Southwestern Bell Telephone Co.

SOUTHWESTERN BELL TELEPHONE COMPANY 79 Employer at its Denver, Colorado, plant, excluding all production and maintenance employees, plant clericals , assistants to the personnel director, confidential secretaries , time-study engineers , rate setters, routing engineers, the manager of the employees' credit union, tech- nical employees , department heads , and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] SOUTHWESTERN BELL TELEPHONE COMPANY and CLAUDE JULYAN SOUTHWESTERN DIVISION No. 20, COMMUNICATIONS WORKERS Or AMERICA, CIO and CLAUDE JULYAN. Cases Nos. 141-CA-550 and 14-CB-110. November 23, 1951 Decision and Order On July 30, 1951, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner , with the modifications and exceptions noted below. We agree with the Trial Examiner that the Respondent Company, at the instance of the Respondent Union, discriminatorily refused to permit employee Julyan to trade his work tour assignment because he was not a member of the Respondent Union , and thereby violated Sec- tion 8 (a) (3) and (1) of the Act. We also agree with the Trial Ex- aminer that the Respondent Union, in violation of Section 8 (b) (2) and (1) (A) of the Act, attempted to, and did, cause the Respondent Company to discriminate in this manner against Julyan.2 In reach- I 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 [Members Houston , Reynolds , and Styles] 2 We not only agree with the Trial Examiner that the terms of the contract did not justify the discrimination in question, but find, in addition , that E ven if the contract authorized such discrimination , it would not be lawful or enforceable. Rockaway News Supply Company, Inc., 94 NLRB 1056 , and cases there cited. 97 NLRB No. 19. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing these conclusions, however, we find it unnecessary to rely on the Trial Examiner's subsidiary finding that the Company yielded to the Union's demands because of the latter's threatened work stoppage.,, Whether or not the Company actually succumbed to this pressure is immaterial. The significant factor is that the Company, with full knowledge of the Union's discriminatory motivation,' accepted the Union's list of applicants which excluded Julyan's names The Respondent Union asserts that it did not include Julyan's name on the list of those desiring to trade assignments solely because Julyan did not submit his name to his steward, as the Local Union's secretary, Eckrich, advised him to do. It seems thereby to argue that Julyan's failure to follow this procedure was the reason for the Com- pany's refusal to permit Julyan to trade tours. However, it is clear from the record, as the Intermediate Report shows, that the Union attempted to, and did, cause the Company to reverse its original de- cision and deny Julyan that privilege because of his nonmembership in the Union and not because of his failure to submit his name to the stewards This is readily evident in Eckrich's action in erasing from the posted schedule Julyan's name, which Julyan had inserted in accordance with the then prevailing practice, and in Eckrich's subse- quent rebuke to Julyan for seeking to avail himself of the benefits gained by the Union without his joining the organization. Although at the conclusion of his conversation with Julyan, Eckrich told him to see the steward if he still desired to trade tours, it is significant that Eckrich gave him no assurance that the steward would place his name on the Union's list of bidders, much less that he would not be discrim- inated against because of his nonmembership in the Union.' Indeed, 8 The Intermediate Report erroneously states that Eckrich, the Local Union 's secretary, told Telker, instead of Chief Switchman Miller, about the employees ' contemplated work stoppage. 4In its brief in support of its exceptions , the Company "admits that it had good reason to believe, and in fact did believe , that the reason for the erasure of Julyan's name from the original trade-out list was because he was not a member of the Union." 5 The Company 's contention that no violation was proved because of the absence of evi- dence that its action resulted in, or had as its purpose , the encouragement of membership in the Union , is plainly without merit . All that the Act requires to establish a violation under Section 8 (a) (3) is that the discrimination have the natural tendency to encourage or discourage union membership . Rockaway News Supply Company, Inc ., supra. More- over, the Company's conduct clearly interfered with, restrained , and coerced Julyan in the exercise of his statutory right to refrain from joining a union and thus was violative of Section 8 (a) (1) of the Act. Whether the Company's conduct be viewed as a violation of Section 8 ( a) (3) or ( 1), we find that effectuation of the policies of the Act requires the remedy hereinafter provided e The Union's assertion that its position has always been that the Company was simply required to accept its list of bidders but that the Company was not bound to make its selec- tion from it , is plainly something less than candid , as the entire record discloses In view of our finding herein , we deem it unnecessary to consider the correctness of the Trial Examiner's additional findings, that 'the•establishment of the new procedure for trad- ing tours was designed as a means of discriminating against Julyan and other nonmembers of the Union. ' Eckrich testified at the hearing that he hoped that "after speaking to . . . [Julyan], I could appeal to what I considered common sense , [ and] better nature, that he would reconsider bidding" and would change his mind and not bid. SOUTHWESTERN