The Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

May 31, 1941

32 N.L.R.B. 210 (N.L.R.B. 1941)

In the Matter of THE WESTERN UNION TELEGRAPH COMPANY and
UNITED WESTERN UNION EMPLOYEES OF BUFFALO
Case No. R-233,0.-Decided May 31, 1941
Jurisdiction : telegraph industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition until it is certified by the Board : temporary
employees having a reasonable expectancy of becoming regular employees held
eligible to vote ; employees whose name is listed upon pay roll, but whose return
traffic manager, night traffic managers, assistant chief operator (Morse and
to work is doubtful because of nature of injury suffered, excluded from par-
ticipation in election ; election necessary.
Unit Appropriate for Collective Bargaining : all employees of the Company at
Buffalo, New York, in the traffic department, commercial department (includ-
ing messengers), plant department, and accounting department, excluding the
traffic manager, night traffic managers, assistant chief operator (Morse and
automatic), assistant chief operator (telephone), chief clerk, testing and
regulating chief, night testing and regulating chiefs, wire chief, repeater chief,
automatic chief, senior supervisor, teleprinter supervisors, routing supervisors,
and telephone supervisor, in the traffic department ; the superintendent, chief
clerk, delivery manager, chief commercial representative, and temporary mes-
sengers, in the commercial department; the accounting center manager in the
accounting department ; and the maintenance foreman in the plant department.
Mr. D. E. Krueger, of New York City, and Mr. J. L. Grady, of
Buffalo, N. Y., for the Company.
Mr. Edward W. Decker, of Buffalo, N. Y., for the Independent.
Mr. Neil J. Cunningham,' of Buffalo, N. Y., for the A. F. L.-C. T. U.
Boudin, Cohn and Glickstein, of New York City, for the A. C. A.
Mr. Herman E. Cooper, of New York City, for the Guild. -
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 14, 1941, United Western Union Employees of Buffalo,
herein called the Independent, filed a petition, and on January 18,
1941, an amended petition, with the Regional Director for the Third
Region (Buffalo, New York), alleging that a question affecting
commerce had arisen concerning the representation of employees of
32 N. L. R. B., No. 44.
210
THE WESTERN UNION TELEGRAPH COMPANY 211
The Western Union Telegraph Company,' Buffalo, New York, herein
called the Company, and requesting an investigation and certifica-
tion of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On Feb-
ruary 7, 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 Regula-
tions-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 February 10, 1941, the Regional Director issued a notice of
hearing, copies of which, together with copies of the amended peti-
tion, were duly served upon the Company, upon the Independent,
upon the Commercial Telegraphers Union, herein called the C. T. U.,
upon American Communications Association, herein called the
A. C. A., and upon Communications Guild of New York, herein
called the Guild. Pursuant to the notice, a hearing was held on
February 17, 1941, at Buffalo, New York, before Edward D. Flaherty,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Company, the Independent, and The Commercial Telegraphers
Union and American Federation of 'Labor, herein called the
A. F. L.-C. T. U.,2 appeared, were represented by counsel or by a
representative, participated in the hearing, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
By letter to the Regional Director dated February 17, 1941, the
Guild, inter alia, stated its opposition to "any bargaining unit on
a City-wide basis" and requested that the hearing in the instant
proceedings "be reopened, if necessary, at some future date after the
National Labor Relations Board has rendered a final determination
with respect to the appropriate bargaining unit for Western Union
Employees." The request of the Guild is hereby denied.
On March 10, 1941, the A. C. A. submitted a memorandum, which
the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Western Union Telegraph Company, a New York corpora-
tion with its principal office at New York City, is engaged through-
out the United,States and in foreign countries in the receiving and
3 It appears that this is the correct designation of the Company . -it was designated in the
petition and other formal papers as "Western Union Telegraph Company "
The Commercial Telegraphers Union and American Federation of Labor were repre-
sented at the hearing by the same person.
