Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

Jun 7, 1979

242 N.L.R.B. 825 (N.L.R.B. 1979)

THE WESTERN UNION TELEGRAPH COMPANY
The Western Union Telegraph Company and Rox-
anna Cooper, William Garcia, Shirley Barnes,
Katherine Vollinger, and IHannah Valley and St.
Louis Local #3, Western Union Division, United
Telegraph Workers, AFL-CIO, Party in Interest,
and United Telegraph Workers, AFL-CIO, Party in
Interest. Case 14-CA-I 1347
June 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On December 29, 1978, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief' and Respondent and
the Parties in Interest filed cross-exceptions and sup-
porting briefs.
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 record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith and to adopt his rec-
ommended Order.
The complaint alleges, inter alia, that: (1) Rose
Zacher, Dorothy Wallace, and Clinton Laws are su-
pervisors within the meaning of Section 2(11) of the
Act; (2) these individuals are, respectively, the secre-
tary-treasurer, recording secretary, and shop steward
for St. Louis Local # 3, Western Union Division,
United Telegraph Workers, AFL-CIO;2 and (3) by
permitting these individuals to serve as union officials
and by recognizing and dealing with them, Respon-
dent has violated Section 8(a)(1) and (2) of the Act.
The Administrative Law Judge found Zacher, Wal-
lace, and Laws to be supervisors within the meaning
of Section 2(11) of the Act. Nevertheless, he con-
cluded that Respondent did not violate Section
8(aX)(1) and (2) of the Act by acquiescing in their
uniois activity since these individuals were "low level"
supervisors, they did not participate in contract nego-
tiations with Respondent, and the General Counsel
did not prove that an actual conflict of interest existed
between their supervisory duties and their activity on
The General Counsel has moved that a portion of its brief be corrected.
This motion is hereby granted.
2 Hereinafter called the Union.
behalf of the Union.3 Accordingly, he dismissed the
complaint in its entirety.
Although we agree with the Administrative Law
Judge that the complaint should be dismissed, we do
so because we find, for the reasons set forth below,
that Zacher, Wallace, and Laws are not supervisors
within the meaning of Section 2(11) of the Act.
Rose Zacher
Rose Zacher is the assistant manager of Respon-
dent's directory center, which compiles a nationwide
directory of Respondent's subscribers. She is directly
responsible to Supervisory Assistant Pat Guier, who
in turn is responsible to Directory Service Manager
Frances Poff. Both Guier and Poff are in charge of
the directory center and are present there on a daily
basis. They are excluded from the bargaining unit.
Subordinate to Zacher are II other bargaining unit
employees, consisting of I senior clerk and 10 direc-
tory clerks.
Although Zacher is nominally responsible for di-
recting the work of the employees under her, she does
so pursuant to explicit instructions from Guier and
Poff. She meets frequently with them to discuss prob-
lems in the office but does not participate in the for-
mulation of personnel or work policies. Rather, she is
charged with the implementation of the policies and
procedures devised by management. In this regard,
the record reveals that, pursuant to instructions from
her supervisors, Zacher prepares various memoranda
instructing the clerks with respect to work rules and
procedures. She is responsible for seeing that these
procedures are followed and she assists clerks having
any problems or questions concerning their work. Al-
though she is responsible for seeing that employees
take breaks and lunches on time, these breaks are
prescheduled and Zacher has authority to permit only
one employee at a time to deviate from his or her
scheduled break. Any additional changes in schedul-
ing must be cleared with Guier or Poff.
Zacher ordinarily does not designate the job assign-
ments of the directory center clerks. Rather, the
clerks each have specific preassigned areas of respon-
sibility. The daily work is distributed by the mail
clerk, who receives the mail from Guier, sorts it into
areas, and distributes it to the individual clerks. Since
this procedure does not vary significantly from day to
day, Zacher's involvement in assigning employees to
particular job functions is infrequent and does not
involve any independent judgment on her part. It
consists merely of switching an employee, usually the
I In so doing, he relied on the Board's holding in Nassau A Sqffolk Con-
iracrors' Association, Inc., 118 NLRB 174 (1957), and subsequent cases which
have addressed the issue of participation of supervisory personnel in union
affairs.
242 NLRB No. 128
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mail clerk, to a function already designated by Poff or
Guier as "spare time" work. Zacher is not authorized
to assign overtime.
In addition to the above duties, a significant por-
tion of her worktime is spent preparing reports on
work production and employee attendance. She com-
piles daily reports on the production of each clerk
based on the figures given to her by the individual
clerk. She collects the employees' timesheets on a
daily basis and turns them over to Guier, who "logs"
the payroll. 4 She has been instructed to report to
Guier any employee who is more than one-half hour
late for work. Despite this responsibility to monitor
employee attendance, however, she has no authority
to grant time off to employees for illness and cannot
authorize vacations. Although such requests are di-
rected to her, they are forwarded to Guier for ap-
proval.
The evidence further reveals that Zacher is respon-
sible for training new employees concerning office
procedures and, on occasion, has been asked by man-
agement to evaluate an employee's performance at
the end of his or her probationary period. However,
the only specific instance of evaluation elicited at the
hearing was one in which her recommendation that a
probationary employee be made permanent was re-
jected by Poff. With respect to other indicia of super-
visory status, the record is devoid of evidence that
Zacher has authority to hire, discharge, suspend, pro-
mote, reward, or otherwise effectively recommend
such personnel actions.
Finally, the record indicates that Zacher, who has
been employed by Respondent for 33 years, is paid
more than the senior clerk and other clerks at the
directory center. However, she receives the various
fringe benefits accorded to bargaining unit employ-
ees, which vary substantially from the benefits pro-
vided to excluded personnel.
The Administrative Law Judge found that Zacher
possesses limited authority to grant time off, recom-
mend discipline, and take minor disciplinary action
herself. He further found that, despite the dearth of
evidence, Zacher exercises independent judgment in
the performance of her duties, her job description
contains such broad authority that it would be "unre-
alistic to imagine" that she could perform these duties
without exercising any independent judgment. He
fount, that even a decision whether to report a rules
infraction or whether to grant an extended lunch
hour requires independent judgment. He, therefore,
concluded that Zacher is a supervisor within the
meaning of Section 2(11).
4 If an employee forgets to punch in or out, Zacher is authorized to initial
his or her timesheet. Unlike Poff and Guier, Zacher is required to use the
timeclock.
We do not agree with the Administrative Law
Judge's conclusion that Zacher is a supervisor. Con-
trary to his finding that she possesses authority to
recommend discipline and take minor disciplinary ac-
tion herself; Zacher testified without contradiction
that she merely reports all employee violations to Poff
or Guier. There is no evidence that Zacher can effec-
tively recommend disciplinary action or take such ac-
tion on her own, and the Administrative Law Judge
erred in finding that she possesses such authority.
We also reject the Administrative Law Judge's rea-
soning that Zacher's job description, her limited au-
thority to grant time off, and her "authority" to de-
cide whether or not to report rules infractions warrant
the conclusion that she exercises independent judg-
ment. First, a finding of supervisory status cannot be
based solely upon her job description. Like a job ti-
tle,5 a job description is not determinative of supervi-
sory status. Rather, the question is whether there is
evidence that the individual actually possesses any of
the powers enumerated in Section 2(11). Such evi-
dence is absent here. Second, the circumstances under
which Zacher reports rules violations and is permitted
to grant time off evidence her lack of actual authority
to exercise independent judgment. With respect to the
former, we note that she is required to report all rules
infractions, and her testimony does not reveal that
she has any discretion in this regard. Likewise, the
stricture placed upon her authority to grant time off
leaves little room for independent judgment. Al-
though she may permit an employee to change his or
her prescribed breaktime, she has been specifically in-
structed that she may approve only one such request
without contacting Supervisory Assistant Guier.
In short, the extremely limited "discretion" Zacher
possesses is based upon specific and detailed em-
ployee policies prescribed by Respondent's excluded
personnel and does not rise to a level which warrants
concluding that she exercises independent judgment
within the meaning of Section 2(1 1) of the Act. In the
absence of any evidence that Zacher possesses any of
the other statutory indicia of supervisory status, we
conclude that she is not a supervisor within the mean-
ing of Section 2(11) of the Act.
Dorothy Wallace
Dorothy Wallace is TWX/Telex Chief of the traffic
department. There are I operators on Wallace's shift
and, in addition, another "supervisor" included in the
bargaining unit.6 Wallace is directly responsible to
Office Manager Franklin Morris, who is responsible
Golden West Broadcasters-KTLA, 215 NLRB 760, 761 (1974).
6There is no contention that this individual is a supervisor within the
meaning of Sec. 2(11).
826
THE WESTERN UNION TELEGRAPH COMPANY
to District Manager Harold Gipson. Like Zacher's
supervisors, Morris and Gipson are excluded person-
nel. Wallace is paid more than the other unit employ-
ees in the department, but like Zacher she receives the
same fringe benefits as other unit members.
