded in any event that
.such testimony was available at the time of the hearing, the motion is hereby denied.
S8 NLRB No. 221.
1142
THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY 1143
INTERMEDIATE REPORT
Mr. George H. O'Brien, of Los Angeles, Calif., for the General Counsel.
Lawler, FeliF d Hall, by Mr. Leslie C. Tupper, of Los Angeles, Calif., for the
Respondent.
Ofe 0. Patrick, pro se.
STATEMENT OF THE CASE
Upon a charge duly filed by Offie 0. Patrick on May 12, 1949, the General Counsel
of the National Labor Relations Board, by the Regional Director for the Twenty-
first Region (Los Angeles, California), issued a complaint dated August 10, 1949,
against Pacific Telephone and Telegraph Company.' The complaint alleged that
the Respondent had engaged, and was engaging in, unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3), and Section 2 (6)
and (7) of the Act. Copies of the complaint, the charge, and notice of hearing
were duly served on Respondent and Offie 0. Patrick.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on or about May 10, 1949, Respondent required Oftle 0. Patrick "to accept
either a job demotion or a job transfer because she had engaged in concerted
activities for the purpose of collective bargaining and other mutual aid and
protection." Respondent duly filed its answer to said complaint denying the
commission of any unfair labor practice and affirmatively pleading that "due to
Offie 0. Patrick's continued interference in the personal affairs and work of
respondent's employees in the Santa Monica office, respondent, on or about May
1.0, 1949, told Offie 0. Patrick she was being transferred to respondent's office at
433 South Olive Street, Los Angeles, California, at the same job and at the same
rate of pay ; that at said time Ollie 0. Patrick informed respondent that she
would not work in respondent's Los Angeles office; that thereupon respondent
informed Offle 0. Patrick that she had the alternative of either transferring to
respondent's Los Angeles office or remaining at respondent's Santa Monica office
and being demoted to the job of an operator; that said Offie 0. Patrick at said
time thereupon advised respondent that she would not accept either of the alterna-
tives and has refused since to return to work for respondent." On August 13,
1.949, Respondent made a motion to require the General Counsel to file it Bill of
Particulars setting out in detail (1) the concerted activities in which Patrick
had engaged and (2) whether the concerted activities referred to in the com-
plaint were the same as those referred to in the charge filed by Patrick on May 12,
1949.2 The undersigned denied the motion with respect to the first request and
directed the General Counsel to inform Respondent with respect to the second
request. The General Counsel complied with that order and informed Respondent
that:
Part of the concerted activity or mutual aid or protection described in
Paragraph 3 of the Complaint consists of the fact that Offie 0. Patrick, while
an employee of Southwestern Bell Telephone Company, did on or about
' For convenience , the following contractions or symbols will be observed in later portions
of this report : The National Labor Relations Board will be referred to as the Board, its
Regional Director as the Director, The Pacific Telephone and Telegraph Company as the
Respondent, and the National Labor Relations Act, as amended, Public Law 101., 80th
Congress, 1st Sess., as the Act.
2 The charge of May 12, 1949, pursuant to which the complaint herein was issued , charged
that Respondent had discriminated against Patrick in regard to tenure of employment
because "she had filed charges and given testimony under the Act."
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 26, 1939, file a charge in the Ft. Worth office of the Board alleging
that the Telephone Company had violated Section 8 (2) of the Act; that
Respondent was aware of the fact that she had filed this charge and of her
concerted activities in Ft. Worth.
Pursuant to notice, a hearing was held at Los Angeles, California, September 7,
8, 9, 1949, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The General Counsel and the Respondent were represented
by Counsel ; Offie O. Patrick appeared in person. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence pertinent to
the issues was afforded to all parties. A motion by the General Counsel to con-
form the pleadings to the proof with respect to matters not of substance was
granted without objection. Counsel for the Respondent presented oral argument
at the close of the testimony, and written briefs were received thereafter from
the General Counsel and the Respondent.
