Opposition Brief — National Labor Relations Board v. Illinois Bell Telephone Co.

Supreme Court of the United States

Ocroser Term, 1951.

No. 249

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

vs.

ILLINOIS BELL TELEPHONE COMPANY,

Respondent.

BRIEF IN OPPOSITION TO THE PETITION FOR A

WRIT OF CERTIORARI.

KeEnnetx F’, Burgess,

Gorpon W. Winks,

Attorneys for Respondent.

Swiey, Austin, Burcess & Smirn,

Of Counsel.

PAGE

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Reasons why the writ should be denied .............. 3

The first question presented .................205 +

The second question presented .................. 4

The third question presented .................. 9

The fourth question (not presented).....:...... 15

| NSPE TPP OE ore rs ere heed Feet ey ie 16

CITATIONS.

Cases.

J. I. Case Co. v. N. L. R. B., 321 U. S. 332 (1944). .11, 14, 15

Fort Wayne Paper Co. v. N. L. R. B., 111 F. 2d 869

1 Es to EE ns 4s bE cd eae 8

Hamilton v. N. L. R. B., 160 F. 2d 465 (C. C. A. 6,

+ 5 Rr ree nr ee srry Oe NE TE Pye a Ny 11

Hazel-Atlas Co. v. N. L. R. B., 127 F. 2d 109 (C. C. A.

= Re rrr tre re rere oe een 7

Interlake Iron Corp. v. N. L. R. B., 131 F. 2d 129 (C. C.

FE er re ee ee etre: a

International Brotherhood v. N. L. R. B., 341 U. S. 694

SUPERS. ciccauns<cacheasanecueee cee pan ceeeeneuees 8

International Union v. W. E. R. B., 336 U. S. 245

CRIT sc ces civ uh 65 cp8 0 ep bogey saseeteenecemenes 2,11

Joanna Cotton Mills v. N. L. R. B., 176 F. 2d 749 (C.

iG, POD Kh sd ina cdcspeeranivaanss obaneereres 4, 5,8

DARK PAGE BLEEDTHRU

“|

Statutes.

National Labor Relations Act, 1935 (49 Stat. 449,

29 U. S. C. 151, et seq.) :

eas Lantos s ees scese esac. 4

ES ee ae 4, 5, 8, 11

eek bade see eee sew seeeues 16

EE EEE ee ee 11

Labor Management Relations Act, 1947 (61 Stat.

136, 29 U. S. C. Supp. ITI, 141, et seq.):

EES ee 4

aa inn gic ob 6s ess oes ose wee 1,3

Miscellaneous.

Jaffe, Judicial Review: ‘‘Substantial Evidence on the

Whole Record’’, 64 Harv. L. Rev. 1233 (1951) ..... 3

IN THE

Supreme Court of the United States

Octoser Term, 1951.

No. 249

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

vs.

ILLINOIS BELL TELEPHONE COMPANY,

Respondent.

BRIEF IN OPPOSITION TO THE PETITION FOR A

WRIT OF CERTIORARI.

OPINIONS BELOW.

The opinion of the Court of Appeals (R. A. 44-50)* is

reported at 189 F. 2d 124. The opinion of the National

Labor Relations Board (B. A. 6-15) is reported at 88

N.L.R.B. 1171.

JURISDICTION.

The judgment of the Court of Appeals was entered on

May 21, 1951. R. A. 51. The jurisdiction of this Court

* We have used the same abbreviations herein as are used in the

petition, and ‘‘Pet.’’ for petition. All italics are ours unless other-

wise noted.

it A LE ERM

DARK PAGE BLEEDTHRU

2

was invoked under 28 U. S. C. 1254 and Section 10 (e)

of the National Labor Relations Act, as amended.

STATEMENT OF THE CASE.

The petition presents three distinct questions, plus a

footnote on the breadth of the order. Pet. 2. All three

of those questions were determined favorably to the re-

spondent by a unanimous Court of Appeals, and any one

of them is sufficient by itself to defeat the Board. Further-

more, the second and third questions present a dilemma for

the Board in which any attempt to establish its position

on either only destroys its position on the other, while the

respondent’s defenses on both are entirely consistent. But

even this is not the whole story. There was a fourth de-

fense, involving the respondent’s purpose, discussed at

the end of this brief, which was urged and accepted be-

low, but on which the Board has not sought certiorari.

And finally, there were three other valid and wholly in-

dependent defenses which were argued at length but never

reached or decided below, namely, the effect of the no-

strike pledge of the supervisors’ own bargaining agent,*

the misconduct of the supervisors, and their lawful re-

placement prior to any offer to return to work.

* This defense is briefly mentioned in footnote 8 of the petition.

The respondent has a much stronger case on this point than did

the respondent in NV.L.R.B. v. Sands Mfg. Co., 306 U.S. 332 (1939),

recently cited with approval by this Court in International Union

v. W.E.R.B., 336 U.S. 245, 257, 260, 269 (1949). The Board’s opin-

ion describes it as our ‘‘principal argument.’’ B.A. 9.

3

REASONS WHY THE WRIT SHOULD BE DENIED.

While there is comparatively little dispute about the

details of the evidence in this case, there was much argu-

ment below as to what inferences could properly be drawn

from ‘‘the record considered as a whole.’’ Section 10 (e)

of the Act. As this Court has recently observed, such

issues should be primarily determined by the Court of

Appeals:

‘“‘This Court will intervene only in what ought to

be the rare instance when the standard appears to have

been misapprehended or grossly misapplied.”’

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,

494 (1951);

N.L.R.B. v. Pittsburgh Steamship Co., 340 U.S.

498 (1951).

And compare Jaffe, Judicial Review: ‘‘Substantial Evi-

dence on the Whole Record,’’ 64 Harv. L. Rev. 1233 (1951),

particularly 1249-51.

Before the petitioner can escape the rule of these cases,

it must clearly demonstrate a ‘‘real and embarrassing”’

conflict or other compelling reason why this Court should

pass on each and all of the four alternative grounds invoked

by the Court below. An opinion for the Board on less than

all of them would be only dictum. Unless all four are to

be reversed, and the respondent’s other three defenses,

which may also be urged in support of the lower court’s

result, are to be denied, the Board’s order is still defective.

This case involves eight supervisors in a bargaining unit

of 10,000* employees, who had a contract and a statutory bar-

_ “The Board omitted this fact from this Court’s printed record ;

it was in the Board’s brief below and appears at page 498 of the

transcript of proceedings. About seventy-five Chicago operators

also observed picket lines, but they lost nothing. B.A. 123, Tran-

script 498.

DARK PAGE BLEEDTHRU

—

4

gaining agent, but who chose as individuals not to cross

the picket lines of another union (ITTU) during the very

time in 1947 that their own bargaining agent (CTTU) was

actively negotiating a new contract for them without join-

ing the strike in any way. The supervisors were replaced

during their absence but not discharged; and the ITTU

suffered no legal harm. It was this rare combination of

facts which moved the Court below to sustain four de-

fenses in one opinion. The attempt to distort and magnify

that decision as if it had sweeping implications for any

ordinary fact situation simply has no basis in reason.

1. In stating its first question, the petitioner correctly

says that the supervisors were acting ‘‘as individuals.’’

Pet. 2. There was nothing ‘‘collective,’’ ‘‘concerted’’ or

‘‘mutual’’ in their activity, and the Court of Appeals was

plainly required by the very language of the statute to hold

that it had no application to them. R.A. 47. Both Section

1 of the statute and the whole history of the Act demon-

strate that it is collective action about which Congress

wasjconcerned and not what individuals might decide to do

on their own. At the last term this Court relied on this

very distinction between concerted and individual conduct.

N.LLR.B. v. International Rice Milling Co., 341 U.S. 665,

670-71 (1951). Certainly this Court did not give ‘‘con-

certed’’ a different meaning in Section 8(b) (4) of the Act

than the same word has in Section 7 of the samexstatute.

The trial examiner based his finding of concerted ac-

tivity (B.A. 37) on a Board decision subsequently found

invalid.* N.L.R.B. v. Massey Gin Works, 173 F. 2d 758

(C.A. 5, 1949), cert. den., 338 U.S. 910 (1950). Accord:

N.L.R.B. v. Westinghouse Corp, 179 F. 2d 507 (C.A. 6,

1949); Joanna Cotton Mills v. N.L.R.B., 176 F. 2d 749

(C.A. 4, 1949).

2. In stating its second question, the petitioner says

that ‘‘the motive of the employees [was] . . . not to

*The Board adopted his finding without modification. B.A. 7.

5

seek benefit from the employer for themselves but solely

to aid the pickets.’’ Pet. 2. Actually there is no evidence

in this record on which to base any satisfactory inference as

to what purpose motivated the absent supervisors or any

of them. (As we shall show in the third section of this

brief, the effect of their action on the CTTU is clear

enough.) The Court below properly found that there was

no proof of any ‘‘purpose of . . . mutual aid or pro-

tection,’’ as expressly required by the final phrase of

Section 7 of the Act. R.A. 48.

As far as we can,tell the petition does not question the

general principle that there must be a ‘‘purpose of

mutual aid or protection’’ in every case under Section 7,

but merely argues that an ‘‘immediate stake’’ is not neces-

sary. Pet. 12. Even if we should concede this claim

arguendo, the question still remains what ‘‘future’’

‘‘mutual’’ ‘‘stake’’ was actually being sought by the

supervisors in this case. Certainly that requirement is not

satisfied by merely overlooking it, as the petition attempts

to do. The supervisors must still exhibit some ‘‘purpose’’

of self-interest before there can be any activity for ‘‘mutual

aid or protection.’’ Joanna Cotton Mills v. N.L.R.B., 176

F. 2d 749 (C.A. 4, 1949) ; N.L.R.B. v. Reynolds Pen Co., 162

F. 2d 680 (C.C.A. 7, 1947). Without clearly avowing it,

the petition may be urging that these individuals expected

that at some indefinite future date the ITTU would help

them bargain for different wages or working conditions.

The Court below considered any such inference as to the

supervisors’ ‘‘purpose’’ to be ‘‘dubious’’ and was unable

to find any supporting proof for it. R.A. 47-8. Certainly

the petition cites none. Neither is there any adequate find-

ing of fact in either the Board’s decision or the trial ex-

aminer’s report as to the ‘‘purpose’’ of these particular

supervisors. B.A. 12, 29. For all that appears in the rec-

ord, some of the supervisors may have been taking action

about their own immediate wages, which the Board has ex-

i. Pn SRD SS MR RAIMA IRR EERE RON ERT NR ER

DARK PAGE BLEEDTHRU

6

pressly conceded (R.A. 48) would remove them from the

coverage of the Act under the other facts of this particular

case. While most of the absent supervisors testified that

they belonged to ITTU, there is nothing in the record to

show that any of them intended to act as a member of that

union, or that any Company action was based on member-

ship, or even that it had any knowledge on that subject

so far as seven of the eight were concerned.*

The record fails to show that the supervisors had any

‘‘purpose of . . . mutual aid.’’ They took no active

part in the picketing or other strike activity. R.A. 3,

4, 8, B.A. 62, 72. Mrs. Winder returned to work as soon

as the pickets were withdrawn although the strike was still

on. B.A. 84. Mrs. Jungbluth ‘‘didn’t believe in crossing

the picket line.’”’ B.A. 68. Miss Keuther thought it was

un-American to cross any picket line. B.A. 75. Mrs.

Gaittens testified that she feared violence, but would not

have crossed the picket line ‘‘anyway’’ whether or not she

belonged to the ITTU. R.A. 10-11. The others likewise

reached individual decisions, apparently without any con-

sultation with the ITTU, or any concern as to what union

had posted the pickets. R.A. 8, 12-14, B.A. 62, 72, 82, 88.

The most that could possibly be said on this score would

be that some of the supervisors felt that all picket lines

should be automatically respected, regardless of the reason

for the picketing or the issues or persons involved. Any

finding that they hoped for future aid from the ITTU would

be a mere matter of speculation without supporting evi-

dence of any kind. N.L.R.B. v. Hart Cotton Mills, C.C.H.

Labor Law Service, par. 66473 (C.A. 4, 1951) ; Progressive

Mine Workers v. N.L.R.B., 187 F. 2d 298 (C.A. 7, 1951) ;

Pittsburgh Steamship Co, v. N.L.R.B., 180 F. 2d 731

(C.A. 6, 1950), affirmed, 340 U.S. 498 (1951); Saw v.

* Mrs. Winder testified to a conversation about union business

before the strike. The other party to the alleged conversation denied

any such occurrence, and neither the examiner nor the Board made

any finding as to which witness was telling the truth. B.A. 8.