The traffic department has four sections: The TWX
section, in which the operators assist customers in
placing calls to one another; the Telex section, in
which the operators use teletype machines and assist
customers with problems in contacting other Telex
customers; the telephone department, where the op-
erators read telegrams to customers; the transmitting
department, where the operators transmit money or-
ders and telegrams. Traffic department operators are
qualified to work in all sections and are rotated
within the department on a regular basis.
The record reveals that Wallace does not determine
the work assignments of the operators in the traffic
department. The weekly work schedules and overtime
assignments are established by Morris, and the opera-
tors report in staggered shifts, with the first reporting
at 7:15, 15 minutes before Wallace arrives. This op-
erator automatically covers the TWX board for the
late night operator. Two more operators arrive at
7:30 with Wallace, and they rotate between the TWX
and Telex positions. The rest of the day complement
arrive at prescheduled intervals and are told where to
work by Wallace based upon the amount of message
traffic being received in the particular sections. Cof-
feebreaks and lunches are scheduled by Morris pursu-
ant to requirements in the collective-bargaining
agreement. Although Wallace ordinarily tells the op-
erators to take their breaks at the appropriate time,
there was testimony that, if she fails to do so, the
operator will notify Wallace that it is time for her
break and will leave. Although the record indicates
that Wallace on her own authority may grant an ex-
tended break or lunch when requested, there was also
testimony that Office Manager Morris specifically
granted that authority to Wallace and limited it to a
maximum of 30 minutes of extra time.
In addition to these duties, Wallace handles cus-
tomer complaints, records operator absences and late-
ness, and is authorized to correct errors in employee
timesheets. She also prepares work production reports
predicated upon the number of calls reported by the
operators on their "tally sheets."
With respect to discipline of employees, the record
indicates that Wallace has reprimanded operators for
excessive talking, but only upon instruction from
Morris. In her prehearing affidavit, Wallace stated
that in the past year she had twice "recommended"
that an employee be disciplined for refusing to per-
form work as requested. However, at the hearing she
denied making this statement. In any event, her affi-
davit further states that "When this occurs I report it
to Office Manager Morris, who calls the employee
into his office. I am not present at the ensuing inter-
view." In addition, the only testimony concerning a
specific instance of Wallace's participation in em-
ployee discipline involved an employee who, after re-
luctantly switching positions at Wallace's instruction,
shortly thereafter told Wallace she wanted to go
home because she was sick. At that point. District
Manager Gipson came out of his office, had words
with the employee, and the employee was suspended
for 2 or 3 days. There was no evidence that Wallace
made any recommendation to Gipson with respect to
this incident.
Finally, Wallace does not have authority to hire,
discharge, suspend, promote, or reward employees,
and there is nothing in the record to indicate that she
can effectively recommend such personnel actions.
The Administrative Law Judge, in concluding that
Wallace is a supervisor, found that, like Zacher, Wal-
lace had authority to recommend disciplinary action
and take minor disciplinary action herself. He also
relied upon her job description, her authority to de-
cide whether to report rules infractions, and her lim-
ited authority to grant time off to support his conclu-
sion that she exercises independent judgment in the
performance of her duties. We disagree.
The record does not support the Administrative
Law Judge's finding that Wallace has authority to
recommend and take disciplinary action. On the con-
trary, the testimony concerning her involvement with
employee discipline indicates her lack of authority in
this regard. Wallace testified that she has repri-
manded operators only upon instructions from her
supervisor, Morris. Moreover, the only specific inci-
dent of record involving employee discipline in which
she participated resulted in disciplinary action being
taken by her supervisor on his own accord. The rec-
ord contains no other evidence which would indicate
that Wallace has any authority to discipline the op-
erators under her, or effectively recommend such dis-
cipline.
Moreover, we do not believe that the evidence sup-
ports the conclusion that Wallace exercises indepen-
dent judgment in the performance of her duties. Her
job description notwithstanding. Wallace's actual au-
thority is strictly regulated by specific employee poli-
cies devised by management. She is required to report
all rules infractions and has no discretion in this re-
gard. Her authority to occasionally authorize an ex-
tended break is essentially routine and is severely lim-
ited by the management proviso that extensions
exceeding 30 minutes must be approved by her super-
visor. Likewise, although Wallace may permit an em-
ployee to go home due to illness, there is no evidence
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such approval is anything more than routine or
that she has discretion to reject such requests.7 In our
opinion, none of these duties requires the exercise of
independent judgment.
In view of the foregoing, we conclude that Wallace
is not a supervisor within the meaning of Section
2(11).
Clinton Laws
Clinton Laws is Central Telephone Bureau8
Recording/Transmitting Supervisor9 on the late night
shift at Respondent's Bridgeton, Missouri, CTB facil-
ity. This Bureau is primarily engaged in recording
and transmitting all telegrams and money orders
from Western Union customers and agencies. At
Bridgeton there are 8 recording rooms with 40 record-
ing "positions" or terminals per room. Approximately
four of the recording rooms are utilized during the
night shift, one of which is the recording transmitter
room, where Laws is assigned. Although each record-
ing room has at least one RT supervisor during the
day shifts, Laws is the only one in the building from
1:30 to 6:30 a.m. Laws is responsible to Assistant Op-
erations Manager Morgan, who is in charge of the
overall operation of the CTB during the night shift
and is excluded from the bargaining unit.
Laws has virtually nothing to do with the assign-
ment of operators to their particular functions. The
daily shift assignments are done by computer. More-
over, Laws' supervisor, Morgan, continually monitors
the work of the operators in the individual rooms
from a communication room, and it is he who trans-
fers operators from room to room as needed. From
this communication room, Morgan can monitor the
number of calls and the worktime expended for calls
coming into each section at the center, and a com-
puter system tells him which sections need additional
personnel. If a transfer of personnel from one room to
another becomes necessary, he notifies Laws, who
tells the operator to move.
Laws is primarily assigned to the recording-trans-
mitting room and spends the majority of his time
there. Although he is responsible for directing the
work of the operators in this room and seeing that the
operation functions smoothly, like Zacher and Wal-
lace he acts pursuant to explicit directives from man-
agerrent.' 0 He is charged with seeing that operators
are at their assigned positions and "plugged in" (able
to receive calls) at all times. He makes sure that op-
7 See Spector Freight System, Inc., 216 NLRB 551, 554 (1975).
a Hereinafter CTB.
9 Hereinafter RT.
'0 Although he meets with Morgan frequently to discuss the operation of
the recording-transmitting room. Laws is not included in management meet-
ings concerning operational policies and procedures.
erators go to and return from their assigned breaks
and lunches on time and reports violations to Mor-
gan. From his master console, he monitors the opera-
tors' positions to see that recording practices are fol-
lowed and errors are corrected. He answers operators'
questions and assists them with problems, a function
which he sometimes performs in other sections if re-
quested. Since Morgan monitors the operators' activi-
ties from the communication room he will sometimes
call Laws and ask him why a certain operator has
taken so long answering a call and Laws will look
into it." Laws does not regularly or formally evaluate
employee performance, but he testified that he has,
on occasion, indicated to Morgan that a certain em-
ployee is a good worker. He has no authority to grant
requests for vacations or personal leave. Due to a re-
cent change in Respondent's rules, however, Laws is
now permitted to excuse an operator due to illness
without contacting a "senior supervisor."
Although he is charged with maintaining order in
his section and assuring operator compliance with
Respondent's rules, the evidence indicates that Laws
imposes no disciplinary action himself but merely re-
ports rules infractions and disciplinary problems to
Morgan. Laws testified that on one occasion he re-
ceived a customer complaint concerning an operator
and he reported it to Morgan, who called the em-
ployee into his office for questioning. Although Laws
was present at the ensuing interview, he was there to
represent the employee as part of his duties as shop
steward. There was no evidence that he made any
disciplinary recommendation in his capacity as RT
supervisor with respect to this employee.
As in the case with Zacher and Wallace, Laws has
no authority to hire, discharge, suspend, promote, re-
ward, or otherwise effectively recommend such per-
sonnel actions.
The Administrative Law Judge concluded that
Laws was a supervisor within the meaning of Section
2(11). In so doing, he found, as he had with Zacher
and Wallace, that Laws has authority to recommend
discipline and that he exercises independent judgment
in reporting employee infractions and granting time
off.
Again we disagree with the Administrative Law
Judge. Like Zacher and Wallace, Laws testified with-
out contradiction that his only function with respect
to employee discipline is to report all infractions to
his supervisor, Morgan. As noted above, the only tes-
timony concerning a specific incident in this regard
involved a customer complaint concerning an em-
ployee which Laws reported to Morgan, who in-
" In addition to these duties, Laws also spends a portion of his time each
evening sorting letters and cables left over from the day shift to effectuate
delivery the following morning.
