Western Electric Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1949

84 N.L.R.B. 1019 (N.L.R.B. 1949)

In the Matter Of WESTERN ELECTRIC , COMPANY, INCORPORATED,
EMPLOYER and COMMUNICATION WORKERS OF AMERICA, CIO,. IN-
STALLATION DIVISION #6, PETITIONER
Case No.14-UA-3661: Decided Jenne' 30,1949
DECISION
AND'
DIRECTION AND ELECTION'
a
Upon a petition for a union-shop election duly filed, a hearing wa.,
held before Daniel J. Sullivan, a hearing officer of the National Labor
Relations Board. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act. la
2. The Petitioner is the exclusive bargaining representative of
employees of the Employer as provided in Section 9 (a) of the Act 2
3. The petition alleges that more than 30 percent of the employees
in the unit represented ,by the Petitioner, as hereinafter described,
desire to authorize the Petitioner to make, an agreement with the Em-
ployer requiring membership in the Petitioner as a condition of em-
ployment in such unit, which allegation was supported by documentary
evidence submitted by the Petitioner. No question affecting commerce
1 The request of the Employer and the Petitioner for oral argument is denied, as the
records and briefs of the parties, in our opinion , adequately present the issues and the
positions of the parties
'> The Employer is a subsidiary of the American Telephone & Telegraph Company. It
manufactures and installs communications equipment , which is furnished mainly to the
Bell Telephone System.
2 On December 13, 1944, the Petitioner , at that time affiliated with National Federation
of Telephone Workers , was certified by the Board in Case No 2-R-5003 ( not reported) as
the representative of all employees of the field organization of the Employer 's Installation
Division, excluding comptometer operators , planning engineers , file clerks , general clerks,
janitors , job clerks , office clerks , mail clerks , record clerks , report clerks, secretarial
stenographers , secretaries , statistical clerks, stenographers , telephone operators , typists,
and all supervisors.
We find that the Petitioner is in compliance with Section 9 (f), (g) and (h) of the
amended Act See Matter of Chesapeake and Potomac Telephone Company of Virginia,
82 N. L R. B. 810.
84 N. L R. B., No. 111.
1019
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exists concerning the representation of these employees.3 Accordingly.
we find that the Petitioner has satisfied the preliminary requirements
for a union-shop authorization election as set forth in Section 9 (e) (1)
of the amended Act.
4. The appropriate unit
The Petitioner seeks a union-shop election iii a ' unit which is
described in the petition as including "all 'hourly rated, nonsuper-
visory communication equipment ,workers in the field, organization of
the Installation Division of the Company," 4 and as excluding em-
ployees in such States where 'union security is prohibited by State
Statute."
The Employer contends that,the petition should,be dismissed because
it is barred by the current contract between the parties,5 and for other
reasons discussed below. , . . -
,, The employees in the current contract unit perform, their -work in
45 States and the District of Columbia 6 In- 13 of these States' the
union shop appears to be prohibited; in 2 of these States (Colorado
and Wisconsin), the,State law requires'that'unlon-shop contracts be
authorized by a specified percentage of the employees voting in a refer-
endum conducted by State authorities." Employees are frequently
transferred from one job location to another in the same, or in a differ-
ent, State.' At the hearing an official of the Employer estimated that
during 1948, there would, be 50,000 such transfers.1° This mobility
9 On May 20, 1947, the parties executed a collective bargaining contract , which was to
continue in effect until May 31 , 1949 On September 28, 1948, this contract was extended
with modifications to November 30, 1950 . The Employer urges these contracts as a bar
to this proceeding This contention is rejected for reasons stated in Matter of Utah
Wholesale Grocery Co , 79 N. L . R B 1435
* This definition of the unit follows the language of the current contract.
