The Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

Feb 28, 1950

88 N.L.R.B. 877 (N.L.R.B. 1950)

In the Matter of THE WESTERN UNION TELEGRAPH COMPANY and CoM-
MERCIAL TELEGRAPHERS' UNION5 WESTERN UNION DIVISION (AFL)
Case No. 19P-T-1.Decided February 28, 1950
DECISION
AND
ORDER
On July 29, 1949, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent, by denying a pension to its employee, Arthur R. Wilson,
had deprived him of rights, privileges, and immunities guaranteed by
Section 222 (f), subdivision (5) of the Communications Act of 1934,
as amended in 1943,.hereinafter called the Merger Act, and recom-
mending that it take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief. The Union has also filed a brief. The Respondent's request
for oral argument is hereby denied, as in our opinion the record, in-
eluding the briefs and exceptions, adequately set forth the issues and
positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the briefs and exceptions, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
Motion to amend the record : On September 6, 1949, more than a
month after the Trial Examiner issued his Intermediate Report in the
instant case, the Respondent filed a motion to amend the record re-
questing that the Board (1) strike therefrom a stipulation entered into
'The Intermediate Report contains certain erroneous statements which do not affect
the Trial Examiner's ultimate findings or our concurrence in such conclusions. These
statements are to the effect that the word "bridge" appeared not only in Postal's general
orders relative to its pension plan but also in its orders relative to vacations. These
general orders, which are set forth in pertinent part in the Intermediate Report, do not
actually contain the word "bridge." Rather their provisions permit the practice of bridging
as the Trial Examiner elsewhere states in the Intermediate Report. We therefore reject
these inaccurate statements.
88 NLRB No. 105. 877
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the parties at the hearing to the effect that Wilson's pension appli--
cation was denied through the Employees' Benefit Fund Committee,.
and (2) reopen the hearing for the purpose of receiving additional
evidence dealing with the identity of those who acted on the pension
application, the nature of such action, and the reasons therefor.2
With respect to the first request, it is undisputed in the record that.
Wilson made a formal application for a pension, and that the Respond-
ent received this application and rejected it. Not only did the Re-
spondent's own witnesses concede these facts at the hearing but, in its
brief before the Board, the Respondent made a similar admission. As
to the stipulation, the record shows that it was entered into upon the
insistence of the Respondent's counsel who after conceding that the,
Respondent denied Wilson's pension application stated, "But I think
the record ought to show that it was done by the Benefit Committee,
because that is the group within the company that passes on those.
things." The stipulation in question then followed on the record..
This stipulation is in our opinion purely extraneous and in no way
relevant to any of the issues here involved. Nor have we attached any
weight to it in our findings herein. Accordingly, we shall deny the-
request to strike the stipulation from the record.
As for the second request, the evidence the Respondent now proposes
to have included in the record was undoubtedly within its knowledge,
and available to it at the time of the hearing.3 The record, moreover,
does not indicate and the Respondent does not contend that it was
precluded at the hearing from adducing the proposed evidence. We
shall, therefore, deny the request to reopen the record.
ORDER
Upon the entire record in the case, and pursuant to Section 222 (f)
(5) of the Communications Act of 1934, as amended, and Section:
10 (c) of the National Labor. Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, The West-
ern Union Telegraph Company, and its officers, agents, successors, and
assigns, shall :
1. Give full faith and credit to the service records of Arthur R.
Wilson as credited to him by Postal Telegraph-Cable Company.
2. Accord to Arthur R. Wilson the rights and privileges provided
for in Section 222 (f) (5) of the Act by paying to Wilson the pension
benefits to which he is entitled by virtue of his accumulated service with
2Answers in opposition to this motion wj.ere subsequently filed with the Board by the
Commercial Telegraphers' Union and the General Counsel.
3 In its brief before the Board, the Respondent undertook a full explanation as to the
reasons it denied Wilson's application, and all its arguments were based on evidence appear-
ing in the record.
THE' WESTERN UNION TELEGRAPH COMPANY 879
Postal Telegraph-Cable Company and The Western Union Telegraph
'Company, herein found to have been credited to him.
3. Notify the Regional Director for the Nineteenth Region in writ-
ing, within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
MEMBER STYLES took no part in the consideration of the above
Decision and Order.