828
THE WESTERN UNION TELEGRAPH COMPANY
dependently conducted an investigation and took dis-
ciplinary action. Thus, there is no evidence that Laws
has authority to recommend or take disciplinary ac-
tion.
The Administrative Law Judge's finding that Laws
exercises independent judgment in the performance
of his job is also unsupported by the record. Contrary
to the Administrative Law Judge's finding, the record
reveals that Laws is required by management to re-
port all rules violations and has no discretion in this
regard. With respect to his authority to grant time off,
the circumstances under which he may do so evidence
his lack of actual authority to exercise independent
judgment. Although pursuant to a recent rule change
Laws now may grant an employee's request to leave
due to illness, there is nothing in the record which
would indicate that such approval is more than rou-
tine in nature. Moreover, all requests for personal
leave and vacation must be directed to Morgan.
Like Zacher and Wallace, whatever limited author-
ity Laws may possess over the operators is circum-
scribed by policies and procedures promulgated by
management which hardly leave room for indepen-
dent judgment on his part. We, therefore, conclude
that Laws is not a supervisor within the meaning of
Section 2( 1) of the Act.
In view of our finding that Zacher, Wallace. and
Laws are not supervisors, we shall dismiss the com-
plaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
SIATEMEN1 OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This case
was heard before me on July 27 and 28. and September 18.
1978, in St. Louis, Missouri, based upon a charge filed by
Roxanna Cooper and other employees named above and
upon a complaint which issued on June 19, 1978.
In essence. the complaint alleges that The Western
Unior Telegraph Company (hereinafter the Employer) ren-
dered unlawful assistance to St. Louis Local No. 3, Western
Union Division, United Telegraph Workers, AFL-CIO
(hereinafter the Union)' in violation of Section 8(a)( ) and
No evidence was adduced to show, nor is it alleged, that the Employer
unlawfully assisted the Local's parent organization, the United Telegraph
Workers. AFL-CIO. Accordingly, all references hereinafter to the Union
refer only to Local No. 3 and all allegations of the complaint which allege
United Telegraph Workers, AFL-CIO committed unfair labor practice are
hereby dismissed for lack of evidence.
(2) of the National Labor Relations Act, as amended (here-
inafter the Act) by permitting its supervisors Rose B. Zach-
er, Dorothy J. Wallace, and Clinton B. Laws to serve, also,
as union officers, and by recognizing and dealing with those
supervisors in negotiations or administration of the collec-
tive-bargaining agreement and/or in handling employee
grievances.
The Employer's timely answer admits certain allegations
but denies the substantive allegations of the complaint and
the commission of any unfair labor practices.
All issues were fully litigated at the hearing; all parties
were represented by counsel and were afforded full oppor-
tunity to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, and to engage in oral argu-
ment. Post-hearing briefs have been received from the
Board's counsel for the General Counsel, from counsel for
the Employer. and from the Union's counsel. Those briefs
have been carefully considered.'
Upon the entire record and from my observation of the
witnesses and their demeanor in the witness chair. I make
the following:
FINDINGS AND CON( I.SIONS
I. THE EMPL.OYER'S SINEFSS
The Employer, a New York corporation, with its princi-
pal office and place of business in Upper Saddle River, New
Jersey, is, and has been at all material times, engaged in
receiving and transmitting communications on an intra-
state, interstate, and international basis. The Employer
maintains installations in various states of the United States
and in foreign countries.
During the calendar year immediately preceding the issu-
ance of the complaint, a representative period, the Em-
ployer derived gross revenues in excess of $100,000 from the
interstate receipt and transmission of telegraph and cable
communications.
It is undisputed, the record reflects, and I find that the
Employer is engaged in commerce within the meaning of
Section 2(2). (6), and 7) of the Act.
II. HE IABOR ORGANIZAllION INSOLA.ED
It is admitted, the record reflects, and I find that St. Louis
Local No. 3. Western Union Division, United Telegraph
Workers, AFL CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THF ALEGED UNFAIR L.ABOR PRACTIC'ES
A. The Issues
(I) Are Zacher. Wallace. and Laws supervisors within
the meaning of the Act?
(2) Did the Employer provide unlawful assistance to and
interfere in the administration of the Union in violation of
Section 8(a)(I) and (2) of the Act by recognizing Zacher.
2 The Employer's unopposed motion to correct record. filed after the hear-
ing closed. is granted,
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace, and Laws as union officials during a time each of
them occupied supervisory positions with the Employer?
(3) Should the principles enunciated in Nassau & Sufl,/lk
Contractors 'Association, Inc., 118 NLRB 174 (1957), and its
progeny, be applied to the telegraph industry?
No party explicitly and separately has argued the exis-
tence of the third issue identified above. However, the coun-
sel for the Employer and the Union specifically rely, in
part, upon Nassau & Sulfolk and subsequent related author-
ity. The General Counsel claims "that Respondent's reli-
ance on the distinction between high-and low-level supervi-
sion is totally irrelevant." Asserting that the Board "has
only relied on the distinction between low-and high-level
supervisors in cases involving the construction industry or
in cases that deal with an alleged supervisor's intra-union
activity," the General Counsel, in effect, urges the Nassau &
Suflok principles are inapplicable herein. Nonetheless, the
decisional authority cited by the General Counsel is, in my
opinion, progeny of Nassau & Suffblk.
Because of the foregoing, and because the Nassau & S ~
fblk principles emanated from and were later applied in
large part to the construction industry. I consider it neces-
sary to clearly provide a declaration of their applicability to
the industry involved in the case at hand.
B. Background
The Union has been the exclusive collective-bargaining
representative of an extensive nationwide unit of employees
since March 28, 1945, by virtue of the Board's Supplemen-
tal I)ecision (61 NI.RB 110) which amended the original
certification granted the Union's predecessor (58 NLRB
1283). In relevant part, the Board adopted the Trial Exam-
iner's observation that:
[Tihe hierarchial structure of the Company is such that
its administration is highly centralized. The degree of
this centralization here is such that the level at which
substantial supervisory authority begins is at a point
higher than is the case in most other industries. In
great measure, reliance is had upon detailed written
instructions from departmental headquarters.... The
effect of all this, and of other measures of control, is to
dilute substantially the degree of supervisory authority
in particular job categories of most of those employees
who have others working under them.' (58 NLRB at
1297-13A). [Emphasis supplied.]
Further, the Trial Examiner noted "a title which includes
the word 'manager' or 'supervisor' does not necessarily
mean that the job involved (sic) is such that it should be
exclu"':d." (58 NLRB 1297-13A). Thus. historically, the job
classifications held by Zacher, Wallace, and Laws have
been consistently included in the bargaining unit.
At present, the job classifications possessed by Wallace,
Zacher, and Laws continue to be within the collective-bar-
gaining unit. Thus Wallace is TWX Telex chief, traffic de-
partment: Zacher is assistant manager. directory center:
and Laws is CRT supervisor, centralized telephone bureau.
Their job descriptions are set forth in a document entitled
"Job Classification" (G.C. Exh. 2) which is a part of the
current collective-bargaining agreement.'
At the time of the instant hearing there were approxi-
mately 6,800 employees within the bargaining unit.
As to collective-bargaining negotiations, the parties
stipulated that Local unions affiliated with United Tele-
graph Workers, AFL CIO, do not participate in such nego-
tiations with the Employer, and Local modifications of the
collective-bargaining agreements are prohibited. The Union
is represented in negotiations by a committee comprised of
the International president, vice president, and regional
presidents. Particularly, the parties stipulated that neither
Zacher, Wallace, nor Laws has ever participated in any,
contract negotiations on behalf of the Union or the Em-
ployer.
Two facilities of the Employer are involved in this case.
They are the directory center located at 910 Chestnut
Street, St. Louis, Missouri. and the centralized telephone
bureau in Bridgeton. Missouri. Zacher and Wallace work in
the St. Louis location and Laws works at Bridgeton.
The Employer maintains its headquarters in Upper Sad-
dle River, New Jersey. The Employer's president and ex-
ecutive vice president maintain their offices at headquarters
and each has management responsibilities with respect to
the work of St. Louis and Bridgeton. Responsibility for op-
eration of the directory center is vested in an assistant vice
president for sales support. Telex directory service. Report-
ing to that individual is Directory Service Manager Frances
Poff. Supervisory Assistant Pat Guier is responsible to Pofl'.
Zachner reports to Poff and Guier. The assistant vice pres-
ident for sales support, Telex directory service, in turn, re-
ports to a national sales manager who reports to the execu-
tive vice president.
Wallace is responsible to Operations Manager Franklin
L. Morris. Morris reports to District Manager Harold Gip-
son who reports to area manager-operations. The area man-
ager-operations reports to an area vice president who ulti-
mately reports to the Employer's executive vice president.
Laws is responsible to Operations Supervisor James R.
Morgan. Morgan reports to Operations Manager J. M.
Calabrese. Calabrese is responsible to the director of the
Bridgeton facility and he, in turn, reports to an assistant
vice president, CTB and operations. The latter individual
reports to the vice president of operations and he, in turn,
reports to the Employer's executive vice president.