BELL TELEPHONE COMPANY 81 the Union argues in its brief to the Board that it was not required to give Julyan any assurance of being placed on the Union's list because it cannot be "assume[d] the steward would put Julyan's name on the list and that the steward was obligated to do so regardless of why or .how many men may have submitted their names." In these circum- stances, it can hardly be argued that Julyan's failure to make the futile gesture of submitting his name to the steward was the motivat- ing reason for being denied the right to "trade into" a night tour .assignment. Moreover, in view of the nature of Eckrich's remarks to Julyan, it is readily understandable why Julyan did not give his name to the steward but instead told his supervisor that he wanted to apply for the night tour as he did not believe that the Union would submit his name.8 Accordingly, we find, as did the Trial Examiner, that the Respond- ent Company and the Respondent Union respectively engaged in un- fair labor practices within the meaning of Section 8 (a) (3) and (1) and Section 8 (b) (2) and (1) (A) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board orders that : I. The Respondent, Southwestern Bell Telephone Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in Southwestern Division No. 20, Communications Workers of America, CIO, or in its successor, Com- munications Workers of America, CIO, or in any other labor organi- zation of its employees, by discriminating against any of its employ- ees with respect to work assignments, or by discriminating against them in any other manner in regard to their hire or tenure of em- ployment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such S Although Julyan testified at the hearing that he did not go to see the steward because he did not believe that the Union had any jurisdiction in the case, he also explained that the long-established practice did not require him to do so. It is clear from his entire testimony that Julyan actually meant, and correctly so, that the Union could not deprive him of his right to bid and be considered by the Company for a trade of tours because of his nonmember- ship in the Union. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, time cards, personnel records and'reports,,and all other rec- ords necessary to analyze the amount of back pay due under the terms of this Order. (b) Post at its plants at St. Louis, Missouri, copies of the notice attached hereto as Appendix A.9 Copies of such notice, to be fur- nished by the Regional Director for the Fourteenth Region, shall, after being duly signed by Respondent Company's representative, be posted by the Company immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order as to what steps the Respondent Company has taken to comply herewith. II. The Respondent, Southwestern Division No. 20, Communica- tions Workers of America, CIO, its officers, representatives, agents, successors, and assigns, including Communications Workers of America, CIO, shall : 1. Cease and desist from : (a) In any manner causing or attempting to cause Southwestern Bell Telephone Company, its officers, agents, successors, and assigns, to discriminate against employees because of their nonmembership in its organization, except as authorized in Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees of Southwestern Bell Telephone Company, its successors or assigns, in the exercise of their right to self-organization, to form, join,-or assist labor organizations, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- 9 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order" the words "A Decree of the United States Court of Appeals Enforcing." SOUTHWESTERN BELL TELEPHONE COMPANY 83 ship in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its headquarters at St. Louis, Missouri, copies of the notice attached hereto as Appendix B.10 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by an official representative of the Re- spondent Union, be posted by the Respondent Union immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Fourteenth Region signed copies of the notice attached hereto as Appendix B, for post- ing, if the Respondent Company is willing, at the Company's plants in St. Louis, Missouri, in places where notices to employees are customarily posted. (c) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondent Union has taken to comply herewith. III. The Respondent, Southwestern Bell Telephone Company, its officers, agents, successors, and assigns, and the Respondent, South- western Division No. 20, Communications Workers of America, CIO, its officers, representatives, agents, successors, and assigns, including Communications Workers of America, CIO, shall jointly and severally make whole Claude Julyan for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in "The remedy" section of the Intermediate Report. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT encourage membership in SOUTHWESTERN DIVI- SION No. 20, COMMUNICATIONS WORKERS OF AMERICA, CIO, or in its successor, COMMUNICATIONS WORKERS OF AMERICA, CIO , or in any other labor organization of our employees, by discriminating against any of our employees in work assignments, or by dis- 10 See footnote 9. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminating against them in any other manner in regard to their hire or tenuire of employment or any term or condition of em- ployment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organ- ization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or-all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL make Claude Julyan whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to become, remain,. or to refrain from becoming or remaining, members in good standing of the above- named union or any other labor organization, except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. SOUTHWESTERN BELL TELEPHONE COMPANY, Employer. By ------------=--------------------------------- Dated .