The Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

Mar 29, 1941

30 N.L.R.B. 679 (N.L.R.B. 1941)

In the Matter of THE WESTERN UN ION TELEGRAPH COMPANY and
AMERICAN FEDERATION OF LABOR, FEDERAL UNION No. 22460
Case No. R-2309.Decided March 29. 1941
Jurisdiction : telegraph industry
Ipvestigation and Certification of Representatives: existence of question: re-
fusal to accord union recognition until certified by the Board: eligibility
to be determined in accordance with desires of parties: intervening labor
organization not to be accorded a place on the ballot where it made no show-
ing or claim of designation and does not wish to participate in the election ;
election necessary.
Unit Appropriate for Collective Bargaining : partial system unit : all employees
of the Company working in and in the territory immediately adjacent to
Toledo, Ohio, in the traffic department, commercial department (including
messengers) and plant department, excluding the traffic manager, early night
traffic manager, late night traffic manager, testing and regulating chief, senior
supervisor, telephone supervisor, Morse supervisor, tnnekeeper, city super-
intendent, chief clerk, delivery manager, sales manager (commercial repre-
sentative), chief bookkeeper, and clerk (private secretary to the city
superintendent and chief clerk). _ `
Supervisory employees who are in charge of departments, or sub-
departments, and who have authority to perform supervisory functions,
such as the authority to recommend hiring and discharge, to, consider
employee grievances, and to discipline employees, excluded from the unit
over the objection of the only labor organization making a claim or showing
of employee designation.
Employees having confidential duties relating to Company' labor iela-
tions excluded from the unit over the objection of the only labor organiza-,
tion making a claim or showing of designation.
Practice and Procedure
Labor organization, which made no claim or showing of designation among
employees concerned in representation proceedings limited to metropolitan
unit, permitted to intervene to protect its interest in composition of Nation-wide
unit which parties agree may in the future be appropriate.
Mr. C. W. Cadwallader, of Toledo, Ohio, Mr. E. R. Riddle, of
Chicago, Ill., and Mr. J. S. Reichart, of Toledo, Ohio, for i the
Company.
Mr. G. -P. Hemmeter, and Mr. William F., Sturm, of Toledo, Ohio,
for the A. F. L.
Mr. William Burke, of Detroit, Mich., for the A. C. A.
Mr. Robert F. Koretz, of counsel to the Board.
30 N. L. R. B., No. 105. 1
679,
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 30, 1940, American Federation of Labor, Federal
Union No. 22460, herein called the A. F. L., filed a petition with the
Regional Director for the Eighth Region (Cleveland, Ohio), alleg-
ing that a question affecting commerce had arisen concerning the.
representation' of employees of The Western Union Company, Toledo,.
Ohio, herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the_
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On-January 27, 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 January 29, 1941, the Regional Director issued a notice of
hearing, copies of which, together with copies of the petition, were
duly served upon the Company, upon American Communications
Association,'herein called the A. C. A.,,upon the A. F. L., and upon
the Commercial Telegraphers Union. Pursuant to the notice, a hear-
iug was held on February 10 and 11, 1941 at Toledo, Ohio, before
Max W. Johnstone, the Trial Examiner duly designated by the
Board. The Company, the A. F. L., and the A. C. A. appeared,
were represented by their representatives, participated in the hear-
ing, and were afforded full opportunity to be heard, to examine and
cross examine witnesses, and to introduce evidence bearing on the
issues. At the opening of the hearing the Trial Examiner granted
a motion by the A. C. A. to intervene in the proceedings. During
the course of the hearing the Trial Examiner made several rulings
on other 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. Subsequent to the hearing the A. F. L. submitted a brief
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 corporation
with its principal office at New York City , is engaged throughout.
THE WESTERN UNION TELEGRAPH COMPANY 681
the United States and in foreign countries in the receiving and
transmission by telegraph and cable of intrastate, interstate, and in-
ternational communications. At the close of 1939 the Company
employed 44,299 persons, of which number 1,333 were located out-
side the United States. The present" proceeding involves., the ap-
(proximately 151 persons employed in and immediately adjacent to
Toledo, Ohio.