Poff and Guier are management employees who are ex-
cluded5 from the bargaining unit of the directory center, the
chief function of which is to compile a nationwide directory
of subscribers to the Employer's operations. In the traffic
department, the function of which is to receive and transmit
customer messages throughout the Employer's system. the
district manager and office manager are excluded from the
bargaining unit. Wallace (as noted) works in the traffic de-
partment. At the Bridgeton location. Operations Supervisor
'The job descriptions appear erbatim in sec. III (. infra
4 Some of the facts stated herein above are taken from stipulations of the
parties. Other facts are derived from documents in evidence. In vicw ol my
ultimate findings and conclusions, I find it unnecessary to take official notice
of certain litigation which was identified orally by the Union's counsel when
proposing an offer of proof which I rejected at the hearing.
I When a bargaining unit employee is promoted to an "excluded" position
he or she relinquishe, bargaining unit status.
830
THE WESTERN UNION TELEGRAPH COMPANY
Morgan and Operations Manager Calabrese and CTB Di-
rector Sal are excluded from the bargaining unit. Upon the
foregoing description of supervisory hierarchy, I conclude
that there exists at this Employer an intricate and multilay-
er managerial-operational structure. In each of the depart-
ments involved in this case, I find there is a day-to-day
presence of at least two individuals whose supervisory sta-
tus is undisputed to whom Zacher. Wallace, and l.aws are
responsible.
Zacher. Wallace, and Laws held positions in the Union at
the time of the hearing, and previous to that time. Thus.
Zacher currently is the Union's secretary-treasurer. She for-
merly was a union steward, serving in that position from
1966 to 1976 when she assumed her present union position.
Her current union office requires her to collect and post
dues and remit per capita assessments to the parent union.
Also, she attends the union executive board and general
membership meetings. As a union officer, her only contact
with the Employer occurs when she is required to advise it
of delinquencies in dues checkoffs. During her tenure as
steward, Zacher submitted grievances on behalf of unit em-
ployees. The record does not reflect the number of such
grievances she handled or how effectively she performed
those tasks.
Wallace has been the Union's recording secretary since
January 1978. Prior to that, she was a union steward in the
year 1971. As recording secretary, Wallace prepares min-
utes of executive board meetings and has attended union
conventions. There is no evidence that the position of re-
cording secretary requires Wallace to deal with the Em-
ployer in any way.
Laws is, and has been for the past 4 years, a shop stew-
ard. Previously he had been the Union's financial secretary.
As a steward, he is empowered to file grievances for any
unit employee in the ('TB center. He participates in griev-
ance meetings with management representatives. The par-
ties stipulated that Laws files "many grievances and ac-
tively and diligently carries out and fulfills the Union's
obligations towards the members of the bargaining unit."
As previously noted, none of these three individuals en-
gages, or has engaged, in negotiations for collective-bar-
gaining contracts.
C. The Supervlisor Issue
The General Counsel contends that Zacher. Wallace, and
Laws are supervisors within the meaning of the Act. The
Employer and Union make contrary assertions and, in the
alternative. argue that at most each of these individuals is a
low-level supervisor.
Considerable evidence was adduced by the parties on this
issue. It would unnecessarily prolong this Decision to delin-
eate each and every shred of evidence produced which
bears on the supervisory status cf Wallace. Zacher, and
Laws. It is sufficient to set forth only the facts which are
virtually undisputed and by which I find the evidence as a
whole supports the conclusion which I make herein that
Zacher. Wallace, and Laws are low-level supervisors.
Rose B. Zacher. assistant manager, directoOr center. As
indicated, Poff and Guier are excluded personnel. Zacher.
who has 33 years service with the Employer, is directly re-
sponsible to them. Subordinate to Zacher are I other em-
ployees who, as she. are included in the bargaining unit.
They consist of one senior clerk and 10 directory clerks.
Zacher's job description sets forth her duties as follows:
Aids the manager in the direction and the supervision
of Directory Compilation Personnel. Prepares and
handles related reports, records and correspondence.
Maintains close working liaison with the TWX/Telex
Information groups in providing daily addendum to
the Information Directory May perform the work he
directs provided such work does not interfere with his
supervisory duties.
The composite of all relevant testimony and documents
in evidence reveals that Zacher directs the activities of the
employees subordinate to her pursuant to explicit instruc-
tions from Poff and Guier. When requested by them. Zach-
er has submitted her opinion of the work of a probationary
employee. Upon instruction, Zacher prepares reports on
employee tardiness. There is evidence that Poff has asked
Zacher to discuss employee rules infractions with her. On
occasions, when both Poff and Guier are absent, it is Zach-
er who maintains the operation of the directory center.
Zacher consumes substantially all worktime by doing what-
ever is necessary to maintain a smooth flow of operations.
The record as a whole reflects that Zacher only occasionally
exercises independent judgment in the performance in her
work .
Zacher shares in the various fringe benefits of employees
indisputably within the bargaining unit. These benefits vary
substantially from those provided to excluded individuals.
Zacher does not participate in the formulation of person-
nel or work policies. When Valley (Zacher's subordinate)
requested confirmation of instructions imparted by Zacher
to the other employees. Poff responded that "management"
(meaning Pofl or (iuier) always authorized any instructions
given by Zacher.
There is no evidence that Zacher can hire, fire, lay off. or
otherwise effectivelys recommend personnel actions of any
employee.
Dorollt W'alace. TI/Telex chiefl traffic dlepartment:
Wallace reports to Office Manager Morris, who (as indi-
cated above) is responsible to District Manager Gipson.
There are I I operators on Wallace's shift and also another
included supervisor. Schwartz. Wallace's job description
follows:
Assists the department head in supervising the Telex
Information Center and TWX Center Functions. Acts
as an aide in assigning force. Maintains required rec-
ords and reports. May perform operating supervisors
functions provided such does not interfere ith his
other duties.
Wallace informs the operators where they should sit to
perform their work. She issues those instructions based
upon the flow of traffic. This determination is readily made,
guided by the number of messages at a particular work
station and the workload of calls identified by flashing
lights. Weekly work schedules are established by Morris
0 This conclusion is derived from mn, oser iev., of all ihe relevant e idence.
I place little probative alue upon the selt-sersing characterizations of the
witnesses %ho iestlfied relative to this matter and to the contents of Z7acher's
prehearing affidavits
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who also determines the need for overtime. Wallace trans-
mits Morris' requests to work overtime to the other employ-
ees. Wallace may independently permit an employee to ex-
tend a lunch hour. Wallace performs ministerial clerical
work and renders reports, all of which must be approved by
Morris.
Wallace handles customer complaints, but the operators
do not do so. Wallace initials timesheets of operators on
occasions when the timeclock fails to properly stamp a
timecard. Wallace reprimands employees for excessive talk-
ing, but upon instructions from Morris. The operators are
instructed to discuss their problems with Supervisors
Schwartz and Wallace. In order to discuss matters with
Morris, an employee must first submit the matter to Wal-
lace.
Much of Wallace's testimony regarding her activities was
conclusionary and self-serving. Particularly, she equivo-
cated regarding her recommendations for discipline. In her
prehearing affidavit she stated "I have recommended that
employees be disciplined for refusing to perform work as
ordered by me. This has happened twice in the past year.
[W]hen this occurs I report it to Office Manager, Morris,
who calls the employee into his office. I am not present at
the ensuing interview." Wallace orally testified that she did
not make the quoted remarks to the investigating Board
agent and could not explain why it appears in her affidavit.
In general, I found Wallace sought to diminish her author-
ity throughout her testimony. Viewed in this light, and con-
sidering the probabilities of circumstances, I find it unlikely
that the quoted language would have appeared in Wallace's
affidavit had she not so informed the investigating agent.
Accordingly, I find there is evidence that Wallace recom-
mended discipline for refusing to perform work she re-
quested.
Clinton B. Laws, CTB recording/transmitting supervisor,
Bridgeton: Excluded supervisor Morgan is Laws' supervi-
sor. Both of them work on the Employer's late night shift.
There are approximately 30 operators working on that shift
in 8 rooms. Laws' job description states:
Directs work of Recording/Transmitting Operating
Personnel. Supervises the telephone handlings of mes-
sages, requests for information and related matters. Su-
pervises the transmission of message traffic. May su-
pervise the making of reliefs. Handles directly with the
patrons any matters requiring supervisory attention.
Maintains required records.
Laws shifts the operators from room to room during the
course of his shift but this is done pursuant to Morgan's
instructions. Morgan is able to, and does. monitor the work
of each operator and the needs of each work station. When
an operator's machine breaks down the operator routinely
move. to another location without Laws' instruction. Each
evening's assignment for the operators is developed by a
computer. Laws uses the computer list to make him work
assignments. Laws handles customer complaints but the op-
erators may also do so in appropriate circumstances. Laws
has reported instances of operators who have had their ma-
chines inoperative for extended periods of' time to Morgan
who takes whatever action may be then required. Laws
does report rules infractions, such as an operator's taking
excessive time front work between calls. Written instruc-
tions issued to Laws (Resp. Exhs. 3 and 4) indicate that
Laws is generally responsible for employee compliance with
the Employer's work rules and production requirements.