-----------. ------ (Representative ) (Title) This notice must remain posted for 60 consecutive days and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL MEMBERS OF SOUTHWESTERN DIVISION No. 20, COM- MUNICATIONS WORKERS OF AMERICA, CIO, AND ITS SUCCESSOR, COM- MUNICATIONS WORKERS OF AMERICA, CIO, AND TO ALL EMPLOYEES OF SOUTHWESTERN BELL TELEPHONE COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause SOUTHWESTERN BELL TELEPHONE COMPANY, its officers, agents, successors, or assigns, to discriminate against Claude Julyan or any other employee, be- cause of nonmembership in our organization, except as authorized by Section 8 (a) (3) of the Act. SOUTHWESTERN BELL TELEPHONE COMPANY 85 WE WILL NOT in any other manner restrain or coerce employees Of SOUTHWESTERN BELL TELEPHONE COMPANY, its successors or assigns, in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL make Claude Julyan whole for any loss of earnings he may have suffered by reason of the discrimination against him. SOUTHWESTERN DIVISION No. 20, COMMUNICATIONS WORKERS OF AMERICA, CIO, Labor Organization. COMMUNICATIONS WORKERS OF AMERICA, CIO, Successor Labor Organization. By ------------------------------------------------- Dated .------------------ (Representative) (Title) This notice must remain posted for 60- consecutive days and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE This case involves charges of violation by the Southwestern Bell Telephone Company, hereinafter called the Company, of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, herein called the Act. The com- plaint issued against the Southwestern Division No. 20, Communications Workers of America, CIO, hereinafter called the Union, charges that the Union violated Section 8 (b) (1) (A) and (2) of the Act. The complaints allege in substance that the Company on or about September 1, 1950, refused to permit Claude Julyan to trade his work assignment with other employees, contrary to the policies and practices of the Company then and thereafter in force, and that the Union at about the same time caused or attempted to cause the Company to refuse, in violation of Section 8 (a) (3), to permit said Julyan to trade his said work assignment because he was not and is not a member of the Union and in order to encourage membership in the Union. The Respondents' answers denied the commission of any acts constituting unfair labor practices. Pursuant to notice, a hearing was held before the undersigned Trial Examiner at St. Louis, Missouri, on June 25 and 26, 1951. Upon the conclusion of the General Counsel's case, the Union and the Company moved to dismiss for want of proof, and the motions were denied without prejudice to the right to renew said motions at the conclusion of the hearing. At the conclusion of the hearing, the Union and the Company renewed their motions to dismiss on the merits. 986209-52-vol. 97-T 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruling was reserved thereon. For the reasons hereinafter stated both motions are now denied . The parties waived oral argument and the privilege of filing briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT E. THE BUSINESS OF THE COMPANY Southwestern Bell Telephone Company is a Missouri corporation with its principal office in the City of St. Louis, Missouri . The Company is engaged in the business of furnishing wire and radio telephone communication service in the States of Missouri, Kansas, Arkansas , Oklahoma, Texas, and a portion of Illinois, and has direct telephone connections throughout the continental United States and most foreign countries . More than 99 percent of the common stock is owned by the American Telephone & Telegraph Company. The Company con- cedes and I find that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Southwestern Division No. 20, Communications Workers of America, CIO, before April 2, 1951, was a labor organization within the meaning of Section 2 (5) of the Act. After that date , pursuant to constitutional amendment, said Union went out of existence and was supplanted by Communication Workers of America, CIO , also a labor organization. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Contract provisions and practice of trading assignments Switchmen at the Respondent Company's plant received assignments of -work called "tours of duty." These assignments were made on a quarterly basis. Each quarter a certain number of the switchmen would be assigned to night tours. This work carried premium pay over day work . Some of the employees, especially the older ones, disliked working the night hours , whereas others, in order to earn more, preferred to work nights . In 1945, the Union held a meet- ing with the Company to determine if something could be done to relieve the older employees of the requirement of working nights. Following a detailed discussion of the problem, the parties reached the following agreement : A. Management to continue the existing plan of scheduling craftsmen for coverage the same as in the past . The plan now in effect and to be con- tinued provides for a quarterly rotation of central office craftsmen for all coverage, including evening, night, Sunday and regular day tours. This rotating of coverage is made from the total craftsmen in the group qualified for coverage without regard to seniority . The schedules are available for review in advance of the effective date. B. After a tentative