Wisconsin Telephone Company

National Labor Relations Board - Board Decisions

Apr 20, 1939

12 N.L.R.B. 375 (N.L.R.B. 1939)

In the Matter of WISCONSIN TELEPHONE COMPANY and TELEPHONE
OPERATORS UNION7 LOCAL 175-A, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
In the Matter of WISCONSIN TELEPHONE COMPANY and TELEPHONE
OPERATORS UNION , LOCAL 165-A, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
In the Matter Of WISCONSIN TELEPHONE COMPANY and TELEPHONE
OPERATORS UNION , LOCAL 205-A, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
In the Matter Of WISCONSIN TELEPHONE COMPANY and TELEPHONE
OPERATORS UNION, LOCAL 201-A, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
Cases Nos. C-519 to C -52R, inclusive, respectively, and R-607 to R-610,
inclusive, respectively.Decided April 20, 1939
Communications Industry-Interference , Restraint, and Coercion-Employee
Representation Plan: form and operation ; continuance of ; domination of and
interference with administration ; financial and other support; abandoned,
disestablishment order unnecessary-Company-Dominated Union: charges of, as
against independent , not sustained-Investigattion of Representatives: con-
troversy concerning representation of employees : controversy concerning ap-
propriate unit ; rival organizations ; employer 's refusal to negotiate with either
organization until appropriate unit determined-Unit Appropriate for Collective
Bargaining : traffic-department employees , including traffic clerks, supervisors,
junior supervisors , and assistant chief operators , but excluding chief operators
and other supervisory employees ; separate unit for each of four exchanges;
functional autonomy , varying wages and hours , local nature of grievances,
preference of a majority within each unit, functional coherence , centralization
of authority, considered ; previous organization on a State -wide basis, in-
augurated by Company, disregarded-Representatives : proof of choice: com-
parison of membership list with corresponding pay roll-Certilcat,lon of Repre-
sentatives : upon proof of majority representation.
Mr. Frederick P. Mett, and Mr. W. G. Stuart Sherman, for the
Board.
Miller, Mack & Fairchild, by Mr. Leon F. Foley, and Mr. Paul R.
Ne'wconnb, of Milwaukee, Wis., and Mr. Harvey Hoshour, of New
York City, for the respondent.
Mr. A. G. Goldberg and Mr. David Previant, both of Milwaukee,
Wis., and Mr. Joseph Padway, of Washington, D. C., for the Union.
12 N. L. R. B., No. 48.
.375
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. George A. Burns, and Mr. Charles A. Shoert, both of Mil-
waukee, Wis., for the Independent.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
ORDER
AND
CERTIFICATIONS OF REPRESENTATIVES
STATEMENT OF THE CASE
On August 13, 1937, Telephone Operators Union, Local 175-A,
International Brotherhood of Electrical Workers, herein called Local
175-A, filed with the Regional Director for the Twelfth Region
(Milwaukee, Wisconsin) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees
at the Janesville, Wisconsin, exchange of Wisconsin Telephone Com-
pany, herein called the respondent, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On November 16, 1937, Telephone Operators Union, Local 165-A,
International Brotherhood of Electrical Workers, and Telephone
Operators Union, Local 205-A, International Brotherhood of Elec-
trical Workers, herein respectively called Local 165-A and Local
205-A, filed similar petitions with the Regional Director regarding
the respondent's employees at its Kenosha, Wisconsin, and Racine,
Wisconsin, exchanges, respectively.
On October 9, 1937, Local 175-A filed with the same Regional
Director charges that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act.
On November 16, 1937, Local 165-A and Local 205-A, each filed sim-
ilar charges with the Regional Director.
On December 3, 1937, the Board, acting pursuant to Section 9 (c)
of the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered an
investigation in each case, pursuant to the above-described petitions,
and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice. At the same time,
acting pursuant to Article III, Section 10 (c) (2), and Article IT,
Section 37 (b), of said Rules and Regulations, the Board ordered
that for the purposes of hearing, each case involving an investiga-
tion of representatives be consolidated with the case involving
charges by the respective petitioner against the respondent. On
WISCONSIN TELEPHONE COMPANY 377
January 24, 1938, the Board ordered the consolidation of all the cases
for the same purposes.
On January 26, 1938, Telephone Operators Union, Local 201-A,
International Brotherhood of Electrical Workers, herein called
Local 201-A, filed with the Regional Director for the Eighteenth
Region (Minneapolis, Minnesota) a petition alleging that a question
affecting commerce had arisen concerning the representation of the
respondent's employees at its Superior, Wisconsin, exchange. On
the same day Local 201-A also filed with this Regional Director
charges that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act.
Two days later, the Board, acting pursuant to Section 9 (c) of the
Act, and said Rules and Regulations, ordered that these cases be
transferred to and continued in the Twelfth Region, that the Regional
Director for said Region conduct an investigation of representatives
pursuant to the petition and provide for an appropriate hearing upon
due notice, and that these cases be consolidated for the purposes of
hearing with the cases previously consolidated herein.
On January 31, 1938, the Board, by the Regional Director for the
Twelfth Region, issued its complaint against the respondent , alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7) of the Act. A copy of the
complaint accompanied by a notice of hearing was duly served upon
the respondent, upon Local 175-A, Local 165-A, Local 205-A, and
Local 201-A, herein collectively called the Union, and upon Inde-
pendent Union of Telephone Operators, herein called the Independ-
ent. With respect to the unfair, labor practices, the complaint in
substance alleged (1) that the respondent dominated and interfered
with and contributed support to the formation and administration of
a certain employee representation plan known as "Plan of Employee
Representation-Traffic Department" which it formulated for its em-
ployees in 1920 and which, as modified from time to time, remained in
existence until 1937; (2) that during the spring and summer of
1937 and at all times thereafter, the respondent, through its super-
visory employees and through the' above-mentioned plan, dominated
and interfered with, and contributed support to, the formation and
administration of the Independent, a labor organization of its em-
ployees; (3) that the respondent discouraged its employees from be-
coming or remaining members of the Union; and (4) that by these
and other acts, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. Thereafter the respondent filed its answer deny-
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that it had engaged in the unfair labor practices alleged in the
complaint. It admitted that in 1920 it formulated and put into effect
a plan of employee representation to which it contributed financial
and other support, and averred that this plan was superseded in
1934 by the plan mentioned in the complaint, which was formed
solely by its employees. It admitted that it subsidized this latter
plan until July 5, 1935, the effective date of the Act, but denied that
since then it contributed financial or other support to the plan or to
the Independent, In brief, the answer alleged that since July 5, 1935,
the respondent had refrained from engaging in any activities that
might constitute unfair labor practices within the meaning of the Act.
Pursuant to notice, a hearing on the petitions and the complaint
was held at Milwaukee, Wisconsin, from February 7 to 22, 1938, be-
fore James C. Batten, the Trial Examiner duly designated by the
Board. All the parties were represented by counsel, participated in
the hearing, and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues. At the opening of the hearing the Independent moved
to intervene in the proceedings, and the respondent moved to dis-
miss the complaint on the ground that both the charges and the
complaint failed to contain a clear and concise statement of the facts
constituting the alleged unfair labor practices. The Trial Examiner
granted leave to the Independent to intervene in so far as its interests
appeared in the proceeding, and denied the motion to dismiss. At
the conclusion of the hearing the Trial Examiner granted a motion
of the Board's attorney to conform the pleadings to the proof.