Those documents also reflect that it is "senior supervisors"
(the excluded personnel) who have final authority to grant
time off. Also those documents require Laws to report mat-
ters of operator's discipline to the "senior supervisor."
Laws performs operator's work occasionally': on overtime
or if they are extremely busy. Regularly', however, Laws
engages in overseeing the general operation of the shillt.
Part of that job requires him to perform quality assurance
tasks. Laws candidly' testified he has assigned an operator to
mailroom work, but that operator had been selected by
Morgan. After completing the mail work the operator could
select the work station to which he would return. Laws also
acknowledged that he has made what he characterized as
"informal, personal comments" to Morgan concerning an
operator's performance.
Laws reported to Morgan that a customer complained
about operator Hembree having been rude. Morgan con-
ferred with Hembree regarding this matter in Morgan's of-
fice. Laws attended. Laws was asked by Morgan to recount
the nature of the complaint. Laws testified that he could not
recall whether Hembree asked him to serve as his union
steward during this conference. However, Laws testified
that he "felt" he was there as a steward. Initially. Morgan
had planned to discipline Hembree by' giving a written rep-
rimand. Morgan, however, altered that position and instead
simply reprimanded Hembree orally. Neither Morgan nor
Hembree testified. Laws was forthright and direct in his
testimony. I subscribe to his belief that he was present as
Hembree's steward. as well as the Employer's agent to re-
port the incident to Morgan. In this circumstance, one may
fairly infer, as I do, the reduction in contemplated disci-
pline was due, in part, to Laws as steward. In this connec-
tion, I am mindful of the parties' stipulation that Laws has
processed "many" grievances and the evidence showing he
represents approximately 600 employees. Thus, it is natural
for Laws to instinctively assume his steward's role in situ-
ations such as Hembree's. No evidence whatever was ad-
duced to show Laws eer had been an ineffective steward.
Calabrese credibly. and without contradiction, testified
that he meets with excluded managers and supervisors to
discuss production and personnel policies. Neither aws.
nor any other bargaining unit employee (for example. Wal-
lace and Zacher), participates in such meetings.
Finally, the promotions and various work-related fringe
and other benefits enjoyed by Zacher, Wallace, and Laws
ace governed by provisions of' the collective-bargaining
agreement between the Employer and the Union.
As noted. Zacher (and Wallace, too) exhibited uncoop-
erative attitudes when testifying on behalf' of the General
Counsel. Similarly. emploqees Valley and Webb (presented
by the General Counsel) were largely conclusionary in their
testimony. particularly with reference to their observation
of Wallace's and Zacher's activities. Laws was the most
illuminating of the General Counsel's witnesses.
Although the Issue is not free from doubt. I conclude the
record is sufficient to find. as I do. that Zacher. Wallace.
and Laws perform functions which constitute them more
than mere conduits of instruction from higher levels of au-
832
THE WESTERN UNION TELEGRAPH COMPANY
thority. Specifically, I conclude the record demonstrates
that each of these individuals possesses and exercises lim-
ited authority to grant time off, recommend discipline, or
take minor disciplinary action themselves. Clearly, each is
responsible for maintaining a smooth and efficient opera-
tion of the department to which each is assigned. This func-
tion requires each to report infractions to superior author-
ity. I have not overlooked the record evidence suggesting
that any of these individuals makes the work assignments. I
conclude such assignments were routine and essentially
nondiscretionary (see Orr Iron, Inc., 207 NLRB 863, 864
(1973)).
The authority, albeit limited, and responsibilities men-
tioned above have been considered in the light of Zacher's,
Wallace's, and Laws' job descriptions. I have attempted to
differentiate between the exercise of independent judgment
and the routine following of instructions, between effective
recommendation and suggestion, and between the appear-
ance of supervision and supervision in fact.
Section 2(11) of the Act defines the term "supervisor" as:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign.
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment. [Emphasis supplied.]
"IT]he possession of any one of the authorities listed
... (in Section 2(11)) . . . places the employee invested with
this authority in the supervisory' class." Ohio Power Com-
pany v. N.L.R.B., 176 F.2d 385, 387 (6th Cir. 1949)., cert.
denied 338 U.S. 899.
It is true, as the Employer and the Union argue, that
there is scant, if any, evidence that Zacher, Wallace, or
Laws exercises independent judgment in the performance
of their assigned duties. Yet, the broad authority provided
in their job descriptions makes it unrealistic to imagine they
could perform those activities with complete absence of in-
dependent judgment. Even the requirement that rules in-
fractions be reported to higher officials entails an indepen-
dent judgment as to whether or not such a report should be
made. Similarly, an independent judgment, however slight,
must be made when deciding whether or not to grant an
employee's request for an extended lunch hour. Although
the evidence reveals that judgments concerning disciplinary
action and its imposition are vested in higher management
officials, the broad nature of Zacher. Wallace, and Laws'
responsibilities clearly reflects they had an obligation to
maintain discipline (see Lee-Rowan Manufacturing Com-
pany, 129 NLRB 980, 984 (1960)). Although included in
the l.rgaining unit, their assigned tasks clearly aligned
Wallace, Zacher. and Laws to the interest of management.
Thus. I find that they are vested with such ostensible au-
thority' as to constitute them supervisors within the mean-
ing of the Act.
I In situations where there exists a valid basis for the supervised employees
to believe the individual giving them directions is a statutory supervisor. it is
proper to give some weight to that factor in resolution of the supervisory
issue The Bama Company 145 NLRB 1141. 1143 1964).
In Nassau & Suffolk, the Board distinguished between
levels of supervisory authority. There the Board held that
low supervisors who were a part of a bargaining unit could
lawfully participate in certain intraunion activities. Thus,
the Board stated, 118 NLRB at 182:
[T]he master mechanics are foremen with the powers
accompanying such positions in the construction in-
dustry. They are not executives, or officers. as the dis-
sent seems to imply.
Relevant to the second full sentence quoted above is the
evidence that neither Zacher, Wallace, nor Laws is con-
sulted regarding the Employer's production or personnel
policies. Their conferences with superior employer officials
is confined to the discussion of everyday operational mat-
ters. It appears that the explicit statutory indicia of supervi-
sory authority. in addition to policy making, is vested in
and exercised by the supervisory and managerial personnel
who are, and have been, consistently excluded from the
bargaining unit.
The Employer and the Union have maintained a con-
tinuous collective-bargaining relationship for the past 33
years. Throughout that time the jobs held b Zacher. Wal-
lace. and Laws have been bargaining unit positions. In this
context, I find that by custom the parties have effectively
brought this employer into the ambit of circumstances
which require the making of distinction between high and
low level supervision. To be sure, Nassau & Suffolk pre-
sented a stark distinction-that between extremely high-
placed officials and so-called firstline personnel. Later cases,
however, make it clear the considerations of high versus low
level supervisors do not rely upon such broad disparities.
Thus, in Beach Electric Co., Inc., et a., 174 NLRB 210
(1969), the Board applied the distinction where, as herein,
the "low level" supervisors possessed some supervisory au-
thority with respect to the employer's daily operations.
There, the Board found noteworthy that members of higher
level management made "all major decisions and all hiring,
firing, and laying off of employees was a responsibility of
the project superintendent who periodically visited the job-
site."' Additionally, the Board considered important the
fact that the individuals who were involved had been in-
cluded in the bargaining unit.
Also, in Allied Maintenance Corporation, 189 NLRB 179
(1971) the Board found the challenged individual who as-
signed other employees to their work stations and made
recommendations that employees be sent home a "low-lev-
el" supervisor. Apparently. the Board relied upon the per-
sonnel actions of other employees. 9
I find the instant case contains the necessary elements to
apply the distinctions in supervisory levels. First. the Em-
ployer's managerial structure roughly is four-tiered.' ° They
ma) be divided into four levels, as follows:
(I) The chief executives, located at the Employer's Up-
per Saddle River. New Jersey. headquarters: (2) the area
The record reflects the high-ranking emploer officlals ave Morgan.
Poff. and Guier make periodic personal visits to the tacilities here involved
9A similar resulh was obtained Schwenk Inmorp..raed. 229 NlRB 640
{1977).