CHAIRMAN HERZOG, dissenting :
I cannot agree with my colleagues that Wilson was denied a pension
in violation of Section 222 (f) (5) of the Communications Act of 1934,
as amended. Wilson's right to a pension, as the Trial Examiner
points out, is dependent on whether his service was "continuous" under
the provisions of the Respondent's pension plan. The Trial Examiner
and my colleagues hold that the "bridging," of Wilson's service by
Postal is binding on the Respondent, and had the effect of making
Wilson's service continuous. However, it is clear that, under Postal's
plan, no "bridging" was necessary for pension purposes because
Postal's plan was based on total service, not on continuous service.
Therefore, however appealing the equities, it appears to me impossible
to say that Postal bridged Wilson's service for pension purposes and
in effect made his employment continuous. Indeed, Postal's records,
which are in evidence, show nothing in regard to bridging, and merely
show the years during which Wilson was employed by Postal.
Nor can the Respondent be said to have bridged Wilson's service
itself. The Respondent resorted to bridging only to correct a mistake
or fault on its part. The interruptions in Wilson's service record were
not due to any mistake or fault on the part of either company.
I therefore am constrained to find that Wilson did not qualify for a
pension under the Respondent's plan, because he did not have 20 years'
continuous employment with Postal and the Respondent.
INTERMEDIATE REPORT
Mr. Melton Boyd, for the General Counsel.
Messrs. John N. Rupp and A. V. Stoneman, of McMicken, Rupp, and Schweppe,
of Seattle, Wash., for the Respondent.
Messrs. Frank Bloom, Merle C. Wissler, R. M. Blashfield, C. A. Walters, A. H.
Kimeldorf, J. W. Cross, and L. E. Key, of Washington, D. C., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed on May 16, 1949, by Commercial Telegraphers'
Union, Western Union Division (AFL), herein called the Union, the General
Counsel of the National Labor Relations Board, herein respectively called the
General Counsel and the Board, by the Regional Director for the Nineteenth
Region (Seattle, Washington), issued his complaint dated May 19, 1949, against
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Western Union Telegraph Company, herein called the Respondent , alleging
that the Respondent had denied and is denying its' employee , Arthur R. Wilson,
certain rights, privileges, and immunities guaranteed in Section 222 (f ), para-
graph 5 of the Communications Act of 1934, 48 Stat . 1064, as amended in 1943,
57 Stat. 5, commonly known as the Telegraph Merger Act, herein called the Act.
In substance the complaint alleged that said Wilson was in the employ of
Postal Telegraph-Cable Company , herein called Postal , prior to and on March 1,
1941, and that he continued in the employ of Postal to October 7, 1943, when
Postal merged with the Respondent in conformity with the provisions of the
Act; that he thereafter continued in the Respondent 's employ at all times material
to the circumstances alleged therein ; that his compensation was at a rate less
than $5 ,000 per annum , both before and after the merger ; that on the date of the
merger he had an accredited cumulated term of service with Postal in excess of
twenty-one (21 ) years ; that after the merger date the pension plan of the
Respondent became applicable to him; that on April 26 , 1946, he attained the
age of sixty ( 60) years and thereafter made application to the Respondent to
be retired and receive a pension under the terms of the Respondent ' s pension
plan ; and that the Respondent thereafter denied W ilson the rights , privileges,
and immunities granted and guaranteed by the terms of the Act and of the said
pension plan made effective by the Act.
Copies of said amended charge and the complaint , accompanied by notice of
hearing, were served upon the Respondent and the Union.
The Respondent 's answer admitted that it had denied W ilson a pension and
denied that on the date of the merger he had an accumulated term of service
with Postal in excess of twenty -one (21 ) years.
Pursuant to notice , a hearing was held at Seattle , Washington , on June 27,
and 28 , 1949, before the undersigned duly designated Trial Examiner. All
parties were represented by counsel , participated in the hearing, and were
afforded full opportunity to be heard , to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues.
At the close of the hearing , the General Counsel moved to amend the complaint
to conform to the evidence with respect to formal matters. The motion was
granted. The parties declined an opportunity to argue orally before the Trial
Examiner, but time was set for the filing of briefs and the Respondent and the
Union filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS or F ACT
1. THE CONSOLIDATED OR MERGED CO-MPANIES
The Respondent is a New York corporation, having its principal office in
New York City, and having an operating office in Salem, Oregon, among other
places. It is engaged in the reception and transmission by telegraph and cable
of intrastate, interstate, and international communications throughout the United
States and foreign countries.