These rulings are hereby affirmed. Thereafter, both the Independent
and the respondent filed memoranda on the evidence adduced at the
hearing. The respondent also filed an "Outline of Respondent's
Contentions."
On April 4, 1938, the Trial Examiner issued his Intermediate Re-
port in which he found that the respondent had engaged in and was
engaging in the unfair labor practices alleged in the complaint. He
accordingly recommended that the respondent cease and desist there-
from and that it cease giving recognition to and that it disestablish
the Independent and "Plan of Employee Representation-Traffic De-
partment," as the collective bargaining representatives for any of its
employees.
Thereafter, the respondent and the Independent filed exceptions
to the Intermediate Report and to the record, and on May 24, 1938,
together with the Union, presented oral argument before the Board.
The parties also submitted briefs. The Board has reviewed all the
rulings of the Trial Examiner on motions and on objections to the
admission of evidence, and finds that no prejudicial errors were com-
WISCONSIN TELEPHONE COMPANY 379
mitted. The rulings are hereby affirmed. The Board has also con-
sidered the exceptions to the Intermediate Report and to the extent
indicated below finds merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Wisconsin Telephone Company, a Wisconsin cor-
poration having its principal office in Milwaukee, Wisconsin, is a
wholly owned subsidiary and associate of American Telephone and
Telegraph Company, a corporation.
American Telephone and Telegraph Company and its 24 associate
companies are popularly known as the Bell System which furnishes
Nation-wide communication service through the coordination of plant
equipment and services of the associate and other telephone companies.
The telephone plant of American Telephone and Telegraph Com-
pany consists mainly of toll lines and toll switchboards forming a
communications network interconnecting the communications sys-
tems of its operating telephone subsidiaries and other telephone com-
panies., The telephone plants of its operating subsidiaries consist
of exchange and toll lines, including equipment therefor, designed for
furnishing local- and toll-telephone service within the territories in
which they operate, and for interconnection with the lines of Ameri-
can Telephone and Telegraph Company and other telephone
companies.2
The respondent is engaged in the business of furnishing local and
long-distance telephone communication service throughout the State
of Wisconsin where it owns and operates approximately 99 exchange
offices. In the operation of its system, the respondent maintains con-
nections with the facilities of some 600 exchanges in the State owned
by other companies. Some of its wires and jointly owned toll lines
extend into the States of Illinois and Minnesota. In addition to
furnishing local service, the respondent, as an integral part of the
Bell System, furnishes its subscribers with long-distance telephone
service to all parts of the United States and to some 70 countries
throughout the world. All association between the respondent and
the 600 exchanges and the associate companies in the Bell System with
American Telephone and Telegraph Company owns or controls a majority of the
common stock of each except two of the associate companies In addition it owns and
controls western Electric Company, Incorporated , which manufactures equipment for
American Telephone and Telegraph Company and its subsidiaries.
2 Toll service is used to describe service between exchanges of one company or between
exchanges of two or more companies. An exchange is defined as an area in which the
subscriber receives service under a basic schedule of rates. The terms "exchange office"
and "central office" are used interchangeably herein.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which it connects, is governed by standard operating agreements
designed to make uniform all communication service afforded by the
respondent, whether by its own system or in conjunction with others.
During 1937 the respondent purchased equipment and materials
valued at $2,356,164.75, of which $2,163,051.45 represented purchases
from Western Electric Company, Incorporated. Over 85 per cent
of such equipment and materials which the respondent purchased
from this company were shipped from points outside Wisconsin.
During the same year the respondent's revenues amounted to
$17,545,269.01 of which $1,112,228.67 or 6.34 per cent were received
from furnishing interstate services.
As of December 31, 1937, the respondent employed 6,248 workers.
This proceeding is concerned with the traffic department which, as of
above date, employed some 3,370 employees, of whom 3,106 were
switchboard operators and operators-in-training.
II. THE ORGANIZATIONS INVOLVED
Local 175-A, Local 165-A, Local 205-A, and Local 201-A at Janes-
ville, Kenosha, Racine, and Superior, respectively, are labor organiza-
tions affiliated with the International Brotherhood of Electrical
Workers and with the American Federation of Labor. Each admits
to membership all traffic-department employees of the respondent, in-
cluding traffic clerks, supervisors, junior supervisors,3 and assistant
chief operators, but excluding chief operators and other supervisory
employees.
"Plan of Employee Representation-Traffic Department" was a
labor organization in which all the traffic-department employees of
the respondent, except supervisory employees, participated.
Independent Union of Telephone Operators is an unaffiliated labor
organization admitting to membership all "Central office employees,
excepting Chief Operators, Assistant Chief Operators, Evening or
Night Chief Operators, and employees in other than Central offices,
not holding supervisory positions." Membership is limited to em-
ployees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of the alleged unfair labor practices
In February 1920 the respondent formulated and put into effect
for its employees a plan of employee representation designed to pro-
' Supervisors and junior supervisors assist operators in the completion of calls, handle
service criticisms from subscribers , and in general supervise service. They do not have
supervisory power over operators and do not possess disciplinary power or the right to
hire and discharge . They are not to be confused with employees designated as supervisory
employees.
WISCONSIN TELEPHONE COMPANY 381
vide an avenue for the presentation to the respondent of grievances
and other employment problems. No membership requirements were
provided and all employees were eligible to participate by virtue of
their employee status. Employees were permitted to invoke the
services offered by the plan only after their individual efforts to
secure the solution of their problems had proved unsatisfactory.
There were no dues and the respondent undertook to meet all ex-
penses arising in connection with the operation of the plan. By
express provision elected representatives were protected against
discrimination for "any action sincerely taken."
The plan divided the respondent's employees into a number of
departments and districts corresponding to the functional units of
the respondent and provided for the election of office representatives,
district employee committees, and a general employee council for
each department. The organization of the traffic department, with
which we are here concerned, paralleled the organization of the other
departments of the respondent. One representative was elected by
the employees of the traffic department in each central office. Em-
ployee representatives in each district, which encompasses a number
of central offices, elected three of their own number to serve on a
district employee committee. District employee committees in turn
elected six of their number to constitute the general employee coun-
cil for the traffic department.
Employee representatives acted as agents in behalf of traffic-de-
partment employees in the central and district offices for the trans-
mission of employee grievances to the appropriate district employee
committee which met with a corresponding district management com-
mittee. The general employee council in turn met with a general
management council to adjust grievances and settle problems not
disposed of satisfactorily by the district committees. In the event
that the general councils, meeting jointly, could not reach an agree-
ment upon a matter in dispute, provision was made for its submis-
sion to the president of the respondent, whose decision was final.
Elections of employee representatives and meetings of the various
committees were conducted on the respondent's property during
working hours. The respondent supplied all necessary clerical and
printing services in connection with the operation of the plan and
reimbursed employee representatives for time lost from work and
for traveling expenses incurred when performing their duties as
representatives and committee members. The plan thus functioned
essentially as an instrumentality for the presentation of grievances,
although there is some evidence that collective bargaining also took
place under it.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In July 1934, following the enactment of the National Industrial
Recovery Act and the respondent's adoption of the President's Re-
employment Agreement, Fred E. Chandler, the respondent's traffic
manager, called meetings of employee representatives in each district,
pointed out to these representatives the desirability of simplifying
the election procedure and improving the plan, and invited the repre-
sentatives to draft an employee representation plan of their own.
