Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

Sep 9, 1940

27 N.L.R.B. 150 (N.L.R.B. 1940)

In the Matter Of WESTERN UNION TELEGRAPH CO. and COMMERCIAL
TELEGRAPHERS UNION, WESTERN UNION DIVISION No. 2, LOCAL No.
16, AFFILIATED WITH THE A. F. L.
Case No.R-1988.Decided September 9, 1940
Jurisdiction : telegraph industry.
Investigation and Certification of Representatives :, existence of question : re-
fusal to accord recognition to union ; election necessary.
Unit Appropriate for Collective Bargaining : partial system unit:. restaurant
and cafeteria employees exclusive of managerial and supervisory employees.
Ornstein cC Silverman, by Mr. Henry H. Silverman, of New York
City, for the C. T. U.
Mr. William Wendt and Mr. Ralph H. Kimball, of New York
City, for the Company.
Boudin, Cohn c6 Glickstein, by Mr. A. L. Shapiro, of New York
City, for the A. C. A.
Mr. James F. Dulligan, of New York City, for the Association.
Mr. William Kincheloe, of New York City, for Local 302.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 4, 1940, Commercial Telegraphers' Union, Western Union
Division No. 2, Local No. 16, affiliated with the American Federation
of Labor,' herein called the C. T. U., filed with the Regional Director
for the Second Region (New York City) a petition, and on July 19,
1940, an amended petition, alleging that a question affecting 'coin-
merce had arisen concerning the representation of employees of West-
ern Union Telegraph Company, New York City, herein called the
Company, and requesting an investigation and certification of repre-
' Incorrectly designated in the original and the amended petition as Commercial
Telegraphers' Union, A. F. L., Western Union Division No. 16.
27 N. L. R. B., No. 33.
150
WESTERN UNION TELEGRAPH CO. 151
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On July 17, 1940, the Na-
tional Labor Relations Board, herein called the Board, acting pur-
suant 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 July 19, 1940, the Regional Director issued a notice of hearing,
and on July 26, 1940, a notice of postponement of hearing, copies
of which were duly served upon the Company; the C. T. U.; the
American Communications Association, herein called the A. C. A..;
the Cafeteria Employees Union, Local 302, affiliated with Hotel and
Restaurant Employees International Alliance and Bartenders In-
ternational League of America, A. F. L., herein called Local 302; 2
and the Communications Guild. Pursuant to notice, a hearing was
held on August 8, 1940, at New York City, before Shad Polier, the
Trial Examiner duly designated by the Board. All the parties ap-
peared and were represented by counsel or by their representatives.
A representative of the Association of Western Union Employees,
herein called the Association, moved to intervene in the proceedings.
The Trial Examiner denied the motion. The-ruling of the Trial Ex-
aminer is hereby affirmed.3 Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. During the course of the
hearing, the Trial Examiner made several rulings on motions and on
objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Counsel for the Company moved to dismiss the petition on the
ground that the Board lacks jurisdiction. The Company and the
A. C. A. also moved to dismiss the petition for the reason that the
unit proposed by the C. T. U. is not an appropriate one for the
purposes of collective bargaining. The Trial Examiner reserved
ruling on these motions. The motions are hereby denied.
Upon the entire record in the case, the Board makes the following :
2 The president of Local 302 stated at the hearing that his organization had no interest
in the present proceedings , and did not desire to participate in the hearing or in an
election.
8 The Association is a labor organization which the Board has ordered the Company to
disestablish . See Hatter of the Western Union Telegraph Company, a corporation and
Arne? scan Comntnn?catton8 Ascoc?atton, 17 N. L. R. B. 34, enf'd as mod, The Western
Union Telegraph Co. v. N. I. R. B., August 9 , 1940 (C. C. A. 2).
