Pacific Telephone & Telegraph Co.

In the Matter of PACIFIC TELEPHONE & TELEGRAPH COMPANY AND ITS WHOLLY OWNED SUBSIDIARIES, THE SOUTHERN CALIFORNIA TELE- PHONE CO. AND THE BELL TELEPHONE CO. OF NEVADA and ORDER OF REPEATERMEN AND TOLL TESTBOARDMEN In the Matter of SOUTHERN CALIFORNIA TELEPHONE Co. and UNITED BROTHERHOOD OF TELEPHONE WORKERS, INC. Oases Nos. R-16.91 and R-1692, respeetively.Decided April 27, 194.0 Co,, nuu,ication; Iadlustrg-Incc,;tigattnn of Rcptescntatnt,es' controversy concerning representation of einployces: rival organizations; controversy as to appropriate unit; employer's refusal to grant recognition because of contracts with other organizations ; employer's failure to deal with majority organization as exclusive bargaining agent of all employees in classiheations covered by exist- mg contracts-Unit Appnopriate foi Collective Bargaiamq: (1) toll maintenance employees in Southern California, and Northern California and Nevada areas; no controversy as to; controversy as to inclusion of toll maintenance employees in Oregon and Washington-Idaho areas in unit with toll maintenance employees in Southern California, and Northern California and Nevada areas; held, ex-. eluded, divergent views of Board. Members: (a) (Madden) no showing of sufficient membership in Oregon and/or Washington-Idaho areas to warrant setting up of ballot for toll maintenance employees in these :eras. (b) (Smith) history of collective bargaining on industrial basis in Oregon and Washington- Idaho areas; (c) (Leiserson) existing contracts establish industrial units, in- cluding toll maintenance employees, in Oregon and Washington-Idaho areas, as appropriate ; Board not authorized to split these units ; craft organization has only small minority of adherents among toll maintenance employees in these areas; (2) plant employees in Southern California area, including plant clerks in offices not covered by existing contracts, and excluding toll maintenance employees, executives, and supervisory employees ; no controversy as to ; duties of plant clerks in question similar to those of plant clerks in other offices covered by existing agreements ; messengers excluded although inclusion requested by only labor organization involved and no objection by Company to inclusion; not members of petitioning labor organization ; not covered by existing agree- ments ; apparently, eligible to membership in another labor organization ; status differs somewhat from that of other employees in unit; interests and duties distinguishable-Representatives: proof of choice : membership lists ; majority status conceded by companies and other labor organizations-Certifications of Representatives: upon undisputed proof of majority representation. Mr. John Paul Jennings, for the Board. Pillsbury, Madison di Sutro, by Mr. Norbert Korte, of San Fran- cisco, Calif., for the Companies. Mr. Thomas F. McBride, of San Francisco, Calif., for the O. R. T. T. 23 N L R B, No 25 280 PACIFIC TELEPHONE & TELEGRAPH COMPANY 281 Mr. James M. Carter, of Los Angeles, Calif., and Mr. Donald Bishop, of San Pedro, Calif., for the U. B. T. W. Mr. Emerson U. Sims, of Portland, Oreg., for the U. T. E. O. and the A. C. E. Mr. David Findling, of counsel to the Board. DECISION AND CERTIFICATIONS OF REPRESENTATIVES STATEMENT OF THE CASE On August 8, 1939, Order of Repeaterinen and Toll T estboardmen, herein called the O. R. T. T., filed with the Regional Director for the Twentieth Region (San Francisco, California) a petition, and on October 23, 1939, an amended petition, alleging that a question affect- ing commerce had arisen concerning the representation of employees of the Pacific Telephone and Telegraph Company, San Francisco, California, herein called the Pacific Company; and its wholly owned subsidiaries, the Southern California Telephone Company, Los An- geles, California, herein called the Southern California Company, and the Bell Telephone Company of Nevada,' San Francisco, California, herein called Bell of Nevada; and collectively herein called the Coin- panies; and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 18, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On December 29, 1939, the Regional Director issued a notice of hearing to be held on January 11, 1940, copies of which were duly served upon the Companies; upon the O. R. T. T.; and upon United Telephone Employees of Oregon, Inc., herein called the U. T. E. 0.; Associated Communications Employees (Plant), herein called the A. C. E.; and United Brotherhood of Telephone Workers, Inc., herein called the U. B. T. W.; the latter three organizations being described in the peti- tion of the O. R. T. T.2 as labor organizations claiming to represent employees of the Companies directly affected by the investigation. i The Companies are also sometimes referred to in the record as the Pacific Telephone & Telegraph Company, the Southern California Telephone Co., and the Bell Telephone Co. of Nevada. 2 The U. B. T. W. Is not named in the amended petition . However, as stated in the text, it was served with notice of hearing and, as appears below , it participated in the bearing herein. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meanwhile, on October 24, 1939, the U. B. T. W. filed with the Regional Director for the Twenty-first Region (Los Angeles, Cali- fornia) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the Southern California Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act, and naming the O. R. T. T. as a labor organization claiming to represent em- ployees of that Company directly affected by the investigation. On January 2, 1940, the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Sections 10 (c) (3), 3, and 10 (c) (2), of Na- tional Labor Relations Board Rules and Regulations-Series 2, issued its order transferring said case to the Twentieth Region (San Fran- cisco, California), directing an investigation and authorizing the Regional Director for the Twentieth Region to conduct it and to provide for an appropriate hearing upon due notice, and consolidating said case with the case arising upon the petition of the O. R. T. T. On January 2, 1940, the Regional Director for the Twentieth Region issued a notice of consolidated hearing in said cases to be held on January 11, 1940, copies of which were duly served upon the Com- panies, the O. R. T. T., the U. T. E. 0., the A. C. E., and the U. B. T. W. Pursuant to the notices, a hearing was held on January 11, 12, 13, 1 5, 16, 17, 18, and 19, 1940, at San Francisco, California, before Earl S; Bellman, the Trial Examiner duly designated by the Board. The Board, the Companies, the U. T. E. 0., the A. C. E., and the U. B. T. W., represented by counsel; and the O. R. T. T., represented by its vice president, participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to leave granted, the Companies, the O. R. T. T., and the U. B. T. W. filed briefs, and the U. T. E. O. and the A. C. E., a joint brief, which the Board has considered. The U. T. E. O. and the A. C. E. also filed a joint reply brief to the brief of the O. R. T. T., which reply brief has also been considered by the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FAOT I. THE BUSINESS OF THE COMPANIES The Pacific Telephone and Telegraph Company, a California cor- poration, and its wholly owned subsidiaries, the Southern California PACIFIC TELEPHONE & TELEGRAPH COMPANY 283 Telephone Company, also a California corporation, and the Bell Telephone Company of Nevada, a Nevada corporation, are engaged in the business of "receiving and transmitting by telephone and tele- graph of intrastate and interstate communications," and serve the States of California, Nevada, Oregon, Washington, and the northern portion of the State of Idaho. The Companies' operations are con- ducted on a departmental basis, the departments which have to do with field operations being the commercial department, the plant department, and the traffic department. The instant cases concern only employees in the plant departments of the Companies. For administrative purposes, the territory served by the Com- panies is, and has been since June 1930,3 divided into the following four geographical areas : 1. The Southern California area, with headquarters at Los Angeles, California, which consists of the State of California south of the Tehachapi Mountains.4 This area is served by the Southern Cali- fornia Company and is under the direction of the vice president- general manager of that company. 2. The Northern California and Nevada area, with headquarters at San Francisco, California, which consists of the State of California north of the Tehachapi Mountains and the State of Nevada. The Pacific Company serves the portion of this area which is in Cali- fornia, and the Bell of Nevada the portion of the area which is in the State of Nevada. The area is under the direction of an officer of the Pacific Company who bears the title vice president- general manager Northern California and Nevada area, and who is also the vice president and general manager of Bell of Nevada. 3. The Oregon area, with headquarters at Portland Oregon, which consists of the State of Oregon. This area is served by the Pacific Company and is under the direction of an officer of that company who bears the title vice president-general manager Oregon area. 4. The Washington-Idaho area, with headquarters at Seattle, Washington, which consists of the State of Washington and the northern portion of the State of Idaho. This area is served by the Pacific Company and is under the direction of an officer of that 8 Prior to December 1923 , the management of the Companies was organized on a single system-wide basis In December 1923 the territory in the State of California south of the Tehachapi Mountains was reorganized under separate local management . In January 1926 the territory in the States of Oregon and Washington , and in the northern portion of the State of Idaho , was similarly reorganized under a single separate management for that area In June 1930 the management of the Companies was finally established in the form in which it now exists, by the division of the Washington -Oregon-Northern Idaho area into two separate areas 4 One office, in Las Vegas . Nevada, is also opei ated under the jurisdiction of the Southern California Company in the Southern Califoinia area, because of its geographical proximity to that area 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company who bears the title vice- president-general manager Wash- ington-Idaho area. The vice president-general manager in charge of each area reports to the first vice president of the Pacific Company, who holds" the same office in the Southern California Company and the Bell of Nevada, and who in turn reports to the president of the Pacific Com- pany, who also holds the same office in the subsidiary companies, The vice president-general auditor, vice president, secretary-treas- urer, and general counsel of the Pacific Company also hold the same offices, respectively, in the subsidiary companies. On November 30, 1939, the Companies employed 29,975 persons, of whom 10,812 were employed in the Southern California area, 12,512 in the Northern California and Nevada area, 2,164 in the Oregon area, 4,241 in the Washington-Idaho area, and 246 in the general offices of the Companies. On December 31, 1939, the Com- panies owned and operated approximately 1,948,062 telephones; and on September 30, 1939, 29,713 miles of pole lines, 9,072,170 miles of wire, excluding drop and block wire, and 810 central offices. The Companies concede that they are engaged in commerce within the