The Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

Dec 13, 1946

71 N.L.R.B. 1047 (N.L.R.B. 1946)

In the Matter of THE WESTERN UNION TELEGRAPH COMPANY,
EMPLOYER and AMERICAN FEDERATION OF LABOR, PETITIONER
Case No.17 R-762
FOURTH SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTIONS
December 13, 1946
On October 23, 1944, the National Labor Relations Board issued
a Decision and Direction of Elections,' and on December 13, 1944, a
Supplemental Decision in this proceeding. On March 13, 1945, the
Board issued a Second Supplemental Decision and Certification of
Representatives, wherein it certified the Petitioner as the exclusive
bargaining representative of employees in the Employer's Eastern,
Gulf, Lake, Southern, Pacific, and Home Divisions, respectively, and
American Communications Association, C. 1. 0., the Intervenor herein,
as the exclusive bargaining representative of employees in the
Employer's Metropolitan Division. On March 28, 1945, the Board
issued a Third 2 Supplemental Decision and Amended Certification
of Representatives, consolidating into a single unit the employees in
the six divisions of the Employer's operations who had selected the
Petitioner as their bargaining representative and amending the cer-
tification respecting such employees in accordance with this consoli-
dated unit finding. Assistant dispatchers were excluded from the
original and amended units of employees found appropriate by the
Board, and from the certification of representatives subsequently
issued and amended.
On May 9, 1946, the Intervenor filed a motion requesting that the
unit covered by the certification of the Intervenor as bargaining
representative of employees in the Metropolitan Division be amended
to include, rather than exclude, assistant dispatchers at New York City
and asking that the record be reopened for the purpose of taking testi-
mony relating to the duties and status of these employees. On May
23, 1946, the Board issued an order reopening the record and remand-
158 N. L. R. B. 1283.
' 61 N. L. R. B. 110. This Suppplemental Decision was erroneously called the Second
Supplemental Decision.
71 N. L. R. B., No. 175.
1047
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the case to the Regional Director for further- hearing for the pur-
pose of receiving evidence as to the duties and status of all assistant
dispatchers of the Employer.
Pursuant to notice, hearing in this case was held at New York City
on August 28 and 29, 1946, before Max M. Goldman, hearing officer.
At the hearing, the parties disagreed with respect to the scope of the
further hearing, whether the evidence to be taken should be limited
to assistant dispatchers- at New York City, among whom the Inter-
venor claims an interest, or extended to include assistant dispatchers
at Chicago, among whom the Petitioner claims an interest. Assistant
dispatchers are employed only at New York City and Chicago. The
hearing officer conditionally admitted evidence covering all assistant
dispatchers in the Employer's operations, subject to the Board's ruling
that evidence relating to assistant dispatchers at Chicago was relevant
and admissible at the further hearing. On August 29, 1946, the day
when the hearing closed, the Petitioner filed a motion to clarify or
extend the Board's order issued on May 23, 1946, asking in effect that
the Board confirm the Petitioner's interpretation of the order reopening
the record and admit the testimony relating to assistant dispatchers
at Chicago into evidence or extend the coverage of the order to accol,^i'
push the same result. The order issued on May 23, 1946, directed 'Chat
evidence be taken as to the "duties and status of all assistant dis-
patchers" of the Employer. The taking of testimony concerning the
duties and status of assistant dispatchers at Chicago was therefore
within the scope of the Board's order, and such testimony is admitted
into evidence as part of the official record in this proceeding. Near
the close of the hearing, the Employer moved to dismiss the proceed-
ing, and it renews the motion in its brief. For the reasons stated below,
the motion is denied. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. The Em-
ployer's request for oral argument is denied, inasmuch as the record
and briefs in our opinion adequately present the issues and positions
of the parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
At the original hearing in this proceeding, the Intervenor con-
tended, and the Employer agreed with its contention, that, assistant
dispatchers should be excluded from the unit or units found appro-
priate for employees of the Employer. The Petitioner, on the other
hand, urged that assistant dispatchers be included in the units. The
Board in its Decision and Direction of Elections issued on October 23,
1944, excluded assistant dispatchers, inter alia, from the units found
appropriate therein. The Intervenor now seeks to represent assistant
THE WESTERN UNION TELEGRAPH COMPANY 1049
dispatchers employed at New York City and to include these employees
in the unit for Metropolitan Division employees for whom it has
already been certified.' The Petitioner, renewing its contention
respecting the unit placement of assistant dispatchers of the Employer,
asks that the Board include assistant dispatchers at Chicago in the
consolidated unit covering employees in the other divisions of the
Employer's operations for whom it has been certified. The Employer
urges (1) that assistant dispatchers are technical, managerial, super-
visory, and confidential employees and are not properly to be included
in any bargaining unit and (2) that, in any event, assistant dispatchers
should not be included in units limited to any one division of its
operations.
Under the vice president (traffic), the Employer maintains at New
York City a dispatching bureau, which operates on a 24-hour schedule
to supply additional means and routes for conveying messages when
storms or other emergency conditions render the circuits usually
available to operating employees ineffective or inadequate to supply
the requirements of its utility service.
Dispatchers are the supervisory employees in charge of the bureau
on the three shifts. Under the dispatcher on duty are assistant dis-
patchers, among whom the "sections" in the geographical area served
by the bureau are divided. The number of wires and circuits con-
necting a series of cities, which constitute receiving and transmitting
points within a radius of each, constitutes a section. As accidents or
other causes render circuit facilities within any of the several sections
inadequate, a report of existing conditions is made directly to the
assistant dispatcher in whose area the circuit affected falls. In order
that service may be supplied to the Employer's customers without
interruption, the assistant dispatcher promptly provides by telegraph
for the setting up of relief circuits by plant employees on company-
owned facilities or, where these circuits prove inadequate, arranges