5 See footnote 3, above
0 No work is done in Maine, New Hampshire , or Vermont.
Y Arizona, Arkansas, Florida, Georgia, Iowa, Nebraska, Nevada, North Carolina, North
Dakota , South Dakota , Tennessee , Texas, and Virginia ( The status of the Nevada law
is currently being litigated Pending the outcome of this litigation , no union -shop election
will be ordered there ) [ On October 13, 1949, the Board issued an Order amending the
original Decision and Direction of -Election in this matter , permitting employees in the
State of Nevada to vote I
8 In contrast to the federal requirement that union -shop contracts be authorized by at
least a majority of the employees eligible to vote in the union-shop elections ( Section 8
(a) (3) (ii) of the amended Act ), the Colorado law requires that a union -shop contract be
authorized by at least three -fourths of the employees of the employer executing the con-
tract . ( Colorado Labor Peace Act, 1943 , Sec 6 ( c).) The Wisconstn law requires that
union -shop contracts be approved by two-thirds of the employees voting in a union-shop
election , provided that this represents a majority of the employees in the appropriate unit.
(Wisconsin Ernployment Peace Act , as amended , Sec. 111 06 ( 1) (c).)
9 See XII , subdiv 1 , of the 1947 agreement recites :
The Company and the union agree that the character of installation work makes
it necessary to move from job location to job location.
10 There was no evidence as to what proportion would be interstate transfers
i WESTERN ELECTRIC COMPANY, INCORPORATED 1021
of employment is reflected in-detailed provisions of,the 1947 contract.,
as extended, for various types of wage adjustments to be made in case
of the transfer of an employee from one part of the country to another,,
and for giving the Petitioner notice of such transfers. ,
The interstate character of the employees' work is .reflected , also,.
in, -the , structure of the Employer's field organization. The main,
office of the Employer is in New York City. The Installation Division
is headed up, by a general manager in New York City, who reports
to the president of, the Employer. The field organization of that
Division, to which,the employees' in this case are -attached, is divided
into an eastern, western, and central zone, each under a zone manager.
These zones, in turn, are divided into 15 areas, each of which has an
area , manager; and the areas are composed of districts, each under a
district superintendent. Every district has a number of "area super-
visors," each of whom is assigned to a part of the district. Reporting
to these "area supervisors," the job supervisors exercise immediate
control over the installation employees at the individual job sites,
where the employee reports 'for work, receives his instructions from
the job supervisor, and receives his pay. .
All of the zones, and some of the areas, districts, and subdistricts," 11
comprise more than one State. Thus, a transfer from one job site to
another within any of these organizational units may be an interstate
transfer.
' The determination bf the appropriate unit under Section 9 (e)
of the amended Act in this case, where some of the employees are em-
ployed in States regulating or prohibiting the union shop, involves
a construction of Section 14 (b) of the amended Act. It reads:
"Nothing in this Act shall be construed as authorizing the
execution or application of agreements requiring membership in
a labor organization as a condition of employment in any State
or Territory in which such execution or application is prohibited
by State or Territorial law."
In, Matter of Giant Food Shopping Center, Ine.,11 a majority of the
Board held that in view of the provisions of Section 14 (b) it would not
be appropriate in a union-shop election to include in the voting unit
employees in a State which prohibited the union shop. However, in
Matter of Northland Greyhound Lines, Inc.,13 the Board, again con-
struing Section 14 (b), held in effect that .it would be appropriate
to include in a union-shop voting unit employees subject to State
laws which did not prohibit, but merely regulated, the union shop.
' This term does not appear in the record , but is used here to designate that portion
of a district supervised by an "area supervisor."
177N.L R.B.791.
78 80 N. L R . B. 288.
853396-50-vo1 84-68
1022 DECISIONS' OF, 'NATIONAL LABOR=RELATIONS --BOARD
In defining the* appropriate unit'in'thiscase, we perceive no reason:
for departing from the result reached in the- Northland Greyhound
case 14 Accordingly, we find appropriate,a unit including only those
members of the contract unit who are subject to State laws which do
not prohibit the union shop. '
Under the foregoing definition of the appropriate unit, the inclusion
or exclusion of a particular employee depends on whether or not he is
"subject to" the lades of a State prohibiting the union shop. The
determination of -this question of the applicable State law presents
some difficulty in view of the multi-State scope of the unit and 'the
mobility of the' employees. - ,
A somewhat similar problem arose in the Northland ' Greyhound
case. There a union-shop election was directed among bus drivers
and other employees who were continually required to cross State
lines, performing part of their work in States which prohibit union-
shop contracts. In that case, the Board held, in effect, that only those
employees whose headquarters were in States not prohibiting the union
shop would be included in the appropriate unit. In reaching this
conclusion, the Board said :
In resolving the question as to the applicable State law, such
factors as the residences of the employees, the places where they
were hired, their headquarters, the proportions of working time
spent in the various States, and (with regard to the drivers) their
routes have been given consideration. In view of all the circum-
stances involved, we are persuaded that the headquarters of the
employees provide the best criteria because they represent the
focal points of the employment relationship. The headquarters
are where the employees report to work, receive their instructions,
and are paid their salaries. [Emphasis supplied.]