°0 For purposes of analysts in this determination. the nomenclature used to
identify) he managerial levels are m) personal devclopiments There is no
evidence he Emploser officially uses these categories ,I identitication,
833
I)F.CISIONS OF NATIONAL LABOR RELATIONS BOARD
managers, dispersed in various geographic locations
throughout the Employer's operations: (3) the operations
managers, located at specific operational facilities. This
group includes such individuals as Calabrese, Morgan,
Guier, and Poff: and (4) the frontline supervisors, working
at the Employer's various facilities. This latter group in-
cludes Zacher. Wallace, aws, and other individuals simi-
larly employed. The factors used by the Board in Allied
Maintenance Corporation, Beach Electric and Schwenkl
when concluding that the disputed individuals were low-
level supervisors are far removed from the frontline supervi-
sors herein. Thus, the frontline supervisors (level 4) herein
do possess some supervisory indicia. The record falls short
of demonstrating by a preponderance of evidence that any
of them has the authority to effect personnel actions of
other employees: all have been consistently included in the
bargaining unit; and whatever authority they possess is
quite limited. Also, the frontline supervisors herein do not
participate in discussing or formulating personnel and labor
relations policies. In the instant case, the operations manag-
ers (level 3) are the first level of supervisory authority which
possesses the clear authority to hire, fire, lay off, recall, pro-
mote, or discipline employees. The grievance procedure of
the current collective-bargaining agreement (par. 4.02) pro-
vides that it is the operations managers who represent the
Employer in the first level of grievance handling. It is the
operations managers, together with the area managers, (lev-
el 2) who participate in establishment of policies, as obvi-
ously dictated by the chief executives (level I).
In this framework of carefully designed supervisory hier-
archy, it is clear that the frontline supervisors such as Zach-
er, Wallace, and Laws are far removed from possessing the
qualities established by the Board to hold them anything
but low-level supervisors. I conclude that the authority
vested in these "level 4" supervisors is no less "diluted"
today than during the original certification of the instant
unit. Based upon all the foregoing, I find Zacher, Wallace,
and Laws are low-level supervisors within the meaning of
the Act and Board precedent.
D. Unlasful Assi.stance
The General Counsel argues that the Employer's mere
dealing with Zacher, Wallace, and Laws when they pos-
sessed dual positions of supervisor and union official consti-
tutes interference, restraint, and coercion in violation of
Section 8(a)(1) of the Act. ' '
Additionally, the General Counsel claims that when the
Employer recognized and dealt with Laws as a union stew-
ard, it rendered the Union unlawful assistance in violation
of Section 8(a)(2)."
At the hearing, the General Counsel explained his case is
based 'ipon a so-called per se theor,. In support of his asser-
tions, the General Counsel cited he cases of' E.E.E. Co.,
Inc., 171 NlRB 982 (1968), Jeffrey Manuflicturing Coin-
pany, Scre ( Conveyor Division, 208 NLRB 75 (1974), and
Western Exterminator Company. 223 NL.RB 1270 (1976).
The Employer and Union contend it is inappropriate to
apply a per se approach to the facts herein, and that the
l As alleged in par. 7 of the complaint
u As alleged in par. 8 of ihe complaint.
evidence shows Zacher. Wallace, and Laws are but low-
level supervisors and. as such, occupancy of dual positions
does not comprise unlawful interference.
In Nassau & Sulfolk, master mechanics who had tradi-
tionally been included in the bargaining unit were held to
be low-level supervisors. They also served as the union's
shop steward. The Board held that the mechanics' active
participation on the union's negotiating committee consti-
tuted unlawful assistance by the employer to the union. In
so holding, the Board cautioned against utilization of a per
se approach. It commented:
We have been told that "acts of supervisory officials
are not to be viewed in vacuo. Instead they are to be
'taken in their setting.' " In other words, the respon.sibil-
inv of an employer /br the contuct of a supervisor cannot
he ascertained hby mniatheniatical/ oirmulas. Rather it is the
cireumstances whichi determine te liahiioY. (I 18 NLRB
182).
Also, the Board allowed for the possibility of applying its
low-level, high-level supervisor distinctions to industries
other than the building trades. Thus the Board observed "in
quite a number of industries foremen are members of the
same union and are included in the same bargaining con-
tract as rank-and-file production workers."" (ld. at 180).
There is a lesson derived from the above-quoted language
of Nassau & Suffolk, It teaches that investigation of the
realities of the workplace is required. In doing so, a mecha-
nistic approach is unfounded. Rather, flexibility is the hall-
mark of such scrutiny.
In Anchorage Businesvmens' A.vsociation, Drug Store 'nit,
124 NLRB 662 (1959), the Board reiterated its rejection of
the per se approach. In Anchorage, the Board continued its
acknowledgement of a difference between high- and low-
level supervision. The Board held that an employer's acqui-
escence in high-level supervisory participation in union ac-
tivities constituted unlawful support and assistance to the
labor organization there involved in violation of Section
8(a)(2) and I). In Anchorage, there was evidence that the
high-level supervisors were members of the Union's negoti-
ating committee and the employer bargained with them in
that capacity.
In Detroit Association of Plumbing Contractors. 126
NLRB 1381 (1960}. enfd. in part 287 F.2d 354 ().C. C('ir.
1961), the Board found an employer rendered unlawful as-
sistance to a union when supervisors held union office.
voted in union elections, and participated in collective-bar-
gaining negotiations. Implicitly, the finding that participa-
tion in negotiations tends to show divided loyalty acknowl-
edges the application of the Board's Nas.sau rejection of the
per se theory. Thus the Board commented, "while ... super-
visors mav retain or seek union membership (n. omitted).
we will apply the rule of respondeat superior to any active
participation . . . in union affairs to the same extent as we
apply that rule to other areas of supervisory conduct." (hi.
at 1383). These words reflect the Board's concern that the
existence of proof of the supervisors' conduct in union a-
fairs actually shows a conflict of' interest.
U In later cases. JcJre lManuaicturing (onipant. upra. .4 . Mfuching
Barge Lines. Inc, 197 NI.RB 592 (1972): and .Ahied duaintenance (Irpora-
tiion, -uprla, the Board actually applied Naxiau & Suflo/l I iother ndustries.
834
THE WESTIRN UNION ELEGRAPH COMPANY
As previously noted, the General Counsel argues only
that Section 8(a) I) was violated by the proven union activi-
ties oft Zacher and Wallace. I interpret the General ('oun-
sel's position on Zacher and Wallace to claim that it is
inherently destructive of employees' Section 7 rights for su-
pervisors who are included in the bargaining unit (as Zach-
er and Wallace) to participate in union affairs. As earlier
indicated, the record fails to prove Zacher and Wallace are
involved in other than internal union affairs. The Detroit
Plumbing (Contractors case is an aid to disposing of the Gen-
eral Counsel's argument as to Zacher and Wallace. I con-
elude the Detroit Plumbing case to be limited to situations
where ,onhargaining unit supervisors participate in union
affairs. The Board did not deal with participation of bar-
gaining unit supervisors in that case. A similar contention
of a Section 8(a)( 1 ) violation onlyv was made in Allied Main-
tenulee, suupra. In that case the Board reversed a trial exam-
iner's finding that holding dual positions, alone. constituted
interference, restraint, and coercion. Again, in Nationll
ip.sum ('Comlpain'. 139 N RB 916 (1962) the Board
adopted a trial examiner's observation that, under ¥Va'~sau
& S[/ilk, "even where minor supervisors in the bargaining
unit act as 'union officers,' this is not enough to insolve the
employer in unfair labor practices, absent proof of em-
ployer encouragement of authorization." (Itl at 921)
Based upon the foregoing and because the record is de-
void of evidence that the instant Employer instigated. au-
thorized, or encouraged the intraunion activities of Zacher
and Wallace. I find there is no merit to the allegations con-
tained in paragraph 7 of the complaint.
In Natioal Gipstimn, supra, there was alleged unlawful
assistance by an employer permitting its chief engineer to
participate in union affairs by holding office and attending
union meetings. The supervisor in question was the union
auditor and was directly responsible to the employer's man-
ager of overall operations. In turn. various department
heads were responsible to the disputed supervisor. HIe regu-
larly consulted with the manager regarding operations. He
\was principally responsible for maintenance of operations
and discipline. The supervisor whose activities were in
question effectively recommended a discharge and had au-
thority to recommend discipline. He had been included in
the bargaining unit. He did not attend meetings with supe-
rior management. He had nothing to do with adjustment of
grievances or negotiations of collective-bargaining agree-
ments. The trial examiner found that the disputed individ-
ual was a Section 2(11 ) supervisor. Nonetheless, he con-
cluded that the individual's activities "were such as to
implicate (the employer) in unfair labor practices. The
Board adopted pro orma the trial examiner's Natiomil Gtp-
sum findings and recommendations. In so doing. the Board
indicated its consistent intention to apply its rejection of a
per s theory to cases alleging un awful assistance when it
noted the supervisor did not adjust grievances or engage in
collective-bargaining negotiations. The Board left unan-
swered the question whether participation in grievance han-
dling or negotiations would render the per se rule appli-
cable. Significantly, the Board accepted the trial examiner's
observation that where by long tradition, a supervisor is
included in the bargaining unit with the employees super-
vised by him, responsibility for the supervisor's actions in
the union mav not be automlaticall attributed to the em-
ployer. Also, the Board's National Gvp.sum decision contin-
ued examination of the respective levels of supervision as a
relevant consideration in this line of cases.