—

7

N.L.R.B., 171 F. 2d 769 (C.A. 7, 1948); Interlake Iron

Corp. v. N.L.R.B., 131 F. 2d 129 (C.C.A. 7; 1942) ; Hazel-At-

las Co. v. N.L.R.B., 127 F. 2d 109 (C.C.A. 4, 1942) ; N.L.R.B.

v. Rwerside Mfg. Co., 119 F. 2d 302 (C.C.A. 5, 1941). In

such an uncertain state of the evidence the Board had no

right to make any order whatever. Universal Camera

Corp. v. N.L.R.B., 340 U.S. 474 (1951).

| It should be emphasized that these supervisors already

had a bargaining agent which was bargaining for them at

the very time they refused to work. It had made a con-

tract concerning their wages and working conditions which

was still in effect. B.A. 174-5. The ITTU had no right

to bargain for them, and they had no right to bargain for

themselves. Pet. 18-21. The Board has expressly con-

ceeded that they had no right to strike about their own

wages, hours or working conditions at any time here ma-

terial. R.A. 48. By the specific language of the Board’s

concession it was ‘‘the expiration of their agreements”’

and not the expected date of any change in wages, hours

or working conditions that barred any claim of a

right to strike. Certainly if the supervisors were outside

the protection of the Act for that fundamental objective

at the times here material, Congress did not intend to

afford greater protection for the far lesser objective of

assisting a different group in a different bargaining unit

which could not legally reciprocate. Subtracting all de-

mand for any immediate gain by the supervisors cannot

increase their rights or convert an otherwise unprotected

work stoppage by them into a protected one.

In its effort to find a conflict between circuits, the Board

cites four decisions in which the facts were obviously dif-

ferent from the case at bar. In N.Z.R.B. v. P.C.K. Swiss

Chocolate Co., 130 F. 2d 503 (C.C.A. 2, 1942), the Court

expressly found that there was a basis in the evidence for

the inference that the union of employees expected that

DARK PAGE BLEEDTHRU

3

their clearly collective action to which the employer ob-

jected would produce ‘‘mutual aid’’ in subsequent bar-

gaining from certain outsiders. In N.L.R.B. v. Rock Hill

Printing Co., 131 F. 2d 171 (C.C.A. 4, 1942), N.L.R.B.

v. Montag Bros., 140 F. 2d 730 (C.C.A. 5, 1944), and

N.L.R.B. v. J. G. Boswell Co., 136 F. 2d 585 (C.C.A. 9,

1943) (one judge dissenting), the courts enforced the

Board’s orders; but the opinions do not define ‘‘mutual

aid’’ or the scope of Section 7.* In all four cases the only

statutory bargaining agent which was present or probable

was the one which the discharged employee was thought to

be assisting; there was no proof of any lawful reason for

discharge; and there was much evidence of employer bias

against unions. In each case the facts were such that the

courts had some basis for accepting any inference drawn

by the Board that the discharged employees actually ex-

pected future aid from the union involved. Moreover,

since all of the alleged judicial conflicts were decided be-

fore the 1947 amendments to the Act, it does not follow that

8

*If the three latter cases had any possible bearing here, they

would still be either clarified or overruled for this particular factual

setting by the later cases of N.L.R.B. v. Draper Corp., 145 F. 2d

199 (C.C.A. 4, 1944), Joanna Cotton Mills v. N.L.R.B., 176 F. 2d

749 (C.A. 4, 1949), N.L.R.B. v. Massey Gin Works, 173 F. 2d_758

(C.A. 5, 1949), and N.L.R.B. v. Warner Bros., C.C.H. Labor Law

Service, par. 66512 (C.A. 9, 1951). The Board also contends that

the case at bar overrules two earlier decisions in the Seventh Cir-

cuit, Fort Wayne Paper Co. v. N.L.R.B., 111 F. 2d 869 (C.G.A. 7,

1940), and Rapid Roller Co. v. N.L.R.B., 126 F. 2d 452 (C.C.A. 7,

1942), one of which was relied on in the Boswell and P.C.K. Swiss

Chocolate cases. Judge Kerner, who also participated in those two

prior cases, apparently found no conflict here. Our comments on

the cases from other circuits are equally applicable to the two

those cases this Court was not defining employer duties, but union

duties under a different and subsequent part of the Act.

a

the same courts would reach the same results today ‘‘on

the record considered as a whole’’ in view of the principles

now established by Universal Camera Corp. v. N.L.R.B.,

340 U.S. 474 (1951).

In any event it is unnecessary to speculate what the

supervisors’ rights and purposes would have been in this

case if there had been no CTTU bargaining in progress,

no CTTU and no contract combined with proof of anti-

union bias on the part of the respondent. The inferences

that might be drawn from such a situation cannot be sup-

ported on this record. A case of that type might re-

semble the four court cases cited in the petition as con-

flicting, but it would not be the case at bar.

The Board apparently recognizes the weakness of its

claim of any conflict with other judicial authority, and re-

lies primarily on its own decisions on this point, notably

in footnote 10 and on pages 8, 10 and 15 of the petition, in-

cluding three decisions subsequent to the decision here.

This is the most obvious kind of bootstrap lifting, which

the Board did not attempt below. If a Board decision could

establish a conflict for certiorari, the Board would be au-

tomatically entitled to the writ in every case. If its other

decisions had any application to this case, they would be

subject to the very infirmities of its order here. That the

Board is often wrong is dramatically shown by the fact

that its decision in this very case relies in part on six of its

prior decisions which in the eighteen months intervening

have been held to be erroneous by the courts.

3. In stating its third question, the petitioner concedes ~-

that the supervisors’ own union (CTTU) was ‘not par-

ticipating in the strike.’’ Pet. 2. It gives no weight to the

highly important facts that the CTTU was actively bargain-

ing with the respondent at the very same time, that it ex-

tended its contract just before the ITTU strike began and

again during that strike, that it stated in those extensions

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DARK PAGE BLEEDTHRU

9

10

its desire for ‘‘stabilized labor relations’’ and ‘‘to avoid all

possible economic repercussions,’’ and that over 99% of

its bargaining unit were sufficiently opposed to the strike

to cross the picket lines every day and work in plain

defiance of all of the tradition which the Board considers

to be ‘‘normal’’ and ‘‘habitual’’ for picket lines. B.A. 25,

174-6, R.A. 4, 8, 12, 26, 49, Pet. 4, 7, 8, 10, 11, 14, 20. Neither

does the Board repeat the concession made on page 36 of

its brief below that a strike would be an ‘‘additional com-

plication’? which the parties hoped to avoid during the

bargaining period."

Faced with a specific bargaining struggle, it was the

statutory right and duty of CTTU to decide whom it would

support, and when and over what issues its unit should

strike. By the two contract extensions the CTTU plainly

manifested its belief that it would be to the best interests

of its bargaining unit to stay out of the ITTU strike. To

the extent that those represented by CTTU observed that

strategy, CTTU unity and bargaining power would neces-

sarily be demonstrated and increased; to the extent that

they dissented and observed ITTU picket lines, CTTU

organization would be weakened by division, and its plans

and decisions nullified. Nothing could be more important

to a union engaged in bargaining than its own unity. That

is the foundation on which all of its bargaining demands

must rest. If a union is divided, its bargaining position is

seriously weakened and may be destroyed altogether.

The Board repeatedly speaks of ITTU as if it were the

supervisors’ own union. Pet. 4, 8, 14, 16. But the very

statute which created the Board made the CTTU the sole

bargaining agent for the supervisors. An employee can-

not change his statutory agent merely by joining a different

union. It is the majority which controls.

* That concession was coupled with the contention that the only

cause for strikes sought to be affected by the extension agreements

was the lack of any CTTU contract.

11

There is nothing ‘‘drastic and unprecedented’? or

‘‘novel’’ or distorted (Pet. 9, 17) in the holding (R.A. 48-

50) that the majority agent determines these questions of

strategy and tactics of collective bargaining for all mem-

bers of the bargaining unit, as their ‘‘exclusive representa-

tive.’’ That is what Section 9 (a) of the Act says; that is

why a majority agent is selected; that is why contracts with

employees can constitute an unfair labor practice even if

they should meet the literal words of Section 7. Such

authority is essential to effective bargaining, and is not

‘‘reserved to the employees themselves.’’ Pet. 9, 17-18.

As this Court held in J. I. Case Co. v. N.L.R.B., 321 U.S.

332, at 339 (1944) :

‘‘The workman is free, if he values his own bar-

gaining position more than that of the group, to vote

against representation; but the majority rules, and if

it collectivizes the employment bargain, individual ad-

vantages or favors will generally in practice go in as

a contribution to the collective result.’’

Accord: Medo Corp. v. N.L.R.B., 321 U.S. 678 (1944);

National Licorice Co. v. N.L.R.B., 309 U.S. 350 (1940) ;

Order of Railroad Telegraphers v. Railway Express

Agency, 321 U.S. 342 (1944).

The Board expressly concedes this principle so far as

formal ‘‘negotiating,’’ ‘‘demands”’ and even any seeking of

‘‘benefits for themselves’’ are concerned. Pet. 18-20. It now

purports to accept the rule of N.L.R.B. v. Draper Corp.,

145 F. 2d 199 (C.C.A. 4, 1944),* that it would be contrary

*The Draper case was cited with approval in International

Union v. W.E.R.B., 336 U.S. 245, 257 (1949). It was recently

followed by the Ninth Circuit in N.L.R.B. v. Warner Bros., C.C.H.

Labor Law Service, par. 66512, in refusing to enforce the Board’s

Columbia Pictures decision, relied on in footnote 19 of the Board’s

opinion here. B.A. 12. Other cases approving the Draper decision

are N.L.R.B. v. Reliable Newspaper Delivery, 187 F. 2d 547 (C.A.

3, 1951), N.L.R.B. v. Reynolds Pen Co., 162 F. 2d 680 (C.C.A. 7,

1947), Hamilton v. N.L.R.B., 160 F. 2d 465 (C.C.A. 6, 1947), and

DARK PAGE BLEEDTHRU

12

to the purposes of the Act to protect a minority group

which was ‘‘influencing the bargaining’’ or ‘‘interfering

with’’ the bargaining agent. Pet. 19, 21. But it contends

that the supervisors’ absence from work while the CTTU

bargaining was actually in progress was a ‘‘mere temporal

coincidence,’’ which did not ‘‘impinge on”’ or ‘‘affect the

function’? of the CTTU, and that it was ‘‘merely inci-

dental’? and ‘‘had no connection with the collective bar-

gaining relationship.’’ Pet. 19-20. It concedes the ‘‘simi-

larity in impact upon the employer,’’ but assumes that

such impact and ‘‘injury’’ could not possibly produce the

slightest reaction at the bargaining table even if ‘‘all of

the employees in the unit’’ stayed away from work. Pet.

90-21. If the Court of Appeals had accepted this strange

assumption it would have deserved the epithet ‘*ynrealis-

tic’? which the Board so freely applies. Pet. 14. The

supervisors’ conduct can not be isolated from the rest of

the factual setting in which it occurred. It is too obvious

for argument that the course of any collective bargaining

is always vitally affected by whether the employees in that

bargaining unit are actually on the job or not.* The Court

of Appeals so held. R.A. 49. Certainly a union contract

without workers is a far less valuable, ‘‘effective,’’ and

‘‘ynquestioned’’ document (Pet. 20) than one made with a

unit which is immediately ready and willing to perform it.

Absence from work, even of a minority, may well be,more

serious in its net effect on the statutory agent than any

express demand for separate bargaining.

In the second place, there is no way by which the Board’s

distinction on this point can be harmonized with its con-

N.L.R.B. v. Indiana Desk Co., 149 F. 2d 987 (C.C.A. 7, 1945). In

the Court below the Board contended unsuccessfully that the

Draper case should not be followed.

* In its brief below the Board merely claimed that it was ‘‘irrele-

vant’’ even if the supervisors’ absence ‘‘tended to weaken the

CTTU’s bargaining position’ and ‘‘diminished’’ its ‘* possibility

of success.”’

13

tention under the second question presented in its petition,

i.é., that the supervisors’ ‘‘purpose’’ was ‘‘mutual aid or

protection.’’ Although repeatedly challenged, the Board

has never explained how it can be inferred that the super-

visors’ activities were intended to have an effect on their

own personal interests and at the same time were “‘unre-

lated to collective bargaining’’ (Pet. 17-20) about those

same interests. Clearly their acts would affect both or nei-

ther. This dilemma is not avoided by the repeated dis-

avowal of any ‘‘immediate’’ interest in the petition (pp.

7, 11, 12, 14, 16, 17), since collective bargaining inevitably

involves both immediate and long term objectives.

But whether the supervisors intended to be absent in

their own present or future interest, as required by the

statutory phrase ‘‘purpose of .. . mutual aid or protec-

tion,’’ or intended to be absent ‘‘solely to aid the pickets,”’

as the Board simultaneously insists (Pet. 2), the practical

effect on the employer and on the CTTU bargaining nego-

tiations of the fact of their absence would be highly sig-

nificant, as the Court of Appeals held. R.A. 49.

The Board’s attempt to distinguish the Draper case

(Pet. 19) is wholly unsatisfactory. The Draper strikers

attempted only a minimum of minority influence on the

bargaining then being conducted by their statutory bar-

gaining agent. They were not trying to do any direct

bargaining themselves; their interference was limited to

a demand (soon withdrawn) that the company bar-

gain with the majority representative immediately in-

stead of ‘‘stalling.’’ Nor was their action ever ‘for-

bidden’’ by their union. Compare Pet. 2, 9,10. There was

not the slightest indication that they intended to be repre-

sented at such a conference by anyone other than their

DARK PAGE BLEEDTHRU

14

regular bargaining agent.* Indeed, it is highly significant

that here, unlike the Draper case, there was never any rat-

ification or approval of any character by the bargaining

agent, the CTTU.

The absent supervisors were clearly more ‘¢usurping”’

of the functions of their majority representative than were

the Draper strikers. Indeed the Board’s own trial examiner

and the attorney for ITTU (who had played a very

prominent part in the strike) joined in describing their

activities as the ‘‘rank and file strike.’ R.A. 2,6. This

term is only a more euphemistic expression for that

particular type of unauthorized wildcat strike which seeks

to influence bargaining in a manner different from the pro-

gram of the union representing the employees in question.