[Applying the foregoing definition, the "headquarters" of the em-
ployees in the present case would appear to be at their job site, as that
is where they report for work, receive their instructions, and are paid
their wages F Accordingly, in the absence of any persuasive reason for
14 Contrary to the views of our dissenting colleagues, in our opinion, this result is not
inconsistent with the recent case of Algoma Plywood Co v Wisconsin Employment
Relations Board, 69 S. Ct. 586, 1949, where the Supreme Court held that the laws of
Wisconsin regulating union-security agreements had not been superseded by the National
Labor Relations Act, as amended. There is no necessary conflict, in our opinion, between
that holding and the view which we adopt herein that the States and the Federal Gov-
ernment have concurrent jurisdiction to regulate the union shop, each being supreme in its
own sphere.
It follows from this view that any certification which we may issue on the basis of
the election directed below is to be construed as certifying only that federal requirements
have been met by the Petitioner for purposes of enforcement of the National Labor
Relations Act. The question of compliance by the Petitioner with State Laws regulating
the union shop is a question of State law to be determined 'by State authorities 'in a State
proceeding.
'WESTERN ELECTRIC ' COMPANY, INCORPORATED - 1023
reaching a different result , we shall , consider each employee in this
case to be subject to the law of the State in which his job site is located
on the eligibility date.15
Conclusion
.We find that all hourly rated communications equipment- workers in
the .field organization of the Employer's Installation Division, ex-
cluding all -supervisors and all employees whose job sites are located
in States which prohibit union=shop agreeinents,la constitute a unit
appropriate for the purposes of Section 9 (e) (1) of the,Act.
In making this finding, we reject the contention made by the Em-
ployer that the establishment of such a unit 'would be inconsistent
with the principle of self-determination underlying the union-shop
authorization provisions in the amended Act and that the petition
should therefore be dismissed. The Employer cites the possibility
that an employee deemed ineligible to vote in the election because he
is momentarily in a State outlawing the union shop, may, after the
election, be transferred to a State which permits the union shop, and
thereupon become subject to the terms of a union-shop contract, al-
though he had no chance to vote on the authorization of the contract.
However, such an employee would be in the same position as any citi-
zen of a State who finds himself bound by laws passed before his
arrival there. So far as we are aware , it has not been suggested that
such a result violated democratic principles. Nor has it been held that
such principles are violated by the practice of the Board, in conven-
tional representation cases, of directing an election among the em-
ployees then in a plant to determine their bargaining representative,
notwithstanding the probability that the results of the election will
bind many employees who will be hired after the election and so will
not have had any opportunity to vote therein.-
15 A possible alternative view, suggested by certain of the Petitioner 's contentions, is
that all the employees be deemed to be subject to the law of New York . While the record
indicates that any employee may carry his grievances to the officers of the Employer
in New York City, that the general manager of the Installation Division has his office
there, and that the employees are subject to frequent transfer from one job site to another,
those elements alone are not, in view of all the circumstances , sufficient to constitute
New York City the focal point of the employment relationship.
11 As of the date of the record before us, these states were : Arizona , Arkansas , Florida,
Georgia , Iowa , Nevada, Nebraska , North Carolina, North Dakota , South Dakota, Tennessee,
Texas , and Virginia.
11 In such cases the Board has held that it is sufficient that the election is directed among
employees who will be representative of the entire employment in the unit. This rule has
recently been applied to union -shop elections . Matter of Tree Fruits Labor Relations
Co,nmsttee, Inc., 83 N. L . R. B. 93. The Employer does not contend that the present
distribution of employees as between prohibitory and nonprohibitory States is abnormal;
there is no evidence in the record that the present complement of employees in the non-
prohibitory States, who alone will be eligible to vote in the union -shop election, is not
representative of the total expected employment in those States.