Upon the entire record in the case and his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation , a subsidiary of the American Tele-
phone and Telegraph Company, engaged as a public utility in the business of
receiving and transmitting by telephone and telegraph intrastate and interstate
communications . Respondent conceded that it is engaged in commerce within
the meaning of Section 2 (6) and (7) of Act, and the undersigned so finds.
IT, THE UNFAIR LABOR PRACTICES
A. Background
Offie O. Patrick began work for the Southwestern Bell Telephone Company e
at Fort Worth , Texas, on January 13, 1925, and continued in that employment
until January 1943, at which time she requested a transfer to the office of the
Respondent 4 at Santa Monica , California. She made this request in order to
provide a home in Santa Monica for her mother , so as to be closer to two
brothers who were then in the Navy and stationed in California , and because
she thought "the Santa Monica climate [would be ] beneficial to the allergic
difficulty she had in frontal sinuses." She commenced work at Respondent's
Santa Monica office on February 21, 1943, as a senior operator . In September
of that year , a vacancy occurred in the position of "service observer." Al-
though a number of applicants were interviewed and considered for this
position , Patrick received the assignment on the recommendation of her
superiors.
Considerable responsibility attaches to the position of service observer. It
is her duty to observe long distance telephone calls for the purpose of checking
the service rendered by the long distance operator to the customer . It is also
of great value to the Company in training student operators and to aid it in
determining whether or not there is need for new or additional equipment. The
observer is provided with a blank on which she reports or checks on 46 items
'Also a subsidiary of the American Telephone and Telegraph Company.
'Then known as the Southern California Telephone Company.
THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY 1145
of service, beginning with the appearance of the long-distance signal on the
switchboard until the lines are cleared after the close of the conversation.
Among the most important items so checked are the manner and conduct of the
operator with the customer. The observer then grades the operator "plus,"
"minus," or "neutral." Because of the nature of the work, and the effect that
the observer's report has on the standing of operators, Respondent has always
insisted that observers conduct themselves in such a manner as to engender
and retain the respect and confidence of the operators. This was especially
true in the Santa Monica office where Patrick was the only observer steadily
employed, and the operators therefore knew who, if anyone, criticized their
work. In the Los Angeles office there are 32 service observers, and long distance
operators never know which observer monitors the call. Repeated instructions,
both oral and written, were issued to all observers emphasizing that "congenial
relations by the observing and operating people" were necessary and expected
and that "observers should guard against developing a fault-finding complex
. . and avoid entering into contentious discussions." [Emphasis supplied.]
On May 6, 1949, Patrick was directed to appear in Los Angeles on May 10
at the office of Nels Hasselblad, respondent's traffic inspection supervisor. On
the latter day, she was informed by Hasselblad that because he "had continued
to receive complaints from the operating people as to her becoming involved as
to matters that did not pertain to the observing job and also personal mat-
ters . . . it would be necessary that [she be transferred] to the toll serv-
ice observing Bureau in Los Angeles." Because Patrick was suffering from
an allergy which she thought would be aggravated by the smog in Los Angeles,
Patrick advised Hasselblad that such a change would be "impossible." Has-
selblad then offered her a position as a toll operator in Santa Monica, which,
however, would entail a salary reduction of $8 per week. Patrick declined
both transfers. Two days later, she filed the charge which instituted the
present proceeding.
B. The alleged discrimination
On October 26, 1939, while employed at Fort Worth, Texas, by the Southern
Bell' Telephone Company, Patrick filed an unfair labor practice charge against
that Company charging that on October 27, 1937, it had dominated and inter-
ferred with the operation and administration of the Southwestern Telephone
Workers Union.' The filing of this charge, the General Counsel alleges, consti-
tuted "part of the concerted activity or mutual aid or protection, in which Patrick
was legally engaged and because of which respondent required her" on May 10,
1049, to accept either a job demotion or job transfer, in violation of Section 8 (a)
(1) and (3) of the Act.
The General Counsel further argues that the following "union activity" in
which Patrick participated after coming to Santa Monica also motivated the
Respondent in its alleged discriminatory treatment of her.