meaning of Section 2 (6) and (7) of the National Labor-Rela- tions Act and are subject to the jurisdiction of the National Labor Relations Board. II. THE ORGANIZATIONS INVOLVED Order of Repeatermen and Toll Testboardrnen is an unaffiliated labor organization. It admits to membership toll maintenance em- ployees 5 of the Companies throughout the four geographical areas served by them." 5 By "toll maintenance " employees are meant poisons who are classified by the Companies as telegraph repeatermen , toll testboardmen, transmissionmen toll central office repair- men, radiomen, senior telegraph repeatermen , senior toll testboardmen, senior transmis- sionmen , senior toll central office repairmen , and senior radiomen The Companies classify employees in these groups according to whether or not the employees spend at least 51 per cent of their time in such work ; and the labor organizations here do not question the propriety of such classification The Companies do not presently employ any persons classified as radiomen , the duties of radiomen being performed by remote control by transnussionmen The O. R T T. also admits to membership private branch exchange repai rmen who woi k under the direction of the super visor in charge of toll maintenance employees ( herein referred to as P. B X repairmen under toll maintenance supervision ). These employees have also been classified at times by the Companies, the labor organizations here involved. and preceding organizations, for purposes of collective bargain ing , with the classifications of employees referred to in footnote 5 as toll maintenance employees However, no claim has been made by any party that P. B. X. repairmen under toll maintenance supervision are improperly excluded from the toll maintenance group as defined in these proceedings; and the record discloses that P. B . X. repairmen under toll maintenance supervision con- stitute a group which is functionally distinct from the toll maintenance group, that they are not required to be familiar with Morse code as, generally , are toll maintenance em- ployees, and that, unlike toll maintenance men, they generall y work outside the toll office. In view of the foregoing, no further reference to such employees will be made herein PACIFIC TELEPHONE & TELEGRAPH COMPANY 285 United Telephone Employees of Oregon, Inc., is also an unaffili- ated labor organization. It admits to membership employees of the Pacific Company in the Oregon area who are not employed in a "managerial or executive capacity." Its membership is divided into a traffic-department unit, a commercial-department unit, and a plant- department unit, and each unit is in turn divided into operating or associated locals, which have power to conduct collective bargaining negotiations with "the employer management of each unit," and to enter into collective bargaining agreements subject to approval of the executive board of the U. T. E. O. Among the locals in the plant unit, is the Association of Toll Maintenance Employees of Oregon (U. T. E. O. Local No. 81), which admits to membership toll maintenance employees of the Pacific Company in the Oregon area.' Associated Communications Employees (Plant) is a labor organi- zation affiliated with the National Federation of Telephone Workers. It admits to membership employees of the Pacific Company in the Washington-Idaho area who hold "membership in any Local [Union] of the Plant Department." Three of its 27 locals are toll mainte- nance locals, each having jurisdiction over one of the 3 districts into which the Washington-Idaho area is subdivided by the Pacific Com- pany for administrative purposes, and each admitting to membership toll maintenance employees in its district. United Brotherhood of Telephone Workers, Inc., is a labor organi- zation also affiliated with the National Federation of Telephone Workers. It admits to membership "any independent telephone labor organization in Southern California of 10 or more members." Among the organizations which are members of the U. B. T. W. are organizations admitting to membership plant employees of the South- ern California Company, including a "toll crafts local" which admits to membership toll maintenance employees in the Southern California area. However, none of the toll maintenance employees in the area has joined this local. I[I. THE QUESTIONS CONCERNING REPRESENTATION A. The case arising upon the petition of the 0. R. T. 7'. At the time of the hearing, there were in full force and effect, but subject, after 1 year from their respective dates, to cancelation upon T Prior to the organization of the U. T. E O. in 1937, the Association of Toll Maintenance Employees of Oregon was an Independent labor organization admitting to membership toll maintenance employees in the Oregon area 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 90 days' notice by either party thereto, the following collective bargaining agreements : 1. In the Washington-Idaho area: Two agreements, one dated June 18, 1937, and the other March 14, 1939, between the Pacific Company and the A. C. E. In the agreement dated June 18, 1937, the A. C. E. is recognized as the exclusive bargaining rep- resentative of all plant employees, including toll maintenance employees, in the Washington-Idaho area; the agreement dated March 14, 1939, fixes wages and other terms and conditions of employment of such employees. 