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a New York corporation, with its principal office-
at 60 Hudson Street , New York City, is engaged throughout the
United States and in foreign countries in the receipt and transmis-
sion by telegraph and cables of intrastate, interstate, and interna-
tional communications. -
The Company employs approximately 43,500 persons, df which
number approximately 1,350 are located outside the United States.
Approximately 7,104 persons are employed in New York City and
its immediate environs.
The Company owns the building at 60 Hudson Street in which
its- telegraph equipment is located, and occupies the principal part
of the premises for the use of its various departments. In this
building the Company also operates a restaurant and cafeteria which
is maintained exclusively for the use of approximately 3,738 em-
ployees who are located in the building. The restaurant and cafe-
teria is open 24 hours a day, 7 days a week. Ninety-one persons,
exclusive of the manager and assistant manager, both of whom have
authority to discharge, are employed in its operation.
The cable equipment and other departments are located in a build-
ing which is leased by the Company at 40 Broad Street. In this
building also the Company operates a restaurant and cafeteria for
the exclusive use of approximately 400 to 500 employees who are
located on the premises . The restaurant and cafeteria at 40 Broad
Street is operated from midnight to 8:15 in the evening from Mon-
day to Friday, inclusive, and from midnight to 3 o'clock in the
afternoon on Saturdays . Its operation requires the employment of
11 persons, none of whom have authority to discharge. `
H. THE ORGANIZATIONS INVOLVED
Commercial Telegraphers' Union, Western Union Division No. 2,
Local No. 16, affiliated with the American Federation of Labor, is
a labor organization admitting to its membership employees of the
Company.
American Communications Association is a labor organization
admitting to its membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated, and we find , that shortly before the peti-
tion was filed on May 7, 1940 , the C. T. U. demanded, and the Com-
- WESTERN UNION TELEGRAPH CO. 153
pany refused, recognition as the bargaining agent under the Act of
the employees in the unit alleged to be appropriate.
A report by the Regional Director of the Board with respect to
the representation claims of the C. T. U. was introduced into evi-
dence at the hearing. The report, which was 'based on membership
,application cards and authorizations designating the C. T. U. as
bargaining agent, shows that the C. T. U. represents a substantial
number of employees of the Company in the unit alleged to be
appropriate.
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 tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. TILE APPROPRIATE UNIT
The C. T. U. urges that all the restaurant and cafeteria employees
of the Company at 60 Hudson Street and 40 Broad Street , New York
City, exclusive of managerial and supervisory employees , constitute
an appropriate bargaining unit. The Company and the A. C. A.
contend that such a unit is not appropriate.
The C. T. U. is a national labor organization , affiliated with the
American Federation of Labor. Separate divisions of the national
organization exist for each company whose employees the division
seeks to organize . Western Union Division No. 2 organizes the
employees of the Western Union Telegraph Company. Local No. 16
is a chartered subdivision for New York City. The restaurant and
cafeteria employees who are members of Local No . 16 comprise a
separate subdivision which has its own officers and conducts its own
meetings. There is no showing that the A . C. A. or any other bona
fide labor organization claims any members among this group of
employees. The functions and working conditions of the restaurant
and cafeteria employees are separate and distinct from those of the
Company's other employees.
The Company maintains a separate seniority roster of employees
in each of its various . departments . The restaurant and, cafeteria
employees of the Company are regarded as a separate department,
154 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
have their own seniority list; and, as is true of other departments,
their seniority is not interchangeable with that of employees engaged
in other work in New York City.
Although under other circumstances, the broader unit urged by
the A. C.' A. and the Company might be appropriate, since the
C. T. U. is the only labor organization which has organized the cafe-
teria employees, and since no other organization claims to represent
a majority in a more inclusive unit, upon the basis of the present
extent of organization we find that the unit sought by the C. T. U.
is appropriate.