Following his advice, the district employee committees which repre-
sented the traffic-department employees appointed a revision com-
mittee which met in the general offices of the respondent at Mil-
waukee to revise the plan in so far as their constituents were con-
cerned. With the assistance of one Morgan, an employee in Chan-
dler's office, this committee drafted the "Plan of Employee Repre-
sentation-Traffic Department." In August of the same year, this
plan was submitted to a referendum among the employees in the
traffic department and ratified. All the expenses incurred by the
revision committee as well as the cost of the referendum were borne
by the respondent.
The purpose of the plan was "to provide a means whereby the
Traffic Department Employees of the [respondent], through Repre-
sentatives chosen by them and authorized to act in their behalf, may
consider any and all matters affecting their interests, including wages
and working conditions, and adjust them with the management of
the Company through conference where necessary." As with the
earlier plan, no provision was made with respect to membership. All
employees of the department, except supervisory employees, were
eligible to participate in the plan. Only employees having at least
1 year's employment status were eligible for election as representa-
tives, and representatives became disqualified when their employment
terminated.
The revised plan followed the general outline of the earlier plan.
Provision was made for central office representatives, central office
committees, district.committees, and a general committee. Represent-
atives were elected annually in each central office in proportion to
the number of employees. In central offices having three or more
representatives, the representatives comprised central office com-
mittees; the members who received the highest number of votes were
designated as chairmen of the various central office committees. The
chairmen of the central office committees within each district con-
stituted the district committee, provision being made for represen-
tation thereon of central offices having no committees. Members of
each district committee elected a chairman from their number. Dis-
trict chairmen constituted the general committee.
WISCONSIN TELEPHONE COMPANY 383
The plan made no provision for meetings of all employees. Griev-
ances and other employment matters were referred in the first in-
stance to representatives who attempted to secure adjustments within
the central offices. The procedure provided for the reference of these
matters to the district committees for adjustment with district
management officials, and to the general committee for adjustment
with traffic-department officials.
Following the first elections under the plan and the organization
of the various committees, the general committee communicated with
Chandler who arranged a meeting for the purpose of negotiating an
agreement. On December 10, 1934, after several changes were made
in a draft submitted by Chandler, a contract termed the "Joint
Agreement as to Procedure between Employee Committees and Man-
agement-Traffic Department" was signed. This agreement provided
in substance that central office committees would meet with chief
operators quarterly, district committees with the district traffic su-
perintendent semi-annually, and the general committee with the
general traffic superintendent annually. The respondent undertook
to provide the necessary facilities for committee meetings and joint
conferences which, under the plan, might be held during working
hours without loss of pay to the representatives, and to make avail-
able its clerical, printing, and stenographic services for the conduct of
elections and the operation of the plan. The contract contained no
provisions regarding wages, hours, or any other terms of employ-
ment. Under this revised plan and the agreement of December 10,
1934, the employees participated in a form of collective action
through their various committees. The record does not show, how-
ever, that any substantial concessions were gained by the employees
from this activity.
The initiation of the plan in 1920 and its revision under a new
name in 1934, together with the activity which proceeded thereunder,
occurring before the effective date of the Act, afford no basis for
charges of unfair labor practices within the meaning of the Act.
They may properly be considered, however, as tending to explain
the sequence of events which followed the passage of the Act on July
511935 .4
B. Company domination of the plan
On July 3, 1935, the respondent's general counsel submitted to the
respondent's officers an opinion with respect to the provisions of the
Act. Calling attention to the guarantees afforded employees under
the Act, he paraphrased Section 8 (2) and explained its application
4Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 91 F. (2d) 134
(C. C. A. 4th), cert. den., 302 U. S. 731. -
•
Q
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the plan which he also termed "our so-called company union or
unions." His specific recommendations followed :
As stated before, our problem appears to be confined for the
time being at least to a compliance with this particular section
of this act (8 (2)) and to do this, we must refrain, first, from
furnishing any financial assistance in connection with the conduct
of our Employees' Plan of Representation; second, to refrain
from furnishing support and aid in the way of permitting the
use of company stationery, the use of company typewriters and
time of employees for the purpose of transcribing the minutes,
reports, etc., for such organizations and, third, we must refrain
from permitting the use of company premises for the holding
of meetings and conferences by such organizations except in
cases where the management takes joint part in any such meet-
ings or conferences.
The respondent proceeded to put the recommendations of its coun-
sel into effect. At Chandler's request, the general committee under
the -plan met in Milwaukee on August 9. Chandler opened the meet-
ing by reading excerpts from the Act. The minutes of this meeting
clearly reflect the respondent's attitude toward the Act and the appli-
cation of the provisions thereof to the respondent and its employees :
Mr. Chandler then read such sections of the Act and when
he finished he explained that there appeared to be not a word
in the new law that made it necessary in any way to change the
Plan of Employee Representation.
He then read Section 8 (2) of the Act and explained that the re-
spondent could no longer bear the expenses of administering the plan.
Otherwise, as he sees it, our future relations may continue as
in the past, and will not be affected by this or any other provision
of the Act. Mr. Chandler here remarked that the Law had been
generally misunderstood, particularly with respect to its effect on
the Employee Plan of Representation and felt that if he would
read what two of the Senators, one the author of the Bill, had
said about it, it would probably clear up much of this misunder-
standing.
Chandler then proceeded to quote from statements made by Sen-
ators Wagner and Walsh to the effect that the Act did not change
the existing law with respect to the employer-employee relationship.
One of the employee members of the general committee voiced the
opinion that the plan would be unable to function unless funds were
secured from the employees to defray expenses, and Chandler stated
that the joint agreement of December 10, 1934, would have to be
0
WISCONSIN TELEPHONE COMPANY 385
changed accordingly. He thereupon distributed to each committee
member "a tentative revised copy of a new agreement" which he re-
quested be considered. The employee committee members, after
discussing various methods for the collection of dues, suggested that
the respondent institute a check-off of wages.
At the conclusion of the conference, Chandler reiterated the re-
spondent's position :
In closing, Mr. Chandler again summarized the proceedings of
the meeting, by restating that there was nothing in the new law
that disturbed our present relations, or made necessary any
changes in the existing Plan of Employee Representation, except
that the law prohibits the employer from paying any of the
expenses incurred by the employees in making their plan func-
tion . . . that the Company was willing to carry all of this
expense as incidental to the efficient and effective conduct of the
business. However, according to our interpretation of the pro-
visions of the National Labor Relations Act, the Company can-
not legally continue to do this.
Following this conference the general committee conducted a refer-
endum among the employees on the question of the amount of dues
and the method of collection. Pursuant to the results of this refer-
endum, the employees submitted wage-deduction authorizations to
the respondent on the basis of which it proceeded to make a monthly
check-off of 10 cents from their wages for dues. On January 20, 1936,
the general committee and the respondent entered into another joint
agreement which was identical with the 1934 agreement, except that
provisions binding the respondent to finance the administration of
the plan were omitted.
Thereafter the plan functioned without financial assistance from
the respondent. Use of the company property and facilities for the
conduct of its elections and other activities was continued; however,
the respondent kept an account of the charges it proposed to make
for such use and one bill was submitted in October 1936 to the treas-
urer of the plan for payment. After that date charges were per-
mitted to accumulate until July 1937 when, according to the respond-
ent, the plan ceased to function. A bill for $161.01 remains unpaid.