2. In the Oregon area: Two agreements, one dated July 6, and the other August 24, 1937, between the Pacific Company and the U. T. E. O. In the agreement dated July 6,1937, the U. T. E. O. is recognized as the exclusive bargaining representative of all employees, including toll maintenance employees, in the Oregon area. The agreement dated August 24, 1937, ratifies and con- tinues "in full force and effect" a separate agreement dated August 24, 1936, and a supplemental agreement dated March 29, 1937, between the Pacific Company and the Association of Toll Maintenance Employees of Oregon," and thus, by such reference, fixes wages and other terms and conditions of employment of toll maintenance employees in the Oregon area. 3. In the Southern California area: Two agreements, one dated April 27, 1938, and the other February 1, 1939, between the Southern California Company and the U. B. T. W. In the agreement dated April 27, 1938, the U. B. T. W. is recognized as the collective bargaining representative of "plant employees" in the Southern California area, excluding toll maintenance em- ployees and messengers throughout the area and plant clerks in several offices in the area.9 The agreement dated February 1, 1939, fixes wages and other terms and conditions of employment of employees "represented" by the U. B. T. W. In July and August 1939, when the demands for recognition here- inafter referred to were made by the O. R. T. T. and the U. B. T. W., respectively, there were also in full force and effect the following further agreements which were, prior to the hearing herein, canceled by mutual agreement of the parties thereto : 1. In the Northern California and Nevada area: Two agree- ments, each dated December 7, 1937, between the Pacific Company ° See footnote 7, supra ° These offices are the Santa Ana and Riverside offices , offices in the San Pedro-Wilming- ton-Compton area , and perhaps other offices. PACIFIC TELEPHONE & TELEGRAPH COMPANY, 287 and Bell of Nevada, and an organization styled the Organization of Toll Maintenance Employees, hereinafter referred to as the O. T. M. E. In one of these,. agreements the O. T. M. E. was recognized as the exclusive bargaining representative of all em- ployees eligible to membership therein, i. e., toll maintenance employees in the Northern California and Nevada area; the other agreement fixed wages and other terms and conditions of employ- ment of such employees. 2. In the Southern California area: Two agreements, one dated April 11, and the other December 28, 1938, between the Southern California Company and an organization styled the Order of Telephone Telegraphers, hereinafter referred to as the O. T. T. In the agreement dated April 11, 1938, the O. T. T. was recognized as the exclusive bargaining representative of all employees eligible to membership therein, 1. e.. toll maintenance employees in the Southern California area; the agreement dated December 28, 1938, fixed wages and other terms and conditions of employment of such employees. In April 1939, the O. R. T. T. was organized at a meeting attended by certain of the leaders of the O. T. M. E. and the O. T. T. which then represented toll maintenance employees in the Northern Cali- fornia and Nevada, and Southern California areas, respectively. Shortly thereafter, substantially all of the members of the O. T. M. E. and the O. T. T., constituting a substantial majority of the toll maintenance employees in- the Northern California and Nevada, and Southern California areas, became members of, and the funds of these organizations were turned over to, the O. R. T. T. Although the O. R. T. T. also solicited the membership of toll maintenance employees in the Oregon and Washington- Idaho areas, it was able to enroll only a small minority of such employees in these areas, and a substantial majority have remained members of the U. T. E. O. and the A. C. E., respectively.'0 On July 18 and 25, and on August 3, 1939, the O. R. T. T., claiming to have been designated as collective bargaining representative by a majority of the toll maintenance employees of the Companies, re- quested recognition as the "sole collective bargaining agent" for such employees throughout the four geographical areas served by the Companies. The Companies refused to grant this request ,on the 10 At the time of the healing, 58 of the 69 toll maintenance employees employed in the Oregon area, and 66 of the 78 toll maintenance employees employed in the Washington- Idaho area, were members of the U. T. E. 0 and the A C E, respectively ; the O. R. T. T. included within its membership only 13 toll maintenance employees in the Oregon area and 22 such employees in the Washington-Idaho area ; and of those employees who were members of the O. R. T. T, 7 had apparently also retained their membership in the U. T. E. O. and 13 in the A. C. E 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground that their agreements with the A. C. E., the U. T. E. 0., the O. T. M. E., and the O. T. T. precluded them from according such recognition to the O. R. T. T. On August 28, 1939, the U. B. T. W., claiming to have been desig- nated as, collective bargaining agent by a majority of the plant employees, including toll maintenance employees, in the Southern California area, requested "exclusive collective bargaining rights" as the representative of all such employees. The Southern Cali- fornia Company refused to grant this request on the ground that its agreements with the O. T. T. covering toll maintenance employees also precluded it from granting such recognition to the U. B. T. W. On September 18, 1939, the agreements between the O. T. T. and the Southern California Company covering toll maintenance em- ployees in the Southern California area, and on December 22, 1939, the agreements between the O. T. M. E. and the Pacific Company and Bell of Nevada, covering toll maintenance employees in the Northern California and Nevada area, were canceled by consent of the parties thereto. Thereafter, the Companies expressed a willing- ness to negotiate collective bargaining agreements with the O. R. T. T. - covering toll maintenance employees in the Northern California and Nevada, and Southern California areas. The O. R. T. T., however, insisted