448692--42-vol 32-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transmission by telegraph and cable of intrastate, interstate, and
international communications . At the close of 1940 the Company
employed- approximately 43,500 persons, of which number approxi-
mately 1,350 were located outside the United States. The present
proceeding concerns only the approximately 367 employees of the
Company at Buffalo, New York.
The Company admits that it is-engaged in commerce, within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Western Union Employees of Buffalo is a labor organiza-
tion admitting to membership employees of the Company at Buffalo,
New York.
The Commercial Telegraphers Union is a labor organization affil-
iated with American Federation of Labor, a labor organization,
admitting to membership employees of the Company at Buffalo,
New York.
III. THE QUESTION CONCERNING REPRESENTATION
The Company refused and, refuses to recognize the Independent
as statutory representative of its employees at Buffalo, New York,
until the Independent is certified by the Board. .
At the hearing there was introduced in evidence a report by the
Regional Director showing that a substantial number of employees
within the unit hereinafter found to be appropriate have designated
the Independent as their representative for the purposes of collective
bargaining.s
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.
8 The Regional Director reported that the Independent submitted to him membership
and membership application lists containing 253 apparently genuine and original signatures;
that only 19 of said signatures were dated ; and that said 10 signatures were dated between
October 1940 and January 1941. The record shows that the Independent was formed
on or about September 30, 1940, and that there are approximately 367 persons employed
by the Company at Buffalo.
THE WESTERN UNION TELEGRAPH COMPANY 213
V. THE APPROPRIATE UNIT
The Independent requests that the unit appropriate for the pur-
poses of collective bargaining be confined to employees of the Company
at Buffalo , New York. No contention or showing was made which
warrants a departure from the request of the Independent.4 We find
that a collective bargaining unit limited to employees of the Company
at Buffalo , New York, is appropriate.
No objection was raised to the request of the Independent that the
bargaining unit include employees in each of the four departments,
viz, traffic, commercial,5 plant, and accounting, in which the Com-
pany's operations at Buffalo are conducted. While employees in the,
accounting department devote about 30 per cent of their time, to
certain " final accounting" for -59 so-called "independent" district
offices 6 of the Company in Western New York and Pennsylvania,
the remaining 70 per cent of their work is concerned with the per-
formance of all accounting for the Buffalo traffic and commercial
departments. Under the circumstances, we find that employees in
the traffic, commercial , plant, and accounting department should be
included in the unit.
There was some discussion in the record concerning branch man-
agers, the commercial representative, and the cashier in the commercial
department, and the nurse in the traffic department. It appears that
the Independent would include these persons within the unit. No
specific objection was urged to their inclusion by the Company. There
is no showing in the record that any of these persons perform super-
visory or confidential functions which warrant their exclusion from
the unt. We shall include them in the unit.
4 At the hearing the Company stated its contention that all its employees throughout
its entire system constitute an appropriate unit, but further stated that it "is familiar
with" previous decisions of the Board in which it was held that where, as here, no bona
fide labor organization requests a bargaining unit more extensive than a metropolitan area,
to deprive the employees in the localities to which union organization has extended of
the right to collective bargaining until such time as the employees of the Company are
organized on a Nation -wide basis would in no way effectuate the policies of the Act . Matter
of The Western Union Telegraph Company, Inc. and The Commercial Telegraphers ' Union,
11 N. L R. B 1154 ; Matter of The Western Union Telegraph Company and Commercial
Telegraphers Union, Indianapolis Local # 7, Western Union Div. #2, aff• with A. F. of L,
17 N. L R B 683; Matter of Western Union Telegraph Company and American Com-
munications Association Local 511-B, aff 'iliate'd with the Congress of Industrial Organizations,
23 N L R B 824.
6 Although messengers were at times referred to in the record as a class of employees
separate from employees in the commercial department , it appears that messengers are
within the commercial department . Accordingly , any reference herein to employees within
the commercial department as a group shall be construed to include messengers.