The Company admits that it is engaged in commerce, within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
American Federation of Labor, Federal Union No. 22460, a fed-
eral labor union affiliated with American Federation of Labor, and
American Communications Association, affiliated with Congress of
Industrial Organizations, are labor organizations admitting to mem-
bership employees of the Company at and in the vicinity of Toledo,
Ohio. - -
III. THE QUESTION CONCERNING REPRESENTATION
The Company refused and refuses to recognize the A. F. L. as
statutory representative of its employees'at Toledo, Ohio, until the
A. F. L. is certified by the Board.
At the hearing there was introduced in evidence a report by a
Field Examiner of the Board showing that a substantial number of
employees within the unit hereinafter found to•be appropriate have
designated the A. F. L. as their representative for the purposes of
collective bargaining.'
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, hasi 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 bur-
dening and obstructing commerce and the free flow of commerce.
1 The Field Examiner reported that the A. F. L. had submitted to him 99 applications for
membership in the A. F. L. dated between October 7, 1940, and January 6 , 1941; that all
but one of said applications bear apparently genuine and authentic signatures ; that 89 of
said signatures are the names of persons whose names appear on the Company 's pay roll
for the period ending January 18, 1941 ; and that 3 of said signatures are the names of
persons who were then ill or on furlough . As set forth above, the Company employs about
151 persons at Toledo, Ohio.
,682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE APPROPRIATE UNIT,
The A. F. L. requests that the unit appropriate for the purposes
of- collective bargaining be confined to employees of the Company
in and in the territory immediately adjacent to Toledo, Ohio, where
the Company's operations are carried on by employees in the traffic,
,commercial,2 and plant departments. No contention or showing was
made llerein which warrants a departure from the request of the
'A. F. L.3 We are satisfied, and we find, that a collective bargaining'
unit limited to employees in and in the territory immediately ad-
jacent to Toledo, Ohio, is appropriate.
The principal issues raised at the hearing concern the proposed
exclusion from the unit of certain supervisory and confidential em-
ployees. The A. F.,L. and the Company agreed' to exclude the
traffic manager, testing and regulating chief, and senior supervisor
in the traffic department; the city superintendent, chief clerk, de-
livery manager, and sales manager (commercial representative) in
the commercial department; and the city foreman and three section
?linemen G in the plant department. We see no reason to depart from
'Although messengers weie at times referred to in the record as a class of employees
-sepaiate from employees in the commercial department, it appears that inessengeis lire
within the commercial department Accordingly, any reference herein to employees w ithin
the commercial department as a group shall be construed to include niessengeis
'At the hearing the Company stated its contention that all its employees throughout its
enthe system constitute an appropriate unit, but further stated that it would "adjust itself
to any unit that may be determined by the Board" herein in the light of previous decisions
of the Boaid in which it was held that where, as here, no bona fide labor organization re-
quests a baigaining unit more extensive than a metropolitan aiea, to deprile the employees
-hi the localities to which union organization has extended of the right to collective bargain-
ing tin ii such time as the employees of the Company are organised on a Nation-wile basis
would in no way effectuate the policies of-the Act Matter of The l1'cstciis Union Tele-
graph Company, Inc and The Commercial Telegraphers' Union, 11 N. I. It It 11,54 ; Ma tter
of The lVestein Union Telegraph Company and Commercial Telegraphers Union, Indian-
apolis 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 Communications Association
Local 5/i-B, affiliated with the Congress of Industrial organizations, 23 N. L R B. 824.
4 Although the A. C. A. made no claim or showing of designation by employees at Toledo,
It was permitted to intervene because the A. C A. has representation anroug employees of
the Company in other cities ; the A C. A. and the A. 'F. L, as well as the Company, are
-apparently in agreement that a Nation-wide unit of employees of the Conipanl may in the
future be appropriate; and the A C. A has considered such intervention neceosary in order
to protect its interests in the composition of the Nation-wide unit The Board's appro-
priate 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 Toledo unit upon all the facts in the present record, including the fact that no
Toledo employees have designated the A. C A. (Cf. Matter of Western Union Telegraph
Company and Amciican Cominicivications Association, Local 54-B, affiliated ii ith the Con-
gi ess of Indust) bat Organizations, 23 N. L R 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 subsequent proceeding, since the decision therein will necessarily depend
on all the facts in the record then before us -
6 The title "senior supervisor" as applied to this person corresponds to the title "assistant
-chief opeiatei" used at larger offices of the Company in other localities.
"These persons are W. W. Fishback, F. Kelser, and J R. Knoch The pay-roll classifica-
tion of these persons, indicates that their work is performed outside the metropolitan area
to which the unit is limited.