Patrick joined the Federation of Women Telephone Workers (FWTW) of
Southern California in the summer of 1943, and withdrew therefrom in the
fall of the same year. She rejoined in November 1946, when the union included
27 service observers, became chairman of the observers group, and withdrew
again in the fall of 1947. The evidence fails to show that she held membership
in any union thereafter.
5 At the hearing, the General Counsel informed the Examiner that Patrick withdrew the
charge, without prejudice, on July 11, 1941.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the spring of 1947, the National Federation of Telephone Workers engaged
in a Nation-wide strike. The Federation of Women Telephone Workers of South-
ern California, not being affiliated with the national organization , did not join
the strike'but its members observed the picket line and at least 80 percent of
the nonsupervisory traffic department employees' slid likewise. Patrick enthu-
siastically supported the strike and with many other employees spent most of
her time on the picket line which was thrown around the Santa Monica office.
Hasselblad saw her engaged in this activity on one occasion. When the strike
ended, Patrick returned to her service observing job. Following the strike,
Respondent instructed its management people to make every effort to make the
employees who had remained away from work during the strike "to feel at home."
There are approximately 27,000 employees in Respondent's Southern California
area and about 11,200 in the traffic department ; about 10,000 of the latter are
covered by the Federations' collective bargaining agreement. Since the strike
in 1947, there has been no complaint or grievance or other charge that Respondent
has discriminated against any employee in the traffic department because of
union activity in connection with the strike or otherwise, other than in this case.
There are several unions representing Respondent's employees in the Southern
California area. The Communication Workers of America (CWA) represent
the employees of the accounting department, the exchange maintenance forces,
the installers, and construction department employees. The toll maintenance
employees are represented by the Order of Repeatermen and Toll Test Workmen
(ORTTW). The Federation of Women Telephone Workers of Southern Cali-
fornia, unaffiliated, represent all of Respondent's operating employees in that
area, including service observers. On May 6, 1949, it was publicly announced
by the national CWA that, as a result of a Nation-wide poll, its membership had
voted affiliation with the CIO. A similar announcement was made the same
day by the president of Local 31, Pacific Division 61, CWA. Because that
union presented no evidence to Respondent showing that the majority of the em-
ployees in that unit had voted for CIO affiliation, and because available statistics
showed that nationally more than two-thirds of the telephone employees rep-
resented by CWA either voted against affiliation with CIO or did not vote at
all, the Respondent filed petitions with the Board asking it to hold elections
in the units involved.
Although Patrick was not a member of any union after the fall of 1947, she
devoted some of her time and energy thereafter "to putting the traffic depart-
ment into the C. I. 0." The record does not disclose what these activities were.
It was because of the foregoing circumstances, the General Counsel argues
in his brief, "that Mr. Hasselblad, knowing that the Bell system was anticipating
a test of strength with the C. W. A.-C. I. 0., knowing that Miss Patrick's
sympathies lay with the C. I. 0., knowing that her fellow employees in Santa
Monica had confidence in her leadership, and knowing that Miss Patrick would
decline a permanent transfer away from Santa Monica, seized upon the only
exeuses lie could find, flimsy though they were, to insure Miss Patrick's retirement
from the Bell system," and that thereby "the Santa Monica office at least would
be freed from the influence of its most militant, strong union advocate."
C. Respondent's defense
Respondent introduced credible and, for the most part, uncontradicted evi-
dence that since early 1944, and continuing through March or April 1949, its
6 The total number of employees in the Santa Monica office was 325.
THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY 1147
supervisory personnel had received various complaints concerning Patrick's con-
duct. Among these complaints were the following, all committed in violation
of ]Respondent's rules and instructions and most of which occurred on more than
one occasion: (1) Giving orders to operators, (2) discussing observations with
the operators, (3) interfering with a supervisor who was instructing an
operator, (4) meddling into the personal affairs of the operators' and (5)
needlessly going into the operating room.