C. Organization of the Independent
In March 1937, plan officers drafted a list of proposed changes,
the more important of which, if adopted, would have limited eligi-
bility to vote for representatives to employees who paid dues, and
would have accorded only such employees the right to invoke the
grievance and bargaining procedure of the plan. Although ballots
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for such purpose were prepared, these proposed changes, in fact,
were never submitted to a referendum.
In June, however, ,following activity by the Union at the Kenosha
and Janesville exchanges, the proposed changes, which had been
dormant for several months, were revived in connection with a
drive for plan members at these exchanges. Local 165-A, which had
been organized the previous month among the employees at Ken-
osha, communicated with the district traffic superintendent on June
2, informed him of the organization of this local, and requested a
conference for June 9.5 On June 8 Alice M. Weseli, chairman of
the general committee of the plan, Ruth Stearn, a member of the
general committee, and Evelyn M. Miotke, an office chairman, visited
Kenosha assertedly for the purpose of soliciting members and dis-
cussing the proposed revisions. Agreeing to pay the respondent for
the facilities, they secured the use of a room in the exchange office
and the services of several relief operators to relieve those whom
they desired to address. On the same day and during the follow-
ing day, operators were summoned in groups from their switchboards
for the purpose of meeting the plan officers. The operators were
questioned regarding grievances at this exchange, told of the activity
of plan committees on their behalf, and advised of the comparative
advantages of the plan and the shortcomings of Local 165-A as a
collective bargaining agency.
A similar procedure was followed immediately thereafter at the
Janesville exchange where Local 175-A was being organized among
the employees. On June 9 Helen Kissane, the district committee
chairman of the plan, visited this exchange office and conferred with
the office representatives of the plan there employed on the subject
of the proposed revisions. She returned with Weseli, the plan chair-
man, on June 12, and after making arrangements for the use of the
respondent's facilities, carried out the same course of action that had
been followed at Kenosha.
On June 28, 1937, as a result of complaints by the Union to the
Regional Director, the respondent posted notices in all exchange of-
fices to the effect that it would not discriminate against any employee
because of union activity and that it was not "sponsoring the activi-
ties of any person attempting to secure membership in any labor
organization."
In the course of the interviews at Kenosha, several operators told
Weseli that the plan was a company-dominated union and therefore
illegal. On June 16, upon their return to Milwaukee, Weseli, Miotke,
and Stearn consulted George A. Burns, the Independent's attorney
5 See Section V, infra Local 165-A was first organized as an affiliate of the Committee
for Industrial Organization.
WISCONSIN TELEPHONE COMPANY 387
herein, with respect to the legality of the plan. On June 28 the
members of the general committee, having been called to Milwaukee
by Weseli, conferred with Burns who voiced the opinion that the
plan might be illegal and advised them to start "anew and afresh."
On the following day the girls retained Burns to assist in the organi-
zation of an independent union, and arranged for a mass meeting of
traffic-department employees to be held in a Milwaukee auditorium
on July 6. The expenses incurred by these plan officers in their con-
ferences with Burns were charged to the plan.
The record establishes that office chairmen and other employees
active under the plan were utilized by Weseli and members of the
general committee to notify employees of the traffic department of
the mass meeting. Blank proxies were prepared by Burns and the
general committee. These proxies, which authorized the signer's
nominee to represent the signer at a meeting "for the purpose of
organizing an Independent Union of Telephone Operators" employed
by the respondent, were mailed by Weseli to plan representatives at
the various exchanges of the respondent throughout the State. At
the Superior exchange, a batch of these proxies were received by
Jennie Daveni, an office representative. Being ignorant of the legal
significance of a proxy, Daveni consulted Murray Calhoun, the office
manager, who advised that the proxy cards be given to Alice N.
Randall, the chairman of the plan at that office. Thereafter both
Randall and Daveni distributed the cards which were signed by some
of the operators during working hours. Proxy cards were distrib-
uted in at least one other exchange office under similar conditions.
The meeting of July 6 was attended by some 750 operators; in ad-
dition, about 600 operators were represented by proxies. Burns, who
led the meeting, "gave a brief explanatory talk on recent labor
laws . . ." He explained the nature of an "Independent Union,"
and also "pointed out that Company Unions were prohibited by
law." He then "suggested" that the first step in organizing was to
name a temporary presiding officer and a temporary secretary.
"Evelyn Miotke was asked to preside as Temporary Chairman, and
Miss Alice Weseli was asked to preside as Temporary Secretary."
Burns further suggested that the meeting determine whether or not
it desired to organize an independent union, and following a lengthy
discussion, a motion to organize such a union was carried by vote of
a large majority. Membership application cards were passed out and
the meeting adjourned. It was agreed by those present that Miotke,
the temporary chairman, would arrange for the next meeting.
On July 29 another meeting, attended by approximately 400 opera-
tors, was held in Milwaukee. A proposed constitution and bylaws
prepared by Burns were read, discussed, and adopted. An election
169134-39-vol. 12-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee consisting of volunteers was appointed, and a motion was
passed authorizing the temporary officers to engage in collective bar-
gaining on behalf of the Independent as soon as it should secure a
majority of the respondent's telephone operators as members. The
minutes of this meeting do not disclose that an election of temporary
officers was held. The evidence shows, however, that Weseli, who
had been appointed the temporary chairman of the meeting, assumed
the duties of temporary president, and Helen Albrecht, the treasurer
of the plan, assumed the same duties for the Independent.
The constitution and bylaws of the Independent provide for a
form of labor organization in many respects similar to the plan.
Membership requirements are the same as were the eligibility re-
quirements to vote under the plan, membership in the Independent
ceasing with termination of employment. Provision is made for the
election of central office grievance committees and a supreme council
consisting of a board of directors, a president, vice president, record-
ing secretary, and treasurer. Grievance committees are elected
annually in each central office, the number of members thereon being
apportioned to the number of operators in each office. Each griev-
ance committee appoints a chairman from its own number. For the
purpose of electing the board of directors, the respondent is divided
into five districts each district having from one to four directors in
proportion to the number of operators employed within the particular
district. Directors are elected annually by the grievance-committee
chairman within the several districts. The board of directors in turn
elects the above-named officers of the Independent. Thus actual
administration of the affairs of the Independent as of the plan, is
substantially divorced from direct control by popular vote of the
members.
The constitution provides for a meeting once each year of all
members, 10 per cent thereof constituting a quorum. Central office
grievance committees meet when necessary, and are authorized to
present individual grievances to their respective chief operators and
district traffic supervisors. The Independent's constitution expressly
provides that "In the City of Milwaukee the District Traffic Superin-
tendent shall meet with the Chief Operator to consider grievances
presented by the said Grievance Committee." The supreme council,
which meets monthly, acts as a clearing house for grievances and
represents the Independent in collective bargaining negotiations with
the respondent.
Following the meeting of July 29, the Independent began its
membership campaign throughout the State. Packages of applica-
tion cards were mailed to and distributed by the old-plan representa-
tives in the same manner that the proxy cards had been distributed.
WISCONSIN TELEPHONE COMPANY 389
Letters to prospective members were mailed over the signature of
Weseli as temporary president. On the evening of August 5, fol-
lowing a meeting at Racine to solicit members for the Independent,
Local 205-A was organized. On August 27 Local 201-A was organ-
ized at the Superior exchange by the operators who were dissatisfied
with the features offered by the Independent. The membership cam-
paign of the latter union, however, proceeded successfully, and by
the middle of August it claimed to represent over 51 per cent of all
eligible employees.
