Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

May 3, 1941

31 N.L.R.B. 560 (N.L.R.B. 1941)

In the Matter Of WEST^RN UNION TELEGRAPH COMPANY and NATIONAL.
WESTERN UNION COUNCIL OF A. F. OF L. FEDERAL UNIONS AND
C. T. U. LOCALS
Case No. R-2448.-Decided May 3, 1941
Jurisdiction : telegraph industry. -
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition ; election necessary.
Unit Appropriate for Collective Bargaining : employees of the Company work-
ing in and about Philadelphia in the Commercial , traffic, plant , and accounting
departments , excluding named supervisory employees.
Mr. David E. Krueger, of New York City, for the Company.
Mr. Henry H. Silverman, and Mrs. Julia Parker, of New York City;
Mr. Leroy W. Peacock and Mr. James F. Sheridan, of Philadelphia,
Pa., for the A. F. of L.
Boudin, Cohn d Glickstein, by Mr. -Victor Rabinowitz, and Mr.
Sidney Cohn, of New York City, for the A. C. A.
Mr. Herman E. Cooper, by Mr. Moss Schenkman, of New York City,
for the Guild.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 20, 1940, Federal Labor Union #22492, herein called
Federal Labor Union, filed " a petition, and on January 27, 1941,
National Western Union Council of A. F. of L. Federal Unions and
C. T. U. Locals, herein called the Council, filed an amended petition,'
with the Regional Director for the Fourth Region (Philadelphia,
Pennsylvania) alleging that a question affecting commerce had arisen
concerning the representation of employees of Western Union Tele-
graph Company, Philadelphia, Pennsylvania, herein called the
Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Re-
1 At the hearing the amended petition was amended to join the Federal Labor Union as a
petitioner
31 N L. R. B., No. 92.
560
WESTERN UNION TELEGRAPH COMPANY 561
lations Act, 49 Stat. 449, herein called the Act. The Council and
the Federal Labor Union are-hereinafter collectively referred to as the
A. F. of L. On March 19, 1941, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act,
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series-2, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On March 24, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
A. F. of L., and upon American Communications Association, herein
called the A. C. A., and Communications Guild, herein called the
Guild, labor organizations claiming to represent employees directly
affected by the investigation. On March 28, 1941, the Regional Di.
rector denied a request by the A. C. A. and the Guild for a post-
ponement'of the hearing. The ruling of the Regional Director is
hereby affirmed. Pursuant to the notice, a hearing was held on
.April 3, 1941, at Philadelphia, Pennsylvania, before Geoffrey J.
Cunniff, the Trial Examiner duly'designated by the Chief Trial Ex-
aminer. The Trial Examiner granted a motion by the A. C. A. to
intervene in this proceeding. The Company, the A. F. of L., the A.
C. A., and the Guild were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. During the course of the hearing the Trial
Examiner made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C., on April 17, 1941, for the purpose of oral argument.
The A. C. A. and the A. F. of L. were represented by counsel 'and par-
ticipated in the'argumert. The Guild and the A. C. A. filed briefs
with the Board, which have been duly considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Western Union Telegraph Company, a New York corporation
with its principal office in New York City, is engaged throughout
the United States and in foreign countries in the receipt and trans-
mission by telegraph and cable of intrastate, interstate, and interna-
tional communications. In the operation of its national and inter-
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national communications system the Company owns and/or operates
211,530 miles of pole lines, 4,070 miles of land line cable; 1,776,876
miles of wire, 30,324 nautical mules of ocean cable, and 19,543 tele-
graph offices. The present proceeding concerns only those employees
of the Company working in and about Philadelphia, Pennsylvania,
where the Company employs over 1,000 persons.
The Company admits that it is engaged in interstate commerce
within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
National Western Union Council of A. F. of L. Federal Unions
and C. T. U. Locals and Federal Labor Union #22492 are labor
organizations affiliated with the-American Federation of Labor. The
latter admits to membership employees of the Company at
Philadelphia.