schedule has been reviewed by the men involved and it is found that some wish to trade tours, this may be done if mutually agreeable to the employees concerned and provided the supervisor is satisfied that each employee has the required qualifications for the tour he requests. C. The Union agrees that no employee shall be deprived of his regular scheduled assignment without his personal concurrence. D. The Union agrees in respect to the scheduling of craftsmen that the interchange or trading of tours shall be for the quarterly rotation period. SOUTHWESTERN BELL TELEPHONE COMPANY 87 E. This agreement to be made effective March 1, 1945, for application in connection with the posting of schedules for Central Office craftsmen begin- ning April 1, 1945. This agreement continued in effect unrevoked through the period involved in the present case despite the making of new general contracts . On June 4, 1950, the parties entered into a 1-year contract which included a separate document called "Supplemental Statements." In the latter it was provided , so far as is pertinent here, as follows : Scheduled tours or any of the hours of such tours may with the approval of the supervisor be changed , if, for personal reasons, other than sickness, an employee . . . wishes to change any of the hours of his scheduled tour or session, provided service and coverage requirements as determined by Management permit . . . . If replacement of the employee making the request is necessary , it will, with the approval of his Supervisor, be the responsibility of that employee to arrange an exchange of tours or hours with some other employee having the necessary qualifications . In order to prevent misunderstandings , a form or memorandum shall be signed by the supervisor and the employee or employees involved , acknowledging the fact that the change of tours or hours is made at the employee's request .. . . It was the Company 's practice, in giving effect to the foregoing provisions, to prepare a list of the names of those switchmen who were assigned to a night tour of duty at least 30 days in advance of the time when the new quarterly schedule would go into effect. This form contained four columns , in the first of which was the name of the employee assigned. The second column was headed "trade-out name" and contained blank spaces following each name. In these blank spaces it was contemplated that a new name would be inserted in the event that the assigned employee traded with another employee. The third and fourth columns are unimportant to the issues in this case . It was the practice of the chief switchman to sign this form and to deliver it to the Union for posting on its bulletin board. This was left posted for about 2 weeks, during which time employees assigned night tours were able to effect trades. In practice, employees receiving night tours sometimes preferred not to work them. In such case it was customary for such employee to make it known to other employees that he was willing to trade, because it was his responsibility to see that someone worked his tour for him. Ordinarily he indicated his in- tention by writing the words "will trade" in the left-hand margin of the posted form, although this was not a necessary requirement . If any other employee wished to trade his day tour for a night tour he would then write his name in the second column opposite the name of the man trading out. Occasionally more than one employee wrote his name in such space. In such instances the employees generally understood that the senior employee got preference , although it does not appear with certainty whether the two claimants decided that be- tween themselves, whether the union steward made the decision, or whether the decision was made by management representatives. At the expiration of the period of posting, the steward would remove the list from the bulletin board, sign his name thereto, and return it to management . The final assignment of tours would be prepared therefrom. Although the provisions of the contract quoted above called for the signing "by the supervisor and the employee or em- ployees involved , acknowledging the fact that the change of tours or hours is made at the' employee 's request," this practice appears to have been followed only in the case of nonscheduled days and was not used in the exchange of night tours, where the trade-out employee did not sign anything. If the "trade-in" 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee signed following the name of a "trade-out" employee, all parties, in- cluding the Company's supervisors, assumed that a trade had been properly effected. Ordinarily the supervisors were satisfied with any indication on the paper showing that the employee originally assigned was willing to trade and that another employee had inserted his name in the space following that of the employee receiving the original assignment. There is no evidence that anyone ever attempted to claim a night tour of an assigned employee who was unwilling to relinquish his tour, and therefore it appears to have been assumed that if a trade-in employee's name appeared on the form it appeared there with the consent of the trade-out employee. B. The discrimination against Julyan On about September 1 there was issued a list of names of employees scheduled for night duty during the four quarters of 1950. This form stated that all trade-outs were to be completed by noon, September 15, 1950. Among the names thereon was that of R. D. Thom. At that time Thom was absent from work. It was generally known that, because of the condition of his health, he did not like to work at night. Claude Julyan, a nonmember of the Union, telephoned