Postal, until October 7, 1943, was a New York corporation, having its principal
office in New York City and having operating offices in the States of Washington
and Oregon. Prior to said date it was engaged in the business of receiving and
transmitting, by telegraph and cable, intrastate, interstate, and international
communications throughout the United States and foreign countries.
THE WESTERN UNION TELEGRAPH COMPANY 881
At the times mentioned herein, the Respondent and Postal were domestic
telegraph carriers within the meaning of the Act,
On September 27, 1943, the Federal Communications Commission, pursuant to
the provisions of the Act, and in accordance with a written agreement between
the Respondent and Postal, entered an order approving a consolidation or
merger of the Respondent and Postal ; and thereafter, on October 7, 1943, the
Respondent acquired the properties, facilities, equipment and holdings of Postal.
Since the last date, the Respondent has operated said properties, facilities,
equipment and holdings, together with its own properties, facilities, equipment
and holdings, as a consolidated or merged carrier within the meaning of the Act.
II. THE EMPLOYEE TN VOLVEO AND HIS E MPLOYMENT HISTORY
Arthur R. Wilson was first employed by Postal on September 1, 1906, at Port
Townsend, Washington; between that date and November 1909, he served as
a manager at two other local offices. On the latter date he left Postal's service
for want of available work. On March 1, 1911, he was reemployed by Postal
as manager of its Salem, Oregon, office, where he remained until June 1919, at
which time he voluntarily left the service. In 1924 he was reemployed by
Postal at Yakima, Washington, where he served for about a year. In 1925,
he applied for a leave of absence from the superintendent in Seattle and took
other employment in Japan. While there his leave of absence expired. On
July 1, 1.934, Wilson returned to the employment of Postal as manager at Salem,.
Oregon. From that date to the time of the merger, he was continuously employed
by Postal ; and from the date of the merger until the time of his application for
pension, hereinafter described, he was continuously in the employ of the Re-
spondent at Salem, Oregon.'
III. THE VIOLATION OF THE ACT
A. The facts giving rise to the controversy
Under the Postal Pension and Benefit Plan, as shown in Postal (System)
Order No. 21, dated June 1, 1929, any male employee was entitled to retire
voluntarily on pension at any time after he had attained the age of sixty-five
(65), regardless of the number of years of service. Under this plan the length.
of the employee's service was material only in determining the amount of the
pension which he would receive. Under the above order, the length of service
for determining the amount of the pension was limited to continuous employment,
uninterrupted by periods of unemployment, other than four exceptions not ma-
terial here. In 1931, Postal amended its plan by providing that when an em-
ployee had been continuously employed for ten (10) years after a reemployment
following a break in service, all periods of employment prior to the break, might,
"in justifiable cases at the discretion of the Committee" (Pension Benefit Com-
mittee), be included in the employee's term of service. The practice of
coupling two disconnected periods of service was called "bridging."
On May 1, 193S, in a supplemental order, Postal made a modification in the
provisions for bridging service. This modification provided that, "After three
months of service following reemployment, the term of service shall include all
periods of service prior to reemployment." This method of "bridging" service
I Wilson was absent on sick leave for an extended period of time toward the end of his
employment , but this absence did not interrupt the continuity of his employee status.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was used by Postal not only in connection with pension benefits but also in con-
nection with vacation rights, by which an employee with fifteen (15) years of
service was entitled to a 2 weeks' vacation as distinguished from a 1 week's
vacation for less than that length of service! In 1939, Wilson received a 1
week's vacation. Thereafter he applied to George Pilcher, the District Super-
intendent of Postal, to take advantage of Postal's provisions for bridging service.
In 1940, by proper procedure, Wilson's service record was amended to show all
of his prior periods of employment, giving him at that time a total of eighteen
(1S) years total service. As a result, Wilson received a 2 weeks ' vacation in
each of the years from 1940 to 1943, inclusive.
In 1944, following the merger, Wilson was informed by the Respondent that lie
was entitled to but 1 week of vacation because of the fact that the Respondent's
record showed Wilson's service only from 1934.
He then made application to the Respondent to have his Postal record checked,
and a little later he requested the Union to look into the matter. The Union took
the matter up with Russell Cobb, the Respondent' s superintendent at Portland,
Oregon. Cobb informed the Union that he had been unable to confirm Wilson's
Postal service prior to 1934 and suggested that the Union get in touch with
filcher, then in retirement, who, as Wilson testified, had initiated the correction
of his record in 1940. The Union, by exchange of letters with Pilcher, received
the information on Wilson's total service. In his letter of March 8, 1945, to the
Union, Pilcher stated that Wilson's service had been bridged "as he was given
2 weeks' vacation in 1940."
