Ozark Central Telephone Co.

In the Matter of OZARK CENTRAL TELEPHONE COMPANY, EMPLOYER and TELEPHONE WORKERS ORGANIZING COMMITrEE , CIO, PETITIONER Case No. 14-RC-509.-Decided April 08, 19.49 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Ziegal W. Neff, .a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Gray]. Upon the entire record in this case, the Board finds :1 1. The Employer, herein also called Ozark, is engaged in commerce within the meaning of the National Labor Relations Act. 2. The following labor organizations claim to represent employees of the Employer : TWOC; Southwestern Division No. 20, Communica- tions Workers of America, herein called CWA; and International Brotherhood of Electrical Workers, AFL, herein called IBEW. 3. CWA contends that the petition should be dismissed because the employees involved in this proceeding are allegedly covered by its contracts with Southwestern Bell Telephone Company, herein called Bell. Bell owns a large bloc of Ozark's stock and recently acquired most of the stock in Southeastern Telephone Company, which, in turn, also owns a large bloc of the Employer's stock. As a result, Bell now controls a majority of the stock in Ozark. 1 Upon its own motion , the Board, on December 31, 1948 , reopened the record and directed a further hearing to determine whether the Board may proceed with its investiga- tion in the absence of compliance with Section 9 (f), (g), and (h) of the Act by Congress of Industrial Organizations, with which the Petitioner is affiliated. For purposes of that hearing, the instant case was consolidated with Matter of The Chesapeake and Potomac Telephone Company of Virginia, Case No. 5-RC-154, and Matter of Western Electric Company, Incorporated, Case No. 2-UA-3661. Upon the facts adduced at the hearing, we find, for the reasons stated in Matter of The Chesapeake and Potomac Telephone Company of Virginia, 82 N. L. R. B. 810, that the filing requirements of the Act have been satisfied by the compliance of the Petitioner , herein also called TWOC. 83 N. L. B. B., No. 32. 258 OZARK CENTRAL TELEPHONE COMPANY 259 Each of the CWA's several contracts with Bell is coextensive with departmental lines. The contracts provide, inter alia, that Bell shall notify CWA of the acquisition of additional exchanges or equipment locations requiring the establishment or extension of job descriptions described in the contracts, and that CWA may, within 30 days there- after, initiate negotiations concerning basic wage rates of such addi- tional job descriptions. CWA contends that, by acquiring control of Ozark's stock, Bell has become the employer of Ozark's employees, and that, therefore, its existing contracts with Bell constitute a bar to this proceeding because their terms extend to and cover such employees. We do not agree. Although three of the five directors on Ozark's Board of Directors are connected directly or indirectly with Bell, and despite the financial relationship between the various companies by reason of pyramiding stock ownership, the record does not show that Bell controls the labor relations policies of Ozark. These matters come under the immediate direction and management of Ozark's president and its assistant gen- eral manager, neither of whom, so far as the record shows, has any connection with Bell. Under all the circumstances, we find that for the purposes of this proceeding, the employees of the Employer are not employees of Bell within the meaning of the Act z and the CWA's contract has no application to this proceeding. - A question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act .3 4. The appropriate unit : The Employer is engaged in the operation of a telephone company serving southwestern Missouri. It employs approximately 215 em- ployees in the operation of 27 exchanges and its home office at St. Louis, ° Missouri. The Petitioner seeks a unit composed of all traffic, plant and con- struction, commercial and revenue accounting employees, excluding those employees at the Employer's home office. IBEW is in general 2 Matter of Mt. Clemens Pottery Company, 46 N. L R B. 714. See Matter of Public Service Corporation of New Jersey, et al., 72 N. L. R. B. 224. 3 The Petitioner requested permission to withdraw its petition , or, in the alternative, later to amend the petition by substituting as the petitioner herein a labor organization presently being formed as an affiliate of the Petitioner. CWA does not object to the Peti- tioner's withdrawal of its petition , but desires a determination of the issues raised therein. It therefore requests that it be substituted as the Petitioner if the withdrawal request be granted. IBEW objects 'to a withdrawal or dismissal of the petition . We are satisfied that sufficient cause exists for not permitting the withdrawal of the petition and the Petitioner's request in this respect is denied. Matter of Falcon Manufacturing Company, 73 N. L . R. B. 467. The motion to amend is denied, but without prejudice to the Peti- tioner's right to renew such motion when the afore -mentioned affiliate union has been formed. 