We find that the restaurant and cafeteria employees of the Com-
pany at 60 Hudson Street and 40 Broad, Street, New York City,
exclusive of managerial and supervisory employees,4 constitute a unit
appropriate for purposes of collective bargaining and that such 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
The C. T. U. did not seek to prove its majority at the hearing, but
instead requested that the Board hold an election. We find that the
question which has arisen concerning the representation of employees
of the Company can best be resolved by an election by secret bitllot.5
The parties agreed that the pay roll immediately 'preceding the
date of the Direction of Election be used for the purpose of deter-
mining eligibility to vote. We shall direct that those eligible to vote
shall be the employees in the appropriate unit whose names appear
upon the Company's pay roll immediately preceding the date of this
Direction of Election, including any employees who did not work
during said pay-roll period because they were ill or on vacation, and
employees who were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause.
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 rep-
resentation of employees of the Western Union Telegraph Company,
New York City, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act. -
4 The parties stipulated that managerial and supervisory employees be excluded if the
Board should find that the restaurant and cafeteria employees constituted . an appropriate
unit.
5 Counsel for the A. C . A. declared that it did not wish to appear on the ballot if the
Board should find the unit alleged in the petition to be appropriate.
WESTERN UNION TELEGRAPH CO. 155
2. The employees of the Company at its restaurant and cafeteria
located at 60 Hudson Street, New York City, and at its restaurant
and cafeteria located at 40 Broad Street, New York City, exclusive
of supervisory and managerial employees, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning ,
of Section 9 (b) of the 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 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 authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with the Western Union Telegraph Company, New York City, 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 Direc-
tor for the Second 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 restaurant and cafeteria
employees at 60 Hudson Street and 40 Broad Street, New York City,
whose names appear upon the Company's pay roll immediately pre-
ceding the date of this Direction of Election, including any em-
ployees who did not work during said pay-roll period because they
were ill or on vacation, and employees who were then or have since
been temporarily laid off, but excluding supervisory and managerial
employees, and employees who have since quit or been discharged for
cause, to determine whether or not they desire to be represented by
Commercial Telegraphers' Union, affiliated with the American Feder-
ation of Labor,° for the purposes of collective bargaining.
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
October 18, 1940
On September 9, 1940, the National Labor Relations Board issued
a Decision and Direction of Election in this proceeding. Pursuant to
the Direction of Election, an election by secret ballot was conducted
At the hearing, counsel for the C. T. U. requested that it be so designated on the
ballot.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on September 26, 1940, under the direction and supervision- of the
Regional Director for the Second Region (New York City). On
September 28, 1940, the Regional Director, acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, issued an Election Report, copies of
which were duly served upon the parties. No objections to the con-
duct of the ballot or to the Election Report were filed by any of the
parties.
As to the balloting and its results, the Regional Director reported as
follows :
Total number eligible to vote_______________________________ 102
Total number of ballots cast_______________________________ 93
Total number of valid ballots______________________________ 92
Total number of votes in favor of Commercial Telegrapher's
Union, affiliated with the American Federation of Labor____ 83
Total number of votes against the aforementioned union ----- 9
Total number of blank votes________________------------------------------- 1
Total number of void ballots_______________________________ 0
Total number of challenged votes___________________________ 0
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9,
of National Labor Relations Board Rules and Regulations-Series 2,
as amended,
- IT IS 7IEREBY CERTIFIED that Commercial Telegraphers Union, West-
ern Union Division No. 2, Local No. 16, affiliated with the American
Federation of Labor, has been designated and selected by a majority
of the employees of the Western Union Telegraph- Company at its
restaurant and cafeteria located at 60 Hudson Street, New York City,
and its restaurant and cafeteria located at 40 Broad Street, New York
City, exclusive of supervisory and managerial employees, as their rep-
resentative for the purposes of collective bargaining, and that pur-
suant to Section '9 (a) of the National Labor Relations Act, Com-
mercial Telegraphers Union, Western Union Division No. 2, Local
No. 16, affiliated with the American Federation of Labor, is the ex-
clusive representative of all such employees for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
27 N. L. R. B., No. 33a.