In Beah Electric, pra., the Board affirmed a trial exam-
iner's findings that an employer had not violated Section
8(a)(2) and that there was no eidence that the employer
interfered in any specific union activity or ratified it. There
was testimon. that each of the disputed individuals was in
charge of the day-to-day operations otf the job to which he
was assigned. However. all major decisions and all hiring.
firing. and laying off of employees were the responsibilities
of higher supervisions w ho periodicall, isited the jobsite.
In this context, the Board adopted the trial examiner's find-
ings that the disputed individuals were "low level" supervi-
sors. Interestingly, the Board noted. "there is no allegation
that any employee had difficult, processing grieances, nor
is there any evidence of' unequal treatment of employees or
applicants in hiring, discharge laottffs or reinstatements."
(174 NLRB at 21()1. As previousl' observed, Beach Elee rir
reveals the extent to which the Board scrutinizes the levels
of supers isory authority. An additional factor for consider-
ation surfaices namely, concern or the absence or presence
f aictual proof that the dual positions have an acIlual detri-
mental impact upon the rank-and-file emploecs. Thus. the
language quoted above from the Beaclh ELie trie decision
suggests that a relevant consideration in resolving the suh-
ject issue is whether or not the evidence establishes the exis-
tence of' an actual conflict of interest. The tone of the dis-
sent in Beah Electric strongly suggests the Board grappled
with the application of a per e theory. Nonetheless, the
majorit clearly rejected those dissenting arguments.
In .1helied ('h/ci eal orporation, 175 N RB 974. 978
(1969) the trial examiner observed: "In the total scheme of
collectise negotiations such activit on the part of... (the
foreman) was miniscule at best." In that case there was
evidence that the emplo!yer ratified or instigated the super-
visor's intraullinon activities. erein. the lmrplo,,er did not
lead the emplosees to helieve that the supervisor was acting
for and on behalf of management while engaged in his
union activities.
By leaving the trial examiner's findings on this issue un-
disturbed I conclude that the Board reflected its assent to
the via;bilit of' the a.sll.au & SuIJIlk principles, Including
the relesance oft the lines of demarcation within an emplo) -
er's supervisory framework. Also, the Board gave tacit ap-
prosal to continuation of its ad hoc examinations byh leasing
untouched the finding that a foreman's grievance handling
activities were miniscule.
As previously noted, the N'a sau & Su//hlA rules are ap-
plicable to tother industries as well. l'hus the .1hcdl Vloite-
nln(e case. ipq)ra. inslolved an emploer engaged in serxice
acti ities. It should be noted that in that case the Board
reversed a trial examiner's finding of a Section 8(a)( viola-
tion based upon the employer's having permitted its super-
visor tl) act on behalf of the employees in presentation of
grievances. here was no evidence that the supervisor was
an officer of the Itnion. he trial examiner explicitly repu-
diated the relevance of the degrees of super isor\ authority.
but the Board disagreed,. commenting:
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even assuming arguendo that the Trial Examiner cor-
rectly found . . . [the disputed employee] . . . was a
supervisor, it is clear . . . that he was a low-level one.
(189 NLRB at 179).
Herein, it is undisputed that Laws represented employees
as a union steward. He held no other union office. I read
Allied Maintenance as providing a basis for applying an ad
hoc approach to consideration of grievance handling as a
factor in resolving the issues. I conclude that Allied Mainte-
nance is authority for the proposition that grievance han-
dling by a low-level supervisor is not necessarily unlawful.
Although Allied Maintenance was not set in the context of
unlawful assistance, the principle may be utilized to con-
sider the impact of the supervisor's functions to the latter
type of cases.
In another case outside the construction industry. A. L.
Mechling Barge Lines, Inc., supra, the Board had another
occasion to consider Nassau & Suffolk and its progeny.
There, the Board adopted a trial examiner's recommenda-
tion that the complaint be dismissed. It was alleged that the
employer assisted a union by permitting supervisors to vote
in union elections for officers of a supervisory union. The
trial examiner found the supervisors involved to be low-
level. None of the supervisors actually participated in selec-
tion of the bargaining committee or in negotiations. Of in-
terest is the trial examiner's observation that the General
Counsel was, in that case. "ignoring the low level of these
supervisors" and the conclusion that proof of employer re-
sponsibility for their actions was an essential ingredient to a
violation. In Mechling, the Board apparently adopted the
trial examiner's observation that "the more important basis
for the determination is whether the supervisors are lower
level or are . . . high ranking supervisors" rather than
whether they were included or excluded from the bargain-
ing unit. In the instant case no evidence whatever was ad-
duced to show the employer herein initiated or sponsored
the activity of Zacher, Wallace, or Laws.
Contrary to his position herein claiming the degrees of
supervision are irrelevant, the General Counsel contended
in Schwenk Incorporated, supra, that the two individuals
whose dual capacity activities were alleged to violate Sec-
tion 8(a)(1) and (2) were high-level supervisors. In Schwenk,
respondent-employer contended their position was no dif-
ferent from the master mechanics in Nassau & Suffolk. On
stipulated facts, the Board held the employer unlawfully
assisted Schwenk in violation of Section 8(a)(2) and (I). The
Board analysis of those facts led it to conclude the individ-
uals involved were high-level supervisors and managers.
There was no evidence that those supervisors participated
in collective bargaining in grievance handling or held any
union office. They merely engaged in apparently routine
intraunion affairs. I consider the Board's Schwenk opinion
as sugestive that it is per se unlawful assistance for high-
level supervisors to participate in union affairs in any way.
In Welsbach Electric Corporation, 236 NLRB 503 (1978),
an employer's operations superintendent also was the union
vice president. He was a member of a joint industry board
composed of employer and union representatives where he
served as a representative on behalf of the employees. The
superintendent administered and executed the policies and
programs of that board. The Welsbach complaint alleged
violations of Section 8(a)(I) and (2). The joint board func-
tioned, inter alia, to resolve grievances. Although he did
not directly participate in collective-bargaining negotia-
tions, the superintendent received reports on progress of
negotiations as a member of the union's executive board.
He also had authority to sit on a trial board for hearing
charges against union members, but could not do so when-
ever such charges involved his own employer or an em-
ployee thereof.
In a scholarly decision, Administrative Law Judge Rob-
ert W. Leiner made a careful review of the Nassau & Sul:
folk line of cases. Judge Leiner concluded that the superin-
tendents in question were high-level supervisors. In doing
so, he observed that one of the superintendents "is pos-
sessed of responsibilities and authority divorced from su-
pervision of bargaining unit employees." The second super-
intendent received a higher level of pay than almost all
corporate officers. It was concluded that "as high level su-
pervisors. their engaging at all in union activities violates
Section 8(a)(1) and (2) of the Act." The Board adopted
Administrative Law Judge einer's conclusion.
Next, the evidence in Welsbach clearly revealed that the
participation in formulation of the union's collective-bar-
gaining aims and objectives, together with the fact that one
superintendent sat on the joint board (as indicated above)
and the other was a pension committee member, comprised
direct negotiations within the purview of Allied Chemicol.
supra.
I concur with Judge Leiner's observation that collective
bargaining does not end with the signing of a collective-
bargaining agreement. Such agreements comprise the foun-
dation for conditions in the shop (see the trilogy of cases
beginning with United Steelworkers o America v. American
Manufacturing Co.. 363 U.S. 564 11960)). Consistent with
that philosophy. I perceive the handling of grievances to be
inextricably an integral part of the collective-bargaining
process. Arguably. Laws is engaged in direct negotiations
when he perfo)rms his functions as union steward. But I
have found Laws to be a low-level supervisor. In this con-
text. I find it necessary herein that there be proof of an
actual conflict of interest and actual detriment to employees
derived from Laws' steward activities before concluding
that a violation of law exists. I find Welsbach generally dis-
tinguishable from the case before me. In Welshach. the su-
perintendent who sat on the joint board was a member of a
panel where his dual allegiance necessarily was tested at
every turn. As to Laws, however, when processing a griev-
ance on behalf of an employee. he needed only to assert a
role as union advocate. No evidence was presented to me
which shows that Laws was incapable of functioning in that
manner. Indeed. the Hembree grievance and the parties'
stipulation as to his steward's activities reflect that Laws
was actually an effective employee representative. Accord-
ingly, I conclude that the instant case is more analogous to
Allied Maintenance and Allied Chemical where routine
grievance presentation was permissible.
