Illinois Bell Telephone Co.

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Illinois Bell Telephone Company and Marie Collins. Case 13-CA-15436 March 21, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On December 30, 1976, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I In agreeing with the Administrative Law Judge's finding that Respon- dent did not violate Sec. 8(aX3) and (1) of the Act by transferring the Charging Party from the Pioneer Group to the Safety Group , we do not adopt his Decision insofar as it implies that proof of actual loss is necessary to establish a violation . However, the fact that the Charging Party was not transferred to a more onerous job and did not suffer a pecuniary loss is relevant in assessing Respondent's motivation and supports the Administra- tive Law Judge's finding that the action was taken for a legitimate business reason and not to discourage union activity. Nor do we adopt the Administrative Law Judge 's statement that "[t]he presumption that one with access to confidential material aught leak it where there is a conflict of interest is respectable." We think there is no such presumption of misconduct on the part of employees, but the fact that the possibility does exist in a more than conjectural sense entities the Employer to protect himself against it. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard before me at Chicago, Illinois, on November 15, 1976. The complaint alleges that Marie Collins was transferred to a "less desirable and more onerous position of employment" effective May 24, 1976, because she is the sister of the chief shop steward of a labor organization with which the Respondent has a collective-bargaining agree- ment. The transfer is alleged to be violative of Section 8(axl) and (3) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq). 228 NLRB No. 114 All parties appeared and presented evidence . Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: Fmmiaos OF FACT 1. BUSINESS OF RESPONDENT Respondent is an Illinois corporation engaged in the business of providing telephone service. During the calen- dar year preceding the issuance of the complaint herein, in the course and conduct of its business , Respondent derived gross revenues in excess of $100,000. During the same period Respondent received goods and services valued in excess of $50,000 delivered to its Illinois facilities directly from outside the State of Illinois. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Factual Background The material facts were stipulated as follows: Marie Collins has been employed by Respondent from 2- 1741 to the present. Her assignments there included Chicago area pioneers group from April 1971 to September 1973, the suburban plant results from September 1973 to May 1975, the suburban safety group from May to July 1975, the suburban area pioneer group from July 1975 to May 1976, and the suburban safety group from May 1976 to the present. During her employment tenure, Collins has not engaged in any conduct which gave Respondent cause to question her loyalty or trustworthiness. As a clerical employee in the suburban area pioneer group, Collins' main duties consisted of handling the paper work and making the necessary arrangements for various special events and sending letters of condolence and flowers to the families of deceased suburban area employ- ees who have completed 20 years service with Respondent. Clerical employees in the Chicago area pioneer group have substantially the same duties , and work in the same building, the major difference being that they deal with employees who work in the geographical division of the Company known as Chicago area. On or about March 1, 1976, pursuant to a company reorganization plan, the suburban area pioneer group became part of the suburban area labor relations and personnel staff and, therefore, was put under the general supervisions of Paul Sizemore . Sizemore, in addition to being the personnel manager for suburban area, is also Respondent's chief management representative for labor relations for suburban area. At all times material herein, the suburban area pioneer group has been located on the eighth floor of Respondent's headquarters building. However, at the time it was trans- ferred under his jurisdiction, Sizemore planned to move this group to the 40-by-50 foot area on the 16th floor where the rest of the employees under his supervision work. This move has not taken place as of yet. ILLINOIS BELL TELEPHONE COMPANY On or about April 23, 1976, Sizemore learned that Collins is the sister of Alex McGlynn, chief 'Steward and executive board member of Local 336, IBEW. Respondent has had a collective-bargaining relationship with Local 336 since 1947. Local 336 represents approximately 4,800 of Respon- dent's suburban area employees in the plant switching and C. & E. departments . Collins has never been in a job represented by Local 336 and she is not a member of the Union. In his capacity as chief steward , McGlynn is regularly involved in grievance matters with Sizemore and/or his subordinates and frequently visits Sizemore's area on the 16th floor. Sizemore's personal office is enclosed and is located adjacent to the 40-by-50 foot area referred to above, which is partially enclosed. There are approximately 20 desks in the open in this area where various personnel employees work. Outside of Sizemore's office are four desks of management employees involved in labor relations, in addition to two personal secretaries. These employees report either directly to Sizemore or to someone who does so report. Their duties include interviewing supervisors in connection with grievance investigations and in prepara- tion for arbitration cases . Sizemore also performs these functions. In addition, he handles grievances from subur- ban area at the fifth step and above, serves on Respondent's negotiating team, formulates labor relations policies for suburban area, as well as prepares bargaining proposals, counterproposals, and strategy. Labor relations informa- tion, including grievance investigation reports, drafts of posthearing arbitration legal briefs, notes on negotiations sessions, potential company contract proposals, and res- ponses to union anticipated proposals are kept in the area outside of Sizemore's office. On or about May 24, 1976, Collins was transferred from the suburban area pioneer group to the suburban safety group. Sizemore caused this transfer to be made because, due to Collins' familial relationship to McGlynn , he did not want her in a job that would give her access to confidential labor relations material. The safety group occupies a section of the eighth floor which is adjacent to the section of the eighth floor where the suburban area pioneer group is located . The safety group does not come under the general supervision of Sizemore but reports to Fred Meese-general supervisor-plant. As a clerical employee in the safety group, Collins' duties include the typing of memos and reviewing safety surveys made by safety inspectors. Her rate of pay, hours, and fringe benefits are the same as if she had remained with the pioneer group. Collins prefers working with the suburban area pioneer group. But for her relationship with McGlynn, Collins would have retained her position with the Suburban Area Pioneer Group. In mid-August 1976, Respondent offered Collins a clerical position in the Chicago area pioneer group , which is substantially similar to the position she held in the suburban area pioneer group . This offer was rejected. B. Issue The issue here is whether, absent evidence of a discrimi- natory motive, the Company may laterally transfer a nonbargaining