As was held in N.L.R.B. v. Brashear Freight Lines, 119

F. 2d 379, 382 (C.C.A. 8, 1941), any such attempt at minor-

ity bargaining (even where there is no majority agent) is

‘¢at their peril in so far as compulsory reinstatement is con-

cerned.’’ The case at bar is clearly in harmony with the

decisions.** Indeed, so far as this third question is con-

cerned the petition does not even claim that any ‘‘real and

embarrassing”’ conflict exists.

The Board began this case on the theory, among others,

that it involved ‘‘concerted activities for the purposes of

* That the Draper strikers were completely loyal to their major-

ity union is shown by the fact that they immediately advised Long,

the International representative, of the strike and he promptly

telephoned the Company and negotiated for their return. 52

N.L.B.B. 1477, 1490 (1943). Although their bargaining agent did

not authorize the strike (presumably in deference to the war-time

‘‘no strike’’ pledge), it thus came to the immediate assistance of

the strikers and did all that it could, as a practical matter, to ratify

their conduct by promptly filing the very charges upon which the

Board’s proceeding was based.

** Of the cases cited in this section of the petition, the Board’s

orders were sustained in four. The Case decision is discussed on

age 11 of this brief. The others are N.L.R.B. v. Schwartz, 146 F.

9d 773 (C.C.A. 5, 1945), N.L.R.B. v. Clausen, 188 F. 2d 439 (C.A. 3,

_

15

collective bargaining.’’* After it was pointed out that the

individuals involved could not lawfully bargain for them-

selves or be represented by ITTU, the Board faced about

and insisted that the supervisors were asserting ‘‘ protected

interests outside of and unconnected with the bargaining

process or its results.’’ B.A. 11-12. And yet when it came

to draw its order the Board directed the respondent to

““cease’’ interfering with the right of its employees ‘‘to

bargain collectively through representatives of their own

choosing, and to engage in concerted activities for the pur-

pose of collective bargaining .. .’’ B.A. 15. Thus the Board

is inconsistently asking this Court to protect the very

minority activities which were condemned in the Case,

Medo, Draper, and other decisions, and which in its brief to

this Court it asserts are not involved in this case in any

way. Such obvious unfairness was a major factor in the

dissatisfaction which produced the 1947 amendments; it

does serious harm to the orderly administration of the

statute.

4. There is still a further ground for the decision below

on which certiorari has not been requested. Obviously a

supervisor’s absence is sufficient reason for her replace-

ment and demotion unless it can be shown that the employer

was acting for the purpose of discouraging concerted activ-

ity. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474

(1951) ; N.L.R.B. v. Pittsburgh Steamship Co., 340 U.S. 498

(1951) ; V.L.R.B. v. Potlatch Forests, 189 F. 2d 82 (C. A.

9, 1951) ;** Western Cartridge Co. v. N.L.R.B., 139 F. 2d 855

1951), and N.L.R.B. v. Service Trade Chauffeurs, C.C.H. Labor Law .

Service, par. 66500 (C.A. 2, 1951). In these three cases the em-

ployee activity was plainly both collective and for mutual aid, and

there was no approval of any employee interference with any bar-

gaining agent.

* The quotation is from the Board’s complaint, which the Board

omitted from this Court’s printed record.

** The Board’s decision in the case at bar relies in part on its

Potlatch order (B.A. 12), which the Ninth Circuit subsequently

held invalid in the case cited in the body.

DARK PAGE BLEEDTHRU

16

(C.C.A. 7, 1943). Even on the Board’s theories there was no

concerted activity here except as between each individual

and the ITTU; hence some showing of discrimination

against ITTU was essential to a valid order. So far as any

complaint under Section 8 (3) of the Act is concerned the

Board had the further burden of showing that the em-

ployer’s acts had the effect of encouraging or discouraging

membership in a labor organization. N.L.R.B. v. Tennessee

Coach Co., C.C.H. Labor Law Service, par. 66428 (C.A. 6,

1951); N.L.R.B. v. Reliable Newspaper Delivery, 187 F. 2d

547 (C.A. 3, 1951); Progressive Mine Workers v. N.L.R.B.,

187 F. 2d 298 (C.A. 7, 1951); Stonewall Mills v. N.L.R.B.,

129 F. 2d 629 (C.C.A. 5, 1942).

Respondent discussed the record at length in the Court

of Appeals to show that there was not the slightest proof

of hostility or favoritism against or for any union or

against these supervisors. That Court so found in the final

paragraphs of its opinion, and thus denied one of the find-

ings which is essential to a valid order. R.A. 50.

CONCLUSION.

The peculiar facts of this case prevent it from having

any wide significance. There is no conflict with the decisions

of any circuit, and it is nowhere claimed in the petition

that the decision below is in conflict with any decjsion of

this Court. It is respectfully submitted that Judges Major,

Kerner and Swaim were correct, and that the petition

should be denied.

Kenneth F. Bunrgszss,

Gorpon W. Winks,

Attorneys for Respondent.

Siotey, Austin, Burcess & Smrru,

Of Counsel.

DARK PAGE BLEEDTHRU

; es EN ihe

bo RAR i Rae,

INDEX.

WITNESSES FoR GENERAL COUNSEL.

essere agi! Oh, tLe eT Oe eee Pre 2

ees, “OI oo aia s wilay cb vuwkeuice ers 4

oc ips aka wackann chads atauaeas 10

Ms SN BES ein wk cd wosmey-sveskewsvcueuyecus 2

PE I ok nds hay uv cas ovcewynclvek tows cen 13

os, teins cit, neg, ETE Te OS 6

ye ER NCSRE RE IRIR eae ie Neen yh reer 9

IE MI eis vid bg us wow hee Re weaned bce neues 8

a MO To ev nccdedvaencckbcesncavaws 12

WirTyesses ror ResPonpenr.

Ns IIE u's Oo ies aiecs ob ota ee eases oe cle 20

I Os os ede wheats heise a ae e eon 14

OS ee 36

I I eo inne > xn dea kev ho Kened deewenncs 25

RR Nt ie JURY 6c ns uouoire ocdvedacawaia secs 29

RI Sie aa vas odo KEG Aas eee ek 31

te cg ihe OE AITO ED Pr ae tee a ene 30

MSI. Us hain ah cdi 4d bh keh ka eda eens 34

EXxuisits.

Respondent’s Exhibits:

me & Gimer OF tramdfor)......<cissccuvscecnee 39

No. 8 (Induction of new employees)............ 39

No. 22 (Contract of December 22, 1945 with Illinois

Union, and amendments)

RSD OAD OS OE OS SS 01 SS Oe

1 BEFoRE THE NATIONAL LaBor RELATIONS BoaRp.

In the Matter of: z

Illinois Bell Telephone Company,

and

Illinois Telephone Traffic Division r 13-C-3187.

No. 14, successor of Illinois

Telephone Traffic Union, N. F.

T. W. 7

Room 2110, 176 West Adams Street,

Chicago, Illinois,

Tuesday, June 7, 1949.

* * * * *

44 Mr. Licari: At this time I wish to make a prelim-

45 inary statement with respect to the issues in this

proceeding, the short background from which the

issues arose.

* ™ * « *

On the same day the strike commenced the alleged dis-

criminatees in the complaint, although not directly in-

volved in the strike, advised the employer that they would

not return to work so long as a picket line was established

in front of the respondent’s premises.

Trial Examiner Bennett: Why do you say they were

not directly involved in the strike?

Mr. Licari: Mr. Examiner, the 8(3)’s there were sym-

pathetic strikers. They were not part of the striking

union. Although some of the 8(3)’s belonged to the strik-

ing union, they were not within the same bargaining unit.

* * * * *

2 Witnesses for General Counsel.

47 ANNE C. BENSCOTER, a witness called by and on

behalf of the General Counsel, being first duly sworn,

was examined and testified as follows:

Direct Examination.

* * e * e

50 Q. (By Mr. Licari.) Did you engage in negotiations

prior to the strike?

51 A. * * * Mr. Hackett was our chief negotiator, as-

signed to the case in my absence.

* * d * e

53 Q. Was that the only union involved in the strike?

A. You mean in the strike on April 7th?

Q. That is correct.

A. There were many unions throughout the country

involved in the strike.

55 EDWIN R. HACKETT, a witness called by and on

behalf of the General Counsel, being first duly sworn,

was examined and testified as follows:

Direct Examination.

. * * * - *

Q. (By Mr. Licari.) * * * Will you relate to us the

56 circumstances surrounding the calling of the strike of

the union involved in this case?

A. *** Involved in the strike against the Illinois Bell

Telephone Company, in addition to the union involved in

this case, was the Commercial Telephone Workers Union,

the Federation of Telephone Clerks of Illinois, the Associa-

tion of Communication Equipment Workers, and the Na-

tional Association of Communication Workers and the

American Union of Telephone Workers.

DARK |

———_—— as PAA ENIE RI AORN ARON

aia

Trial Examiner Bennett: They were all unions affili-

ated with the NF TW?

The Witness: These were all unions that were affiliated

with the National Union of Telephone Workers.

We appointed a strike director and I acted as legal

57 counsel for the direction of the strike in addition to

my duties as chief negotiator for three of the striking

unions.

Testimony of Edwin R. Hackett. 3

66 Q. Did you observe whether or not these girls had

joined in a strike?

The Witness: From my observation none of these peo-

ple involved here engaged in the strike.

* a * * *

81 Cross-Examination.

a * * 6 *

96 Q. (By Mr. Winks.) Now, in your testimony, Mr.

Hackett, you referred to some twenty or twenty-two

different items that were in controversy in negotiations,

and I believe you said the failure to agree on those items

is what caused the strike. At least, I so interpreted your

testimony. Was I correct?

A. That is right.

(). Now, did any of those twenty-two items affect any

of the eight alleged demotees in this case?

A. No, sir.

SAGE BLEEDTHRU

4 Witnesses for General Cownsel.

103 CATHERINE E. BROPHY, a witness called by and

on behalf of the General Counsel, being first duly

sworn, was examined and testified as follows:

Mrect Examination.

* * * * *

108 Q. (By Mr. Licari.) Did you have any further

conversation on that date with Mr. Leetz?

A. He said, ‘‘ Well, rumors are flying.’’ I said, ‘‘ What

do you mean, rumors are flying?’’ He said, ‘‘Rumors

are flying.’’ I said, ‘‘Will you be more specific?’

109 He said, ‘‘ Well, the girls don’t like you being out,’’

and I said to him, ‘‘Mr. Leetz, I know there is a

strain over there, but I am not taking any active part

in it, and you know if I did the girls would all be out.”’

cad * * * 2

Cross-Examination.

128 Q. (By Mr. Robinson.) Didn’t it have on the face

of it a notation which informed you that it was the

Illinois Telephone Traffic Union that was on strike?

A. I didn’t pay that much attention, because I knew.

Q. And at that time the Illinois Telephone Traffic Union

did not represent the unit in which you worked, did, it?

A. They were not the bargaining agent, no.

Q. And the particular bargaining agent for your unit

was who?

A. Chicago Telephone Traffic Union.

Q. And at that particular day and time there was

129 then in existence a contract between the Chicago Tele-

phone Traffic Union and the Illinois Bell Tetephone

Company which had not expired then?

A. That is right.

DARK P.

-

Testimony of Catherine E. Brophy. 5

133 Q. Have you ever seen a time since you have been

on the ‘‘B”’ board when there wasn’t a floor super-

visor behind the ‘‘B’’ position?

A. At different times for short periods, say an hour

or two hours, a ‘‘B’’ division has been vacated, yes.

160 Q. How many calls a day, let’s say how many

calls an hour will an operator average in handling on

the ‘*B’’ board?

A. Well, now, the average number of calls run, on the

busy hours sometimes they run as high as 400 calls.

Per hour?

That is right.

Per operator?

That is right.

PObO

161 Q. Would you say, Miss Brophy, that the job of

a floor supervisor was a responsible one?

A. Very much so.

Q. And is it a necessary function in the transmission

of calls in the Illinois Bell Telephone system?

A. Definitely so.

Q. Do you think that the section could function satis-

factorily without a supervisor?

162 <A. No.

Q. Do you think it is necessary to fill the position of

a supervisor at any time there is an absence?

A. Yes.

Q. On the ‘‘B’’ board at Austin?

A. Yes. I believe there is.

e * J * *

168 Redirect Examination.

* * * * *

184 Q. (By Mr. Hackett.) The union that you belong

to, that you are a member of, the Illinois Traffic Union

did not have a contract covering the people in the Chicago

area where you work?

AGE BLEEDTHRU

6 Witnesses for General Counsel.

185 A. No.

Q. And what union did have that contract?

A. The Chicago Telephone Traffic Union did have it.

* * * * a

Mr. Hackett: Is that clear, Mr. Examiner?

Trial Examiner Bennett: I think it is. Does the record

reveal now which of those two it was that called the alleged

rank and file strike?

Mr. Hackett: Yes, it does, sir.

Trial Examiner Bennett: And which was that?

Mr. Hackett: Illinois Telephone Traffic Union.