upon recognition for all toll maintenance employees through- out the system. At the hearing there was introduced in evidence a stipulation be- tween the O. R. T. T. and the U. B. T. W. whereby the latter relin- quished its claim to represent the toll maintenance employees in the Southern California area. However, during the hearing the U. B. T., W. stated that it intended the stipulation to be inoperative in the event that the Board should find that toll maintenance em- ployees in that area might not be included in a separate unit. We'find that a question has arisen concerning the representation of toll maintenance employees in the Northern California and Nevada, and Southern California areas. However, for the reasons stated in the separate opinions below, we find that no question has arisen con- cerning the representation of toll maintenance employees in the Oregon and Washington-Idaho areas.- 11 In the joint brief which the U: T E. O. and A C. E. filed with the Board after the hearing was terminated , these organizations contend for the fiist time that their agree- ments with the Pacific Company preclude an investigation and determination of representa- tives by the Board. In view of our finding , based upon other considerations , that no ques- tion has arisen concerning representation of toll maintenance employees in the Oregon and Washington-Idaho areas, it becomes unnecessary to determine whether the contentions of the U. T. E. O. and the A. C E in this regard have merit. See, however, Matter of Ward Baking Company and United Retail d Wholesale Employees of America, affiliated with the C. I. 0, 21 N. L.•R. B 483; Matter of American Hair h Felt Company and Jute, Hair d Felt Workers Ldcal #163 (United Fanuture Workers of America, C. 1 0 ), 21 N L R. B. 570. PACIFIC TELEPHONE & TELEGRAPH COMPANY 289 B. The case arising upon.the petition of the U. B. T. W. As appears above, on August 28, 1939, the U. B. T. W. requested "exclusive collective bargaining rights" as the representative of all plant employees in the Southern California area, including three classifications of employees not covered by its agreements with the Southern California Company, i. e., toll maintenance employees, plant clerks in certain offices, and messengers, but it is now willing upon the contingency of a determination by the Board to relinquish any claim to represent the toll maintenance employees. The U. B. T. W. further contends that although it has at all times since 1938 been designated as collective bargaining agent by a majority of the em- ployees in the categories covered by the agreements, the Southern California Company has failed to deal with it as the exclusive bar- gaining representative of all such employees. At the hearing, the Southern California Company stated that it would bargain collec- tively with the U. B. T. W. on behalf of all employees in any unit which the Board found to be appropriate for such purposes. We find that a question has arisen concerning the representation of plant employees exclusive of toll maintenance employees, of the Southern California Company.12 IV. THE FFFECT OF 711E QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of the Companies described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS A. The case arising upon the petition of the 0. R. T. T. The 0. R. T. T. contends that all toll maintenance employees of the Companies throughout the four geographical areas served by them, together constitute a unit appropriate for purposes of col- lective bargaining. The Companies take no position with respect to the appropriate unit, and none of the labor organizations involved opposes the inclusion of toll maintenance employees employed in 1' We have found aboN e , In Section III A , that a question has arisen ,concerning the rep- resentation of toll maintenance employees of the Southern California Company in the case arising upon the petition of the 0 R T T 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Northern California and Nevada, and Southern California areas in the unit sought by the O. R. T. T.13 The U.- T. E. O. and the A. C. E. oppose the inclusion in such unit of toll maintenance em- ployees employed in the Oregon and Washington-Idaho areas, re- spectively, and contend that the industrial units in those areas, es- tablished in their respective agreements with the Pacific Company, should not be disturbed. For the reasons stated in their separate opinions below, Mr. Smith and Mr. Leiserson are of the view that the toll maintenance em- ployees in the Oregon and Washington-Idaho areas should not be separated from the respective industrial units now established in those areas. 1.4 We find, therefore, that the unit sought by the O. R. T. T. in its petition, consisting of toll maintenance employees in all four of the geographical areas served by the Companies, is not appro- priate for purposes of collective bargaining. At the time of the hearing, 228 of the 274 toll maintenance em- ployees employed in the Northern California and Nevada, area, and 127 of the 139 toll maintenance employees employed in the South- ern California area, were members of the O. R. T. T. Moreover, the O. R. T. T. was organized in April 1939 by certain of the lead- ers of the O. T. M. E. and the O. T. T. which then were the collective bargaining agents of all toll maintenance employees in the Northern California and Nevada, and Southern California areas, respectively. It is thus clear that the toll maintenance employees in these areas have indicated a desire to act as a single unit for collective bargain- ing purposes. Neither the Companies nor the other labor organiza- tions involved oppose the inclusion of toll maintenance employees in these areas in a separate unit,'5 and no facts are disclosed by the record which would indicate that such a