The Union then gave Cobb the information it had obtained, and on April 24,
1945, Cobb replied to the Union, in part: "With the assistance of the information
given in the letter you secured from Mr. Pilcher, we have now been able to locate
the record of action by the former Postal Company and find that Mr. Wilson's
services was [sic] bridged on the records of that Company by the following entry
on the General manager report of service changes for March 1940." Cobb then
set out the various periods of Wilson's employment showing the total of eighteen
(18) years and continued, "This means that Mr. Wilson has been given credit
for 1S years service as of 1940 for pension and vacation rights. His seniority,
however, dates only from his last entry into the service which was .in 1.934. Suit-
able notations of all previous service have now been made on the record of this
employee at this office."
Cobb had authority to make corrections in service records of employees ; he
had no authority to bridge service under the Respondent's regulations. The
information which was furnished by Cobb in his letter to the Union was obtained
by him from Morris Cook, General Manager of the Pacific Division of the Re-
spondent.
In 1945, the Respondent gave Wilson a 1 year's leave of absence. Before the
expiration of this year, Wilson, who was in very poor health, decided to apply
for a pension and took the matter up with Cobb. Cobb notified Wilson that he
should return to service by July 1, 1940.' Wilson did so and filed a formal appli-
cation for pension. The application form contained space for comments and
recommendations of the employee's immediate superior. Cobb signed this recom-
mendation on August 27, 1946, and Cook signed the recommendation on Sep-
2 was provided for under Postal Order No. 5 relating to vacations and was inde-
pendent of the provisions of the order relating to pension benefits.
a This was the expiration date of Wilson ' s leave of absence and his return to active
status was presumably necessary to avoid an interruption of his service.
THEM WESTERN UNION TELEGRAPH COMPANY 883
tember 26, 1946' The Respondent's Pension Benefit Committee rejected Wilson's
application. The reason for the Committee's rejection does not appear in the
record except by inference.
Under the Respondent's plan for employees' pensions, a male employee of 60
years of age, in order to be entitled to retire voluntarily on a pension, is required
to have a minimum of 20 years of "continuous" employment. When he applied
for a pension, Wilson was 60 years of age and he had more than the requisite
number of years of service if the total number of his years of service are counted
as continuous service. The Respondent has for some years practiced the bridging
of service; but according to the Respondent's system, disconnected periods of
service of an employee are not bridged except in cases where the period of time
during which the employee was not in service was occasioned by some mistake or
fault of the Respondent, and periods of time during which the employee had
voluntarily separated himself from service would not be bridged.
B. conclusions
It is conceded that under the Act the Respondent's pension plan is the
plan under which Wilson would be entitled, if at all, to a pension. The language
of Section 222 (f) (5) makes it clear that the Postal plan is applicable only
to those employees who exercised their right of retirement before September
27, 1943.
It is the contention of the General Counsel and the Union that, although the
Respondent's plan is the one to be used, the Respondent had no right to rede-
termine the question of whether Wilson's service should have been bridged, that
that was a function properly performed by Postal, that Postal had properly
adjusted Wilson's service record, and that the Respondent was obliged to ac-
cept that service record just as it was obliged to accept all other records of
Postal. But they alternatively contend that, if the Respondent had any dis-
cretion in the matter of accepting or rejecting Postal's record of Wilson's service,
it exercised that discretion and bound itself when Cobb and Cook corrected
Wilson's record on the Respondent's record to accord with his Postal record.
The Respondent, on the other hand, contends that under its pension plan, serv-
ice must be "continuous" and that bridged service cannot be continuous unless
the circumstances under which the service is bridged are such as would be
recognized by the Respondent as entitling an employee to have his service bridged.
If the General Counsel and the Union are correct, Wilson's cumulated service
as of 1946 would concededly-be sufficient to entitle him to a pension under the
Respondent's plan. But if the Respondent is correct, Wilson would have in-
sufficient service, as he would not be entitled to any service credit for pension
purposes beyond his last period of employment starting in 1934, because of the
Respondent's custom of bridging service of its employees only when a period
of interruption of an employee's service resulted from a mistake or fault of the
Respondent, and this was not the reason for Postal's brid';irg of Wilson's
service.