186 DOROTHY JUNGBLUTH, a witness called on behalf

of the General Counsel, having been first duly sworn,

was examined and testified as follows:

187 Direct Examination.

Q. (By Mr. Licari.) Now, after that did anything

happen to your job? Did you continue as an operator?

A. Yes, for seven weeks.

Q. Did you request a change of positions?

A. No.

(. Did the company ever offer you a change in position

during those seven weeks?

A. Yes, they did. They offered me a stenographie posi-

tion, but I refused. ‘

Q. Would that entail a less salary than as an operator?

197

~

A. More.

* ~ * . *

200 Cross-Examination.

* * 7 id *

205 Q. (By Mr. Winks.) * * * Do you know who took

over your work as a PBX placement supervisor?

A. Yes.

Q. Who did?

th

DARK P

Testimony of Dorothy Jungbluth. 7

A. Miss LeTurneau.

Q. Dou you know when she took over that?

A. No. Shortly after I left but I couldn’t say when.

Q. Didn’t Mr. Halliday call that fact to your attention

in his conversation with you?

A. He may have.

Q. At any rate—

A. I don’t remember. He may have.

* * * * *

209 Q. As I understand it you worked in the Chicago

toll office from 1937 to October 1946, is that correct?

A. Yes.

Q. So that at the time of this strike you had been work-

ing in the Chicago area for about six months?

A. Yes.

Q. And when you and Mr. Halliday had your conversa-

tion—I believe you said it was the first conversation on

Wednesday—didn’t you say to Mr. Halliday that you would

prefer to work in the office where you had some cight or ten

years’ experience with the people over there in the toll

office rather than in the Chicago PBX division?

A. I don’t remember saying that.

Q. Are you prepared to say now that you did or did not

say it?

A. I don’t remember saying it.

Mr. Licari: The question has been answered, Mr. Ex-

aminer.

Trial Examiner Bennett: I think her recollection has

been exhausted.

212) Q. That was a responsible job that you had there?

A. Yes.

Q. And had to be filled by some one if you weren’t there?

A. Yes.

Q. I believe you testified that you were a member of

the Communications Workers of America at the time of this

strike, is that correct?

A. No, I was a member of the ITTU,

Q. At that time?

A. Yes.

Mr. Licari: What does the ITTU stand for?

—?_

8 Witnesses for General Counsel.

The Witness: Illinois Telephone Traffic Union.

Q. (By Mr. Winks.) Were you a member of that mnion

on July 20, 1947?

A. Yes.

215 HELEN MACELLAIO, a witness called by and on

behalf of the General Counsel, being first duly sworn,

was examined and testified as follows:

Direct Examination.

217 Q. (By Mr. Licari.) You saw the picket line?

A. Yes. I couldn’t go through the picket line.

Q. How did you know that was the picket line of the

striking union?

218 <A. Well, there was about twenty of them out there

and I had seen signs and pickets but I couldn’t read

them, I didn’t go that close.

224 Cross-Examination.

Q. (By Mr. Robinson.) When you went down to the

Van Buren office on April 7th, how many pickets were down

there?

A. About twenty.

Q. Did you know any of them? .

A. No.

Q. Were any of them operators or supervisors in your

office ?

A. Well, they wouldn’t be. They weren’t on strike,

the people in my office. If they were, I would have been on

the picket line, too.

* * * oo =

229 Q. Now, in the operation of the Van Buren ex-

change, was it necessary to have supervisors, floor

supervisors?

DARK P

——=—_

Testimony of Irene Keuther. 9

A. Yes.

Q. Was it necessary to have floor supervisors at all

times?

A. Yes.

* * + * *

241 IRENE KEUTHER, a witness called on behalf of the

General Counsel, having been first duly sworn, was

examined and testified as follows:

* * a. a *

249 Cross-Examination.

. a * a ~

253 Q. (By Mr. Robinson.) You say you had a replace-

ment assignment at one time?

A. Well, that is you take the supervisors for their days

off, relieve them on their days off.

Q. Is that a position which the new supervisors normally

take as a replacement supervisor or when they are first

promoted to supervisors?

A. Not in all cases, but under the circumstances, me

being an experienced supervisor, I don’t know what their

reason may have been, but to my knowledge it might be

that I would have more, it would be better because I would

have more experience going in different sections and taking

over, whereas student supervisors, they would put them in

a steady section to get them acquainted.

* * * a .

259 Trial Examiner Bennett: Who was in your job when

you came back?

The Witness: That is where Miss Jacobs came in. She

had my time and my section when I came back.

Trial Examiner Bennett: I believe you stated she had

been a replacement supervisor just before the strike, is

that right? |

The Witness: No, I had a steady section a couple of

months before.

Trial Examiner Bennett: No, this Miss Jacobs.

a

AGE BLEEDTHRU

—~y

The Witness: No, she had a steady section. I think she

was a seated supervisor at the time.

Trial Examiner Bennett: Before the strike!

The Witness: That is right, and then she took my sec-

tion over, I presume, during the strike, and when I came

back she was in my section.

Trial Examiner Bennett: Did she continue in your

10 Witnesses for General Counsel.

section?

The Witness: Yes, she did, until the next schedule.

* . a * *

265 FRANCES GAITTENS, a witness called on behalf of

the General Counsel, having been first duly sworn,

was examined and testified as follows:

266 Direct Examination .

e td +. * cd

267 Q. (By Mr. Licari.) Did you see anything else i

with the picket lines, did you see any signs?

A. Oh, yes, several girls were carrying signs. In

268 fact they were right in front of the door and all around

there, and there was absolutely no sense in trying to get

through there because you couldn’t.

Q. Do you know what the signs said, what was on the

signs? Did you read any of the signs?

A. It just said ‘‘Striking Union”’ on it. That is all it

said, ‘‘Striking Union.”’ -

Q. Did it identify the union in any way?

A. Yes, it had ITTU on this sign, that is all.

Q. And you were a member of that union at that time?

A. Yes, sir, regardless, I wouldn’t cross it anyway.

271 Q. Did he say anything else?

A. Well, I guess that kind of got me and I started

erying, so my mother took the receiver away from me and

told him, asked him if he would—

Q. Were you there when your mother talked?

th

DARK P.

Testimony of Frances Gaittens. 11

A. Yes, I was standing right alongside of her.

Q. Yes.

A. She took the receiver away and wanted to know

272 if he would pay my doctor bills if anything happened

to me. He said it was no concern of theirs. So she

told him not to call any more until after the strike was over,

as long as the strike was on there.

cs * * * *

277 Cross-Examination.

ca . a a *

281 . (By Mr. Robinson.) Did you ever see the board

at the Wentworth exchange when there was not some

floor supervisor there actively working on the floor?

A. On Wentworth or Englewood?

(). Well, Englewood. Let us change it to Englewood.

A. Yes, sir, I have.

Q. When was that?

A. When a supervisor failed to report for duty in the

inorning.

Q. How long would it exist?

A. About half a hour to an hour.

284 . Do you think the work you were doing as super-

visor in that case was of any assistance in keeping the

traffic in good condition?

A. Yes, sir, very much, sir.

Q. Do you think the job of supervisor is an important

job in the telephone company?

A. Ido.

Q. And was it a necessary job in the flow of traffic?

A. Yes, it was.

— PER! SEPIA NOR, MY ie r Babies

AGE BLEEDTHRU

———

12 Witnesses for General Counsel.

308 MRS. ROSE C. WINDER, a witness called by and on

behalf of the General Counsel, having been first

duly sworn, was examined and testified as follows:

Direct Examination.

4 - * * *

310 Q. (By Mr. Licari.) Do you recall how many

pickets there were?

A. Oh, maybe about seven or eight.

Q. Did they carry any signs?

A. Yes, a couple did.

Q. Did you read the signs?

A. Something about Ma Bell, they are awful sore at her,

but I don’t know what it was.

Q. Were there any names on the signs?

311 A. Ma Bell, but that is all I can remember. About

wages, but I couldn’t tell.

Were there any names of unions on the signs?

I couldn’t say offhand about that.

You couldn’t say?

No.

Now, after you saw the picket line, what did you do?

I went home.

Why did you go home?

Well, I wasn’t going to cross the picket line.

312 Q. Did you ask her what she meant by that?

A. I said, ‘‘There are? Well, what kind of gonse-

quences will there be?’’ She said, ‘‘Well, there are just

going to be consequences to pay.’’ I said, ‘‘Will these

consequences come from management?’’ And she said,

‘*Well, no, you are going to be—you are unpopular with the

girls because you are the only one out in the office and you

are going to be very unpopular with them.’’

Q. Did she say anything else?

A. No.

POPOopPOoPES

317 Q. Well, after this conversation did you have any

other conversation?

DARK P!

a

Testimony of Lillian F. Jensen. 13

A. Yes. I asked to talk to her again, and I asked for

a transfer.

* * * * *

318 A. I told her I wanted.to go downtown.

Q. Yes. Then you were transferred?

A. Yes, I was.

» * * * *

321 Cross-Examination.

* * * * *

328 Trial Examiner Bennett: Did you replace super-

visors and operators, or just supervisors?

The Witness: Well, I would always come in on a super-

visor’s trick. That would be the schedule that she had for

the day. They called them tricks.

Well, if they wanted to run the schedule out they would

make me an operator for the day.

Trial Examiner Bennett: You said you were a replace-

ment supervisor?

The Witness: That is right.

Trial Examiner Bennett: Does that generally mean you

took the place of other supervisors who were absent?

The Witness: Yes.

389 LILLIAN F. JENSEN, a witness called by and on

behalf of the General Counsel, being first duly sworn,

was examined and testified as follows:

Direct Examination.

391 Q. (By Mr. Licari.) How did you know it was the

picket line of the Illinois Traffic Union?

A. Well, I knew it was the picket line, yes, of the Illinois

Telephone Traffic Union.

a . ET TLL TEI IY Ne ITT ieaideel "

PAGE BLEEDTHRU

ae

14 Witnesses for Respondent.

Q. How did you know?

A. I assumed—they were the ones that were out—and I

assumed it was their picket lines.

402 Cross-Examination.

Q. (By Mr. Robinson.) Miss Jensen, after April 7,

1947, when was the first time that you offered to return

to work?

A. Well, aftet I was over my illness in September.

Q. Was that about September 9th or 10th?

A. It was on a Monday, I think.

Mr. Winks: The first Monday in September was Septem-

ber 8th.

Q. (By Mr. Robinson.) Did you go to work the first

day that you offered to go to work?

A. Yes.

* * ” * *

408 The Witness: * * * A good union member never

crosses a picket line.

* * * * *

416 F. W. BRADEN, a witness called by and on behalf

of the Respondent, having been first duly sworn,

was examined and testified as follows:

Direct Examination.

+ * * * *

419 Q. (By Mr. Winks.) Has the company been bar-

gaining with the Illinois Telephone Traffic Union, or

with Illinois Traffic Division 14 for many years?

A. They have.

424 QQ. Did the Illinois Telephone Traffic Union and the

425 company enter into collective bargaining subsequent

to January 31, 1947?

DARK PF

wa

Testimony of F. W. Braden. 15

A. They did enter into collective bargaining. The first

meeting after the receipt of this letter written January 31,

1947, was held February 21, 1947.

Q. Did bargaining continue thereafter?

A. Bargaining continued thereafter frequently until the

termination of the strike on May 8.

Q. Now, what were the union’s principal demands in the

collective bargaining?

A. The union demanded a 30-cent an hour increase for

each of the non-supervisory employees in their unit, various

changes in hours and working conditions, including changes

in vacation time, holiday time, and union shop.

Q. Now, did the company make any counter-offers to

those demands?

A. They did.

Q. What were those offers?

A. The company repeatedly offered to reinstate or ex-

tend the contract or to arbitrate the wage issues in their

demand.

Q. Were their offers still in effect after April 7, 1947?

A. They were.

427 Q. Now, with reference to these several written

offers to extend or reinstate the contract and submit the

wage question to arbitration, were any of those offers ac-

cepted by the union?

A. None of them were accepted by the union.

* * * *~ *

431 Q. Now, have the company and Illinois Traffic Di-

vision 14 entered into any agreements concerning union

security?

A. They have.

Q. What were those agreements?

a * * * *

432 A. In May of 1948 the company and the union en-

tered into an oral agreement and agreed to a consent

election to be held under the direction of the National Labor

Relations Board, and with the affirmative vote the company

PAGE BLEEDTHRU

16 Witnesses for Respondent.

would grant the maintenance of dues to the union. Such

election was held and an affirmative was not received.

Mr. Winks: Mr. Examiner, the charge in the complaint

is that this company has been discriminating against this

union. We want to show there is no basis for that charge.

It has been our consistent policy to be fair with the union.

Mr. Licari: That is a misstatement. We did not say

they were discriminating against the union. We have stated

that they are discriminating against eight individuals.

Trial Examiner Bennett: The aspects of the dis-

433 crimination as I construe them, refer to the treatment

of these eight individuals, rather than a more general

allegation.

438 Q. (By Mr. Winks.) Has the company had any

policy with respect to encouraging or discouraging

membership in the Illinois Telephone Traffic Union, or Illi-

nois Traffic Division 14 of the Communications Workers of

America?

4 * * * *

A. They have such policy.

Q. What is that policy?

A. New employees, or any employees in the state area

of that department, are informed that they may choose

whether they belong to the CWA union or not belong to the

CWA union, or any other union.

Q. And is that the company’s policy, not merely fay new

employees, but for all its employees?