American Communications Association is a labor organization
affiliated with the Congress of Industrial Organizations, admitting
to membership employees of the Company.
The Communications Guild is an unaffiliated labor organization,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company refuses to recognize the A. F. of L. as the statutory
representative of its employees at Philadelphia, Pennsylvania, until
the A. F. of L. is certified as such by the Board.
There was, introduced in evidence a report prepared by the Re-
gional Director, showing that a substantial number of employees
within the unit hereinafter found to be appropriate have designated
the American Federation of Labor and an unnamed affiliate thereof
as their representative for the purposes of collective bargaining.2
The A. C. A. moved to dismiss the petition _on the ground that
the petitioner had made no showing of representation in this pro-
ceeding, since none of the cards submitted were applications for
membership in the petitioner' (A. F. of L.) or' designated it as an
exclusive bargaining representative. The motion is hereby denied.
Inasmuch as these cards are applications for membership either in
"American Federation of Labor and Federal Labor Union #______ of
____________" or in "American Federation of Labor and all affiliated
labor organizations," it is clear that employees thereby intended to
'The Regional Director reports that the A. F. of L . submitted 524 application cards
signed by employees whose names appear on the Company 's March 1, 1941, pay roll. One
hundred sixty -three cards are undated , and the balance were signed between October 1940
and February 194]. There are approximately 1,000 employees in the unit hereinafter found
to be appropriate.
WESTERN UNION TELEGRAPH COMPANY 563
authorize bargaining on their behalf by an affiliate of the American
Federation of Labor. No labor organization other than the A. F. of
L. has made any showing of representation among, the -Company's
employees at Philadelphia. '
We find that a question has arisen concerning the representation of
employees of the Company..
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that 'the question concerning 'representation which has'
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
with foreign countries and tends to lead` to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The A . F. of L . and the A. C. A.3 agree that the unit appropriate
for collective bargaining should be confined to employees of the
Company in and about Philadelphia , Pennsylvania4 The Company
did not object to this unit , but stated for the purposes of the record,
as it has done in other cases , that it considers a Nation-wide unit
appropriate . The Guild contends , as it did in a prior representation
proceeding involving employees of the Company at Pittsburgh, Penn-
sylvania , herein called the Pittsburgh case,' that a division -wide unit
is appropriate . We fully considered and discussed this contention
of the Guild 's in the Pittsburgh case and concluded that it was with-
out merit. No additional evidence has been adduced or argument
8 Although the A. C. A. made no claim or showing of designation by employees at Phila.
delphia, it requested to intervene because it has representation among employees of the
Company in other cities ; the A. C. A. and the C. T. U, as well as the Company , are appar-
ently in' agreement that a Nation-wide unit of employees of the Company may'in the future
le appropriate ; and the A. C. A. has considered such intervention necessary in order to
protect its interests in the composition of the Nation -wide unit . The Board ' s appropriate
unit finding depends , of course , " in each case" ( Section 9 ( b) ), upon the record then before
it. Thus , in the instant case , the Board determines the inclusions in and exclusions from
the Philadelphia unit upon all the facts in the present record , including the fact that no
Philadelphia employees have designated the A. C. A. (Cf. Matter of Western Union Tele-
graph Company and' American Communications Association , Local 54-B, affiliated with the
Congress of industrial organizations, 23 N. L . R. B. 824 ). Similarly , the instant find-
ings "as to the metropolitan unit will not determine the propriety and composition of a
Nation-wide unit in any subsequent proceeding , since the decision therein will necessarily
depend on all the facts in the record then before us
4 This area includes the city of Philadelphia and the adjacent communities of Upper
,`Darby, Jenkintown , and Bryn Mawr, Pennsylvania , and Camden , New Jersey.
Matter of Western Union Telegraph Company and American Federation of Labor, Com-
mercial Telegraphers Union, 30 N L. R. B. 1169.