Thom to learn if he was willing to trade. Thom answered that he would trade with anyone. Julyan said he would sign up for it. Thereafter, and while the space was still blank, Julyan went to the union bulletin board and inserted his name in the space following the name of Thom. Within a day or so thereafter Allan Eckrich, secretary of the local of the Union, saw Julyan's name on the list. He immediately erased it and went to Julyan and told him in substance that since he was not a member of the Union it was an imposition on his part to take advantage of the list to get the benefit of the differential in pay which the Union had worked to get. He told Julyan that he had erased his name. Julyan questioned Eckrich's right to do so, and Eckrich replied that as a union representative he had access to the bulletin board and felt that it was within his jurisdiction and right to do so. Eckrich added that if Julyan still desired to trade after this conversation he should see the steward. He did not assure Julyan that the steward would put his name on the list. Shortly after this conversation, Julyan, seeing that his name had in fact been removed from the list, went to his supervisor, August Telker, and told him that he wanted to apply to him for the tour because he did not believe the Union would submit his name. Telker said that he would take it up with his superior, Raymond Schultz, and that he thought there would be no trouble about it.' The next day the name of one Bentley appeared in the second column of the posted list opposite the name of R. D. Thom. It does not appear who wrote Bentley's name there. Later the same day Bentley's name was erased by some- one unknown and Julyan's name was reinserted. Eckrich did not again speak with Julyan, but again erased his name together with the names of other trade-in employees which had been inserted opposite the names of other trade-out em- ployees. He then printed in pencil on the posted form : • NOTICE Anyone interested in bidding on above jobs please notify your steward in order to qualify for trades (this includes those desiring to trade out of above assignments). I On September 25, 1950 , Julyan made a written report of the facts to Telker. SOUTHWESTERN BELL TELEPHONE COMPANY 89 Eckrich also went to the people whose names were on the trade -in list, other than Julyan, and called their attention to the penciled notice which he had just written. On about September 15, 1950, the local union steward removed the posted list from the bulletin board , attached a separate list with the names of applicants for trade-ins, without indicating which one was to trade for any other particular employee's job, and turned it over to management. On this list, I infer, there was nothing signed by both employees to any of the proposed trades. Telker, Julyan's supervisor, spoke to Raymond Schultz, his immediate su- perior, about Julyan's application to him to receive the trade. From what Telker told him, Schultz concluded that Julyan had effected a trade with Thom and was entitled to the tour, but he decided to refer the matter to Walter Rohan, district plant superintendent. Rohan discussed the matter with Schultz and stated that it was his opinion that Julyan should have the assignment. Julyan had seniority over Bentley, and this, in addition to the fact that Julyan had made first application and was qualified , influenced Schultz and Rohan in their belief that Julyan should receive the assignment. On September 15, William Quigley, chairman of the local of the Union, having heard that the Company was inclined to give Julyan the assignment, telephoned Rohan to ask him about the matter. Rohan replied that he had not yet re- ceived the names turned in by the Union, and Quigley said that he would call later. About September 19 Quigley called again and asked if the Company had decided the names of those to be assigned. Rohan replied that the Com- pany had had an application from another employee for a trade-in and that it would have to consider the matter. Rohan promised to call Quigley. Rohan discussed the matter with Paul Hall , division plant superintendent , his superior, told him all the facts, and said that he thought Julyan should be assigned. At that time Hall agreed. Rohan called Quigley and said that the Company had considered the names on the list turned in by the Union and the name received by Telker (i. e., Julyan's), and felt that the Company was obliged to give con- sideration to the latter, but that if Quigley wished to meet to discuss the matter the Company would be glad to do so. On September 26, Rohan and Schultz met with representatives of the local Union. Those representatives asked that the Company assign the night tours to the three men whose names they had turned in on the list attached to the trade-out form. This list did not include Julyan's name. Rohan said that the Company had a requgst from a man whose name was not on the list. The union representatives claimed that the Company had always accepted the list turned in by the Union and that it should do so in this instance. Rohan said that the Union had departed from past practice in not using the list supplied by the Company and that therefore they had to use the names of those who applied separately. Rohan read Article 13 of the existing contract as a possible basis for deciding the matter. This provision reads as follows: SENIORITY Section 1. Length of service shall be taken into account in the treatment of employees covered by this Agreement insofar as the conditions of the business and the abilities of the employees permit. Section 2. The Company shall decide the necessity for and shall determine the extent of force