THE WESTERN UNION TELEGRAPH COMPANY - 683,
the desires of these parties in this regard and we shall exclude these
persons from the unit. I
The A. F. L. and the Company agreed that the following traffic-
department employees should be included in the unit: the automatic
chief, repeater chief, wire chief, teleprinter supervisor, early night
telephone supervisor, early night automatic supervisor, telephone
operator (statistical clerk), service clerk, and one Meyerhuber, an
operator classified on the pay roll as "chief clerk," but who has not
served in this capacity for approximately 10 years. The A. F. L.
and the Company further agreed that the following commercial de-
partment employees should be included in the unit : the early night
delivery clerk, the late night clerk, and branch managers. There
is no showing that any of the afore-mentioned persons at Toledo-
have authority to recommend hiring and discharge, to assign employ-
ees to,their duties, to discipline employees, or to consider employee
,grievances, or that any of them perform confidential duties. While-
some of these persons perform certain supervisory functions, we are-
satisfied that they are minor in nature and do not require us to deviate
from the desires of the A. F. L. and the Company., We shall include-
them in the unit.
The A. F. L. would include in the unit and the Company would'
exclude from the unit the following persons in the traffic department..
The early night traffic manager is in charge of the traffic department
from 4 p. in. to midnight. During this period there are 30 to 35- -
employees under his supervision. He has authority to recommend
hiring, discharge, and discipline of employees. The traffic man-
ager testified that his recommendations "carry considerable weight."- .
The early night traffic manager considers grievances of employees-
working,under his supervision. We shall exclude the early night
traffic manager from the unit. The late night traffic manager is in
charge of the traffic department from midnight to 8 a. in. He is the
sole representative of the management in the department during
this period. There are from 2 to 15 employees under his supervision -
at various times during his hours of work. The traffic manager
testified that the late" night traffic manager has the same' degree of-
authority over his subordinates as the early night traffic manager has
over the persons working under him. While the late night traffic-
manager testified that he has never recommended the hiring or-
discharge of an employee, we are satisfied from the testimony of the-
traffic manager that he has the authority to-do so. Moreover, the
testimony of the late night traffic manager shows that he -has author-
ity to request employees to work overtime, to recommend promotion
of employees, to call an employee to work to replace an employee who-
failed to report for work, 'to report misconduct of employees to the-
684 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
traffic manager, and to discipline employees who act in a manner
detrimental to the department's operation by temporary ' suspension
from work. We shall exclude, the late night traffic manager from
the unit. The telephone supervisor is in charge of the telephone de-
partment, which is located in a separate room at the Toledo office.
There are about 16 operators in this department. The telephone
supervisor spends about half of his time working as an operator and
devotes the remainder of his time to supervision. He assigns all
telephone operators to their tours of duty subject-to the approval of
the traffic manager, considers employee grievances, has authority to
recommend hiring, discharge and discipline of employees, to assign
overtime work to employees, and, in the absence of the traffic man-
ager, to discipline employees by temporary suspension from duty.'
When extra help is needed in his department, he recommends to
the traffic manager 'the- persons to be assigned to this work. The'
traffic manager testified that the telephone supervisor's recommenda-
tions carry considerable weight; the record shows that an employee
was discharged pursuant to his recommendation. We shall exclude
the telephone supervisor fi om the unit. The Morse supervisor is in
charge of the Morse department in which there are approximately 12
,operators. He has authority to recommend hiring, discharge, and
promotion, and he considers employee grievances. The traffic man-
ager testified that his duties were "exactly" comparable to those of the
telephone supervisor. We shall exclude the Morse supervisor from
the unit. The timekeeper performs the duties both of timekeeper and
chief clerk. The traffic manager testified that the title "private sec-
retary" would properly describe her position. She handles the traffic
manager's confidential and personal correspondence, performs all
timekeeping and statistical work, and keeps the traffic department
employment records. We shall exclude the timekeeper from, the
unit because of her confidential duties.