On August 28, 1937, the Independent requested recognition from
the respondent as the bargaining representative of all the respond-
ent's telephone operators, and sought to negotiate a collective bar-
gaining agreement. The Independent, however, refused, upon
request of the respondent, to disclose its membership lists, and they
were therefore submitted to a firm of certified public accountants for
comparison with the respondent's pay roll. The accountants there-
after certified the Independent as the representative of a majority
of the operators. The respondent then agreed to recognize the Inde-
pendent, but refused to enter into an agreement until this Board
should determine the unit appropriate for collective bargaining.
On September 29 the Independent asked for a check-off of members'
dues. Following a referendum among Independent members and
the signing of cards authorizing the respondent to make wage deduc-
tions, the check-off was instituted, the cost thereof being borne by
the Independent. Early in November the elections of grievance
committees, the board of directors, and officers were completed. On
November 10 the supreme council met with the respondent and again
requested that the respondent bargain collectively with it. Again the
respondent refused to proceed. Meanwhile the Union had made
similar requests at the Kenosha and Janesville exchanges. The re-
spondent agreed to meet with the Union for the adjustment of griev-
ances, but refused to engage in collective bargaining before the
determination of the appropriate unit. Finally on December 15, the
respondent summoned to Milwaukee the board of directors of the
Independent and announced to them a wage increase and a liberaliza-
tion of its vacation policy. At the same time similar announcements
were made to representatives of the Union at Kenosha and Janes-
ville.
D. Conclusions with respect to the plan
The plan which the respondent drafted and put into effect 'in
February 1920 was admittedly company dominated. It originated
with the respondent, was financially supported by the respondent,
and owed its continued existence to the active assistance that the
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent gave to its administration. Nor were the elements of
company domination removed from the revised plan which was
adopted by referendum in August 1934. Although the respondent
sought to show that a new and different plan originated with the.
employees themselves, the record does not sustain this contention.
The "new" plan was admittedly instigated by the respondent and pre-
pared by a "revision" committee consisting of representatives under
the "old" plan. Although it separated the organization of the traffic
department from other departments, and expressly recited as its
purpose the institution of collective bargaining procedure, the salient
features of the 1920 plan remained. In effect, it was the 1920 plan
revised, but continuing the elements of company domination so obvi-
ously present before. In addition to the financial support readily
supplied by the respondent and the use'of the respondent's facilities
for its administration, the absence of any provision for regular
meetings of all department employees and therefore the absence of
any opportunity for the interchange of ideas or the formulation of
policies by the employees for united presentation to the respondent
precluded that form of independent action which is commonly as-
sociated with a free and independent labor organization. The agree-
ment of December 10, 1934, did nothing more than crystallize the plan
into the mold of the respondent's desires and promote an artful
manifestation of employer paternalism masquerading under the name
of collective bargaining.
There can be no doubt that following the passage of the Act the
respondent desired to legitimize the labor organization that it had
created. It is equally true, however, that it desired this organiza-
tion of its employees to continue in the same ineffectual form that
had previously existed. In August 1935 the respondent ceased its
contribution to the plan of financial and other support which had
been necessary for its continued existence and which had necessarily
associated the plan with the respondent in the minds of the traffic-
department employees. It is significant, however, that Chandler, in
his conference with plan representatives on August 9, 1935, empha-
sized and reiterated the opinion that there was nothing in the Act
"that disturbed our present relations, or made necessary any changes
in the existing Plan of Employee Representa€on."
Thus, at the crucial moment, when the enactment of the Act had
confronted the respondent's employees with the important question
whether the company-dominated and supported plan was to live and
if so, in what fashion, the respondent through its traffic manager
actively intervened, called a meeting of the plan committee, and
made clear to it the respondent's wish that representation of its em-
ployees continue in the future through the form of the existent plan.
WISCONSIN TELEPHONE COMPANY 391
The plan accordingly persisted. After 15 years of administration
inextricably bound up with the facilities of the respondent's busi-
ness organization, as well as with the respondent's operating financial
resources, very little show of influence or exercise of sponsorship
was necessary to assure the realization of the respondent's desire.
Under these circumstances it is impossible to reach the conclusion
that the mere withdrawal of financial and other support by the re-
spondent could effectually free the plan of employer domination or
give liberty to the natural impulse of the employees to consider and
seek out that organization which would best represent them. The
respondent's domination of and interference with the plan thus was
continued .6
We conclude that the respondent dominated and interfered with
the administration of the "Plan of Employee Representation-Traffic
Department" and contributed financial and other support to it, and
that the respondent thereby interfered with, restrained, and coerced
its employees in the exercise of the rights, guaranteed in Section 7
of the Act.
We find that from July 1935 to July 1937 the respondent contin-
ued its domination of and interference with the administration of
this plan. Our finding would ordinarily warrant the issuance of
an order directing the respondent to disestablish the plan as a repre-
sentative of its employees for the purposes of collective bargaining.
It is apparent from the record that this labor organization has been
abandoned. Under the circumstances we will withhold such order.
We shall, however, issue such order as we deem necessary to bar the
resumption of the activities, which constituted the unfair labor prac-
tices and thus to effectuate the policies of the Act.7
E. Conclusions with respect to the Independent
The Trial Examiner, in his Intermediate Report, characterized the
Independent as a "mail order" union and concluded that it was noth-
ing more than the old 1920 plan of employee representation, changed
only in name. Although we do not agree with the Trial Examiner's
"Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 64+1, and United Packing House Workers
Local Industrial Union No. $00, 7 N L R. B. 269; Matter of H E . Fletcher Co. and
Granite Cutters' International Association of America , 5 N. L. R. B. 729; Matter of
Republio Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219;
Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalga-
mated Association of Iron, Steel , and Ton Workers of North America, Lodge Nos . 64, 1010,
and 1101, 9 N L. R . B. 783.
7 See Consolidated Edison Company of New York , Inc., and its affiliated companies, et at.
V. National Labor Relations Board, et at 59 S. Ct. 206; Federal Trade Commuisssion v.
Goodyear Tire & Rubber Co., 304 U. S. 257; Matter of Boss Manufacturing Company and
International Glove Workers' Union Local No. 85 (Supplemental Findings of Fact and
Recommendation ), 11 N. L . R. B 432
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
final conclusions, we cannot say that they are not supported in some
measure by the evidence. It is doubtful that the Independent could
have been born with the ease and dispatch which characterized its
organization, had not the plan and its facilities been available to the
organizers. As described above, the moving spirits in this new union
were important officers under the plan. The expenses of general
committee members incurred as a result of their visit to Milwaukee
and their conference with Burns were all borne by the plan. They
admittedly used the plan mailing list and the central office representa-
tives to distribute proxies and application cards. Indeed, the very
decision to organize the Independent was made by the plan's general
committee. On the basis of such organization activity it is not sur-
prising that of the 10 members who comprised the first supreme coun-
cil of the Independent, each had held an office under the plan in
1937, with the exception of Jennie Daveni, who was a member of the
plan's general committee in 1936. The Independent, through its
administrative organization and the provisions for its operation, is
not unlike the plan that lapsed in July 1937.