441843-42-vol. 31-37 '
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advanced which warrants a different conclusion in this proceeding.°
Under all the circumstances, we find that a bargaining unit limited
to the Company's employees in and about Philadelphia is appropriate.
Five separate departments of the Company's business organization
have their headquarters at Philadelphia. These are the commercial,
traffic, plant, accounting and district superintendent's departments:
The A. F. of L. and the A. C. A. agree, and we find, that the
appropriate bargaining unit includes employees in the commercial
and -traffic departments. The A. F. of L. would include all employees
in the plant department,, while the A. C. A. would exclude those
employees who work exclusively outside the, Philadelphia area. The
A. F. of L. proposes, and the A. C. A. opposes, the inclusion of the
accounting and the district superintendent's departments.
The plant department serves the Philadelphia area as well as other
territory in eastern Pennsylvania. Of approximately 70 employees
in this department, about 25 or 30 work exclusively outside of Phila-
delphia; about 10 work exclusively in Philadelphia; and about 30
work both in and out of Philadelphia. We find that the employees
in this department who work exclusively outside the Philadelphia
area should be excluded from the unit as not working in or about
Philadelphia.
The accounting department does auditing and accounting work for
offices located in and about Philadelphia as well as for other offices
outside of this area. The record shows that all 40 of the accounting
department employees are stationed -in and do all their work in
Philadelphia, and that about 75 per cent of their time is devoted to
work for the Philadelphia offices and 25 per cent for the offices outside
of this area. Under the circumstances, we shall include the account-
ing department employees in the appropriate unit.
The district superintendent's organization, with headquarters in'
Philadelphia, has a- territorial jurisdiction covering at least the.
eastern part of Pennsylvania, exclusive of the Philadelphia area.
There are seven employees under the district superintendent stationed
in Philadelphia. These employees have no relations with the other
employees of the Company in Philadelphia. Transfers of employees
between the district superintendent's unit and the commercial depart-
ment in Philadelphia rarely occur. We shall exclude the employees
of the district' superintendent's Philadelphia headquarters from the
appropriate unit.
s Pursuant to a stipulation between the parties, the record in the "Pittsburgh case was
incorporated in the instant record for the purpose of presenting the contentions of the
parties -as to the appropriate geographical unit.
.l
WESTERN UNION TELEGRAPH COMPANY 565
Questions arose at the hearing concerning the exclusion of-certain
supervisory employees from the appropriate unit We shall consider
these exclusions by departments.
Commercial Department
All parties agree, and we find, that the superintendent , city com-
mercial manager, sales manager, messenger personnel manager, de-
livery manager , office manager (chief clerk ), cashier, manager of
the uniform depot, and field supervisor in this department , should
be excluded from the unit.
The A. F. of L . would include and the A. C. A. would exclude
the night delivery manager. This employee is in charge of the
delivery department at night and has approximately 30 -employees
under him. We shall exclude him from the unit.
Traffic Department-
All parties agree, and we find that the traffic managers, assistant
chief operators, testing and regulating chief, automatic chief, wile
chief, and repeater chief in this department are to be excluded
from the unit. -
The A. F. of L. would include and the A. C. A. would exclude
all employees classified as supervisors. The record shows that the
Company employs senior, teleprinter, telephone, route, automatic,,
service, and Morse supervisors. All the above supervisors have sub-'
stantially the same authority. They supervise the work of employees
working under them; assign and distribute work; and have the
power to recommend discipline. They earn approximately $50 a
month more than persons who work under them. We shall exclude
all the above-named supervisors from the unit.
Plant Department
All parties agree and we find that the 'maintenance, foreman, the
city foreman, and the assistant city foreman in this department are
to be excluded from the unit.
The A. F. of L. would include and the A. C. A. would exclude
the building supervisor and his subordinate , the equipment foreman.
The latter is a working foreman with three men under him and
recommends discipline . We shall also exclude these two employees
from the unit.
Accounting Department
All parties agreeing , we shall , exclude the manager.