unit is not appropriate. We find that toll maintenance employees of the Companies employed in the Northern California and Nevada, and Southern California areas together constitute a unit appropriate for purposes of collective bargaining,.and that said unit will insure to employees of the Com- panies the full benefit of their right to self-organization and to col- lective bargaining and otherwise effectuate the policies of the Act. i8 No other labor organization claims to represent toll maintenance employees in the Northern California and Nevada area and, as has been stated, at the hearing the U. B. T. W. relinquished its claim, subject to reservations not here material, to the inclusion of toll maintenance employees in the Southern California area in the industrial unit sought by it in the case arising on its petition 14 For the reasons stated in his separate opinion below , Chairman Madden expresses no view with respect to the appropriateness of a system-wide unit of toll maintenance em- ployees, including such employees in the Oregon and/or Washington-Idaho areas - 15 See footnote 13, supra PACIFIC TELEPHONE & TELEGRAPH COMPANY . 291 B. The case arising upon the petition of the U. B. T. W,. The U. B. T. W. claims that all plant employees in the Southern California area, including messengers and plant clerks throughout the area, but excluding toll maintenance employees, constitute an appropriate unit." The Southern California Company at the hear- ing agreed that a unit thus defined would be appropriate .17 The Southern California Company employs between 30 and 35 messengers, most of whom are assigned to a central office, and whose duties consist of the delivery of packages by truck between offices in the Southern California area. None of the messengers is a mem- ber of the U. B. T. W.; is the Southern California Company declined to bargain with the U. B. T. W. for these employees when the bargain- ing contract previously mentioned was being negotiated in April 1938; and they are not covered by the existing agreements between the Company and the U. B. T. W. Moreover, these employees occupy a status differing somewhat from that of other employees, their in- terests and duties are distinguishable from those of other employees, they may' well be eligible to membership in another labor organiza- tion, and the record does not establish that they are not in fact presently members of such other organization. We shall exclude the messengers from the unit. The unit sought by the U. B. T. W. would also include approxi- mately 23 plant clerks employed in several offices in the Southern California area who are not members of the U. B. T. W., and who are not presently covered by the agreements between it and the South- ern California Company 19 These clerks perform the same duties, apparently receive the same Wages, and are apparently subject to the same conditions of work as are plant clerks in other offices in the area who are included in the unit established by the agreements now in effect. The Company does not oppose their inclusion in the unit.20 We shall include these plant clerks in the bargaining unit. 10 While in its petition the U B T W. originally claimed that the appropilate unit in- cluded toll maintenance employees throughout the area, that claim must be deemed aban- doned in view of our determination that such employees together with toll maintenance employees in the Northern California and Nevada area constitute an appropriate unit (Section V A, supra), and the stipulation by the U B T W to relinquish its claim unless toll maintenance employees w ere deter mined not to constitute an appropriate unit 17 At the hearing, counsel for the Companies stated that if the toll [maintenance] em- ployees were set apart in some sort of unit, either area or coastwise, the [Southern California] Company is willing to recognize all of the other plant employees as being represented in this Southein [California] area by the U B T. W " 18 In July 1937 the U. B T. W chartered a messengers' local which disbanded in Janu- ary 1938 Apparently no effort was thereafter made to secure the membership of these employees 19 As has been stated (footnote 9), the offices involved are the Santa Ana and Riverside offices, offices in the San Pedro-Wilmington-Compton area, and perhaps other offices 20 See, also , footnote 17, supra 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent from the record that the U. B. T. W. desires the exclusion of executives and supervisory employees, and that the ex- clusion of such employees is not opposed. In accordance with our usual practice, we shall exclude executives and supervisory employees from the unit. We find that all plant employees of the Southern California Com- pany, including all plant clerks, but excluding toll maintenance em- ployees, messengers, executives, and supervisory employees, constitute a unit appropriate for purposes of collective bargaining, and that said unit will insure to employees of the Southern California Com- pany the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES A. The case arising upon the petition of the 0. R. 7'. 