United Telephone Co. of Ohio

National Labor Relations Board - Board Decisions

Nov 26, 1969

179 N.L.R.B. 732 (N.L.R.B. 1969)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Telephone Company of Ohio and
International Brotherhood of Electrical Workers,
AFL-CIO, Petitioner . Case 8-RC-7404
November 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Richard F.
Rice. Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure,
Series 8, as amended , and by direction of the
Regional Director for Region 8, the case was
transferred to the National Labor Relations Board
for decision . The Petitioner, the Intervenor , and the
Employer filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act , and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner and the Intervenor,
Communications Workers of America , AFL-CIO,
are labor organizations claiming to represent certain
employees of the Employer.
3. No question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act, for the following
reasons:
The Employer operates telephone exchanges
throughout the State of Ohio . Administratively, the
Employer divides its territory into districts, which
are subdivided into exchanges . The Wauseon,
Archibald, and Swanton exchanges, involved herein,
are three of the exchanges located in the Napoleon
district.
As amended at the hearing , the Petitioner seeks
to represent the following unit:
All plant department employees , traffic
department employees and commercial
department employees employed by the Employer
at its Archibald , Swanton , and Wauseon
exchanges , excluding confidential employees and
all professional employees , guards and supervisors
as defined in the Act.
Petitioner has not taken an alternative position,
and has indicated that it does not wish to participate
in an election for a lesser unit than that set forth
above.
Intervenor and Employer contend that an existing
collective-bargaining contract between them is a bar
to the petition insofar as it seeks to include plant
department employees. The Employer admits that,
absent contract bar, the traffic and plant department
employees could form an appropriate unit, but
contends that the commercial department employees
should be in a separate unit. Absent contract bar,
the Intervenor contends that commercial department
employees could be included in a unit with
employees of either or both of the other two
departments.'
Intervenor is party to a collective-bargaining
agreement with the Employer, executed on or about
October 10, 1968. The typewritten draft of the
contract indicated that Intervenor represented the
Employer's plant employees in the Napoleon
district. Because of a disagreement between the
parties as to whether Intervenor represented a
majority of this Employer's plant employees at the
three disputed exchanges, after the typewritten
words "Napoleon (Plant only)," the parties added
by longhand the words "Except Wauseon, Swanton,
Archibald." This exclusion of these three exchanges
was subject to later inclusion as set forth below.
Previously, on September 27, 1968, the parties
signed a letter which confirmed their understanding
"with respect to the applicability of their
collective-bargaining agreement as follows:"
Said Agreement shall not apply to those .
employees of the Company within the
classifications covered by this Agreement who
have not designated the Union as their
collective-bargaining representative. However, at
such time as a majority of such employees in an
appropriate bargaining unit designate the Union
as their collective-bargaining representative, they
shall automatically be included in the unit
established by Article 1, Section 1 [the
recognition clause] of said Agreement and be
covered by said Agreement.
On November 11, 1968, the Intervenor . satisfied
the Employer that it represented a majority of the
plant employees at the three disputed exchanges,
and the Employer orally agreed to recognize the
Intervenor as the bargaining representative for such
employees.
Thereafter, the Employer received galley proofs of
the contract which was being prepared for printing.
The words "Except ' Wauseon, Archibald and
Swanton" were included in the proofs, but the
Employer crossed out these words, and sent the
proofs as so modified to the Intervenor on January
23, 1969. On February 1, 1969, the Intervenor in a
'Commercial and traffic department employees at the three disputed
exchanges are unrepresented
179 NLRB No. 126
UNITED TELEPHONE CO. 733
letter to the Employer approved the Employer's
change in the galley proof as indicated above. In
conformity with the contract, as modified, the
Employer began implementing the dues checkoff
provisions for some plant employees in the three
disputed exchanges.
On February 10, 1969, Petitioner filed its petition,
and the Employer ceased checking off dues for the
disputed employees. Subsequently, on March 6,
1969, the Employer sent the Intervenor a letter
which stated that the Employer recognized the
Intervenor as the representative of the plant
employees at the Wauseon, Swanton, and Archibald
exchanges.
Petitioner contends that the October 10, 1968,
collective-bargaining contract is not a bar to its
petition, because it specifically excluded the plant
employees at the three disputed exchanges, and that
the September 27, 1968, letter does not cure this
defect, since it was executed prior to the signing of
the October tenth contract and does not even
purport to relate specifically to the affected
employees. Petitioner relies on the doctrine of
Appalachian Shale Products Company: that "To
serve as a bar, a contract must clearly by its terms
encompass the employees sought in the petition."
Petitioner further contends that the
correspondence between the Company and
Intervenor, prior to the filing of the petition, does
not act as a bar, since there is no formal document
signed by both the parties containing the essential
terms and conditions of employment.3 None of the
parties contends that the Employer's March 6, 1969,
letter, sent after the filing of the petition herein acts
as a bar to the filing of said petition.
We find that, in the circumstances of this case,
the September 27, 1968, letter and the October 10,
1968, contract act as a bar to the filing of the
instant petition. In the September 27 letter, signed
by both parties, the Employer and the Intervenor
agreed that excluded employees should
automatically be fully included in the appropriate
contract coverage whenever a majority of the
employees in an excluded appropriate bargaining
unit designated the Intervenor as their bargaining
representative. A majority of the plant employees in
the Wauseon, Swanton, and Archibald exchanges
did so designate the Intervenor as their bargaining
representative, recognition was extended and
implemented, and that recognition was evidenced by
the correction of the page proof of the contract, and
the letter from the Intervenor expressing approval of
that correction,4 all before Petitioner filed its
petition.
As it appears that the parties to the
collective-bargaining contract have made provision
for automatic inclusion of employees in an
appropriate unit upon performance of a condition
subsequent, that that condition subsequent has been
performed and that the parties have agreed in
writing that it has been performed, we find that the
affected employees are included in the parties'
contract and that the contract acts as a bar to the
later filed petition.'
In view of the foregoing considerations, we shall
dismiss the petition.
ORDER
It is hereby ordered that the petition filed be, and
it hereby is, dismissed.
'121 NLRB 1160, 1164
'Citing Hotel Employers Association of San Francisco , 159 NLRB 143,
147
'Although the Employer and the Intervenor had not both signed the
contract , as modified, the Employer had written a formal proposal for the
agreed upon modification , and the Intervenor had accepted that
modification by letter As the Board stated in Appalachian Shale Products
Company, supra, 1162, "Sometimes the agreement is arrived at by an
exchange of a written proposal and a written acceptance , both signed "
'As we conclude that Petitioner is barred from processing its petition
insofar as plant employees are concerned , and as Petitioner has declined to
take an alternative unit position, we find it unnecessary to discuss whether
any other proposed units could be appropriate.