6 The "independent " district offices are under the supervision of district superintendents
in Pittsburgh , New York or Philadelphia . The Company 's Buffalo office has no connection
with said offices other than the performance by the accounting department of "final
accounting" for them.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Independent and the Company agreed 7 to exclude as super-
visory employees the traffic manager, night traffic managers, assist-
ant chief operator (Morse and automatic), assistant chief operator
(telephone), chief clerk, testing and regulating chief, night testing
and regulating chiefs, wire chief, repeater chief, automatic chief,
senior supervisor, teleprinter supervisors, routing supervisors, and
telephone supervisor in the traffic department; the superintendent,
chief clerk, delivery manager, and chief commercial representative
in the commercial department; the accounting center manager in the
accounting department; and the maintenance foreman in the plant
department. Under the circumstances, we shall exclude these persons
from the unit.
It appears that the Company would exclude from the unit the 11
temporary messengers whose names appear on the Company's pay roll
for the period ending February 8, 1941. The Independent took no
position in this regard. The record shows that these persons are en-
gaged in distribution work, such as passing out samples and adver-
tising on the streets or from house to house. The superintendent
testified that "they may work one day this week and two days next
week, and not any days on another week." By reason of this irregu-
larity there is a large turn-over in such personnel. Under these cir-
cumstances we shall exclude temporary messengers from the unit.
We find that all employees of the Company at Buffalo, New York,
in the traffic department, commercial department (including mes-
sengers), plant department, and accounting department, excluding the
traffic manager, night traffic managers, assistant chief operator (Morse
and automatic), assistant chief operator (telephone), chief clerk,
testing and regulating chief, night testing and regulating chiefs, wire
chief, repeater chief, automatic chief,,senior supervisor, teleprinter
supervisors, routing supervisors, and telephone supervisor, in the
traffic department; the superintendent, chief clerk, delivery manager,
chief commercial representative, and temporary messengers,, in the
' Although the A F L -C T U and the A C A made no showing of designation by
employees at Buffalo, they were made parties to the pioceedings because they have repre-
sentation among employees of the Company in other cities ; the A C. A, the A. F L-
C. T. U, as well as the Company, are apparently in agreement that a Nation-wide unit of
employees of the Company may in the future be appropriate. and the A F L -C T U
and A. C. A have considered such participation necessary in order to protect their 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 Buffalo unit
upon all the facts in the present record , including the fact that no showing was made
by the A F. L.-C. T U or the A. C. A that they have been designated by employees of
the Company at Buffalo (Cf Matter of Western Union Telegraph Company and American
Communications Association , Local 5¢B, affiliated with the Congress of Industrial organs-
:ations, 23 N L 13 B 824) Similarly, the instant findings as to the metropolitan
unit will not determine the propriety and composition of a Nation -wide unit in any sub-
sequent proceeding , since the decision therein will necessarily depend on all the facts in
the record then before us.
THE WESTERN UNION TELEGRAPH COMPANY 215
commercial department; the accounting center manager in the ac-
counting department; and the maintenance foreman in the plant
department, constitute a unit appropriate for the purposes of col-
lective bargaining, and that said unit will insure to employees of the
Company the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot.'
On the Company's employment records for the period ending Feb-
ruary 8, 1941, is a group of employees in the traffic department listed
as on vacation, ill or on furlough. The record shows that these per-
sons are considered to be employees by the Company and that they
have a reasonable expectancy of returning to work within a short
period. They shall be eligible to participate in the election. There
is also listed upon the Company's records one C. E. Jillson. She has
not worked since she was injured in an accident some 5 or 6 years ago.
The nature of her accident snakes it doubtful that she will ever return
to work. We shall exclude her from participation in the election.
Further, there is listed a group of 7 temporary employees in the traffic
department. The record shows that these persons have a reasonable
expectancy of becoming permanent employees. They shall be eligible
to participate in the election.
At the hearing the A. F. L.-C. T. U. claimed that it had been
designated by employees of the Company at Buffalo; its representative
testified that it has "a potential membership" and that employees have
signed authorization cards, but did not disclose the number of such
employees. No documentary evidence was submitted by the A. F. L.-
C. T. U. in support of its claim. Under these circumstances, we are
of the opinion that the name of the A. F. L.-C. T. U. should not
appear upon the ballot.