The A. F. L. would include in the unit and the, Company would ex-
clude from the unit the following employees in the commercial de-
partment. The chief bookkeeper is responsible for the performance
of all accounting work for the Company at Toledo and in connection
therewith supervises the work of two regular employees and one tem-
porary employee. He assigns, duties to his subordinates, reports on
the quality of their work to the chief clerk, has authority to recom
mend hiring, discharge, promotion, salary increase, and disciplinary
action and to consider minor grievances. We shall exclude the chief
bookkeeper from the unit. The clerk, Mrs. Mildred Varner, acts as
private secretary to the superintendent and chief clerk. She han-
dles personal correspondence , for the superintendent and chief
clerk, including confidential matters relating to labor relations, and
THE -WESTERN UNION TELEGRAPH COMPANY 685
takes care of the superintendent's personal files. We shall exclude
her from the unit. The cashier receives and records cash collections,
deposits receipts, disburses money for office expenses and wage pay-
ments, and also acts as a counter clerk in receiving money orders. He
supervises the work of one part-time money order clerk, but has no
authority to hire, discharge, or recommend hiring and discharge. We
are of the opinion that the cashier has no supervisory or confidential
duties which warrant his exclusion. He shall be included in the unit.
- We find that all employees of the Company working in and in the
the territory immediately 'adjacent to Toledo, Ohio, in the traffic de-
partment, commercial department (including messengers) and plant
department, excluding the traffic manager, early night traffic manager,
late night traffic manager, testing and regulating chief, senior super-
visor, telephone supervisor, Morse supervisor, timekeeper, city super-
intendent, chief clerk, delivery manager, sales manager (commercial
representative), chief bookkeeper, and clerk (private secretary to the
city superintendent and chief clerk), constitute a unit appropriate
for the purposes of collective 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.
At the hearing the A. F. L. and the Company agreed that eligibility
to vote in the election should be determined by the pay roll for the
period immediately preceding the Direction of Election; that "tempo-
rary" employees hired for temporary duties, "other employment" em-
ployees,' and employees who have since quit or been discharged for
cause, should not be eligible to vote in the election; and that "tempo-
rary" employees' serving a probationary period, "unassigned" em-
ployees," and employees who,did not work during such pay-roll period
because they were ill or on unexpired ordinary furlough, unexpired
force reduction furlough, and unexpired military furlough, should be
eligible to vote in the election. We see no reason to depart from the
desires of the parties. Our Direction of Election will provide accord-
ingly, subject to such other limitations and additions as are set forth
therein. -
7 "Other employment" employees are persons regularly employed by an employer other
than the Company, but who occasionally perform work for the Company
8 "Unassigned" employees do not have regular tours of duty and are assigned to work on
a day-to-day basis. However, they work a substantial number of hours and have an expec-
tation of becoming regular employees.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the A. C. A. made no showing or claim of designation by em-
ployees and does not wish to participate in the election, we shall not
include the name of the A. C. A. upon the ballot.,
Upon the basis of the above findings of fact and upon the entire rec-
ord in the case; the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of The Western Union Telegraph Company,
Toledo, Ohio, 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 working in and in the territory
immediately adjacent to Toledo, Ohio, in the traffic department, com-
mercial department (including messengers), and plant department,
excluding the traffic manager, early night traffic manager, late night
traffic manager, testing and regulating chief, senior supervisor, tele-
phone supervisor, Morse supervisor, timekeeper, city superintendent,
chief clerk, delivery manager, sales manager (commercial representa-
tive), chief bookkeeper, and clerk (private secretary to the superin-
tendent and chief clerk), 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 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 bargaining
with The Western Union Telegraph Company, Toledo, Ohio, an elec-
tion 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,
Eighth 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 working in
and in the territory immediately adjacent to'Toledo, Ohio, in the
traffic department, commercial department (including messengers),
and plant department, who were employed during the pay-roll period
immediately preceding the date of this Direction, including "tempo-
rary" employees serving a probationary period and "unassigned" em-
THE WESTERN UNION TELEGRAPH COMPANY 687
a
ployees, and further including employees who did not work during
such pay-roll period because they were ill or on vacation or on unex-
pired ordinary furlough, unexpired force reduction furlough, and
unexpired military furlough, but excluding the traffic manager, early
night traffic manager, late night traffic manager, testing and regulating
chief, senior supervisor, telephone supervisor, Morse supervisor, time=
keeper, city superintendent, chief clerk, delivery manager, sales man-
ager (commercial representative), chief bookkeeper, and clerk (private
secretary to the superintendent and chief clerk), and further excluding
"temporary" employees hired for temporary duties, "other employ-
ment" employees, and employees who have, since quit or been discharged
for cause, to determine whether or not they desire to be represented by
American Federation of Labor, Federal Union No. 22460, for the
purposes of collective bargaining.