We are not here concerned, however, with the type of organization
chosen by the employees to represent them, except in so far as their
choice of organization is dictated by the employer.8 There is no
showing that the respondent in any way actively participated in the
formation or administration of the Independent at the time of its
organization or thereafter, nor can the respondent be charged with
domination of, interference with, or support of the Independent by
virtue of the activities in which the respondent engaged and the
influence it exerted with respect to the predecessor plan, for such
activities and influence did not persist in such fashion as to accom-
plish directly the organization of the Independent. While the use of
the plan and its facilities by those engaged in organizing the Inde-
pendent resulted in the adoption of the structural and administrative
features which had attended the existence of the plan, this was not
the result of action by the respondent, or directly attributable to its
illegal acts. In the absence of such identification of the respondent
with the organization of the Independent, or of any other controlling
circumstance, we cannot conclude that the Independent is company
dominated. We are impressed with several factors which support
our conclusion. The plan of employee representation was completely
abandoned. A substantial number of the respondent's employees
proceeded with the organization of the Independent at a mass meet-
ing free from the respondent's participation and without restriction
S Cf Matter of Aeolaan-American Corporation and Amalgamated Piano Workers of
America, 8 N. L. R. B. 1043, and Matter of The Solvay Process Company and United
Chemical Workers Local Industrial Union No. 164 , 5 N. L. R . B. 330.
WISCONSIN TELEPHONE COMPANY 393
in the exercise of their freedom of choice. In addition, the respond-
ent refrained from interfering in the membership campaign of the
Independent and affirmatively proclaimed its neutrality." Indeed,
counsel for the Union, during the oral argument of this case before
the Board frankly admitted that the respondent had not engaged in
unfair labor practices in connection with the formation of the Inde-
pendent, saying : "I am not here charging the employer with illegal
conduct."
We find that the respondent has not dominated or interfered with
the formation or administration of the Independent, or contributed
financial or other support to it. We further find with respect to
the formation and administration of the Independent that the re-
spondent has not interfered with, restrained, or coerced its employees
in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities, for the
purpose of collective bargaining and other mutual aid and protection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III B, above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE QUESTIONS CONCERNING REPRESENTATION
During the latter part of 1937, the Union submitted to the re-
spondent proposed collective bargaining agreements as a basis for
negotiation. As described above, the Independent likewise requested
the respondent to engage in collective bargaining with it. The latter,
however, refused to negotiate with either of the labor organizations
until the Board should determine the unit appropriate for the pur-
poses of collective bargaining.
We find that questions have arisen concerning representation of
employees of the respondent.
On June 28 , 1937, the respondent posted the following notice in all its exchange
offices :
The Wisconsin Telephone Company is complying with the National Labor Relations
Act and, at the suggestion of the Regional Director of the National Labor Relations
Board , the Company is glad to make the following statement of its position :
The Wisconsin Telephone Company is not interested in its employees either
belonging to or not belonging to any labor organization , the Company will not
discriminate against an employee because of his or her affiliation or non -affilia-
tion with a labor organization of their own choosing , and the Company is not
sponsoring the activities of any person attempting to secure membership in any
labor organization.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VII. THE APPROPRIATE UNITS
The Union urges that a unit appropriate for the purposes of collec-
tive bargaining should consist of traffic-department employees, includ-
ing traffic clerks, supervisors," junior supervisors, and assistant chief
operators, but excluding chief operators and other supervisory em-
ployees. No evidence was introduced to oppose the appropriateness
of this classification. Although assistant chief operators are not
eligible for membership in the Independent, nothing in the record
indicates that their duties are different from those of the other
employees. Indeed, the evidence shows that only chief operators
exercise supervisory functions in the operation of the exchange offices.
We shall therefore include assistant chief operators within the classi-
fication proposed by the Union.
The Union contends that the traffic-department employees at the
Janesville, Kenosha, Superior, and Racine exchanges, respectively,
constitute separate appropriate units. Both the respondent and the
Independent oppose this contention and urge that a single unit
consisting of employees throughout the State in all the exchange
offices of the respondent is the appropriate unit.
As described above, the respondent's traffic-department employees,
consisting for the most part of telephone operators, are distributed
among 99 exchanges throughout the State. The administration of
the respondent's organization is centered in the general offices at Mil-
waukee from which almost all decisions on matters of policy affecting
the working conditions of these employees emanate. All pay-roll and
time records, as well as the accounting for the entire system are like-
wise centralized in Milwaukee.
Exchanges are grouped into five districts, each of which is under
the administrative direction of a traffic superintendent. Under the
traffic superintendents are the chief operators, each of whom is the
supervisory employee in her respective central office or exchange office.
Except for wage rates for which there are seven schedules applied
to the various exchanges according to their location to meet differ-
10 See footnote 3, supra.
WISCONSIN TELEPHONE COMPANY 395
entials in the cost of living in the various sections of the State, the
duties and working conditions of all the traffic-department employees
are uniform. All operators pursue a uniform course of training
which makes them available for local- and toll-service duty in any
of the exchanges. The respondent's equipment is standardized
throughout its system and the functions of the various employees in
the exchanges follow uniform rules prescribed by the general-traffic
manager in Milwaukee. A uniform 40-hour week prevails in all the
exchanges, except those located in 27 small cities where the operators
work 48 hours a week. The respondent maintains a uniform vacation
policy, seniority plan, benefit and death plan, and transfer policy.
As defined by the respondent, an exchange is a part of a telephone
system affording service to a defined geographical area, usually
city and its environs. The exchange office, or the central office in the
exchange, is thus a complete telephone-service unit in itself, as well
as a link in the respondent's system for furnishing toll or long-
distance service. The authority to hire and discharge is vested in
the chief operator at each exchange office. Under the respondent's
administrative procedure, the chief operator is also authorized to
hear and, if possible, to adjust grievances of the employees under her
supervision.
In urging the appropriateness of the four bargaining units, the
Union emphasizes the functional autonomy of the single exchange
as a unit for serving a particular area, the varying wage scales and
hours schedules, and the local nature of grievances arising in the
individual exchanges. In further support of its position, the Union
points to its uncontroverted representation of a majority of the eli-
gible employees at each of these exchanges. The respondent and the
Independent, on the other hand, in advocating the determination of
a single unit, emphasize the centralization of executive and policy-
making authority in Milwaukee, the uniformity in duty required of
traffic-department employees wherever located, and the functional
coherence of the exchanges necessary for the successful operation of
the entire system. The respondent and the Independent also main-
tain that the history of organization of the traffic-department em-
ployees, and the collective bargaining that proceeded under such
organization amply support the determination of a State-wide unit.
They contend that since 1920, both under the plan and the Independ-
ent, these employees have been organized on a State-wide basis, and
collective bargaining has successfully proceeded on this basis.
It is clear that in the absence of organization of the employees
on a system-wide basis the employees at each of the four exchanges
would respectively constitute four separate units, each appropriate
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining." However, here the state
of organization has progressed beyond the stage of independent ex-
change units and encompasses the entire system of the employer.12
The question, therefore, is whether under the circumstances of this
case , we should find that the system-wide unit is appropriate for
bargaining purposes.
In determining the appropriate unit, the Board is charged with
considering whether the particular unit proposed in each case will
"insure to employees the full benefit of their right to self-organi-
zation and to collective bargaining, and otherwise . . . effectuate the
policies of the Act." We are not satisfied, in view of circumstances
here present, that the extent of organization among the employees,
or any of the other considerations urged upon us by the respondent
and the Independent, are sufficient grounds to warrant a finding that
the system-wide unit is appropriate. We have heretofore observed
that the Independent, because of the circumstances surrounding its
formation, adopted the structural and administrative features of the
plan. The long history of collective activity through the medium
of the respondent-controlled plan has habituated the employees to
a system-wide form of organization. The Independent consequently
endeavored to organize along such lines. The determination of a
system-wide unit at the present time would thus tend to perpetuate
a pattern of organization which owes its form and origin to the
respondent rather than to the freely exercised choice of the em-
ployees. Under the circumstances, the smaller units will better insure
to all employees the right to self-organization and collective bargain-
ing, and otherwise effectuate the policies of the Act.