260 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD agreement with the unit sought by, the Petitioner. CWA would in- clude in the- proposed unit - all employees of the Employer unless excluded by the Act. The Employer opposes the inclusion of certain employee categories in the proposed unit. The unit placement of the following categories are in dispute : Exchange agents. The -Employer maintains 12 agency exchanges in small communities operated by exchange agents. The Employer contends that these agents are independent contractors and should be excluded from the unit. There are no written contracts with the agents, but it is orally agreed between the Employer and each agent that the latter is to maintain traffic operations in the exchange 24 hours a day, collect for, the Employer on bills' mailed by the agent, and act as the Employer's representative in carrying on its business with the subscribers in that community. The agent is free to employ others to assist in the operation of the exchange. However, such persons are paid by the agent, and are under, the agent's direct control and supervision. If proper service is not maintained by the, agent, the Employer feels free to, terminate the agency, but all details of the .. 11 operation of the exchange are left to the, agent. The switchboard is always set up in the agent's living quarters. Some of these quarters are furnished by the Employer and some are furnished by the agent. The rights, obligations, and duties between the Employer and the exchange agents are similar to those existing between the, employer and the exchange agents in Matter. of Southwestern Associated Tele- phone Company,5 where we found the exchange agents to be inde- pendent contractors. For the reasons stated therein, we conclude that the exchange agents in this proceeding are independent contractors within the meaning of the amended Act and we shall therefore ex- clude them and -any of their own employees from the proposed unit .6 Managers. The Employer employs 12 managers, each in charge of an exchange or a group of exchanges. CWA contends that the man- agers are not supervisors within the meaning of the Act and should therefore be included in the unit. Each manager is responsible for the operation of an exchange or group of exchanges. The personnel complement of an exchange ranges from 4 to 25. He directs and supervises the employees in his exchange (or group of exchanges) and he has full authority to hire and discharge such employees. We ' The parties agree that cable operators and helpers , cablemen's helpers, equipment men, installers, linemen , troublemen installers, ' operators, night operators, relief operators, and clerks should be included in the unit. 76 N. L. R. B. 1105. 6 For the reasons stated in his dissenting opinion in the Houthwe8tern case, Chairman Herzog would find the exchange agents to be employees and include them in the bargaining unit. However, he feels bound by the majority opinion in that case and will not dissent formally in this one. t OZARK CENTRAL TELEPHONE COMPANY 261 find that the managers are supervisors within the meaning of the Act and we shall exclude them from the unit. Assistant manager. The Employer employs only one assistant man- ager. It is the duty of this person to take charge in the absence of the manager, on which occasions, according to the Employer, the assist- ant manager assumes all of the authority and responsibility of the manager. When the latter is present, the assistant manager devotes his time to performing plant work in the central office. The record does not disclose the proportionate time spent in each capacity. As we are unable to, determine his status from this record, we shall make no finding as to unit placement of the assistant manager, but shall permit him to vote under challenge.' Cashiers. The Employer employs two cashiers, one at each of its two largest exchanges. The primary function of these two employees is to receive monies, send bills, and do other accounting work at, their respective exchanges. They keep the personnel records and frequently write letters for their respective managers. Some of the letters relate to grievances and other labor matters. The Employer contends that these employees are confidential employees. We do not agree. It does not appear that either of these two employees assists or acts in a con- fidential capacity to persons exercising managerial functions in the field of labor relations. We shall, therefore, include the two cashiers in the unit .8 Chief operators and chief operator, cashiers. The Employer em- ploys two chief operators, and four chief operator cashiers. The chief operators supervise operators and try to prevent interruptions in traffic operations at their respective exchanges. They sometimes handle traffic as operators. In conjunction with the exchange managers, the chief operators have authority to hire and discharge employees under their supervision. The chief operator cashiers are chief operators who, in addition to the duties of chief operator, perform work similar to that done by cashiers at the larger exchanges. We conclude that the chief operators and the chief operator cashiers are supervisors within the meaning of the Act, and we shall exclude them from the unit. "Supervisors." There are four so-called supervisors employed by the Employer.9 Each supervisor is ordinarily on duty at night when the chief operator is not there. In the absence of the chief operator, 7 Matter of Cocoline Products, Inc., 79 N. L. R. B. 1426; Matter of The American News Company, Inc., 77 N. L. R. B 1036. ° Matter of Automatic Electric Company, 78 N. L. R. B. 1057. ° Supervisors apparently are considered by the Employer to be in the nature of assistant chief operators. The record indicates that at one of the exchanges, a person performing the duties of a supervisor is designated as an assistant chief operator. 