Western Union Telegraph Co.Download PDFNational Labor Relations Board - Board DecisionsApr 14, 194130 N.L.R.B. 1169 (N.L.R.B. 1941) Copy Citation In the Matter of WESTERN UNION TELEGRAPH COMPANY and AMERICAN FEDERATION OF LABOR, COMMERCIAL TELEGRAPHERS UNION, Case No. R-246.-Decided April 14,1941 Jurisdiction : telegraph industry. Investigation and Certification of Representatives : existence of question : con- flicting claims of rival representatives ; election necessary. Where name of independent labor organization does not appear on ballot because of insufficient membership showing, immediate election directed at request of petitioner and over objection of intervenor despite pendency of charge against Company filed in another region involving legality, of the independent labor organization. Unit Appropriate for Collective Bargaining : employees of the Company work- ing in Metropolitan Pittsburgh in the commercial, traffic, plant, and accounting departments, excluding executives, lawyers, confidential employees, temporary messengers, and named supervisory employees. City-wide unit held appropriate where the organizations requesting such a unit showed substantial membership therein and where the representation claim of the only organization desiring a larger unit (division-wide) does not constitute a siifpicient shokiiig' of'employee self-organization on a division- wide basis to support its unit contentions. Mr. Henry Shore, for the Board. - Mr. Ralph If. Kimbal, of New York City, for the Company. Mr. Henry H. Silverman, of New York City, Mr. Hugh C. Me en- nney, of Washington, D. C:, and Mr. Frank Powers, of Chicago, 111., for the-C. T. U. Mr. Benjamin C. Sigal, of Pittsburgh, Pa., Mr. Sidney Elliott Cohn, Mr. Victor Rabinowitz, and Mr. J. P. Selly, of New York City, for the A. C. A. Mr. Herman E. Cooper, by Mr. Moss Schenkman, of New York City, for the Guild. Mr. Gilbert V. Rosenberg, of counsel to the Board. - DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October: 11, 1940,.American Federation of Labor, Commercial Telegraphers Union, herein called the C. T. U., filed with the Re- gional Director for the Sixth Region (Pittsburgh, Pennsylvania) 30 N L' R B, No. 165 1169 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Western Union Tele- graph Company, Pittsburgh, Pennsylvania, 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 December 7, 1940, 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. I On December 21, 1940, the Regional Director issued a notice of hearing, copies of which were duly' served upon the Company, and the C. T. U., and upon American Communications Association and its Local 54-B, herein collectively called the A. C. A., and Communi- cations Guild, herein called the Guild, labor organizations claiming to represent employees directly affected by the investigation. On De- cember 27, 1940, the Regional Director denied a request by the A. C. A. and the Guild for a postponement of the hearing. The ruling of the Regional Director is hereby affirmed. Pursuant to the notice, a hearing was held on January 2, 3, and 4,, 1941, at Pittsburgh, Pennsylvania, before Charles Persons, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Board, the Company, the C. T. U., the A. C. A., and the Guild, were rep- resented by counsel and participated in -the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the Guild filed a petition requesting that the Board consolidate the instant proceeding with another rep- resentation proceeding involving employees of the Company pend- ing in the Second Region or, in the alternative, that the Board stay the instant proceeding until the determination of the repre- sentation proceeding in the Second Region. The Trial Examiner reserved decision on this petition for the Board. On January 10, 1941, the C. T. U. filed a statement opposing the petition. On Janu- ary 13, 1941, the Board. denied said petition. During the hearing the A. C. A. moved to incorporate as part of the record in this case the record in a prior representation pro- ceeding involving employees of the Company at Pittsburgh entitled flatter of Western Union. Telegraph Company and American Com- m2unications 'Association, Local 541-B, affiliated with the Congress of Industrial Oi;gan^zations,1 herein called Case No. R-1703. The 123'N L R B 824 I WESTERN UNION TELEGRAPH COMPANY 1171 Trial Examiner reserved ruling on this motion for the Board. It is hereby denied. In the course of the hearing the Trial Examiner ruled on several other motions and on several objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Pursuant to notice, a hearing wab held before the Board in Wash- ington, D. C., on February 18, 1941, for the purpose of oral argument. The Company, the C. T. U., the A. C. A., and the Guild were repre- sented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 2 The Western Union Telegraph Company, a 'New York corporation with its principal office in New York City, is engaged throughout the United States and in foreign countries in the receiving,and trans- mission by telegraph and cable of intrastate, interstate, and interna- tional communications. At the close of 1940 the Company employed approximately 43,500 persons, of which number approximately 1,350 were located outside the United States. The present proceeding con- cerns only those employees of the Company working in and about Pittsburgh, Pennsylvania, where the Company employs over 500 persons. The Company