We find that the traffic-department employees of the respondent,
including traffic clerks, supervisors, junior supervisors, and assistant
chief operators, but excluding chief operators and other supervisory
employees, at the Janesville, Kenosha, Superior, and Racine ex-
changes, respectively, constitute separate units appropriate for the
purposes of collective bargaining. We further find that said units
will insure to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VIII. THE DETERMINATION OF REPRESENTATIVES
At the hearing, the respondent submitted a list of employees of
each of the four exchanges for the pay-roll period corresponding to
' Matter of R. C. A. Communications , Inc. and American Radio Telegraphists ' Associa-
tion, 2 N. L. R. B. 1109 ; Matter of Postal Telegraph -Cable Company of Massachusetts
and American Radio Telegraphists Association , 7 N L. R . B. 444.
Z2Matter of Tennessee Electric Power Company and International Brotherhood of
Electrical Woi keys, 7 N. L. R. B. 24.
WISCONSIN TELEPHONE COMPANY 397
the date the respective petition was filed. Union officials appeared
as witnesses and testified regarding union membership at these ex-
changes. At the same time union books and membership lists were
produced and made available for inspection by all parties, the mem-
bership lists being introduced in evidence.
The Board's attorney and the respondent's traffic superintendent
compared the membership lists with the corresponding pay rolls and
stipulated as follows : Local 175-A had 40 members among the 60
employees in the appropriate unit at the Janesville exchange on
August 6, 1937; Local 165-A had 21 members among the 26 em-
ployees in such unit at the Kenosha exchange on November 16,
1937; Local 205-A had 71 members among the 110 employees in
such unit at the Racine exchange on November 15, 1937; and Local
201-A had 57 members among the 62 employees in such unit at the
Superior exchange on January 25, 1938. The record shows that the
memberships and pay rolls were substantially the same at all these
exchanges at the time of the hearing, nor did the Independent con-
trovert the Union's claim to a majority of the employees in these
units.
We find that Local 175-A, Local 165-A, Local 205-A, and Local
201-A have been designated and selected by a majority of the em-
ployees in the appropriate units at the respondent's Janesville,
Kenosha, Racine, and Superior exchanges as their respective repre-
sentatives for the purposes of collective bargaining. Local 175-A,
Local 165-A, Local 205-A, and Local 201-A are therefore the exclu-
sive representatives of all the employees in such respective units for
the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment, and we
shall so certify.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Telephone Operators Unions, Local 175-A, Local 165-A, Local
205-A, and Local 201-A, International Brotherhood of Electrical
Workers, and Independent Union of Telephone Operators are labor
organizations and Plan of Employee Representation-Traffic De-
partment, was a labor organization, within the meaning of Section
2 (5) of the Act.
2. By dominating and interfering with the administration of Plan
of Employee Representation-Traffic Department, and by con-
tributing support to it, the respondent has engaged in unfair labor
practices, within the meaning of Section 8 (2) of the Act.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in unfair labor practices, within the mean-
ing of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices constituted unfair labor
practices affecting commerce, within the meaning of Section 2 (6)
and (7) of the Act.
5. The respondent has not engaged in unfair labor practices with
respect to Independent Union of Telephone Operators, within the
meaning of Section 8 (1) and (2) of theAct.
6. Questions affecting commerce have arisen concerning the repre-
sentation of employees of the respondent, within the meaning of
Section 9 (c) and Section 2 (6) and (7) -of the Act.
7. All the traffic-department employees of the respondent, includ-
ing traffic clerks, supervisors, junior supervisors, and assistant chief
operators, but excluding chief operators and other supervisory em-
ployees at the Janesville, Kenosha, Superior, and Racine exchanges,
respectively, constitute separate units appropriate for the purposes
of collective bargaining, within the meaning of -Section 9 (b) of
the Act.
8. Telephone Operators Unions, Local 175-A, Local 165-A, Local
205-A, and Local 201-A, International Brotherhood of Electrical
Workers, respectively, are the exclusive representatives of all the em-
ployees in such units for the purposes of collective bargaining, within
the meaning of Section 9 (a). of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Wisconsin Telephone Company, and its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the formation or adminis-
tration of any labor organization of its employees and contributing
support to any such labor organization;
(b) In any other manner interfering with, restraining, and co-
ercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid and protection, as guaranteed in Section 7 of
the Act.
WISCONSIN TELEPHONE COMPANY 399
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Immediately post notices in conspicuous places at all its ex-
change offices, and maintain such notices for a period of at least
sixty (60) consecutive days, stating that the respondent will cease
and desist in the manner aforesaid ;
(b) Notify the Regional Director for the Twelfth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices, within the meaning of Section 8 (1) and
(2) of the Act, with respect to Independent Union of Telephone
Operators.
CERTIFICATIONS OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
IT is HEREBY CERTIFIED that Telephone Operators Union, Local
175-A, International Brotherhood of Electrical Workers, has been
designated and selected by a majority of the traffic employees of
Wisconsin Telephone Company, including traffic clerks, supervisors,
junior supervisors, and assistant chief operators, but excluding chief
operators and other supervisory employees, at the Janesville ex-
change, as their representative for the purposes of collective bargain-
ing and that, pursuant to the provisions of Section 9 (a) of the Act,
Telephone Operators Union, Local 175-A, International Brother-
hood of Electrical Workers, is the exclusive representative of all
such employees for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions
of employment.
IT IS HEREBY CERTIFIED that Telephone Operators Union, Local
165-A, International Brotherhood of Electrical Workers, has been
designated and selected by a majority of the traffic employees of
Wisconsin Telephone Company, including traffic clerks, supervisors,
junior supervisors, and assistant chief operators, but excluding chief
operators and other supervisory employees, at the Kenosha exchange,
as their representative for the purposes of collective bargaining and
that, pursuant to the provisions of Section 9 (a) of the Act, Tele-
phone Operators Union, Local 165-A, International Brotherhood
of Electrical Workers, is the exclusive representative of all such
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
IT IS HEREBY CERTIFIED that Telephone Operators Union, Local
205-A, International Brotherhood of Electrical Workers, has been
designated and selected by a majority of the traffic employees of
Wisconsin Telephone Company, including traffic clerks, supervisors,
junior supervisors, and assistant chief operators, but excluding chief
operators and other supervisory employees, at the Racine exchange,
as their representative for the purposes of collective bargaining and
that, pursuant to the provisions of Section 9 (a) of the Act, Tele-
phone Operators Union, Local 205-A, International Brotherhood
of Electrical Workers, is the exclusive representative of all such em-
ployees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
IT IS HEREBY CERTIFIED that Telephone Operators Union, Local
201-A, International Brotherhood of Electrical Workers, has been
designated and selected by a majority of the traffic employees of
Wisconsin Telephone Company, including traffic clerks, supervisors,
junior supervisors, and assistant chief operators, but excluding. chief
operators and other supervisory employees, at the Superior exchange,
as their representative for the purposes of collective bargaining and
that, pursuant to the provisions of Section 9 (a) of the Act, Tele-
phone Operators Union, Local 201-A, International Brotherhood of
Electrical Workers, is the exclusive representative of all such em-
ployees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
MR. EDWIN S. SMITH, dissenting in part :
I agree with the majority that the plan of employee representa-
tion subsequent to July 5, 1935, and down to its abandonment in 1937,
was an employer dominated and supported labor organization. For
reasons hereinafter set forth I dissent from the majority and I believe
that the respondent should be ordered to withhold recognition from
the Independent as a collective bargaining agency.