1024 DECISIONS, OF, NATIONAL; LABOR RELATIONS BOARD
DIRECTION OF ELECTION,
Pursuant to Section 9 (e)• (1) of the National Labor Relations Act
as amended, an election by secret ballot shall be conducted as early as
possible, but not later than one hundred eighty (180) days 18 from the
date of this Direction, under the direction and supervision of the Re-
gional Director for the Second Region, and subject to Section 203.61•of
National Labor Relations Board Rules and Regulations-Series 5, as
amended, among the employees of Western Electric Company, Incor-
porated, New York, New York,,included-in the unit-found appropriate
in paragraph numbered 4, above, whb were employed during the pay-
roll, period immediately preceding the date of this Direction, including
employees who did not work during this pay-roll period because they
were ill or on vacation or temporarily laid off, but excluding those em-
ployees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and also
excluding employees on strike who are not entitled to reinstatement,
to determine whether or not they desire to authorize Communication
Workers of America, CIO, Installation Division #6, to make an agree-
iiient with Western Electric Company, Incorporated, New York, New
York, requiring membership in the aforesaid labor organization as a
condition of employment in such unit.
MEMBER MURDOCK, dissenting :
I cannot join in the decision of my colleagues to include in the
voting unit employees in States which regulate, but do not prohibit
union-security agreements.. I think this decision is contrary to the
holding of the Supreme, Court in the recent case of Algoma Plywood
Co. v. Visconsin•Eimploynient Relations Board.13
In Hatter of Northland Greyhound Lines, inc., 20 this Board con-
strued Section 14 (b) of the Act to provide that State laws which
prohibit contracts making union membership a condition of employ-
ment should be given paramount effect, but State laws which merely
regulate such contract should not be given precedence over national
regulation. We, therefore, adopted a policy in elections conducted
pursuant to Section 9 (e), of excluding from voting units employees
in States prohibiting union-security agreements and of including
employees in States regulating such agreements. ' As I read the
.1lgonwi case, however, the Supreme Court there rejected such a con-
18 The time for holding the election has been extended in this case from 30 days, as in the
ordinary case , to 60 days because of the probable administrative difficulties involved in
holding an election in a unit as large and as widely dispersed as the one in this case.
15 69 S ^ Ct 586 .- •
zo 80 N. L. R. B. 288.
WESTERN ELECTRIC COMPANY, INCORPORATED 1025
struction of Section 14 (b) and abolished the distinction between
State prohibitory and State regulatory legislation on the subject of
union-security contracts. I think we must, therefore, abandon the
policy we adopted in the Northland Greyhound case.21
The majority concludes that there is no necessary conflict between
the Algoma decision and the view which it adopts that the States and
the Federal Government have concurrent jurisdiction to regulate the
union shop. I think such a conclusion is based upon an erroneous
interpretation of-the Algoma opinion. In that case, the Supreme
Court ruled that the application of a union-security agreement which
,did not conform to the requirements of a State regulatory statute was
unlawful, despite the contention that the State law was contrary to
the Federal law. The language and clear intent of that decision, to
_my mind, is that under Section 14 (b) States are left free in the
:platter of union-security agreements to pursue a policy more restric-
tive than that outlined in the Act, and that where States do adopt a
more restrictive policy, State statutes prevail over the Federal stat-
ute. I conclude, therefore, that we cannot authorize the execution
of a union-security contract in States which have adopted a more
restrictive policy and that the conduct of an election among employees
in these States would be futile. Accordingly, I note my dissent from
the majority's inclusion of such employees in the voting unit.
" I thought the policy we announced in the Northland Greyhound case was a sound one,
and I should welcome an occasion for the Board to present its position on the subject to the
'Supreme Court . The Board was not a party to the Algoma case and had no opportunity to
submit its view on the distribution of authority concerning union -security agreements
between the States and the National Government . I consider the Board bound , however,
by the Alqoma decision, which , in my opinion , requires a change in our policy so long as
that decision stands.