admits that it is engaged, in interstate commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED Commercial Telegraphers Union is a labor organization affiliated with the American Federation of Labor, admitting to its membership employees of the Company. American Communications Association is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership through its Local 54-B employees of the Company at Pittsburgh, Pennsylvania. The Communications Guild is an unaffiliated labor organization admitting to * its membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In October 1940 the C. T. U., claiming to represent a majority of the Company 's Pittsburgh employees, requested the Company to, These findings are based on stipulation of facts: 440135-42-Vol 30--75 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognize it as the exclusive bargaining representative of such em- ployees. The Company demands proof of the C. T. U.'s majority representation . At the hearing competing labor organizations made conflicting contentions concerning the appropriate unit. There was introduced in evidence a report prepared by the Regional Director showing that both the C. T., U. and the A. C. A. represent a substantial number of employees in the unit hereinafter found to be appropriated .3 The Guild claims that it represents more than ,1400 of the Company's 15,000 employees in the Eastern Division in which Pittsburgh is situated, and more than 1,600 of the Company's 15,000 employees in its Metropolitan New York Division, but admits that it has less than 50 adherents at Pittsburgh. It offered no docu- mentary evidence to show that it represents any employees at Pittsburgh.' , 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 rela-' tion 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. V. THE APPROPRIATE UNIT The C. T. U. and,the A. C. A. both contend that the unit appropriate for the collective bargaining should be confined to employees of the Company in Metropolitan Pittsburgh.5 The Company, contending that a system-wide unit is appropriate, stated that it "is familiar with the action of the Board in asserting that it would be unfair to deny to organized employees at particular places the benefit of the Act pending nation-wide organization." The Guild, asserting that it has i The Regional Director 's report shows that the C . T. U. submitted 244, and the A. C. A. 158, application cards signed by employees whose names appeared on the October 26, 1940, pay roll of the Company and that 62 employees signed application cards for both of these labor organizations . There are approximately 500 employees in the unit hereinafter found to be appropriate. • At the hearing counsel for the Guild asserted that the Guild 's proofs of membership were on file with the Board 's Regional Director for the Second Region The Trial Exam- iner granted the Guild the opportunity of submitting such proof to the Regional Director for the Sixth Region after the close of the hearing and ordered that the record remain open for the purpose of receiving it The Guild has failed to avail itself of this opportunity. The Board accordingly declares the record closed 5 This area includes the city of Pittsburgh and several adjacent communities , including McKeesport , Coraopolis , Braddock , Sewickley , Homestead , Ambridge, and East Pittsburgh WESTERN UNION TELEGRAPH COMPANY 1173 organized on a division basis," contends either that the Eastern Divi- sion of the Company, which includes the Metropolitan Pittsburgh area, constitutes an appropriate unit or that the Eastern Division and the Metropolitan New York Division together constitute an ' appro- priate unit. Although the Board has in many instances involving the communi- cations industry found a Nation-wide bargaining unit appropriate,' it has refrained from doing so in cases where, as here, bona fide employee self-organization has been conducted upon the basis of smaller geo- graphical units and has not achieved national scope." The Guild's contention that a unit restricted to Metropolitan Pitts- burgh is inappropriate is, under the circumstances here present, with- out merit. The Guild claims to represent only about 10 per cent of the employees of the Company in the Eastern Division, and about 15 per cent of the employees in the combined Eastern and Metropolitan New York Divisions of the Company. On the other hand the C. T. U. and the A. C. A. both have made showings of substantial membership among the Company's employees at Pittsburgh. The Guild's claim constitutes an insufficient showing of employee self-organization on a division-wide basis to support its unit contentions.,, Under all the circumstances we find that a bargaining unit limited to the Company's employees in Metropolitan Pittsburgh is appropriate.10 , Five separate units of the Company's business organization have their headquarters in Pittsburgh. These are the commercial , traffic, plant, and accounting departments and the district superintendent's unit. The C. T. U. and the A. C. A. agree that the appropriate bar- gaining unit includes employees in Metropolitan Pittsburgh in the commercial, traffic, and plant departments. The C. T. U. proposes, and the A. C. A. opposes inclusion of the accounting department. For administrative purposes the operations of the Company are divided into six terri- torial divisions covering the whole of the United States . The Eastern Division with head- quarters in New York City comprises the States of Maine, Massachusetts, New Hampshire, Rhode Island, Vermont, Connecticut , New York ( excluding New York City), Delaware, Maryland , New Jersey , Pennsylvania , Eastern Shore of Virginia , and West Virginia. 