844340-50-vol 83-18 262 DECISIONS OF NATIONAL LABOR -RELATIONS, BOARD the supervisor assumes-the supervision of the other operators, although devoting considerable time to handling traffic. A supervisor receives a higher wage rate than an operator. Although she does not have authority to hire or discharge employees, the record discloses that she may effectively recommend disciplinary action in regard to other em- ployees. We find that these employees are supervisors within the meaning of the Act and we shall, therefore, exclude them from the unit. Gang foremen. There are four gang foremen employed by the Em- ployer, each in charge of a construction gang of about five employees. It is the function of the construction gang to erect, repair, and main- tain the various lines of communication employed by the Employer. Although each foreman, to a certain extent, physically engages in the performance of construction work, the record is clear that the respon- sibility for the direction of the employees on the construction gangs belongs to gang foremen. Further, the hiring and discharging of employees of his construction crew is a matter solely within the au- thority of the gang foreman. We shall exclude gang foremen from the unit. Employees in the St. Louis office. There are approximately six em- ployees in the accounting department and one employee in the records department at the Employer's St. Louis office10 CWA would include, and the other parties would exclude, these employees from the unit. The six employees in the accounting office perform routine filing, bill- ing, and other clerical duties. The employee in the records department does drafting work. The Employer contends that because these em- ployees are the only employees at St. Louis, the other employees in the unit being scattered throughout the southwestern part of the State, they have no community of interest with the other employees, and should therefore be excluded from the unit. We do not agree. The St. Louis office employees are subject to the same company poli- cies and general working conditions as are the other employees to be included in the unit. Moreover, all of the employees whom the Em- ployer would include in the unit are, by groups, separated by varying distances from other groups. We shall include the St. Louis office employees in the unit. We find that all traffic, plant and construction, commercial and revenue accounting employees of the Employer in southwestern Mis- souri, including cashiers, and employees in the St. Louis office, but excluding exchange agents, the secretary to the president and general manager, managers, chief operators, chief operator cashiers, super- 20 There is also one employee who serves as secretary to both the president and assistant general manager. The parties agree to exclude the secretary as a confidential employee. OZARK CENTRAL TELEPHONE COMPANY 263 -visors, gang foremen, and all other supervisors within the meaning of .the Act, constitute a unit appropriate for purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 5. The determination of representatives : The Employer contends that its part-time employees, and its tempo- rary, occasional, and casual employees are ineligible to vote in any ,election which the Board may direct. The record discloses that the only persons presently employed on a part-time basis are two janitresses. These persons are employed elsewhere, but regularly devote 1 to 2 hours each day to performing janitorial services for the Employer. Inasmuch as the relationship of these two janitresses is regular and permanent, we find that they have a sufficient interest in the bargaining relations of the Employer to participate in the election.- We shall therefore permit the part- time employees to vote in the election directed herein. From time to time, the Employer hires persons to do' a particular job or to perform work for short periods of time. Their employment terminates upon the completion of the job or upon the expiration of a stated time-usually from 1 week to 1 month. As of the date of hearing, there were two or three persons so employed. The Employer classifies such persons as temporary, occasional, and casual employees. The record does not disclose the identity of these persons, the nature of the work performed, nor the expected duration of employment of each, other than as above indicated. We find that persons employed for a period of 1 to 4 weeks, in the absence of regular periods of reemployment, do not have a sufficient interest in the election to entitle them to vote Y2 Accordingly, we find that the temporary, occasional, or casual em- ployees are ineligible to vote in the election. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period 11 Matter of Cocotine Products, Inc., 79 N. L. R. B. 1426. 12 Matter of Joseph M. Las8onde, 80 N. L. R. B. 1387. 264 DECISIONS OF - NATIONAL LABOR RELATIONS BOARD immediately preceding the date of this Direction of Election, includ- ing employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have 'sine quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to rein- statement, to determine whether they desire to be represented, for purposes of collective bargaining, by Telephone Workers Organizing Committee, CIO, or by Southwestern Division No. 20, Communication Workers of America, or by International Brotherhood of Electrical Workers, AFL, or by none.'s is The Petitioner may have its name removed from the ballot upon request made within 10 days from the date of this Decision . Any other participant in the election herein may, upon its prompt request to and approval thereof by the Regional Director , have its name removed from the ballot.