7'. At the hearing, the O. R. T. T. introduced into evidence lists set- ting forth the names of toll maintenance employees of the Companies in the unit which Ave have found to be appropriate, who were then included in its membership. These lists disclose, as we have indicated previously, that the O. R. T. T. then numbered among its members 228 of the 274 toll maintenance employees in the Northern California and Nevada area, and 127 of the 139 toll maintenance employees in the Southern California area. Both the Companies and the U. B. T. W. concede that the O. R. T. T. has been designated as collective bargaining agent by a large majority of the toll mainte- nance employees in these areas, and the U. B. T. W. which is the only other labor organization involved which admits such employees in these areas to membership, does not claim that any of these em- ployees are included within its membership, or have designated it as their collective bargaining representative. We find that the O. R. T. T. has been designated and selected by a majority of the toll maintenance employees of the Pacific Tele- phone and Telegraph Company, the Bell Telephone Company of Nevada, and the Southern California Telephone Company, who are employed in the Northern California and Nevada, and Southern California areas, as their representative for the purposes of collective„ bargaining. It is therefore the exclusive representative of all em- ployees in such unit for the purposes of collective bargaining, and we will so certify. B. The case arising upon the petition of the U. B. T. 1V. At the hearing, the U. B. T. W. claimed to have been designated as collective bargaining agent by 2777 of the approximately 3100 employees of the Southern California Company in the plant unit in the Southern California area which we have found to be appro- PACIFIC TELEPHONE & TELEGRAPH COMPANY 293 priate, and offered proof in support of its claim in that regard. The Company conceded that "the great majority of the employees . . . have designated the U. B. T. W. as their bargaining agent," and stated that "we do not ask that further evidence or proof of that fact be adduced by way of election or otherwise"; and no other labor organization involved claims to represent any of these employees. We, find that the U. B. T.• W. has been designated and selected, by a majority of the plant employees of the Southern California Tele- phone Company,21 including all plant clerks, but excluding toll main- tenance employees, messengers, executives, and supervisory employees, as their representative for the purposes of collective bargaining. It is therefore the exclusive representative of all employees in such unit for the purposes of collective bargaining, and we will so certify. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAw 1. A question affecting commerce has arisen concerning the repre- sentation of toll maintenance employees of the Pacific Telephone and Telegraph Company and its wholly owned subsidiaries, the Southern California Telephone Company, and the Bell Telephone Company of Nevada, who are employed in the Northern California and Nevada, and Southern California areas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All toll maintenance employees of the aforesaid Companies, who are employed in the Northern California and Nevada, and Southern California areas, together constitute a unit appropriate for purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. 3. Order of Repeatermei and Toll Testboardmen is the exclusive representative of all employees in such unit for the purposes of col- lective bargaining, within the meaning of Section 9 (a) of the Na- tional Labor Relations Act. 4. A question affecting commerce has arisen concerning the repre- sentation of plant employees, exclusive of toll maintenance em- ployees, of the Southern California Telephone Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 5. All plant employees of the Southern California Telephone Com- pany, including all plant clerks, but excluding toll maintenance em- ployees, messengers, executives, and supervisory employees, constitute 21 As has ben stated, the Southern California Telephone Company operates only in the Southern California area. 283034-41-vol 23-20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a unit appropriate for purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. 6. United Brotherhood of Telephone Workers, Inc., is the ex- clusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATIONS OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that Order of Repeatermen and Toll Test- boardmen has been designated and selected by a majority of the toll maintenance employees of the Pacific Telephone and Telegraph Com- pany, San Francisco, California, and its wholly owned subsidiaries, the Southern California Telephone Company, Los Angeles, Cali- fornia, and the Bell Telephone Company of Nevada, San Francisco, California, who are employed in the Northern California and Nevada, and Southern California areas, as their representative for the purposes of collective bargaining, and that, pursuant to Section, 9 (a) of the Act, Order of Repeatermen and Toll Testboardmen is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment; IT IS HEREBY FURTHER CERTIFIED that United Brotherhood of Tele- phone Workers, Inc., has been designated and selected by a majority of the plant employees of the Southern California Telephone Com- pany, Los Angeles, California, including all plant clerks, but ex- cluding toll maintenance employees, messengers, executives, and supervisory employees, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, United Brotherhood of Telephone Workers, Inc., is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN MADDEN, concurring : The existing contracts in the Oregon and Washington-Idaho areas do not contain closed-shop provisions, nor are there shown to be any similar factors in the situation, which, if present, might explain the inability of the O. R. T. T. to secure a substantial number of mem- bers in these areas. Under the circumstances, the showing of mem- PACIFIC TELEPHONE & TELEGRAPH COMPANY 295 bership by the O. R. T. T.22 does not justify the setting up of a separate ballot for toll maintenance employees in these, areas.23 Ac- cordingly, I find it unnecessary to express an opinion as to the ap- propriateness of a system-wide unit of toll maintenance employees which would include such employees in the Oregon and/or Wash- ington-Idaho areas. However, as I have