7 Matter of Postal Telegraph -Cable Corporation and Commercial Telegraphers ' Union, 9 N. L R B. 1060. 8 Matter of R. C. A. Communications, Inc. and American Radio Telegi aphists Associatson, 2 N. L. R. B. 1109 ; Matter of The Western Union Telegraph Company, Inc . and The Com- mercial Telegraphers ' Union, 11 N . L. R. B. 1154 ; Matter of The Western Union Telegraph Company and Commercial Telegraphers Union, Indpls . Local #7, Western Union Div. #2, At with A. F. of L., 17 N. L. R. B. 683. 9 There is now pending in the Second Region a charge filed by the C T. U. and another labor organization , alleging that the Guild is employer -dominated . The'C. T. U. has, for the purposes of this proceeding, luaived the Guild's alleged illegality. The A C A' asserts that it does not join in that luaiver . . Our decision as to the scope of the unit does not under the circumstances require consideration of the Guild's disputed status. 10 See Matter of Western Union Telegraph Companif and American Communcciations Asso- ciation Local 54-B, Affiliated with the Congress of Industrial Organizations , 23 N L. R B. 824. 1174 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company and the Guild make no contentions concerning the departmental scope of the unit. The commercial department, comprising 192 employees, deals with the pick-up and delivery of messages and the operation of branch offices in Metropolitan Pittsburgh. The traffic department, with 276 employees, has charge of the transmission of messages which origi- nate in or which are delivered in Metropolitan Pittsburgh. It oper- ates and maintains the telegraph equipment located on two floors of the Chamber of Commerce 'Building in Pittsburgh.- The plant department serves western Pennsylvania, including Pittsburgh, most 'of West Virginia, and parts of Maryland and western New York. Of approximately 45 employees in the department, about 23 work in Metropolitan Pittsburgh. These employees maintain the physical plant outside the traffic-department premises and install and dis- connect equipment. While the, jurisdiction of the plant department extends far beyond Pittsburgh; approximately one-half of the em- ployees within the department are directly engaged in carrying on the Company's business in Metropolitan Pittsburgh. Although in an emergency these employees may be sent to any part of the area served by the plant department, they regularly are stationed and perform their services in Metropolitan Pittsburgh. We find that the employees working in Metropolitan Pittsburgh in the commercial, traffic, and plant departments should be included in the appropriate unit. The accounting department does auditing and accounting work for the Metropolitan Pittsburgh offices, as well as summarization work for 79 outside offices within the jurisdiction of the district su- perintendent. The record shows that' all 23 of the accounting- department employees, with the possible exception of the accounting manager, are stationed in and do all their work in Pittsburgh and that 65 per cent of their time is devoted to work for the Metropolitan Pittsburgh offices and 35 per cent for the outlying offices. On the basis of this record, we shall include the accounting-department em- ployees in the appropriate unit.12 The district superintendent's organization, with headqutvrters in Pittsburgh, has a territorial jurisdiction covering western Pennsyl- vania, exclusive of Metropolitan Pittsburgh, all of West Virginia, and western New York. Throughout this area the work of the dis- trict superintendent's unit is similar to the functions of the Pittsburgh commercial department. There are approximately 400 employees un- -" The traffic department also delivers messages by telephone and through teleprinter lines terminating in the offices of business firms. 2 In Case No . R-1703, the Board, at the request of the A. C . A., excluded the accounting department from the unit . On the record in that case the Board concluded that these employees are not directly engaged in carrying on the Company 's operations in Pittsburgh WESTERN UNION TELEGRAPH COMPANY 1175 der the district superintendent, but only 6, including the district superintendent, are stationed in Pittsburgh. These six employees have no relation to the Metropolitan Pittsburgh employees of the Company except that they work in Pittsburgh. Transfers of em- ployees between the district superintendent's unit and the Metropoli- tan Pittsburgh commercial department rarely, if ever, occur. We shall exclude the employees of the district superintendent's Pittsburgh headquarters from the appropriate unit. The C. T. U. and the A. C. A. request the exclusion of executives, lawyers, and temporary messengers. The A. C. A. would also ex- clude confidential employees.13 No objections were offered by, any of the parties to these ,exclusions. We shall exclude all of the above employees from the appropriate unit. Questions arose at the hearing concerning the exclusion of certain supervisory employees from the appropriate unit. We shall con- sider these exclusions by departments. Commercial department The Company, the C. T. U., and the A. C. A. agree to exclude the superintendent, office manager, delivery manager, sales