adjustments. No agreement was reached at this meeting. Rohan said that the final list of assignments would not be posted until Friday, September 29, and that if the 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union wanted to take any matter up before then the Company would be glad to talk to them. Hall discussed the matter with Rohan on September 26 and also, sought the advice of Harrison, the plant personnel man who handles labor relations. Har- rison consulted his superior, Allan Quigg, labor relations supervisor. Mean- while Eckrich informed Telker that if Julyan received the assignment the other men would not work with him. Word of the possible work stoppage was re- ceived by other members of management, including Harrison and Quigg. Quigg expressed his opinion that the Company should accept the Union's list. Har- rison reported back to Hall that he and Quigg did not wish to influence him, but that in view of the past practice of taking the Union list "perhaps we should accept it this time." On September 28, another meeting was held with repre- sentatives of the Union by Rohan, Hall, and Earl Fisher, plant training super- visor. The local had apparently referred the matter to its parent, the Respond- ent Union, and representatives of the latter attended this meeting. The Union's principal spokesman was its vice president, DiProspere. DiProspere took the position that trading tours was a union matter, that the management's sole responsibility was either to accept or reject the names submitted by the Union, and that the Company was departing from past practice. The Company took the position that the Union was the one who had changed the method of presenting the names of applicants and that in all the time in which the forms for trades had been used, there had never been an erasure, as there was in the instant case. The company representatives stated that they understood Julyan was not a union member, that he had put his name on the list, and that it had not been submitted.' The meeting concluded with the Company's agreement to take the names submitted by the Union in this instance, in the expectation that such an instance could be avoided in the future. Hall testified that his decision to accept the list (which excluded Julyan) was based upon advice from Harrison, and Rohan testified that nothing that came out in the meeting of September 28 appeared to influence the ultimate decision. Quigg, who had consulted with Harrison, testified that, although he considered the rumor that there might be a work stoppage, he gave very little consideration to the possible work stoppage and based his advice on the ground that he thought it would be a violation of the contract to do other than accept the list offered by the Union. There Is nothing in the evidence to indicate that his conclusion that failure to accept the Union's list would be a breach of contract was communicated to anyone else. Harrison had merely stated to Hall that in view of the fact that the Company had accepted the Union's list in the past it would "probably be better" to accept it in this instance. I have examined the language of the contract and all related agreements and I find no language therein which gives the Union the exclusive right to present names to the Company or obliges the Company to accept only names submitted by the Union. On all the evidence I find it incredible that Quigg would have con- strued the contract otherwise. However, even if he had, it does not appear that he made the ultimate decision. As testified by Hall, Harrison, who gave Hall the benefit of his and Quigg's advice, did not explain that a failure to follow the advice would result in a breach of contract and he stated that they did not wish to influence Hall in his decision but left it entirely to Hall to make the final decision. In view of Hall's previous attitude of resisting the Union's 2 The Union's conduct belies its assertion at this meeting that it was not its intention to discriminate against anyone. SOUTHWESTERN BELL TELEPHONE COMPANY 91 request, I am led to the conclusion that he wavered and sought advice from Harrison only because of the word of a probable work stoppage . I further conclude that the Company considered it not necessary, but expedient, to decide the issue in favor of the Union , in view of the probabilities of a work stoppage. That the Company would not have discriminated against Julyan except for apprehension induced by the information of a possible work stoppage given by Eckrich , is no justification for a discrimination. The Company had good reason to believe that the reason why Julyan 's name had been erased from the original trade-out list was because he was not a member of the Union. It had good reason to believe that the Union was attempting to institute a practice which would place it in the hands of the stewards to repeat such discriminations against nonunion members. On all the evidence, I conclude that the Company succumbed to pressure and fell in with the Union's dis- criminatory conduct. By discriminating in regard to the conditions of Julyan's employment, thereby encouraging membership in the Union, the Respondent Company has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , and has violated Section 8 ( a) (1) and ( 3) of the Act. Eckrich, in removing Julyan's name from the list of applicants for trading tours, did so , I find, because of the fact that Julyan was not a member of the Union. As secretary of the local Union , his conduct would be binding upon the local Union. The local Union, however , was not made a party respondent. In the absence of evidence of prior authorization or later ratification by the Respondent Union , the