Section 222 (f) (5) of the Act provides inter alia: "For the purposes of de-
termining and according the rights and benefits specified in this paragraph, any
4 The application form contains a space for Accounting Department service record. Two
of the dates given therein appear to be erroneous. It is stated therein that Wilson war
absent on account of sickness from July 1, 1945, to July 29, 1946 ; whereas, he actuallJ
returned to service on July 1, 1946. The form also shows in Wilson':, prior service e
1-year term from 1925 to 1926, a mistake appearing in other records likewise; whereas
the term of service should have been 1924 to 1925.
882191-51-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period spent in the employ of the carrier of which such individual was an em-
ployee at the time of the consolidation or merger shall be considered to have
been spent in the employ of the consolidated or merged carrier." Although the
words "any period spent'-' are sufficient to cover disconnected periods of service,
another provision of the same paragraph makes that pension plan applicable
(for retirements after the date of the approval of the merger) "which covered
the greatest number of employees" (concededly the Respondent's plan), and
the Respondent's plan requires, as a prerequisite to voluntary retirement on
pension a minimum of 20 years of "continuous service."
Now, it would appear that the Respondent would recognize as "continuous"
that service which it, itself, had bridged. Thus, bridging would be recognized
as having the effect of making service continuous for pension purposes. The es-
sential issue, then, is whether service is "continuous" under the Respondent's
pension plan when it includes service bridged by Postal, under Postal' s bridging
practice, based on length of service after reemployment rather than on a mis-
take or fault on its part.
The word "bridge" or its equivalent is nowhere defined nor its effect stated
in the Respondent's pension plan. The Respondent's understanding of the
meaning of the word is based on its own usage. Postal's use of the word appeared
not only in its general orders relative to its pension plan but also in its orders
relative to vacation privileges. Whether or not the effects of bridging by Postal
extended beyond those two instances does not appear; but bridging was not
merely a provision of Postal's pension plan ; rather it was a company practice in
respect to its own records. These records were just as conclusive on the Re-
spondent as other records. The fact that the Respondent would not have made
such a record under similar circumstances is immaterial'
Since, as has been found, Postal's practice of bridging service was not a mere
application of its pension plan but was an employment practice, the Postal
service,records should have been accepted without change by the Respondent.
When Cobb and Cook changed Wilson's service records with the Respondent to
show what his Postal records showed, they were not "bridging" Wilson's service,
as they had no authority to do; they were correcting an erroneous omission in
the record, as they had admitted authority to do. As the bridging of service
is not dealt with in the Respondent's pension plan, but depends in each case upon
the respective employment practices of the Respondent and Postal, I find that
the effect of bridging is the same in either case ; that is to say, bridged service,
for pension and vacation purposes, becomes continuous service. This being the
case, Wilson was entitled to a pension. By denying him his pension rights the
Respondent has deprived him of rights guaranteed in Section 222 (f) (5) of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. The Respondent, The Western Union Telegraph Company, is a merged
carrier within the meaning of Section 222 (a) (4) of the Act as a result of its
having acquired on October 7, 1943, the properties, facilities, equipment, and
holdings of Postal Telegraph-Cable Company in a merger or consolidation ap-
proved on September 27, 1943, by the Federal Communications Commission.
5 Cf. Western Union Telegraph Companil, 81 NLRB 40.
THE' WESTERN UN1'ON TELEGRAPH COMPANY 885
2. Arthur R. Wilson is an employee of the Respondent whose rights, privileges
and immunities are guaranteed by Section 222 (f) (5) of the Act.
3. By denying to Arthur R. Wilson his pension rights, the Respondent has
violated Section 222 (f) (5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and'
upon the entire record in the case, the undersigned Trial Examiner recommends
that the Respondent, The Western Union Telegraph Company, its successors and
assigns, shall:
1. Give full faith and credit to the service records of Arthur It. Wilson as
credited to him by Postal.
2. Accord to Arthur It. Wilson the rights and privileges provided for in Section
222 (f) (5) of the Act by paying to said Wilson the pension benefits to which
he is entitled by virtue of his accumulated service with Postal and the Respondent
herein found to have been credited to him.
3. Notify the Regional Director for the Nineteenth Region (Seattle, Washing-
ton) in writing within ten (10) days from the date of the receipt of this Inter-
mediate Report of what steps it has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report the Respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring Respondent
to take the action aforesaid.
As provided in Section 203.40 of the Rules and Regulations of the National
Labor Relations Board, any party may within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections), as he relies upon, together
with the original and six copies of a brief in support thereof; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, aid recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 29th day of July 1949.
JAMES R. HEMINGWAY,
Trial Examiner.