said in other cases, I do not agree with the view expressed by Mr. Leiserson in his separate opinion, that the Board is "not authorized by the Act" to find such a unit appropriate for purposes of collective bargaining.24 MR. EDWIN S. SMITH , concurring : Prior to 1919, toll maintenance employees, together with other plant department employees of the Companies, were organized by the Inter- national Brotherhood of Electrical Workers on a system-wide basis. After an unsuccessful strike at this time, the Brotherhood lost its .membership, and toll maintenance employees were organized, also on a system-wide basis, in a separate organization of their own, styled the Repeatermen's Association.25 Substantially all eligible employees of the Companies throughout the system became members of this organization, and collective bargaining agreements for its members were entered into between it and the Companies. The Repeatermen's Association continued to function until 1931 when, shortly after the reorganization of the management of the Companies into the four geographical areas described above'26 the Association was disbanded. Bargaining practice at all times since 1931 has recognized the separate status of each of these geographical areas. In the Oregon and Washington-Idaho areas, respectively, until 1937 when the U. T. E. O. and the A. C. E. were formed, toll main- tenance employees bargained collectively as, and were recognized by the Pacific Company in collective bargaining agreements as con- stituting separate units. However, in 1937, the toll maintenance em- ployees in these areas abandoned their identity as separate bargaining 22 See footnote 10, supra. 23 Cf. Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 2 ;8, 4 N. L. R B 159 ; Matter of The Texas Com- pany, West Tulsa Works, and Oil Workers' International Union, Local No 217, 4 N. L R. B. 182 ; Matter of American Hardware Corporation and United Electrical and Radio Workers of America, 4 N L R. B 412, 420, Matter of The Pure Oil Company and Oil Workers Inteinational Union Local 265, 8 N L. R B. 207, Matter of Wilson-Jones Company and Metal Polishers, Buffers, Platers & Helpers International Union, Local No 6, 12 N L R B 1351, 13.8; Matter of American Petroleum Company and Oil Workers International Union, Local No 227, 12 N L. R. B. 688, 714; Matter of Westinghouse Electric it Manufac- turing Company and Westinghouse Employees Association Inc (Independent), 18 N. L R. B 115. 23 Matter of American Can Company and Engineers Local No 30, et al, 13 N L R B 1252; Matter of Milton Bradley Company and International Printing Pressmen and Assist- ants Union of North America (A. F. L ), 15 N L R B 938 ; Matter of Todd-Johnson Dry Docks Inc and Industrial Union of Marino and Shipbuilding Workers of America, Local No 29, 18 N L R B 973 25 The full name of this organization was the Association of Pacific Telephone and Tele- graph Repeatennen and Toll Testboardmen 20 See Section I, supra 296 DECISIONS OF, NATIONAL, LABOR RELATIONS BOARD groups and joined other plant employees in the selection of the U. T. E. O. and the A. C. E., respectively, as collective bargaining agents for all plant employees in these areas.21 These agencies have, since 1937, been recognized in written agreements still in effect, as the exclusive bargaining representatives of all plant employees, includ- ing toll maintenance employees, in the respective areas over which they have jurisdiction, and have entered into written agreements with the Pacific Company covering hours, wages, and other terms and conditions of employment of these employees. In view of this history of collective bargaining, and the established custom and practice of the employees in these areas since 1937, I am of the opinion that the toll maintenance employees in the Oregon and Washington-Idaho areas should not be separated from the re- spective industrial units presently established in those areas. Accord- ingly, it is my view that the system-wide unit of toll maintenance employees, including such employees in the Oregon and Washington- Idaho areas, sought by the O. R. T. T. in its petition, is not appro- priate for purposes of collective bargaining, and that no question has arisen concerning the representation of toll maintenance em- ployees in these two areas. However, like Chairman Madden, I dis- agree with the view expressed by Mr. Leiserson in his separate opin- ion, that the Board is "not authorized by the Act" to find appropriate system-wide unit such as that sought by the O. R. T. T 2$ MR. WILLIAM M. LEISERSON, concurring : The petition of the O. R. T. T. requests a certification of repre- sentatives in a bargaining unit consisting of all toll maintenance employees in the four areas served by the Companies. In the Oregon and in the Washington-Idaho areas, however, these employees are represented by the U. T. E. O. and the A. C. E., respectively, under existing contracts which include many other classes of employees besides those engaged in toll maintenance work. I am of the opinion that the Board is not authorized by the Act to take portions of the employees who are in appropriate units covered by contracts and transfer them to another bargaining unit.29 Moreover, in the present case the organization requesting the transfer has only a small minority of adherents among the toll maintenance employees whom, it would remove from the contracts covering them.30 I therefore concur in the finding that no question has arisen concerning representation among the employees covered by the contracts mentioned. 27 In addition to representing all plant department employees, the Ti T IS O, is also the bargaining agent of employees in other departments in the Oregon aaoa 28 See cases cited in footnote 24, supra 29 See cases cited in footnote 24, sup? e 30 See footnote 10, supra