latter would not be responsible for Eckrich 's acts. I have found that Eckrich gave the Respondent Company reason to believe that there would be a work stoppage if Julyan received the assignment . Eckrich testified that this was intended not as a threat , but merely as information. I find no distinction. Even as information, the only purpose in passing it along would be to influence the Company's decision. This was clearly an attempt on the part of the local to cause the Company to discriminate against Julyan, in violation of Section 8 (a) (3). When the Respondent Union , through Di- Prospere, supported the local's position with respect to its effort to change the previously existing procedure, the result of which would have been the exclusion of Julyan from the list of employees submitted to the Company for trading purposes, the Union ratified the conduct of the local which sprang from its effort to discriminate against Julyan. I find that Eckrich 's act in removing Julyan's name twice from the trade -out list and informing him that as a nonunion member he should not use the union bulletin board, thereby depriving him of the currently established procedure for effecting a trade of tours, and the local's establishment of a new procedure to circumvent Julyan's effort and right was conduct which the Respondent Union ratified in advancing the local's position , thereby restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (b) (1) (A) of the Act. I have found that the local Union notified management of the probability of a walkout in the event that the Company gave the night tour to Julyan to influence the Company in discriminating against Julyan . There is no evi- dence that the Respondent Union itself took any official steps toward calling a walkout or that it expressly ratified Eckrich 's prediction. However, the Re- spondent Union did , by its conduct, cause the Company to discriminate against Julyan. Under the terms of the contract this was not justified , and I consider it immaterial whether the Union brought about this result by threat of a strike 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or not.3 As the Respondent Union did in fact cause the Company to discrimi- nate against Julyan, it has violated Section 8 (b) _(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondent Company, set forth 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 REMEDY Since I have found that the Respondents, and each of them, have engaged in and are engaging in unfair labor practices, I will recommend that they cease and desist therefrom ; and in order to effectuate the policies of the Act, I will recommend that the Respondents rectify the unfair labor practices by taking certain affirmative action, including jointly and severally' paying to Claude Julyan the difference between what he actually earned on the day shift for the last quarter of 1950 and the amount he would have received had he received the assignment of the night tour. It will also be recommended that the Com- pany be ordered to make available to the Board, upon request, payroll and other records to facilitate the computation.of the amount of back pay due to Julyan.6 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS or LAW 1. Southwestern Bell Telephone Company is an employer engaged in com- merce within the meaning of Section 2 (2) (6) and (7) of the Act. 2. Southwestern Division No. 20, Communications Workers of America, CIO, was at the time of the unfair labor practices herein found a labor organization within the meaning of Section 2 (5) of the Act, and its successor, Communica- tions Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Claude Julyan, thereby encouraging membership in a labor organization, the Respond- ent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By the conduct stated in paragraph numbered 3 hereof, the Respondent Company has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing the Respondent Company to discriminate against Claude Julyan in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees of the Respondent Company in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Union 8 Air Products, Inc., 91 NLRB 1381. 4 H. M. Newman, 85 NLRB 725. OF. W. Woolworth Company, 90 NLRB 289. A. R. TOHL 93 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] A. R. TOHL 1 and COLUMBIA RIVER DISTRICT COUNCIL No. 5, INTERNA- TIONAL WOODWORKERS OF AMERICA , CIO, PETITIONER. Case No. 36- RC-633.' November ^?3, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before R. J. Wiener, hearing officer. 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved- claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer has, since May 1950, engaged in the logging business in and around Idanha, Oregon. On May 18, 1951, the date on which the petition in this proceeding was filed, the Employer's only logging operations were, carried on at Boulder Creek, about 5 miles from Idanha, Oregon. In June 1951, before the hearing was held in this proceeding, this logging operation had ended. In the meantime the Employer had commenced the construction of a forest service access road,2 approximately 17 miles from Idanha, employing, among others, 6 of some 15 employees used in its earlier logging operations. 1 The name of the Employer appears as amended at the bearing. 2 This road Is being built on U. S. Forest Service land for two companies purchasing timber from this Service. In the lumber industry , it Is customary for the purchaser of timber from the Forest Service to bear the cost of and be responsible for the construction of a road to the tract on which the timber is located , even though the road will be owned by the Forest Service. 97 NLRB No. 18.