D. Concluding findings
It is fundamental that " the Act does not interfere with the normal exercise
of the right of the employer to . . . discharge " its employees' or to transfer
them from one office to another as it may deem appropriate , except only that
"the employer may not , under cover of that right , intimidate or coerce its
employees with respect to their self -organization and representation." ° The
burden of proving that such a discharge or disadvantageous transfer was affected
in order to interfere with, or coerce , its employees in l:he exercise of rights guar-
anteed by the Act rests on the General Counsel. If that burden has not been
sustained , the proceeding must be dismissed.
With respect to the claim of the General Counsel that the alleged discrimina-
tory action was taken by Respondent in retaliation of Patrick ' s filing of the
unfair labor practice charge against Southwestern Bell Telephone Company, in
1939, little need be said. Its remoteness , coupled with the admitted friendly"
relationship that existed between Patrick and both the Southwestern Company
and Respondent , 10 completely dispel any suggestion that the filing of the 1939
charge motivated the 1949 alleged discriminatory action. Accordingly , the un-
dersigned finds that the filing of the 1939 charge was not a motivating or con-
tributing factor in the suggested transfer of Patrick to the Los Angeles office.
Likewise the Examiner finds that the General Counsel has not sustained the
burden of proving that the alleged discriminatory action was taken because of
Patrick ' s union activities since February 1943 . These activities consisted'of (1)
membership in FWTW for approximately 3 months in 1943 and for 9 or 10
months ending in the fall of 1947 ; ( 2) chairmanship of the observers ' unit therein
in 1947 ; (3) the picket line activity ; ( 4) a nondescript effort to "put the traffic
department into the C . I. 0." None of those activities provoked any threat or
intimidation by Respondent . Nor does the General Counsel claim that Respond-
cut ever engaged in any other conduct either towards Patrick , or any other em-
ployde, indicating an intent to interfere with , coerce, or restrain any of its
employees in the exercise of their rights to engage in union activities.
Upon the entire record, the undersigned finds that Patrick was not required
"to accept either a job demotion or a job transfer because she had engaged in
concerted activities for the purposes of collective bargaining and other mutual
' On one occasion in march or April 1949, Patrick engaged in a heated discussion involving
the marital affairs of an operator ; during the same period, she engaged in a quarrel with
another operator over the value of services rendered by a doctor that Patrick had recom-
mended. General Counsel in his brief admitted that "during all of this period Miss Patrick
did, in all probability, talk too much and she probably did talk about matters that were
no concern of hers."
'A'. L. R. B. v. Jones and Laughlin Steel Corporation, 301 U. S. 1, 45.
9 Ibid.
1a Compliance with Patrick 's request in 1943 to be transferred to California for personal
reasons ; individual wage increases granted ; the promotion to service observer ; the offer
of more responsible positions.
1148 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aid and protection" and that Respondent has not been guilty of any violation of
Section 8 (a) (1) or (3) of the Act."
Upon the foregoing findings of fact and upon the entire record in the case the
undersigned makes the following :
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2. The Respondent has not engaged in any unfair labor practices within the
meaning of Section 8 (a) (1) or (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the com-
plaint against the Respondent, Pacific Telephone and Telegraph Company, be
dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Section
203.46 should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained, shall, as provided in Section 203.48 of said Rules
" Having found that Respondent was not guilty of any discriminatory conduct, the
Examiner finds it unnecessary to discuss or make any finding on the effect that a transfer
to Los Angeles might have on Patrick' s sinus condition . "The [Act] gives the Board no
supervisory powers over the conduct of a business by its own management ." Kansas Citg
Power & Light Co. v. N. L. R. B., 111 F. 2d 340, 348 (C. A. 8). While some of Respondent's
supervisory personiiel were undoubtedly aware of Patrick 's sinus condition , Hasselblad and
his supervisor with whom the transfer was discussed , had no knowledge that it would
seriously affect her health to be transferred to Los Angeles. Nor does the record show
"that any purpose by the respondent to interfere with [Patrick's union activity] would
be achieved by such transfer." M. E. Blatt Co., 47 NLRB 1052, 1075. Indeed, the Los
Angeles office , employing many more employees than the Santa Monica office, would have
provided a more expansive field for Patrick' s union activities.
THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY 1149
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 2d day of November 1949.
DAVID LONDON,'
Trial Examiner.