The Mountain States Telephone and Telegraph Co.

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the parties to the contract 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 obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that Respondents have violated the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall therefore recommend, among other things, that Respondents make Oree Jefferson whole for any loss of pay suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from June 1, 1958, until he would have been laid off, absent unfair labor practices, less his net earnings during that period. Backpay shall be computed in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289.5 I shall also recommend that Respondents refund to Dickmann's employees at the Oak Lawn Park project all sums, including initiation fees and dues, exacted from them as a result of Respondents' unlawful hiring arrangement with Dickmann. United Association of Journeymen & Apprentices, etc., Local 231 (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594, 599-602. Local Union No. 85, Sheet Metal Workers International Association, AFL-CIO (R. C. Mahon Construction Company), 122 NLRB 631. I shall also recommend that Respondents cease and desist from maintaining and giving effect to the illegal hiring arrangement found herein. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Dickman-Pickens-Bond Construction Company is engaged in commerce within the meaning of the Act. 2. Local 490, International Hod Carriers Building and Construction Laborers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause Dickman to refuse to hire Oree Jefferson because he had not obtained a work referral from Respondents and by maintaining and enforcing a tacit arrangement with Dickmann requiring referrals as a condition of employment, Respondents have engaged in unfair labor practices within the mean- ing of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 5 Since the record shows that the project has been completed, I shall not recommend re- instatement. However, since Dickmann may have other work in Respondents' jurisdic- tional area, I shall recommend that Respondents notify Dickmann in writing that they have no objections to Jefferson's employment. Armco Drainage v. Metal Products, Inc., eupra. The Mountain States Telephone and Telegraph Company and Local 408, International Brotherhood of Electrical Workers,' Petitioner. Case No. 19-1R-21841. February 16, 1961 SUPPLEMENTAL DECISION AND CLARIFICATION OF UNIT Pursuant to a Board certification on September 29, 1948, Petitioner became the bargaining representative of a unit of all Missoula ex- Petitioner's name appears as set forth in the certification. 130 NLRB No. 49. THE MOUNTAIN STATES TELEPHONE & TELEGRAPH CO. 389 change traffic department employees at the Employer's Missoula, Montana, traffic department, excluding guards, professional employees, and supervisors as defined in the Act. Thereafter, the parties entered into collective-bargaining agreements covering this unit. On August 4, 1960, the Employer filed a motion with the Board for clarification and/or amendment of the certification, contending that certain employees of the Employer holding the title of "supervisor," who had been included in the bargaining unit by the parties, are super- visors within the meaning of the Act, as amended, and are not, there- fore, properly includible in the bargaining unit. On August 26,1960, the Petitioner filed opposition thereto. On October 10, 1960, the Board issued an order remanding the proceeding to the Regional Director for the Nineteenth Region for the purpose of holding a hear- ing, which was held on October 27, 1960, before Robert E. Tillman, hearing officer. Both parties appeared and participated. The hear- ing 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 proceeding to a three-member panel [Chairman Leedom and Members Jenkins and Kimball]. Upon the entire record, the Board finds : 2 The Missoula office traffic department has a chief operator, an eve- ning chief operator, 6 "supervisors," 1 of whom apparently also works as an evening chief operator, 75 to 77 telephone operators, and 4 clerks. The "supervisors," whose weekly pay schedule maximum is $9 higher than the operators' maximum, are primarily responsible for training new operators and for assisting operators in the performance of their duties. They are expected to observe and appraise new employees' potential as operators and to make recommendations of discharge or retention to the chief operator, and are also expected to report oper- ators who violate work rules. They keep order, tell operators to do their work properly, and reprimand operators for improper perform- ance. They assign operators to positions in accordance with levels of training, move them from one position to another as the workload requires, and keep time and attendance records. From time to time they make observations on the performance of operators by monitor- ing calls and fill out progress observation forms on which they evalu- ate operators' work performance; the chief operator frequently re- 2 Petitioner attacked the Employer 's motivation in this proceeding However, the Board is required by the Act to exclude supervisors from bargaining units . Therefore, an employer' s motivation in seeking the exclusion of employees as supervisors is irrelevant to the issue of whether such employees are in fact supervisors within the meaning of the Act. Further, the Board 's finding herein is predicated upon so much of the evidence as is uncontradicted . Accordingly, we have found it unnecessary to consider or to resolve the conflicting testimony given at the hearing. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD views the forms when observations are being made and bases her judgment of the operators' competency, at least in part, on them. In addition to the above duties, the "supervisors" are responsible for the operation of the traffic department between 7 a.m. and midnight oil weekends and between 7 and 8 a.in. and 9 p.m. and midnight on week- days, hours during which no chief operator is present, and at such times exercise discretion in assigning overtime. They receive a "relief differential" for tours or shifts between 8 a.m. and midnight on weekends. The Board has recently found that employees classified as "super- visors" at the other Montana offices of the Employer are supervisors within the meaning of the Act.' The duties of the "supervisors" herein, though different in some respects from those of the similarly classified employees at the other Montana offices, are not so materially distinguishable as to warrant a different determination of supervisory status. Accordingly, we find that the "supervisors" at the Employer's Missoula, Montana, office are supervisors within the meaning of the Act and should be excluded from the previously certified unit. We, therefore, grant the instant motion to remove them from the bargain- ing unit because they are supervisors. [The Board excluded the classification of "supervisor."] s See The Mountain States Telephone and Telegraph Company (not published in NLRB volumes) ; The Mountain States Telephone & Telegraph Corn pan ii , 126 NLRB 676 Wyoming Radio, Inc. and National Association of Broadcast Employees and Technicians, AFL-CIO. Case No. AO-21. February 16, 1961 ADVISORY OPINION This is a petition filed by Edward M. Lynch, regional director for region 2 of the National Association of Broadcast Employees and Technicians, AFL-CIO, herein called Petitioner, pursuant to Section 102.98 of the Board's Rules and Regulations, Series 8, praying for an advisory opinion as to whether the Board would assert jurisdiction over the operations of Wyoming Radio, Inc., herein called the Em- ployer. Thereafter, on December 22, 1960, the Employer filed an answer to the petition. A. In substance, the petition and its attachments allege as follows : 1. The Employer is engaged in the business of commercial radio programing and transmission at Nanticoke, Pennsylvania. In a rep- resentation proceeding held before the Pennsylvania Labor Relations Board, herein called the Pennsylvania Board, the Employer admitted -130 NLRB No. 41.