We shall direct that an election be held among those employees in
the appropriate unit who were employed by the Company during the
pay-roll period immediately preceding the date of the Direction of
Election, subject to such limitations and additions as are set forth in
the Direction.
'The A. C. A. stated in its memorandum that it desires that no election be held until
such time as pending charges filed by the C. T. U, alleging that the Company dominated
or interfered with the formation or administration of the Guild , are disposed of. Inasmuch
as the A. C A. does not claim to represent any employees of the Company at Buffalo and
does not request that its name appear upon the ballot in the event that an election is
directed herein, and since the Guild , although served , did not appear at the hearing and
made no showing of designation or authorization to represent employees at Buffalo, we
overrule the A. C. A.'s contention.
'216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 The Western Union Telegraph Company,
Buffalo, New York, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. All employees of the Company at Buffalo, New York, in the traffic
department, commercial department (including messengers), plant
department, and accounting department, excluding the traffic manager,
night traffic managers, assistant chief operator (Morse and auto-
matic), assistant chief operator (telephone), chief clerk, testing and
regulating chief, night testing and regulating chiefs, wire chief,
repeater chief, automatic chief, senior supervisor, teleprinter super-
visors, routing supervisors, and telephone supervisor, in the traffic
department; the superintendent, chief clerk, delivery manager, chief
commercial representative, and temporary messengers, in the com-
mercial department; the accounting center manager in the accounting
department; and the maintenance foreman in the plant department,
constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
Act.
DIRECTION OF ELECTION'
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions 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 bargaining
with The Western Union Telegraph Company, Buffalo, New York, 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 of Election,
under the direction and supervision of the Regional Director for the
Third 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 the employees of the Company at Buffalo;
New York, in the traffic department, commercial department (includ-
ing messengers), plant department and accounting department, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including temporary employees in the traffic
department, and further including employees who did not work during
such pay-roll period because they were ill or on vacation or on fur-
THE WESTERN UNION TELEGRAPH COMPANY 217
lough or in the active military service or training of the United States,
or temporarily laid off , but excluding the traffic manager, night traffic
managers, assistant chief operator ( Morse and automatic), assistant
chief operator (telephone), chief clerk , testing and regulating chief,
night testing and regulating chiefs, wire chief, repeater chief," auto-
matic chief , senior supervisor , teleprinter supervisors , routing super-
visors, and telephone supervisor , in the traffic department ; the superin-
tendent, chief clerk, delivery manager, chief commercial representa-
tive, and temporary messengers , in the commercial department; the
accounting center manager in the accounting department ; and the
maintenance foreman in the plant department , and further excluding
C. E. Jillson, and employees who have since quit or been discharged
for cause , to determine whether or not they desire to be represented
by United Western Union Employees of Buffalo, for the purposes of
collective bargaining.
SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
June 21, 1941
On May 31, 1941, the National Labor Relations Board, herein called
the Board , issued a Decision and Direction of Election in the above-
entitled proceedings, the election to be held within thirty (30) days
from the date of the Direction , to determine whether or not certain
employees of The Western Union Telegraph Company, Buffalo, New
York, herein called the Company, desire to be represented by United
Western Union Employees of Buffalo , herein called the Independent,
for the purposes of collective bargaining.
The Board has been advised by the Regional Director for the Third
Region ( Buffalo, New York) that charges have been filed alleging that
the Company has dominated the Independent and is engaged in other
unfair labor practices and that he requires additional time to com-
plete his investigation of the Said charges . Under the circumstances.
we shall postpone the election indefinitely.
The Board hereby amends the Direction of Election issued on May
31, 1941, by striking therefrom the words "as early as possible , but not
later than thirty ( 30) days from the date of this Direction of Election,"
and substituting therefor the words "at such time as the Board shall
hereafter direct," and by striking therefrom the words "the pay-roll
period immediately preceding the date of this Direction ," and substi-
tuting therefor the words "a pay-roll period which the Board shall in
the future specify."
32 N. L.R . 11,No 44 a1.