We find that the employees of the Company working in and about
Philadelphia in the commercial , traffic, plant , and accounting depart-
.566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments, excluding the employees whose exclusions we have indicated
above and whose positions are, for convenience, listed in Appen-
dices A, B, C, and D, constitute a unit appropriate for the purposes
of collective bargaining, and that said unit will insure to employees
of the Company the full b'enefit' of their rights to self-organization
and to collective bargaining and otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation of employees
of the Company can best be resolved by an election by secret ballot.
The A. C. A. and the Guild make no showing of designation by
employees or request to participate in the election. We shall not
'place their names upon the ballot.
The Guild requested, as it did in the Pittsburgh case, that the Board
stay the instant proceeding until the determination of the representa-
tion proceeding instituted by the Guild in the Second Region. This
request is hereby denied.7 We shall direct an election by secret ballot,
to be held among all employees within the appropriate unit who were
employed during the pay-roll period last preceding the date of this
direction, subject to such limitations and additions as are set forth
in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Western Union Telegraph Company, Phila-
delphia, Pennsylvania, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. The employees of the Company working in and about Phila-
delphia in the commercial, traffic, plant, and accounting departments,
excluding the employees "occupying the positions listed in Appendices
A, B, C, and D, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (c) of the
National Labor Relations Act.
I At the hearing the A. C. A. also urged that no election be held pending disposition of a
representation proceeding in'the Second Region and of a charge filed by the C. T. U. in the
Second Region, involving the legality of the Guild. At oral argument before the Board, the
A. C. A. waived this contention. In this connection we note that the A. C. A. does not
claim to represent any employees of the Company at Philadelphia and does not request that
its name appear upon the ballot in the event that an election is directed herein, and that
the Guild, although°it appeared at'the hearing; made no showing of designation or request
to participate in any election among, the Philadelphia employees. See Matter of Western
Union Telegraph'Company and American Federation of Labor, Commercial Telegraphers
Union, 30 N. L. R. B: 1169, and Matter of The Western Union Telegraph Company and
National Western Union Council of A. 'F. of L. Federal Unions and C. T. U. Locals, 30
'N.L.R.B . 1181.'
, WESTERN UNION TELEGRAPH COMPANY 567
DIRECTION OF ELECTION
By virtue of and pursuant to the authority vested in the National
Labor Relations Board by Section'9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as, amended, it is
hereby
DIRECTED that, as part of the investigation ordered.by the Board,
to ascertain representatives for the purposes of collective., bar-
gaining with Western Union Telegraph Company, 'Philadelphia,
Pennsylvania, an election 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 Di-
rector for the Fourth Region, acting in this matter as agent for the
National Labor-Relations Board, and subject to Article III, Section
9, of said Rules and Regulations, among employees of the Company
working in and about Philadelphia, in the cominercial,'.traffic, plant;
and accounting departments, who were employed during-the pay-roll
period last 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 in the active military service or training of the
United States, or temporarily laid off, but excluding the employees
occupying the positions listed in Appendices A, B. C, and D attached
hereto, and further excluding any employee's who have since quit or
been discharged for cause, to determine whether or not they desire
to be represented by Federal Labor Union #22492, affiliated with
the American Federation of Labor, for the purposes of collective
bargaining.' ,
APPENDIX A
Commercial Department'
Superintendent Office manager (chief clerk)
City commercial manager Cashier
Sales manager Manager of uniform depot
Messenger personnel manager Field supervisor
Delivery manager Night delivery manager
568
Traffic managers
Assistant chief operators
Testing and regulating chief
Automatic chief
Wire chief
Repeater chief
Senior supervisors
APPENDIX B
Traffic Department
Teleprinter supervisors
Telephone supervisors
Automatic supervisors
Service supervisors
Morse supervisors
Route supervisors
APPENDIX C
Plant Department
Maintenance foreman Building supervisor
City foreman Equipment foreman
Assistant city foreman
APPENDIX D
Accounting Department
Accounting manager
DECISIONS OF NATIONAL LABOR' RELATIONS BOARD