In ITT Arctic Serices, Inc., 238 NLRB 116 (1978). the
Board held that an employer violated Section 8(a)(2) by
permitting a shop steward to serve in the dual role as super-
visor. In that case there was no evidence that the supervisor
was involved in contract negotiations. The supervisor in
836
THE WESTERN UNION TELEGRAPH COMPANY
question was the employer's leadman and union job stew-
ard. He was responsible for handling grievances on behalf
of employees in the first step of the grievance procedure. As
leadman, the individual effectively recommended the dis-
charge of employees and decided which other employees
would work overtime. He was expressly responsible for rec-
ommending that employees be terminated if he believed
they were not performing their jobs. The Nassau & Sufbilk
rationale was applied to find a Section 8(a)(2) and (I) viola-
tion by the employer "permitting its supervisor ... to serve
as job steward .... " No analysis was made regarding the
supervisor's level of authority. However, it is abundantly
clear that the offending employee was a high-level supervi-
sor, having actually effected adverse personnel actions upon
rank-and-file employees.
Summary
I conclude and find the following principles have evolved
from the composite of the relevant case authorities here-
inabove cited and they govern the disposition of the instant
case.
1. The Nassau & Suffolk principles are applicable to the
telegraph industry and, in particular. to the instant em-
ployer.
In reaching this conclusion I have considered the long-
standing practice, approved by the Board when the instant
bargaining unit was certified, to include certain supervisor
categories in the unit: the clear lines of division among the
various layers of managerial hierarchy existing within the
Employer's administrative organization; the fact that em-
ployees who are promoted to excluded positions but resign
their union membership.
2. An employer renders unlawful assistance to a labor
organization in violation of Section 8(a)(2) and (1) only
when high ranking supervisor or managerial personnel par-
ticipate in union affairs in any way; or if it is proved that an
actual conflict of interest manifested by a detrimental effect
upon rank-and-file employees exists between an individ-
ual's supervisory position and his function in the dual ca-
pacity as a union official, regardless of his level within the
employer's supervisory hierarchy.
Examination of the three cases cited by the General
Counsel reveals that each contains some predicate of viola-
tion which I have identified immediately above. Thus, in
E.E.E. Co., Inc., supra (which incidentally was also cited by
the Employer and the Union in support of their contention
that a per se application herein is inappropriate) the Board
found an 8(a)(2) violation when an employer permitted a
supervisor to serve concurrently as a shop steward. The
Board did not discuss whether the supervisor was high- or
low-level. The facts revealed that the supervisor could effec-
tivel) recommend, hire, discharge, and responsibly direct
activities of other employees. Additionally, he served as a
member of the Union's bargaining committee. The Board
clearly considered the supervisor's participation in collec-
tive-bargaining negotiations a pivotal factor, stating "the
Respondent (employer) has dealt with . . (the supervisor)
as the Union's steward and the representative of the em-
ployees in handling their grievances and in contract nego-
tiations." Thus, it is clear the supervisor in E.E.E. was a
high level supervisor and participated directly in the collec-
tive-bargaining process.
In Jeffrev ManuJacturing Compan, supra, the employer
recognized a supervisor who actually effected discharges of
other employees as president of the union. The employer
dealt with that supervisor-union president in the grievance
procedure. Also, the supervisor was present at bargaining
sessions, not as a member of the union's committee, but
"because the Company wanted him there." A violation was
found to exist. Clearly, the violation was based upon three
crucial elements: (I) The ability to effect discharges consti-
tuted the supervisor high-level; (2) the supervisor engaged
in direct negotiations by his grievance handling; and (3) his
attendance at collective-bargaining sessions, at the employ-
er's behest, surely presented a direct conflict of interest
where he might well be required to choose between his alle-
giance to the employer and his obligation to the employees.
Likewise. in Western Exterminator, supra. where the
Board ound an 8(a)(2) violation when an employer permit-
ted a supervisor to serve as union president and b recog-
nizing or dealing with him as a union officer in negotiations
and administering a collective-bargaining agreement. there
was evidence of direct conflict. Moreover. the Board noted
that the offending supervisor was "intimatey involved with
the Respondent Employer's hiring. firing. and other labor
relations policies...." (223 NL.RB at 1271). Thus. he was a
high-level supervisor.
I find each of the cases cited by the General Counsel
factually distinguishable from the case at bar. In the instant
case there is not a scintilla of evidence that either Wallace
or Zacher performs any collective-bargaining function.
Their current union offices require no participation in any
aspect of the collective-bargaining process. Neither of them
has processed grievances as union officers. Their union po-
sitions do not require such activity. The record definitively
shows they simply perform the customary ministerial acts
attendant to their respective union offices.
Similarly. Laws has not. and may not, represent the
Union in collective-bargaining negotiations. As suggested
hereinabove, Laws' grievance processing should not be
viewed in isolation. In this connection I am impressed by
the historical backdrop of the collective-bargaining reli-
tionship between the Employer and the Union. It does not
appear anywhere in this record that the Employer had been
found to have rendered unlawful assistance to the Union in
any manner throughout the 33-year relationship. Though
not dispositive. I find this collective-bargaining history, ap-
parently free of employer unfair labor practices related to
the present situation, a significant tactor to he considered.
Even more persuasive is the evidence relating to the solitary
incident involving the case of Hembree. ' In the context of
an apparently untainted and placid labor relations environ-
ment I find the Hembree situation falls short of providing a
basis for concluding that the incident is an example of an
actual conflict of interest and detrimental to employees'
rights. At most. the record permits the conclusion that Laws
had exercised his supervisory obligation to report rules in-
14 As indicated above. at the hearing the General Counsel orall? ds-
avowed reliance upon an orther than the pr e theor. In this context. I fird
it strange that the General ( ounsel alludes, with emphasis. o the HIembree
situation in his brief
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fractions and then assumed his duty faithfully to represent
employees as a union steward. In the entire circumstances
herein, I cannot find that this activity, standing alone. suf-
fices to prove unlawful assistance within the contemplation
of decisional precedent.
The contractual grievance provisions buttress my conclu-
sion that l.aws properly performed his steward function as
to Ilembree. Those provisions permit a grievant dissatisfied
with the disposition of his grievance at the steward's level to
process his grievance further to the union president and
then to een higher union officials. No evidence whatsoever
was presented to show that Hembree availed herself of such
additional opportunities to process her grievance. In this
context, it is reasonable to infer, as I have done, that Hlem-
bree was not adversely affected by Laws' presence and par-
ticipation at the disciplinary interview with Morgan. Con-
sidering the size of the bargaining unit, the stipulation that
Laws processed numerous grievances during his tenure as
steward., and the size of the immediate group of employees
for which he is responsible as steward, it would be taking a
myopic and superficial glance at his activity regarding
Hembree to dignity that brief encounter and inferential
character of the evidence presented by the General Counsel
to prove a violation herein. Even the General Counsel's
brief observes that other incidents similar to lembree's
"have likely occurred." The record is devoid of any such
evidence. Thus. I am confronted with but a single possible
incident which, on its face, suggests the opposite of the
General Counsel's contention, upon which I am asked to
conclude that mere possession of the dual supervisor)-
union functions creates a conflict of interest. I find such a
conflict has not been demonstrated by a preponderance of
the evidence.
In short, in the absence of more compelling and persua-
sive evidence demonstrating the existence of the various
components of a violation under the controlling principles
of N.v.s.va a XSJI0olk, and its progeny. I conclude that the
General C(ounsel has tailed to sustain his burden of proof as
to paragraph 8 of the complaint.
E. pplicahiliv o,' Nas.s.vrau & Sl/folA
I have already itund that Na.sau.r & S/ltA principles
should be applied to the telegraph industry.
Although the General Counsel did not cite that case, the
three cases presented by him do fall within that group of
precedent decided under its umbrella. Thus, the General
Counsel's disclaimer that the high- and low-level supervi-
sory distinctions are relevant is incongruous and confusing.
As a theoretical abstract of legal principle, the General
Counsel's contentions seemingly have merit. However, the
peculiar nature of the Employer's business and the bargain-
ing history described above persuade me that Nassau & Suf
f)lk, together with the ensuing cases utilizing its principles,
is appropriately utilized herein to prevent the far-reaching
upheaval which surely would flow from the finding of a
violation.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding. I make the following:
(OI)N( I l SONS ()1 .LAW
1. The Western Union Telegraph Company is an em-
ployer engaged in commerce within the meaning of Section
2(2). (6), and (7) of the Act.
2. St. L.ouis I.ocal No. 3, Western U nion ivision.
United Telegraph Workers, AFL. ('10. is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The principles of Nasau & Slnfflk C(ontroclors' As.o-
ciclaion, Inc., 118 NLRB 174 (1957), and its progeny. are
applicable to the telegraph industry.
4. The Employer has not committed any of the unfair
labor practices alleged in the complaint.
Upon the foregoing findings of tact. conclusions of law.
and the entire record in this case, and pursuant to Section
It(c) of the Act. I hereby issue the following recommended:
ORDER"
The complaint herein is dismissed in its entirety.
I In the eent no exception, are filed as rided bh Sec. 102.46 of he
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations. be adopted b the Board and become its
findings. conclusions. and Order. and all obhjctions thereto shall be deemed
wakiSed for all purposes
838