manager, and cashier. The A. C. A.' would also exclude, as supervisory employees, the following: assistant delivery manager; delivery supervisors; branch soliciting managers; and one J. W. Bartell, who is listed on the pay roll as a clerk. The C. T. U. opposes all these exclusions. The as- sistant delivery manager acts for the delivery manager in his absence. We shall exclude him from the unit. There are two delivery super- visors, one of whom works at night. It is the function of the delivery supervisors to see that' messages are delivered. They supervise the delivery work and direct other employees in their work. It appears that the delivery supervisors exercise a substantial degree of super- vision over the messengers. We are of the opinion that they are essentially identified with management and that they should be ex- cluded from the unit. There are 23 branch offices in Metropolitan Pittsburgh,7 of which are managed by persons who spend most of their time on the outside soliciting business, commonly referred to as branch soliciting mana- gers. All 7 of these managers have' at least 1 clerk, -in addition to messengers, under them in their respectives offices, while only 2 of the 16 branch managers have clerks under them. Branch soliciting managers earn approximately $75 a month more-than branch mana- gers who work inside the offices and operate teleprinter machines. The C. T. U. and the A. C. A. agree and we find that branch managers 13 At the time of the hearing no persons within this classification ere employed by the Company. 1176 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD are properly within the unit. We are satisfied, however, that branch soliciting managers are identified more closely with management than are branch managers and we shall exclude them from the unit. The instant record shows that Bartell, classified-as a clerk, relieves persons in the delivery department for lunch; that he is in charge of the uniform equipment in the messenger department; and that he receives applications for employment from messengers and notifies messengers of their employment. Sotek, a messenger, testified that Bartell actually hires the messengers and fills out the employment slips which are forwarded to the delivery manager for approval. We are of the opinion that the facts disclosed by the record herein show that Bartell is sufficiently identified with management to warrant his exclusion. We shall therefore exclude him from the Unit. 14 t Traffic department The Company, the C. T. U., and the A. C. A. agree to exclude from the unit the traffic manager, night traffic managers, and assistant chief operator. The Company and the A. C. A. would also exclude the automatic chief and the testing and regulating chief. The A. C. A. further desires to exclude, over the objection of the C. T. U., the night testing and regulating chief, repeater chief, automatic supervisors, teleprinter supervisors, telephone supervisors, Morse supe'rvisor•, route supervisors, service supervisors, and 'the automatic monitor. The traffic department is divided functionally into the following departments : automatic, teleprinting, testing and regulating, tele- phone, Morse, route, and service. The traffic manager is in charge of the department, and the two night traffic managers take the traffic manager's place during their respective night shifts. The assistant chief operator is in charge of the automatic and 'teleprinter depart- ments. He assigns work to the employees in these departments and has authority to *discipline by caution and warning, and to order temporary suspensions from duty for infractions of the rules. The automatic chief reports to the traffic manager. He supervises the work of at least seven employees and assigns work to them.' The testing and regulating chief has authority in his department similar to that possessed by the assistant chief operator. The night testing and regulating chief is in charge of the department on the early night shift. Subordinate to the testing and regulating chief is the re- peater chief, who supervises the work of approximately eight assist- ant repeater chiefs.- We shall exclude all the foregoing employees from the unit. U In Case No. R-1703 we found that the record was Insufficient to warrant the exclusion of Bartell as a supervisory employee. WESTERN UNION TELEGRAPH COMPANY 1177 On the traffic-department pay roll are six automatic supervisors, five teleprinter supervisors, four telephone supervisors, a Morse su- pervisor, two route supervisors, and two service supervisors. One supervisor in the telephone, route, and service departments, respec- tively, and all supervisors in the other above-named departments, re- port directly to the traffic manager. ' The record is clear that all these supervisors have essentially the same degree of authority in their respective' departments. The average difference between the salaries of each supervisor and of the operators who work under them is ap- proximately $40 per month. The supervisors assign work to the employees who work under them and have general responsi- bility for the performance of that work. Upon all the evidence, we shall exclude the above supervisors. The automatic monitor re- ports on the quality, and quantity of work performed by the employees of her department. We shall exclude this employee from the'unit. Plant department The Company, the C. T. U., and the A. C. A. agree to exclude the maintenance foreman ' and the city foreman in this department from the unit. We shall exclude these two employees from the unit. Accounting department The A. C. A. requests that in the event the Board includes "in the unit employees of the accounting department, the accounting manager and the assistant manager be excluded. The C. T. U. opposes the exclusion of the assistant accounting manager. The accounting mana- ger is in complete charge of the department, and the assistant manager assumes most of the duties of the manager in his absence. We shall exclude the manager and assistant manager from the unit: We find that the employees of the Company working in Metro- politan Pittsburgh in the commercial, traffic, plant, and accounting departments, excluding executives, lawyers, confidential employees, temporary messengers, J. W. Bartell, and the other supervisory em-' ployees whose exclusions we have indicated above and whose posi- tions are, for convenience, listed in Appendices A, B, C, and D, 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 of employees of the Company can best be resolved by an election by secret ballot. The Guild requested to participate in any election ordered by the Board but failed to submit any documentary evidence of designation 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Pittsburgh employees of the Company. Under these circum- stances, the Guild has' not made a sufficient showing to participate in an election and we shall not place its name on the ballot. The A. C. A. argues that no election should be held pending dis- position of the charge involving the legality of the Guild. We are of the opinion, however, that,the pendency of a charge in the Second Region will not affect the results of-the election at Pittsburgh,and that it will best effectuate the policies of the Act to have an immedi- ate election. We shall therefore direct that an election by secret ballot be held among all employees within the appropriate unit who were employed during the pay-roll period last preceding the date, of this Direction, subject to such limitations and additions as are set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record of the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Western Union Telegraph Company, Pitts- burgh, Pennsylvania, within the meaning of Section 9 (c) and Sec- tion 2 (6) and (7) of the National Labor Relations Act. 2. The employees of the Company working in Metropolitan Pitts- burgh in the commercial, traffic, plant, and accounting departments, excluding executives, lawyers, confidential employees, temporary mes- sengers, J. W. Bartell, and the supervisory employees occupying the positions listed in Appendices A, B, C, and D, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (c) 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 Western Union Telegraph Company, Pittsburgh, Pennsylvania, 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, under the direction and supervision of the Regional Director for the Sixth Region, acting in this matter 'as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules 11 WESTERN UNION TELEGRAPH COMPANY 1179 ,and Regulations, among employees of the Company working in Met- ropolitan Pittsburgh in the commercial, traffic, plant, and accounting departments, who were employed during the pay-roll period last preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off or on furlough, but excluding execu- tives, lawyers, confidential employees, temporary messengers, J. W. Bartell, and the supervisory employees occupying the positions listed in Appendices A, B, C, and D, attached hereto, and further excluding any employees who have since quit. or been discharged for cause, to determine whether they desire to be represented by Commercial Telegraphers Union, affiliated with the American Federation of La- bor, or by American Communications Association, Local 54-B', affili- ated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting: I concur in the determination of the appropriate bargaining unit. I would not, however, hold an election at this time. The C. T. U. has filed charges of unfair labor practices against the Company alleging that the Guild is employer-dominated. The Guild claims members among the Company's Pittsburgh employees and unfair labor practices by the Company in relation to the Guild would con- stitute interference with employee self-organization at Pittsburgh. While the C. T. U. has waived the issues raised by its charges the A. C. A. apparently fears that the existence of a labor organization whose legality has been called in question will interfere with the holding of a fair election. Under these circumstances I would defer the election until disposition of the charges. APPENDIX A Commercial Department Superintendent Sales Manager Office Manager Assistant Delivery Manager Delivery Manager Delivery Supervisors CsshiPr Branch Soliciting Managers 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B - Traffic ' Department Traffic Manager Automatic Supervisors Night Traffic Managers Teleprinter Supervisors Assistant Chief Operator Telephone Supervisors Automatic Chief Morse Supervisor Testing and Regulating Chief Route Supervisor Night Testing and Regulating Service Supervisors Chief Automatic Monitor Repeater Chief APPENDIX C Plant Department Maintenance Foreman City Foreman APPENDIX D Accounting Department Accounting Manager A ssistant Accounting Manager r Copy with citationCopy as parenthetical citation