The plan from the outset was nothing more than a mechanism
created by the respondent for carrying on negotiations with repre-
sentatives of its employees by means of devices prescribed by the
respondent. It did not function as a collective bargaining agency in
any realistic or traditional meaning of the term. No basic agree-
ment concerning the wages, hours, and working conditions of the
traffic-department employees had been negotiated with or obtained
WISCONSIN TELEPHONE COMPANY 401
from the respondent 13 The formal structure of the plan, even after
the revision instigated by the respondent in 1934, made no provision
for meetings of employees to discuss in a body matters affecting
wages, hours, and other working conditions. Nor was there even any
other provision by which the representatives under the plan could
be made aware of the collective desires of their constituents. In
short, the plan was simply an aspect of personnel management, a
means for orderly presentation of employee grievances, which bore no
relation to that process of self-organization of employees for collec-
tive bargaining which is the heart of the Act.
Manifestly, the August 1935 meeting of the respondent's traffic
manager with the plan representatives had as its purpose the ful-
fillment of the respondent's desire, despite passage of the Act, to
perpetuate this dominated plan as the respondent's own selection of
its employees' medium for collective bargaining. It was the respond-
ent that initiated this meeting and offered the explanation that save
for financial support "not a word in the new law . . . made it nec-
essary in any way to change the Plan."
The respondent's action in connection with the continuation of
the plan in 1935 was no less a violation of the right of its employees
under the Act to select a collective bargaining agency of their own
choosing and to free themselves from an employer-dominated labor
organization than if the respondent had at that time inaugurated
the plan. The employees generally had no opportunity to consider
and determine whether in view of the recently enacted Federal legis-
lation, they desired to entrust their employee interests any longer
to the plan. Nor did they have an opportunity to consider and de-
termine what revision would have to be made not only to bring the
plan within the law but also more adequately to secure to them the
benefits of collective bargaining. In short, the respondent proceeded
to perpetuate the plan and to try to bring it into conformity with
the Act simply because it desired its continued existence.
After August 1935 the plan in its new guise bore a close resem-
blance to its old self, a resemblance which no employee could miss.
The "automatic" character of employee participation remained.
There was continued use of the respondent's property and facilities
for plan elections and other organizational business. The fact that
the respondent now charged for such use would do little to convince
employees that the plan had thereby become their own. Nor am I
impressed with the respondent's contention that such nominal charges
as it made against the plan successfully removed its action from the
' Cf. Matter of Servel, Inc. and United Electrical , Radio and Machine Workers of
America, Local No 1002, 11 N L. R B 1295 ; National Labor Relations Board v Pennsylianea
Greyhound Lines, Inc, 303 U. S . 261, 269
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statutory prohibition of support 14 The ready grant of special privi-
leges to the plan representatives in June 1937, upon their visit to the
Kenosha and Janesville exchanges, would naturally have been inter-
preted by the employees as an act of favoritism by the employer.
There is ample basis to conclude, because of its close identification
with the plan and with the respondent's historic policy of fostering
an "inside" employee labor organization, that the Independent could
not appear otherwise than company sponsored in the minds of the
employees. As the majority opinion points out, the Independent was
conceived by the leading spirits of the plan after the plan's legality
was challenged by a competing labor organization. These plan lead-
ers formed the Independent, utilized the plan hierarchy and facilities
in distributing to employees the promotional material concerning the
proposed Independent and conducted the Milwaukee meetings for
the purpose of setting up the Independent. Expenses were met in
part with plan funds, and the 10 persons chosen to head the Independ-
ent were with one exception persons holding official positions under
the plan. Plainly the Independent came into being under circum-
stances necessarily giving rise to a belief among the employees that
it was largely an extension of the plan, and like the plan, a project
of the respondent. I would find it unreasonable to conclude, in view of
the surrounding facts and prior history, that the notice posted by
the respondent on June 28, the abandonment of the plan by its lead-
ers, the July 1937 meetings at Milwaukee, or any other circumstance
involved, would dispel such belief. The similarity in formal struc-
ture between the Independent and the plan, especially the want of
provision for regular membership meetings, would alone go far to
nurture the supposition of identification with the plan and of com-
pliance with the employer's desire.
A labor organization which in the course of its. formation and
thereafter bears the impress of employer-sponsorship and employer-
approval is a continuing obstacle to the enjoyment by employees of
the right given them by the Act freely to establish a bargaining agency
of their own. This is true of the Independent, irrespective of whether
acts of domination, interference, and support, by the respondent with-
in the meaning of Section 8 (2), were directly extended to that organ-
ization. Employees in such matters must be held to be realists. To
them the Independent would appear as the plan in a new guise. This
is particularly true when we consider that those who established the
Independent were the same individuals who had long played a role
of which the employer's initial blessing was an integral part. Where
such a situation obtains, and where, as here, the restraint thus exer-
u Cf. Matter of Servel, Inc. and United Electrical Radio and Machine Workers of
America, Local No. 1002, 11 N. L. R. B. 1295.
WISCONSIN TELEPHONE COMPANY 403
cised on the employee's freedom of choice has a proximate causal
relationship with the employer's unfair labor practices, I see no rea-
son why this Board cannot provide, as the Union urges, an appro-
priate remedy. The finding in the majority opinion that the respond-
ent's illegal activity and influence respecting the plan "did not persist
in such fashion as to accomplish directly the organization of the
Independent" does not seem to me to justify a conclusion that the
Board is helpless in the premises. It was the respondent's promotion,
after passage of the Act of a collective bargaining agency which it
had created and previously maintained, and which it subsequently
supported, that has permitted identification of the Independent with
that organization and produced the present situation. The language
of the statute is plain 15 and its basic public policy warrants the is-
suance of a remedial order.
Accordingly, that the traffic-department employees may have an
opportunity, which in fact has never been theirs, to adopt free from
all suggestion of employer interference, restraint, and coercion, a
representative for collective bargaining purposes, I am of the opinion
that the respondent in this case should be directed to withhold recog-
nition from the Independent as a collective bargaining representative.
Such an order is remedial, not punitive. Its purpose would be "re-
moving or avoiding the consequences of violation where these conse-
quences are of a kind to thwart the purposes of the Act." is Neither
the rights of the employees nor of the respondent to deal freely with
each other would be infringed thereby, and the purposes of the Act,
which contemplate untrammeled and uninhibited self-organization
by employees for collective bargaining, would be subserved.
I concur in the certification made of the Union in the majority
opinion, on the ground that the exchange units constitute the sole
appropriate bargaining units which the Board is justified in finding
at the present time.
lu Section 10 (c) of the Act provides : " If upon all the testimony taken the Board shall
be of the opinion that any person named in the complaint has engaged in . . . any such
unfair labor practice [ listed in Section 8 ], then the Board . . . shall issue and cause to
be served on such person an order requiring such person to cease and desist from such
unfair labor practice, and to take such affirmative action . . . as will effectuate the
policies of the Act."
'6National Labor Relations Board v. Consolidated Edison Company of New York, Inc.,
et al., 305 U . S. 197.
169134-39-vol. 12-27