439 A. That is the company’s policy for all employees.

Q. I show you a document which the reporter has

marked as Respondent’s Exhibit No. 8 for identification,

and I will ask you to state what it is, if you know?

A. This is part of the syllabus prepared in connection

for use in the induction of telephone operators, whether

440 they be newly employed or transferred into the state

area of the traffic department.

DARK

—

Testimony of F. W. Braden. 17

This is used by the chief operator and other people in

our organization.

448 Q. Mr. Braden, you testified at the close of the hear-

ing yesterday that it was the company’s policy that its

employees might join the CWA, or not join the CWA or

join any union of their choice, is that correct?

A. That is right.

Q. Is that the policy that is actually carried out!

* id * * *

A. That policy is carried out.

Q. What do you base that statement on?

A. It is part of my job to see that the company’s per-

sonnel policies are carried out in the State Area Traffic

Department. I am informed of each significant grievance

that is presented in the field. I am also informed, and as-

sist in the processing of grievances presented to my gen-

eral traffic manager. Since the time I have been in my

present job—that began in February, 1947—we have had

no grievance alleging discrimination. A perusal of our

files incident to this same problem shows that no such

grievance has been filed previously.

449 Q. Do you find the union presents grievances on

many different subjects?

A. They do present grievances on many different sub-

jects.

Q. And do they present them vigorously?

A. Quite vigorously.

Q. Now, referring specifically to the strike called by the

ITTU in April, 1947, about how many persons went on

strike in the State area of the Traffic Department?

A. About 11,500.

Q. Were many of those employees active as pickets?

A. Many of them were active as pickets.

Q. Was any disciplinary action taken against any of

those employees because of their activities in the strike?

* * s ° *

18 Witnesses for Respondent.

450 A. There was no disciplinary action taken.

Q. Did the company know the identity of any of the

officers, stewards, picket captains and other union officials

and leaders of the ITTU at the time of the strike?

A. They knew the identity of these individuals.

Q. That is, many of them, is that correct?

A. Many of them, that is right.

Q. And are you referring now to employees of the com-

pany?

A. That is right.

. *** Now, were any of the employees in the State

Area of the Traffic Department replaced during their ab-

sence from work?

A. None of them were replaced.

Q. Why not?

451 A. We were operating with a very skeleton force.

In fact, in many offices it would not have been possible

to replace any one. We used no supervisors. Those people

who were working were handling emergency traffic only.

We could not begin to follow our usual good service stand-

ards, because it was impossible to replace any one.

Q. So during the strike the State Area of the Traffic

Department just did not use any supervisors at all, is

that correct?

A. That is right, none were used.

* * * * "6

453 Q. Were Catherine Brophy, Edith Holmes, Lillian

Jensen, Dorothy Jungbluth, Irene Keuther, Helen

Macellaio, Frances Regan and Rose Winder ever officers or

leaders of the Illinois Telephone Traffic Union, or of Illinois

Traffic Division No. 14?

e * * * *

A. To my knowledge they were not.

Q. Mr. Braden, there has been considerable testimony

DARK

awa

| Testimony of F. W. Braden. 19

in this case about the meetings of the bargaining committee

of the [Jlinois Telephone Traffic Union with company

454 representatives in March, April and May of 1947.

Were you one of the company representatives present

at bargaining meetings held in that period of time?

A. Iwas.

Q. Now, when the representatives of the Illinois Tele-

phone Traffic Union discussed with you the question of the

eight individuals involved in this case, did they say any-

thing as of what date they wanted those eight reinstated?

A. In any discussions that I heard there was no ques-

tion of a date of reinstatement, inasmuch as at that time

the strike was still on.

Q. Did they ask that they be reinstated prior to the

conclusion of the bargaining negotiations then in progress?

A. They did not.

Q. Was any agreement reached on wages and working

conditions between the Illinois Telephone Traffic Union and

the company in the month of April, 1947?

A. None was reached.

* » * * 1

Cross-Examination.

Q. (By Mr. Licari.) Mr. Witness, you just testified that

you knew of your own knowledge that the eight alleged dis-

criminatees were not very active in the union or were

455 not leaders in the union. How do you know that?

A. Each year our union writes us a letter listing the

names of the stewards in each office who have been duly

selected and elected, and the names of the other officials of

the union.

456 Q. (By Mr. Hackett.) Mr. Braden, you discussed

- yesterday the question of the company’s favorable ac-

457 tions with this union, is that correct?

A. I consider we have very favorable relationships

with the ITTU and CWA.

* * * ‘ * *

AGE BLEEDTHRU

a

464 Q. There were many arrests in the area during the

strike arising over ~nditions which occurred on the

picket line, isn’t that correet?

A. I have heard of several.

. ° s

20 Witnesses for Respondent.

465 GORDON ALLER, a witness called by and on behalf

of the respondent, having been first duly sworn, was

examined and testified as follows:

Direct Examination.

472 Q. (By Mr. Winks.) Now, did Respondent’s Ex-

hibit No. 9 then expire in accordance with its terms

and the letter from the union?

A. No, it did not. The union was making a good many

demands, and it took some time, and finally by April 25 it

was evident that we were not going to get through before

the contract would expire, and the union refused to extend

the contract for any great length of time, but finally an

agreement was reached to extend the contract to April 29.

Trial Examiner Bennett: When was that agreement en-

tered into?

The Witness: That agreement was entered into on the

25th of March.

Mr. Winks: I think a little while ago you made some

reference to the 25th of April. Which month is correct,

March or April?

The Witness: Well, March is when we entered into the

agreement.

475 Q. (By Mr. Winks.) Now, what happened with re-

spect to collective bargaining between the Chicago Tele-

phone Traffic Union and the company after Respondent’s

Exhibit No. 10 was executed?

A. Well, we continued to negotiate. We reached an

agreement on some items, and on others had not, and on

April 25 we agreed on an extension which was to extend the

contract to June 2nd, 1947.

* *

DARK PI

Testimony of Gordon Aller. 21

478 Q. Before we get into a discussion of these particu-

lar jobs involved in this case I will ask you to describe

the overall task of the Chicago area of the company’s traffic

department.

A. Well, the Chicago area traffic department has the job

of providing service here in the city, and there are 1,475,000

telephones installed in Chicago. That is around 130,000

more than were installed in April of 1947. These

479 phones give rise to around 6,600,000 calls a day, and

it is the job of the traffic department in the Chicago area

to employ and train and supervise an operating force ade-

quate to give this service.

We not only handle local calls, but we handle calls to

suburban points which extend around 40 miles from the

city limits. Those calls have to be completed by operators

working in state area offices.

Anyone who wants to make a long distance call that goes

beyond the 40 mile limit, we connect the customer with long

distance, which is located at 212 West Washington.

* * * * *

481 Mr. Winks: I don’t think that Mr. Licari even yet

realizes how important the floor supervisors’ job is.

Mr. Licari: We will stipulate that it is a very important

job.

Mr. Winks: We will accept that stipulation, too, but we

want to make it clear on the record how important it is. It

is not going to take very long, but we want to put it in.

* 6 * * *

482 Trial Examiner Bennett: I think the record

should reveal that you have had marked for identifi-

cation two volumes which are roughly the size of two

medium sized telephone books.

* * s - *

485 Trial Examiner Bennett: They are both Central ~-

Office Training Material?

The Witness: That is right.

Trial Examiner Bennett: And one is a continuation of

the other?

The Witness: That is correct, to tell how the operator

is trained, and also there is a section, I believe it is in the

second book, that tells how a supervisor is trained.

* * ° *

AGE BLEEDTHRU

—¥

488 Q. (By Mr. Winks.) Now, Mr. Aller why is such a

complicated training procedure required for telephone

operators?

489 <A. Well, there are several reasons. In the first

place, there is a great variety of situations that might

confront the operator without any warning on her part,

and while we talked of the ‘‘Local Operating Practice,’’

which outlines the various types of operating conditions

that may be encountered, it isn’t practical for an operator

to consult that book when she gets a particular call she

doesn’t understand. The book doesn’t outline all the things,

but covers pretty generally what the operators are expected

to do. So it is really training that gets the operator

familiar with the contents of the ‘‘Local Operating Prac-

tice,’’ as applied to handling these calls.

Then there is—I think it has been mentioned before—

that most calls require two and sometimes three operators

for completion. That means team work is required be-

tween the operators or among the operators, and it is

necessary that a regular standard way of handling calls be

followed by all the operators.

Then, there is, too, the fact that parts of the operator’s

job are repented millions of times a day and we study the

best methods of completing calls, going through these mo-

tions, and when we finally decide on a particular way of

handling it, we of course expect the operators will use

that method.

491 Q. What other duties does the supervisor have in

addition to the training and management of her section

when she is acting as a floor supervisor?

A. She is in a position to help the operators out on

emergency calls, where, for example, a customer comes

and is very excited and gives a call to the operator, ‘

492 want the Fire Department,” and then hangs up not

giving what his number is or what his address is. That

type of call is referred to the floor supervisor who, know-

ing what line it comes up on, finds out what parties are

22 Witnesses for Respondent.

the

on the line, if it is a party line, and ealls back the various

parties on the line until she finds the on. who originated the

emergency, and then she goes ahead and takes whatever

DARK Pi

oo

Testimony of Gordon Aller. ; 23

action is necessary. If the customer wants a doctor she

may call a number of doctors until she finds one who can

respond to the emergency. This whole process may take

fifteen minutes or half an hour of the supervisor's time.

Q. Now, would you give one specific example cf that

sort of case?

A. We had a rather unusual case last year at Prospect

office, where a mother came on the line and asked the ‘‘A’’

operator if she wouldn’t reach a doctor for her, that she

couldn’t get her own family physician.

493 Well, she said that her baby was having convulsions

and asked the operator to reach a doctor as her owr.

family physician was not able to respond. The operator

referred it to the supervisor and the supervisor tried to

reach a doctor for this woman and I believe called nine

doctors without getting one who could respond.

During the time she was calling the doctor she kept in

touch with this woman and finally after the ninth one failed

to respond, the woman told the supervisor that her baby

was choking and the supervisor suggested that the pul-

motor squad be summoned and the mother said she would

like that and the pulmotor squad got there in two or three

minutes and gave oxygen to the infant for several hours

afterwards.

When the family physician arrived he said that had the

pulmotor squad been delayed a few more minutes the child

would have died.

s - ~ — *

495 Mr. Licari: We will stipulate that they are really

important people, that they should be there at all times

when they should be there, and that they are quite a cog in

the telephone company’s machine.

Mr. Robinson: We will accept that stipulation.

o eo ~ # ”

496 Q. (By Mr. Winks.) Is it necessary that the super-

visory force have a high degree of flexibility ?

A. Yes, it is desirable that they have a good deal of

flexibility because they may be asked to fill in on any of

these assignments, particularly the replacement.

* o - °

—

AGE BLEEDTHRU

24 Witnesses for Respondent.

497 Q. Mr. Aller, I believe you said that the Chicago

area traffic department handles about 6 million 6 hun-

dred thousand calls in an ordinary week day. What por-

tion of those calls are correctly handled?

A. 99 per cent are handled without error.

Q. Now, does the program of training and assignment

of operators and supervisors which you have been describ-

ing have any close relationship to this 99 per cent figure?

A. Certainly, we couldn’t give the service we do

498 in Chicago without it.

499 Trial Examiner Bennett: April 7th you were in-

formed by whom?

The Witness: By Mr. FitzGerald and Mr. Wageck. I

got reports from Mr. Hunter and Mr. Halliday.

500 Trial Examiner Bennett: What did they inform

you?

The Witness: They told me of the numbers of people

that had come to work, or had failed to come to work,

and told me that they had replaced the supervisors that

had failed to come to work. I knew the operators were

not a particular problem because we were employing op-

erators at that time, and the operators’ assignments are

not so very definite because there is a fairly high turn-

over on those employees.

503 Q. (By Mr. Winks.) What about the replacement

of supervisors?

A. The supervisors, their places were filled and when

they returned they were given work as an operator and

they were not discriminated against in any way.

Q. Did they lose any seniority, vacation or pension

rights by reason of their replacement?

A. No, they did not.

Q. Was the time which they were away during the strike

counted as time in connection with their eligibility for

pension, their rights to vacation and their seniority?

A. It was.

DARK

Testimony of Robert T. Halliday. 25

. Now, were the eight supervisors officers or leaders

of the Illinois Traffic Union or Illinois Traffic Division 14

so far as you know?

A. So far as I know they were not.

Q. Has it ever made any difference to you whether an

employee of the company was or was not a supporter of

the Illinois Telephone Traffic Union or Illinois Traffic Divi-

sion No. 14?

A. No, sir.

Q. Has that been the company’s policy?

504 <A. Yes, it has.

Q. Has that policy been actually carried out since

long prior to April 7, 1947?

A. Yes, it has.

Q. Did the chief operators and assistant chief opera-

tors ever get any instructions on that point?

A. Yes, they do. é

Q. Aside from this case have you ever received any

complaint that the company was not following such a

policy?

A. No, I have not.

520 ROBERT T. HALLIDAY was called as a witness by

and on behalf of the respondent, having been first

duly sworn, was examined and testified as follows:

Direct Examination.

522 Q. (By Mr. Winks.) * * * how many PBX place-

ment supervisors did you have?

523. <A. Oh, we only had two PBX placement super-

visors.