unit employee who might have access to 943 confidential material concerning the Company's relation- ship with a labor organization where that employee's brother is a high officer in the labor organization. C. Analysis and Concluding Findings The Board has held that discharge or other discrimina- tion of an employee because she has a familial relationship with a union activist is violative of Section 8(a)(1) and (3) of the Act. Hickman Garment Company, 216 NLRB 801 (1975); Forest City Containers, Inc., 212 NLRB 38 (1974); American Buslines, Inc., A Division of Continental Trailways, 211 NLRB 947 (1974); Champion Papers, Inc. (Ohio Division) v. N.LRB., 393 F.2d 388 (C.A. 6, 1968), enfg. 158 NLRB 978 (1966); Golub Bros. Concessions, 140 NLRB 121 (1962). In each of these cases, however, there was a substantial amount of union animus, as well as a factual finding that the companys took action against the family members, or perspective family member in the case of Forest City Containers, in order to discourage union activity . In each case there was a specific fording of a discriminatory motive, for which there was ample factual support. In this matter, however, there is no evidence of union animus or discriminatory motive . There is no evidence, for instance, that the Company was seeking to retaliate against the Charging Party's brother because of his union activity. In fact there is no indication that the Company and Alex McGlynn had anything but a good relationship. In American Ship Building Co. v. N.LRB., 380 U.S. 300 (1965), the Supreme Court, in discussing Section 8(a)(3) said (at 311): It has long been established that a fording of violation under this section will normally turn on the employer's motivation. Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has, acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally turn to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employ- er's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act commit- ted may tend to discourage union membership. Such a construction of § 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise. This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employ- er's protestations of innocent purpose. Thus where many have broken a shop rule, but only union leaders have been discharged, the Board need not listen too 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD long to the plea that shop discipline was simply being enforced. In other situations, we have described the process as the "far more delicate task ... of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular matter...." Tested by these standards, absent evidence of antiunion motivation, the question here is whether either the Compa- ny's conduct was so inherently prejudicial to employees' union activity as to be violative of the Act. Or, because the General Counsel has alleged the transfer to be indepen- dently violative of Section 8(axl), the transfer interfered with the rights of Collins under Section 7. Given the facts of this case, I cannot conclude that transfer implied an unlawful intention, or that it necessarily interfered with Collins' protected, concerted activity. In the first place, there is a substantial question as to whether or not Maria Collins was in fact discriminated against with regard to hire or tenure of employment. She continued to work on the same floor a few feet from the job that she held previously. While her duties are somewhat different there are many similarities . She makes the same wages and fringe benefits and has the same basic working conditions. While the parties stipulated that she feels that the pioneer job is superior to the safety group job, this to a large extent is subjective. In any event it does not appear that transfer from the pioneer group to safety group is the type of discrimination with regard to hire and tenure of employment that Congress had in mind when writing Section 8(a)(3). Pay, fringe benefits, and working condi- tions of the two jobs are essentially identical. Indeed the Charging Party declined a later offer of transfer to her former position but in a different pioneer group. The Company contends that as an employee under direct supervision of Paul Sizemore, Collins would have had access to confidential documents concerning its relations with the union in which her brother is the chief steward. The Company argues that to prevent the possibility of Collins leaking this information to her brother to the detriment of the Company it was necessary to transfer her to another job. The General Counsel contends that Collins would not have been a "confidential employee" had she remained in the pioneer group ; and, there is no evidence that she actually had access to confidential material . It is true that in the pioneer group job Collins would not be a "confidential employee" within the meaning of that phrase in determin- ing inclusion or exclusion from a bargaining unit. Minneap- olis-Moline Co., 85 NLRB 597 (1949), and B. F. Goodrich Co., 115 NLRB 722 (1956). Nevertheless, if in her job she would potentially have access to confidential material, the possibility that she would leak such information to her brother is not so ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec . 102.48 unreasonable that the Company could not take precautions to avoid it. The presumption that one with access to confidential material might leak it where there is a conflict of interest is respectable . Indeed such is precisely the basis on which the Board has held that individuals in a confidential relationship with the company with regard to labor matters should be excluded from bargaining units. It may very well be that the Company's determination to transfer Collins was weak-that her potential access to confidential material is too remote to be of concern, and was premature, in that the pioneer group had not yet been moved to the sixteenth floor. The question, however, was not the reasonableness of the decision, but whether the transfer was an unfair labor practice, and this hinges on whether or not the transfer was inherently prejudicial to the union interest of Collins' brother and other members of his union or somehow interfered with activity protected by Section 7. Given a legitimate business reason , the total lack of union animus and the fact that Collins was not actually harmed, I conclude that her transfer was not discriminatory within the meaning of Section 8(a)(3). Nor is there any reasonable basis for concluding that the transfer somehow independently violated Section 8(a)(1). On balance, I conclude that the General Counsel failed to establish by preponderance of the credible evidence that the Company either interfered with, restrained, or coerced Marie Collins in the exercise of any rights guaranteed her by Section 7 of the Act, or discriminated against her with regard to her employment in order to discourage the union activity of her brother or any one else. I accordingly conclude that the Company did not violate the Act as alleged. CONCLUSIONS OF LAW 1. Illinois Bell Telephone Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The allegation that Marie Collins was transferred to a ..more onerous position" set forth in paragraph IV(a) of the complaint has not been sustained. 3. The allegation set forth in paragraph V of the complaint has not been sustained. THE REMEDY Having been found that Respondent has not engaged in any activity violative of the Act, upon the foregoing findings of fact and conclusions of law, the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER1 The complaint is dismissed in its entirety. of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.