that traffic be routed on leased facilities at a fixed rate according to an
approved pattern. The function of the assistant dispatcher in the
3 On August 11, 1945, the Inteivenor filed a petition in Case No 2-R-5847 alleging that
assistant dispatchers at New York City constituted a separate bargaining unit and request-
ing certification as their exclusive bargaining representative. On November 7, 1945, the
Regional Director dismissed the petition and, on appeal, the Board, on March 14, 1946,
affirmed the Regional Director's ruling Thei eupon the Intervenor filed the motion in the
instant proceeding
The Employer contends that the Intervenor is bound by the position it assumed at the
original heating in this proceeding to the effect that assistant dispatchers should be ex-
cluded from the units found appropriate in this proceeding and that the instant motion
should be denied we find no merit in this contention The mere exclusion of employees in a
categoi; of employment from a unit sound appropriate does not operate as a bar to the
later inclusion of such employees in the unit when it appears that a question has arisen
concerning the representation of such employees and the terms and conditions of their
employment at the time of our consideration indicate a community of interest with the
employees in the established unit to make collective bargaining on a single unit basis prac-
tical for both groups Matter of Armour and Company, 63 N. L R. B. 1083
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telegraph service is somewhat analogous to that of a load dispatcher
in electric utility systems.
During the course of his tour of duty the assistant dispatcher sits
at a dispatching desk or table. He sends and receives messages by
Morse code . He is provided with charts which show all available
facilities for the transmission of telegraphic communication and which
record the extent of circuit interruption on a system -wide scale. He
makes records which indicate the length of time facilities within his
area are out of use. Assistant dispatchers are technically trained
employees . In this respect they are like other employees of the Em-
ployer in the units found appropriate in this proceeding.
There is no evidence to support the Employer 's allegations that
assistant dispatchers are supervisory, managerial , or confidential em-
ployees. Assistant dispatchers exercise no supervisory authority
within our definition of that term . Reports made by them which
indicate that any facilities are out of use for any undue length of time,
which might indicate neglect or inefficiency on the part of field em-
ployees, would at most serve as a basis for inquiry and independent
investigation by others as to the local conditions giving rise to such
delay. Assistant dispatchers are not policy-making employees. They
render reports on the facilities available for lease . The course of their
work is covered by elaborate rules and procedures . Priorities are
fixed. The dispatcher, to whom irregular or unusual procedures may
al`vays be referred , is present on each shift. While assistant dis-
patchers may be afforded some opportunity to overhear conversation
between officials of the Employer speaking over special long distance
telephones set up by the bureau for the discussion of labor relations
and other problems , this action by them would constitute a dereliction,
rather than a performance, of duty. There is nothing in the record
to indicate that "listening in" is a practice among these employees.
Assistant dispatchers at Chicago function in the same manner as
assistant dispatchers at New York City, though they cover other areas
of the Employer's operations. There are eight assistant dispatchers
in the bureau at New York City and nine assistant dispatchers at
Chicago. These employees enjoy sick and vacation privileges with
other employees of the Employer. Their salaries are comparable to
those of the more skilled employees in the divisional units. The
nature and °conditions of their work require that they operate in a
room apart from other employees . In this respect they are not unique
among the Employer's employees . The nature of their work brings
them into long distance communication with other employees without
regard to the divisional lines which to a considerable extent restrict
employees within narrower geographical sectors. Since , however,
THE WESTERN UNION TELEGRAPH COMPANY 1051
they are physically placed within two geographical areas of their
Employer's operations, they share to some extent the working con-
ditions of other employees working in these respective areas.
In view of the relatively small number of assistant dispatchers and
the present plan of representation of the Employer's employees, we
believe that, if assistant dispatchers desire to bargain on a collective
basis, they may properly form part of the bargaining units already
established for employees in the geographical divisions in which the
former are physically located. We will therefore hold separate
elections among assistant dispatchers at New York City and assistant
dispatchers at Chicago. Since the Intervenor and the Petitioner re-
strict their representation claims respecting assistant dispatchers to
the geographical areas in which they are respectively recognized as.
bargaining representatives, we will provide that the Intervenor par-
ticipate in the election among assistant dispatchers at New York City
and that the Petitioner participate in the election among dispatchers
at Chicago. We will predicate upon the outcome of the elections the
placement of the two groups of assistant dispatchers within the units
found appropriate for employees in the Metropolitan and Lake
Divisions, respectively.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with The Western Union Telegraph
Company, New York City, separate elections by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision
of the Regional Directors for the Second and Thirteenth Region, re-
spectively, acting in this matter as agents for the National Labor
Relations Board, and subject to Sections 203.55 and 203.56, of National
Labor Relations Board Rules and Regulations-Series 4, among the
employees in the voting groups described below, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election ;
(1) Among assistant dispatchers employed in the dispatching bu-
reau of the Employer's operations at New York City to determine
whether or not they desire to be represented by American Communi-
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cations Association, C. I. 0., for the purposes of collective bargaining;
and
(2) Among assistant dispatchers employed in the dispatching bureau
of the Employer's operations at Chicago, Illinois, to determine whether
or not they desire to be represented by the American Federation of
Labor, for the purposes of collective bargaining.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of
the above Fourth Supplemental Decision and Second Direction of
Elections.