Q. Who was the other one?

A. Mrs. Bregenzer is her name now. I believe it was

Florence Fortmann.

e ° o = am

Q. Did you have enough such work to keep those two

supervisors busy on a regular schedule?

—

AGE BLEEDTHRU

26 Witnesses for Respondent.

A. Yes, we did. When you remember there are prob-

ably around maybe 15,000 regular PBX attendants in

the city of Chicago, and a great many customers who

look to the Telephone Company to help them get this tech-

nically trained help.

° e + a 7

528 During the course of that conversation, which again

in my opinion was very friendly, she indicated that

she would like to go back to Chicago toll, that she thought

her relations over there would be better.

Q. (By Mr. Winks.) Did you make any response to

that?

A. Yes, I did.

. What was that?

A. I told her, of course, that I had no jurisdiction over

Chicago toll, but that I would call the division toll su-

rintendent and see if such a transfer could be made,

as that is the office from which we got her.

Q. Now, did Mrs. Jungbluth express any dissatisfac-

a with the management of the PBX Division at that

?

A. None at all.

Q. What did you do about this transfer?

529 A. Why, as I said before, I believe that was a

Wednesday, and I think it was several days before I

was able to get hold of Mr. Kaatz and get a reply from

him as to whether he would take her. Of course, she did—

. Who is Mr. Kaatz?

A. He is the division toll superintendent in charge

of the toll offices where Mrs. Jungbluth worked. He in-

dicated that—

. Do you recall when you did reach Mr. Kaatz?

A. Why I believe it was on a Friday.

Q. Was that in the same week or a different week?

A. That was the sa°ue week, that was two days later.

Q. Incidentally, I believe you said you had some dif-

ficeulty reaching Mr. Kaatz, is that right?

A. Yes, that is right.

Q. I believe there is previous testimony that his of-

fice was on strike, is that right?

A. That is right.

DARK

Testimony of Robert T. Halliday. 27

Q. All right.

A. She had, of course, said would she go back to Chi-

cago toll as supervisor, and, of course, I said that was not

within my jurisdiction, but I would be very glad to find

out and let her know.

So I talked to Mr. Kaatz and he indicated that they

would not be able to take her back as a supervisor, that

they had no vacant authorizations, but that they

530 would be very glad to take her back as an operator,

that she had done a good job for them, and they saw

no reason why she could not continue to do so.

532 Q. Did Mrs. Jungbluth ever object at any time to

the transfer, so far as you know?

533. A. No, sir, she did not.

Q. Now, has it ever made any difference to you

whether an employee of your division was or was not a

supporter or a member of the Illinois Telephone Traffic

Union or Illinois Traffic Division 14?

A. No. As a matter of fact, we have no way of know-

ing whether they are a member of a union or not a member

of a union.

Q. Do you care?

A. No, sir.

Q. Is that policy carried out throughout your divi-

sion?

A. So far as I know it was, and it still is.

Q. Well, you would have a pretty good idea with re-

spect to your division, wouldn’t you?

A. Yes, I am sure I would.

Q. Now have you ever received any complaint that

your division was not following such policy, except as this

particular charge represents such a complaint?

A. No, no, we have not.

Q. Insofar as you have observed, has that policy been

carried out in the rest of the company since long prior

to April 7, 1947?

A. To the best of my knowledge it has.

AGE BLEEDTHRU

28 Witnesses for Respondent.

Cross-Examination.

534. Q. (By Mr. Licari.) When did you have your first

conversation with Mrs. Jungbluth?

A. As I recall it, it was Wednesday, April 9th.

Q. Isee. And will you tell us again the tenor of that

conversation?

A. The purpose of my call was to get her to come back

to work, to let her know that the work in that particular

section was going on in a normal manner, and that we

needed her.

I also explained that we had placed Miss Letour-

535 neau in there on a temporary basis, and that if she

failed to, or if she did not come in to work, or if she

still persisted in not coming to work, we would have to

replace her on a permanent basis.

Then she indicated, in the course of our conversation, she

indicated that maybe it would be better for her to return

to Chicago toll, because she thought that her relations

over there would be better than they were in the PBX

placement job.

Q. When you called her you knew the reasons why she

had not been to work?

’ A. Oh, yes.

. You knew it was because she did not care to cross

the picket line?

A. She had already told us that. “

Q. When you asked her to return to work, did you ask

her to return as a supervisor?

A. No, we asked her to come back as a PBX place-

ment—

Q. As an operator?

A. Oh, no, I asked her to come back in her PBX place-

ment job.

Was that her former job?

That is right.

The job she held prior to April 7, 19471

That is right.

POPO

DARK

Testimony of N. R. Harrison, Jr. 29

Trial Examiner Bennett: And this was on Wednesday

the 9th that you asked her that?

5386 The Witness: That is right. Yes. I wanted her to

come back on the job she held before the strike.

544 Redirect Examination.

* * ° . *

046 Q. (By Mr. Winks.) She wanted to go to Chicago

Toll?

A. That is right.

Q. That is the impression you got from these conver-

sations?

A. She very definitely indicated that she would like

to go back to Chicago Toll, and I considered nothing else

other than that.

576 N. R. HARRISON, JR., called as a witness by and on

behalf of the Respondent, being first duly sworn, was

examined and testified as follows:

Direct Examination.

* * — mw *

980 Q. (By Mr. Robinson.) How many supervisors did

you have in this exchange in which Miss Jensen and

Mrs. Gaittens were working in 1947?

A. We had 19.

Q. And of that 19 were part of them assigned to floor

supervisor work and part of them to seated supervisor?

A. That is right.

Q. And did some of them have a replacement super- *

visor’s assignment?

A. That is right.

591 Q. Were all the individuals whom you have men-

592 tioned as having been promoted to supervisor regular

employees of the company with substantial periods of

service?

AGE BLEEDTHRU

30 Witnesses for Respondent. |

A. Yes, they were the employees that under any cir-

cumstances we would have next promoted to the posi-

tion of supervisor.

a a a * ”

619 R. E. WADE, a witness called by and on behalf of the

respondent, being first duly sworn, was examined

and testified as follows:

Direct Examination.

* * * * *

622 A. There are the regular supervisors, who have

regular assignments throughout the week, and then

there are the replacement, the day off replacement super-

visors, who also have assignments to replace the first girl

on her day off, and there is a third group known as inei-

dental absence replacement supervisors.

Q. (By Mr. Winks.) And what is their function, the

third group?

A. The third group takes care of unforeseen absences

in the group.

Trial Examiner Bennett: They are indicated on the pay-

roll as supervisors?

The Witness: Yes.

(By Mr. Winks.) That last group to which you

have referred have a definite time to report?

A. They do. They have a regular time to report.

Q. And if no one is absent, no supervisor is absent,

what do those supervisors do? .

A. They take a position and do regular work.

Q. Regular operating work?

A. Regular operating work.

* * *

631 Cross-Examination.

634 Q. (By Mr. Licari.) There was a vacancy when

Miss Holmes did not return, is that correct?

A. Yes.

4 ‘ DARK f

Testimony of R. C. Leetz. 31

Q. And on April 27th you appointed Miss Radestock

and Rosemary Wertz?

A. Yes, sir.

Q. As the new supervisors?

A. Yes, sir.

Q. To cover that vacancy?

A. No, sir. We also had to prepare for the vacation

season which was approaching.

Q. Yes, but you knew at that time that Mrs. Holmes’

was not going to return as a supervisor?

A. On the 27th, yes.

” 2 * * *

637 Q. How many regular supervisors have you got

in that office?

Mr. Robinson: When?

Mr. Licari: In 1947, on or about April 7th, 1947, and

thereafter.

The Witness: About 25.

* *

R. C. LEETZ, a witness called by and on behalf of the

Respondent, being first duly sworn, was examined and

testified as follows:

Direct Examination.

* * a * e

654 Trial Examiner Bennett: You say Miss McGinty

was a replacement supervisor?

The Witness: That is right.

Trial Examiner Bennett: Not a regular supervisor?

655 The Witness: Yes, they are all regular supervisors,

day-off replacement supervisor, incidental absentec

replacement supervisor.

Trial Examiner Bennett: That is what I mean. Miss

_ McGinty was in that Category 2?

The Witness: That is right.

Trial Examiner Bennett: What time did she change from

Category 2 to another category, if at all?

The Witness: Well, we use those girls interchangeably

GE BLEEDTHRU

32 Witnesses for Respondent.

as far as day-off replacement. A lot depends upon the sea-

son of the year.

Trial Examiner Bennett: Do I understand that on the

April 13th and April 20th weeks she was still considered a

replacement supervisor?

The Witness: No, I would not consider her a replace-

ment supervisor at that time in view of the fact that that

tour was definitely assigned to her week by week on our

weekly assignment sheet.

Trial Examiner Bennett: As I understand it from April

13th on you would no longer consider her a replacement

supervisor?

The Witness: No, we wouldn’t because she had this

regular ‘‘B’’ board section to cover in the Austin office.

Q. (By Mr. Robinson.) As a matter of fact, Mr. Leetz,

the supervisors assigned to a particular trick number, the

supervisors assigned to replacement supervision,

656 whether it be absentee or day-off, are all regular

supervisors in the normal use of the word, are they

not?

A. That is correct. They make up the supervisory

team or the supervisory complement in the office.

Q. And they may be shifted from one job to the other

depending upon a dozen different reasons during the course

of any particular week?

A. That is right.

» €

a * *

665 Cross-Examination.

. - * * ¢ *

672 Q. (By Mr. Licari.) April 7th was a very impor-

tant date with respect to the company’s operation,

was it not?

A. Every day is an important day so far as the com-

pany is concerned.

Q. On that day there was a strike?

A. That is correct.

Q. And, of course, as company’s counsel claims the

operation was, to a certain extent, crippled, isn’t that cor-

rect?

DARK PF

Testimony of R. C. Leetz. 33

A. Not so far as Chicago traffic was concerned.

Q. Oh, they were normal?

A. Fairly so. We continued to give service.

Q. Normal service?

A. Yes, sir.

* Sd a * *

690 Q. (By Mr. Hackett.) What office did Miss Brophy

work in during April of 1947?

A. The Austin office.

Q. How many supervisors did you have at the Austin

office ?

A. Around twenty-two, as I recall.

Q. Did that include the regular supervisors, the re-

placement supervisors and the incidental absent replace-

ment supervisors?

A. That is correct.

Q. Will you break those twenty-two down to those three

categories, please?

691 The Witness: We probably had out of that twenty-

two in the neighborhood of sevex or eight replacement

supervisors, both for day off replacement and incidental

absences.

Q. In what office did Mrs. Winder work, or what of-

fice was she assigned to?

A. She worked in the Mansfield ofice.

Q. How many supervisors were there in the Mansfield

office in the neighborhood of 19471

A. Approximately twenty-six or twenty-seven.

Q. How many of those were in category 2 of replace-

ment supervisors?

A. Probably ten or twelve.

692 Q. Where did Miss Keuther work?

A. In the Van Buren office.

Q. How many supervisors were there in the Van Buren

office ?

A. The Van Buren office would have in the neighbor-

hood of twenty-one.

s— BLEEDTHRU

34 Witnesses for Respondent.

Q. Were there any replacement supervisors?

A. Seven or eight.

Q. And where was Miss Macellaio?

A. The same place, the Van Buren office.

. c- * * 2

714 Redirect Examination.

716 Q. (By Mr. Robinson.) As a matter of fact, the

people in this pool of supervisors are shifted from

one category to the other, according to the requirements

of the office, are they not?

A. That is right.

And it is a flexible arrangement which is changed

717 according to the requirements of the office, are they

not?

A. That is right.

*

731 HENRY E. WAGECK, called as a witness on behalf

of the Respondent, having been first duly sworn, was

examined and testified as follows:

Direct Examination.

Q. (By Mr. Winks.) Will you state your name? And

business address, please?

A. Henry E. Wageck. W-a-g-e-c-k, 6317 South Mary-

land.

. By whom are you employed?

A. The Illinois Bell Telephone Company.

e > * * *

732 Trial Examiner Bennett: What did you say your

present title is?

The Witness: Division Traffic Superintendent.

~~ e * * *

(By Mr. Winks.) Now, among other districts, was

the district in which the Englewood office is a part un-

der your supervision?

DARK PAC

Testimony of Henry E. Wageck. 35

A. Yes, sir, that is the Wentworth-Oakland District.

Q. And who was the District Superintendent of that

district in April and May of 1947?

A. Mr. N. R. Harrison, Jr.

Q. Did he report to you?

A. Yes, sir.

733 Q. Did you say anything to him about filling those

734 jobs, replacing those absentees?

A. No, I did not.

Q. Why didn’t you mention that?

A. That is part of Mr. Harrison’s responsibility, to fill

the positions when they are absent, from the replacement

force. He takes care of that.

* * * * *

739. Q. Did you ever at any time give any instructions

to Mr. Harrison with respect to the replacement of

Mrs. Gaittens or Miss Jensen?

A. No, I did not. That is his responsibility to re-

place them.

Q. Now, did you ever at any time receive any instruc-

tions from Mr. Aller with respect to the replacement of

Mrs. Gaittens or Miss Jensen?

A. No, I did not.

Q. Do you know whether or not those two individuals

had been replaced on April 11, 1947?

A. Mr. Harrison informed me they had been, yes.

Q. Was that replacement permanent or temporary?

A. It was the same as any other replacement, as per-

manent as any other replacement we make.

* J e s *

740 Cross-Examination.

* a * &

743 The Witness: Well, I don’t know what Mr. Aller

had in mind but those replacements as far as I was

concerned were permanent the first day they were made.

Trial Examiner Bennett: Which replacement?

AGE BLEEDTHRU

36 Witnesses for Respondent.

The Witness: The replacement of these supervisors.

Trial Examiner Bennett: And when did you make them?

The Witness: The first day of absence, in the replace-

ment force.

Q. (By Mr. Licari.) What kind of replacements were

they?

A. Supervisory replacements.

Q. What is that?

A. Supervisory replacement.

Q. With whom did you replace them?

A. That I do not know the names. We replaced them

from the supervisory force, replacement supervisory force.

Q. Did you confer with Mr. Aller with respect to the

replacements?

A. Mr. Aller?

. Yes.

744 A. I did not.

* .

®

GEORGE W. FITZGERALD, a witness called by and on

behalf of the Respondent, being first duly sworn, was

examined and testified as follows:

Direct Examination.

Q. (By Mr. Winks.) Will you state your name and

business address?

A. George W. FitzGerald, 5643 North Broadway.

Q. Is that in Chicago?

A. Chicago, Illinois. .

. By whom are you employed, Mr. FitzGerald?

A. Illinois Bell Telephone Company.

7 s 7

Q. What has been your experience with the company?

A. I have had various assignments in the traffic de-

partment. The last six years I have been division

745 traffic superintendent, North Division.

* o * ” x

Q. In April and May of 1947 were the Austin-Kedzie

= Edgewater-Rogers Park districts under your super-

vision?

DARK PA

Testimony of George W. Fitzgerald. ; 37

A. They were.

Q. And who was in charge of those districts under

your supervision?

A. Mr. R. C. Leetz was in charge of the Austin-Kedzie

district, and Mr. R. E. Wade was in charge of the Edge-

water-Rogers Park district.

o *

746 Q. Did you say anything to Mr. Leetz about fill-

ing those jobs?

A. No, I did not. I assumed he would fill them becanse

that is the normal function of his job, to run the distriet.

Q. Did Mr. Aller, when you talked with him, say any-

thing to you about filling the jobs?

A. No, he did not.

* * e . +

750 Q. Did you ever at any time give any instructions

to Mr. Wade or Mr. Leetz with respect to the re-

placement of any of the four individuals to whom Ilet-

ters were sent?

A. No, I did not.

Q. Did Mr. Aller at any time ever give you any in-

structions with respect to the replacement of those four

individuals?

A. No, he did not.

751 Q. Now, had those four individuals been replaced

on April 11, 19479

A. To the best of my knowledge they had been, yes.

Q. How do you know that?

A. I was told by the district men that they had re-

placed them.

Q. Were those replacements permanent or temporary?

A. They were just regular replacements. They were

permanent as far as I am concerned.

753 Cross-E ramination.

J — a & &

Q. (By Mr. Lieari.) 1 dirert your attention to pages 507

and 508 of the transeript. W, . vou read it?

- * o e

eee

SE SIL IT

AGE BLEEDTHRU

38 Witnesses for Respondent.

What do you say to that testimony, Mr. Witness?

A. Well, I consider that they were permanently re-

placed before Mr. Aller said so. I don’t know what he had

in mind.

Q. You receive your instructions from Mr. Aller, don’t

you?

A. No, sir, not on that.

Q. You consult with him on personnel matters, don’t

you?

754 A. That is not a personnel matter in my opinion.

Q. You mean you don’t think a change in person-

nel duties is a personnel matter?

A. The selection of particular people, how many and

when is not a personnel matter as related to Mr. Aller.

DARK PA

Respondent’s Exhibit No.1. 39

RESPONDENT’S EXHIBIT NO. 1.

May 2, 1947

Mrs. Dillas:

I will arrange to transfer to any State Area Traffic

Office any of the 9 employees recently demoted from Super-

visor and P.B.X. Placement Supervisor who may request

such transfer. Such transfer shall be without prejudice

or loss of seniority to any such employee.

In the State Area each of these employees will be given

the opportunity to be promoted to the first opening as a

supervisor for which she is qualified. For a girl never

before in a toll office this would be at least 60 days from the

date of transfer.

A. F. Stephenson.

RESPONDENT'S EXHIBIT NO. 8.

Section 3

Page 4 Induction of Telephone Operators

The Union

First Week By C. O.

As your training and experience progress, various sub-

jects related to your job and your Company will become of

more interest to you.

During training, M.... ~-owy the instructor,

will discuss some of these matters with you. Later M

-4 the assistant chief operator, will con-

tinue the discussion of additional subjects from time to

time.

One of the first items along this line is that of the

‘*Union.”’

We can discuss that now.

The Telephone Company management sincerely believes

in the principle of collective bargaining. It recognizes

GE BLEEDTHRU

40 Respondent’s Exhibit No. 22.

that employees, if they so desire, are entitled to deal with

the Company through their own freely chosen representa-

tives.

For many years the Company has dealt collectively with

the employees through their organization. At present, the

operators, supervisors and clerks of the State Area Traffic

Department are represented by the Illinois Traffic Division

14, Communications Workers of America. Mi88 ........-----000-—

spelt Gitataaes is the Union Representative in this office.

The Union and the Company bargain together periodi-

eally on wages and working conditions and set down the

matters agreed upon in a contract.

A copy of the present contract is available at my desk

for reference or study.

October 1948.

RESPONDENT’S EXHIBIT 22.

AGREEMENT.

This Agreement, made and entered into this 21st day of

December, 1945, by and between the Illinois Telephone

Traffic Union (N. F. T. W.), hereinafter called the ‘‘ Union,”’

and the Illinois Bell Telephone Company, hereinafter called

the ‘‘Company’’:

Witnesseth:

Whereas, the Union does hereby certify that it has of

this date not less than sixty-seven hundred (6,700) mem-

bers in good standing, who are non-supervisory employees

of the Traffic Department, State Area, of the Company, and

the Company agrees that this number constitutes a major-

ity of the non-supervisory employees, Traffic Department,

State Area; and

Whereas, the Company recognizes the Union as the sole

collective bargaining agent for all of its non-supervisory

employees in the Traffic Department, State Area;

OT

DARK PA

*

Respondent’s Exhibit No. 22. : 4

Now, therefore, in consideration of the mutual covenants

and promises herein contained, the parties agree hereto as

follows:

Article XXIII.

Duration of Agreement.

23.01. This Agreement is for the period commencing

May 9, 1945, and ending May 9, 1946, and shall continue in

full force and effect after such period of time unless termi-

nated by thirty-day notice in writing from either of the

parties hereto to the other.

In Witness Whereof, the parties hereto have caused this

Agreement to be executed in duplicate by their officers

thereunto duly authorized, all on the day and year first

above written.

Illinois Telephone Traffic Illinois Bell Telephone

Union (N. F.T. W.), Company, .

By Anne C. Benscoter, By A. F. Stephenson,

President. General Traffic Manager.

By Hazel Richards,

Acting Vice President.

(Amendments of January 14, 1946, January 18, 1946,

March 20, 1946, and May 16, 1946 omitted in printing.)

ene é

43

At a regular term of the United States Court of Appeals for the

Seventh Circuit, held in the City of Chicago and begun on the third

day of October, in the year of our Lord one thousand nine hundred

and fifty, and of our Independence the one hundred and seventy -

fifth:

No. 10305

National Lasor RELATIONS BoarD, PETITIONER

vs.

ILLINoIs BELL TELEPHONE COMPANY, RESPONDENT

Petition for Enforcement of Order of the National Labor Relations

Board

And afterward, to-wit, on the twenty-third day oiApril, 1951, the

following further proceedings were had and entered of record, to-wit:

UniTep States Court oF APPEALS FOR THE SEVENTH CIRCUIT

Cuicaco 10, ILLINo1s

Monday, April 23, 1951

Before Hon. J. Eart Masor, Chief Judge; Hon. Orro KERNER, Cir-

cuit Judge; Hon. H. NatHan Swain, Circuit Judge

No. 10305

NaTIONAL LaBor RELATIONS BoaRD, PETITIONER

vs.

ILLINoIs BELL TELEPHONE CoMPANY, RESPONDENT

Petition for Enforcement of Order of the National Labor Relations

Board

Now this day come the parties by their counsel, and this cause”

comes on to be heard on the transcript of the record and the briefs of

counsel and on oral argument by Mr. Robert Ackerberg, counsel for

the Petitioner and by Mr. George M. Winks, counsel for the Re-

spondent, and the Court takes this matter under advisement.

And afterward, to-wit, on the twenty-first day of May, 1951, there

was filed in the office of the Clerk of this Court the opinion of the

GE BLEEDTHRU

44

Court, which said opinion is in the words and figures following,

to-wit:

IN THE UNITED States Court oF APPEALS FOR THE SEVENTH CIRCUIT,

Octoser TERM, 1950, Aprit Session, 1951

No. 10305

NATIONAL LasBor RELATIONS BOARD, PETITIONER

vs.

ILLINOIS BELL TELEPHONE COMPANY, RESPONDENT

Petition for Enforcement of an Order of The National Labor Re-

lations Board

Heard April 23, 1951. Decided May 21, 1951

Before Masor, Chief Judge, Kerner and Swarm, Circuit Judges

Maygor, Chief Judge:

This is a petition by National Labor Relations Board (hereinafter

called the Board) for enforcement of its order issued against re-

spondent, Illinois Bell Telephone Company, on March 16, 1950,

following the usual proceedings in such cases. Respondent denies the

validity of the order and requests that enforcement be denied.

The case has to do with the demotion by respondent of eight

supervisory employees ' because of certain activities under circum-

stances hereinafter set forth. The Board concluded that such em-

ployees were engaged in a concerted activity protected by § 7 of

the Act and that respondent’s action violated § 8 (1) of the Act, and

“because such a demotion amounts to a discrimination in hire and

tenure of employment and thereby discourages membership in a

labor organization it also violates Section 8 (a) (3) of the Act.”

The issues for decision are in the main legal in their nature because

there is little, if any, dispute in the evidentiary facts. To bring such

issues into focus, however, it appears necessary to make a rather de-

tailed statement of the facts. Respondent, an Illinois corporation

with its principal office in Chicago, Illinois, is engaged in the com-

1The employees demoted were Frances Regan, Lillian Jensen,

Edith Holmes, Irene Keuther, Helen Marcellaio, Rose Winder, Cath-

erine Brophy and Dorothy Jungbluth. Whether they were super-

visory employees within the contemplation of the Act is open to

question. The Board takes the position, under the circumstances of

the case, that it is immaterial, and we shall do likewise.

naODY

DAC

45

munications industry, rendering telephone service both within and

without the State of Illinois. The unions involved in the proceeding,

directly or indirectly, are Illinois Telephone Traffic Union (called

I.T.T.U.) and Chicago Telephone Traffic Union (called C.T.T.U.).

The membership in the former in the main consisted of those em-

ployed in the State outside of the boundaries of Chicago; the latter

represented those employed within the City of Chicago. The for-

mer, as the duly designated bargaining agent for the employees in

the State area, had a contract with respondent which expired on

or about March 1, 1947. On April 7, 1947, that union commenced

_ 4N economic strike against respondent to obtain changes in working

conditions, as well as a wage increase. Picket lines were set up at

respondent’s installations throughout the State area, and also at all

exchanges within the Chicago area, on the morning of April 7. The

strike lasted through May 8, 1947, and picket lines were maintained

at all central office exchanges within the Chicago area until that

time.

The C.T.T.U. was the duly designated bargaining agent for re-

spondent’s employees in the Chicago area, including those involved

in this proceeding. This union also had a contract with respondent,

entered into on July 25, 1946, which expired March 29, 1947. On

March 25, 1947, C.T.T.U. and respondent signed an “Extension

Agreement” extending the old agreement until April 28, 1947. An-

other “Extension Agreement” was entered into on April 25, 1947,

extending the old agreement to June 2, 1947, and a new contract was

signed on May 15, 1947. As the Trial Examiner stated, “C.T.T.U.

did not engage officially or unofficially in the strike commenced by

I.T.T.U. on April 7, 1947 but, as appears above, it met with Re-

spondent during the strike period and ultimately signed a new con-

tract on May 15.” The record does not disclose the number of

respondent’s employees who were members of these respective

unions; however, the contract entered into between respondent and

C.T.T.U. in July, 1946, recites that not less than 6,000 employees

were members of that union in good standing. It appears that some

of the involved employees held membership in both unions at the

time of the strike. Seven were members of the striking union, three

were members of C.T.T.U., and one was not a member of either;

however, as stated, all eight employees were in the bargaining unit

represented by C.T.T.U.

As noted, I.T.T.U. commenced an economic strike against re-

spondent on April 7, 1947, and established picket lines not only at

respondent’s installations throughout the State area but also at

respondent’s installations throughout the Chicago area represented

by C.T.T.U., and also as noted, C.T.T.U. did not participate in any

way in the strike. At that time, it was engaged in bargaining with

€ BLEEDTHRU

46

respondent for a new contract. On April 8, the eight employees in-

volved, without any previous notice or warning to respondent, failed

to report for work because of their refusal to cross the picket line of

the striking union. Subsequently, respondent, upon inquiry, was

told by the employees that this was the reason for their refusal to

work. As witnesses before the Trial Examiner, they testified to the

same effect. Typical of such testimony is that of Miss Jungbluth,

“I didn’t want to come in because there was a picket line and I

didn’t believe in crossing the picket line’; Miss Marcellaio, “I saw

the picket line and I went home”; Miss Keuther, “As a union mem-

ber and also as an American citizen, I said, I feel it is my duty to

respect a picket line.” Miss Holmes did not approach the picket line

but by telephone from her home learned that there were pickets in

front of the office and refused to come to work “until after the pick-

ets have been removed.”

On Apri! 11 and 12, 1947, respondent directed a letter to each of

the involved employees in which they were told that their jobs

would be placed in jeopardy by a continued absence from work, that

they were being demoted from their authority as supervisor to that

of operator, and that their employment would be suspended as of

the first day they failed to report for the new assignment. Respond-

ent during the time of the absence of these employees arranged to

have their work performed by utilizing its replacement supervisors,

by recalling regular supervisors who were off duty, and in general

by reallocating the work of its force of telephone supervisors. At

the termination of the I.T.T.U. strike on May 8, 1947, the pickets

were removed. The following day, or shortly thereafter, the de-

moted employees reported for work and each was assigned to the

position and duties of a telephone operator. The salary paid an

operator was lower than than received by a supervisor.

It was the demotion of these eight employees by respondent which

the Board found to be a violation of §§ 8 (1) and 8 (3) of the Act.

On this premise the Board’s order requires the respondent«to cease

and desist from discouraging membership in Illinois Traffic Division

14, C.W.A. (successor of I.T.T.U.) or any other labor organization

of its employees, by discriminating in their employment and in any

like or related manner from coercing its employees of the right

guaranteed by § 7 of the Act. And respondent was required to offer

the eight employees reinstatement to their former positions as tele-

phone supervisors, to make them whole for any loss in wages, pen-

sion rights or sick benefits which they suffered as a result of their

demotions, and to post appropriate notices.

The crucial issue, as we view the situation, is whether the eight

employees were protected by § 7 of the Act. If so, the finding of an

DARK PAC

| ——

47

unfair labor practice and the order resulting therefrom is sustain-

able; otherwise, not. That section provides (29 U.S.C.A. § 157):

“Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage

in concerted activities, for the purpose of collective bargaining

or other mutual aid or protection.”

It is the Board’s theory that the eight employees were engaged in

“concerted activities” for their “mutual aid or protection.” The

Board terms the activities of the eight employees a “strike,” while

respondent labels it as a “wildcat strike.” In our view, it was not a

strike in any ordinary connotation of that term. This court, in

Conn v. N.L.R.B., 108 F. 2d 390, 397, accepted the definition of a

strike as contained in American and English Encyclopedia of Law,

Volume 24, page 123, as follows:

“The term ‘strike’ is applied commonly to a combined effort

on the part of a body of workmen employed by the same mas-

ter to enforce a demand for higher wages, shorter hours, or some

other concession, by stopping work in a body at a pre-arranged

time, and refusing to resume work until the demanded con-

cession shall have been granted.”

While the Labor Management Relations Act of 1947 is inapplicable

because the events in controversy took place prior to its enactment,

it is interesting to note that § 142 provides:

“The term ‘strike’ includes any strike or other concerted stop-

page of work by employees * * * and any concerted slow-

down or other concerted interruption of operations by em-

ployees.”

There is no evidence that these eight employees acted in combina-

tion or concert. They did not converse with each other or any other

person regarding the activity in which they engaged, that is, a

refusal to cross the picket line. The record discloses unmistakably

that each acted in her own individual capacity. The Board in its

brief states, “Their only concern was to help the I.T.T.U.” Even

that concession is the result only of a dubious inference. None af

the involved employees testified to any such concern. Their testi-

mony discloses that their refusal to cross the picket line was a

matter of principle, and that it would have made no difference

whether the picket line was maintained by I.T.T.U. or some other

union. The Board in its brief states that these employees “had no

grievance which could have been adjusted through grievance pro-

cedures. The object behind their refusal to cross the picket line was

merely to support the grievance of others.” And at another point

48

the Board states, “Here, there was no controversy between respond-

ent and the C.T.T.U.; the complainants merely refused to cross the

I.T.T.U. picket lines to support the demands of the I.T.T.U. rather

than their own grievances.”

Assuming, however, contrary to what we think, that the involved

employees engaged in “concerted activities,” we are unable to dis-

cern from this record, and particularly in view of the concessions

made by the Board, how it can be held that such activities were for

their “mutual aid or protection.” They neither sought nor were en-

titled to seek on their own behalf any aid or protection from re-

spondent. That was the sole function of C.T.T.U., the duly selected

and existing bargaining representative for the unit of which the in-

volved employees were a part. The Board in its brief concedes,

“These agreements [those between respondent and C.T.T.U.] bound

the employees to work in conformity with the wages, hours, and

working conditions provided in them. Employees dissatisfied, for

example, with their wages were not entitled to seek to revise them

by strike action before the expiration of their agreements.” In

other words, these employees were without right to bargain with

respondent or to strike because of any grievance which they had or

for their own aid or protection, but they had such a right, according

to the Board, in behalf of employees of a different unit and repre-

sented by a different bargaining agent.

So far as we are aware, no court has passed upon the precise ques-

tion here involved; however, there are numerous cases where it has

been held under a variety of circumstances that concerted activities

by a group of employees were not protected by § 7 of the Act. South-

ern Steamship Co. v. NLRB, 316 US. 31, 46; NLRB v. Sands Mfg.

Co., 306 U.S. 332, 344; NLRB v. Reynolds International Pen Co.,

162 F. 2d 680, 683; NLRB v. Draper Corp., 145 F. 2d 199, 202;

Joanna Cotton Mills Co. v. NLRB, 176 F. 2d 749, 752.

No good purpose could be served in a detailed analysis of these

and other cases which could be cited. The case most nearly in

point is that of NLRB v. Draper Corp., 145 F. 2d 199. There, as

here, the company was bargaining with a union as a representative

of its own employees. While so engaged, a number of the employees

ceased work in what is referred to as a “wildcat strike.” The dis-

charge of such employees was found by the Board to be an unfair

labor practice, but the court denied enforcement of its order. The

Board before that court argued, as it does here, that the employees

who went on strike were engaged in concerted activities for their

“mutual aid or protection.” The court in denying such contention

stated (page 202):

“* * * we are of opinion that the ‘wild cat’ strike in which the

employees were engaged and for which they were discharged

was not such a concerted activity as falls within the protection

49

of section 7 of the National Labor Relations Act, but a strike

in violation of the purposes of the act by a minority group of

employees in an effort to interfere with the collective bargain-

ing by the duly authorized bargaining agent selected by all the

employees. The purpose of the act was not to guarantee to

employees the right to do as they please but to guarantee to

them the right of collective bargaining for the purpose of

preserving industrial peace.”

And on the following page:

“Even though the majority of the employees in an industry may

have selected their bargaining agent and the agent may have

been recognized by the employer, there can be no effective bar-

gaining if small groups of employees are at liberty to ignore

the bargaining agency thus set up, take particular matters into

their own hands and deal independently with the employer.

The whole purpose of the act is to give to the employees as a

whole, through action of a majority, the right to bargain with

the employer with respect to such matters as wages, hours and

conditions of work.”

In distinguishing the Draper case, the Board states: “In this case,

the concerted activity engaged in bore no relationship to the then

current bargaining negotiations between the C.T.T.U. and respond-

ent.” We think that is a questionable statement. It may be that the

activities had no appreciable effect upon bargaining negotiations

then in progress but, if so, it was only because of the small number

of employees who were participants (1%, so it is stated in respond-

ent’s brief). But suppose it had been 10% or 50%, of those in the

bargaining unit represented by C.T.T.U. Under such circumstances,

could it be held that cessation of work by such a large proportion of

members of the unit would not seriously interfere with the preroga-

tives which the Act confers upon the agent selected to represent it?

Not only would the authority of the bargaining agent be impaired

under such circumstances, but any contract entered into would be

of little value. Such activities by a large group would clearly be in

derogation of the authority of the bargaining agent and would not be

protected by § 7. And we discern no reason why a small group of

employees (eight, in the instant case) would be entitled to the pro-

tection of the Act for activities which, if indulged in by a larger

group, would be unprotected. :

In J. I. Case Co. v. NLRB, 321 US. 332, 339, the court made the

following pertinent observations:

“The workman is free, if he values his own bargaining position

more than that of the group, to vote against representation; but

the majority rules, and if it collectivizes the employment bar-

50

gain, individual advantages or favors will generally in practice

go in as a contribution to the collective result.”

The Trial Examiner in his findings, referring to the refusal of the

involved employees to cross the picket line, stated, “By so doing

these eight employees placed themselves in the position of sympathy

strikers who made common cause with those engaged in the economic

strike against their common employer. As a result, their legal status

became identically that of the striking employees of the ITTU State

unit, namely economic strikers.” We think it is a novel theory that

the mere refusal to cross a picket line, in the absence of any other

activity, makes the one who refuses a party to the strike, but even

so, as already shown, such refusal was not for the “mutual aid or

protection” of the employees involved. It could have only been for

the benefit and aid of those in a different bargaining unit, the repre-

sentative of which could not have represented the involved em-

ployees and, consequently, could have obtained nothing from re-

spondent for their benefit.

The unreasonableness of the Board’s decision is emphasized by its

order wherein respondent is directed to cease and desist from “inter-

fering with, restraining, or coercing its employees in the exercise of

the right to self-organization, to form labor organizations, to join or

assist Illinois Traffic Division 14, Communications Workers of

America, successor of Illinois Telephone Traffic Union, N.F.T.W., or

any other labor organization, to bargain collectively through rep-

resentatives of their own choosing, and to engage in concerted activ-

ities for the purpose of collective bargaining or other mutual aid or

protection, or to refrain from any or all of such activities * * *.”

Other than the incidents which we have discussed, there is not a

scintilla of proof that respondent interfered in any form or manner

with the right of its employees to join a labor organization of their

own choice, or that it refused to bargain collectively with the agents

selected by such employees. In fact, the record indisputably demon-

strates that respondent bargained with C.T.T.U. in good faith, with

a resultant contract, and it also bargained with the striking union,

with a like result. There is no evidence of any hostility or favorit-

ism on behalf of respondent against or for any union. Aside from

what we have heretofore said, the Board is not entitled to enforce-

ment of the broad, sweeping terms of the order presented. Cf.

Interlake Iron Corp. v. NLRB, 131 F. 2d 129, 184; Western Cart-

ridge Co. v. NLRB, 139 F. 2d 855, 858.

The petition for enforcement of the Board’s order is denied.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Seventh Circuit.

51

And on the same day, to-wit, on the twenty-first day of May, 1951,

the following further proceedings were had and entered of record,

to-wit:

Unitep States Court or APPEALS FOR THE SEVENTH Circuit

a Cuicaco 10, ILuinors

Monday, May 21, 1951

Before Hon. J. Eart Masor, Chief Judge; Hon. Orto Kerner, Cir-

cuit Judge; Hon. H. Naruan Swat, Circuit Judge

No. 10305

NATIONAL LaBor RELATIONS BoarD, PETITIONER

vs.

ILLINoIs BELL TELEPHONE CoMPANY, RESPONDENT

Petition for Enforcement of an Order of The National Labor Re-

lations Board

This cause came on to be heard on the transcript of the record

from the National Labor Relations Board, and was argued by

counsel,

On consideration whereof, It is ordered and adjudged by this

Court. that the petition for enforcement of the order of the Na-

tional Labor Relations Board, entered in this cause on March 16,

1950, be, and the same is hereby, denied.

And afterward, to-wit, on the seventh day of August, 1951, the

following further proceedings were had and entered of record,

to-wit:

UnitTep States Court or APPEALS FOR THE SEVENTH Circuit

Cuicaco 10, ILurNois

Tuesday, August 7, 1951

Before Hon. Orro Kerner, Circuit Judge

No. 10305

NATIONAL LaBor RELATIONS BoakD, PETITIONER

vs.

ILLINoIs BELL TELEPHONE CoMPANY, RESPONDENT

Petition for Enforcement of an Order of The National Labor Re-

lations Board

On application of counsel for Petitioner, it is ordered that the

certified transcript of record of proceedings before the National

2)

Labor Relations Board be certified and transmitted to the Supreme

Court of the United States.

UNITED STATES CourT oF APPEALS FOR THE SEVENTH CIRCUIT

Curcaco 10, [LurNots

I, KennetH J. Carrick, Clerk of the United States Court of

Appeals for the Seventh Circuit, do hereby certify that the fore-

going typewritten pages contain a true copy of the order taking

the cause under advisement, the opinion of the Court, the judg-

ment of the Court, and the order to transmit the original tran-

script of record to the Supreme Court of the United States in:

Cause No. 10305, National Labor Relations Board, Petitioner,

vs. Illinois Bell Telephone Company, Respondent, as the same

remains upon the files and records of the United States Court of

Appeals for the Seventh Circuit.

In testimony whereof I hereunto subscribe my name and affix

the seal of said United States Court of Appeals for the Seventh

Circuit, at the City of Chicago, this seventh day of August

A.D. 1951.

[SEAL] (S.) Kenneto J. Carrick,

Clerk of the United States Court of Appeals

for the Seventh Circut.

Wu. s. GOVERNMENT PRINTING OFFICE: 1981 962508 106