Western Union Telegraph Co.

National Labor Relations Board - Board Decisions

Nov 1, 1939

17 N.L.R.B. 34 (N.L.R.B. 1939)

In the Matter of THE WESTERN UNION TELEGRAPH COMPANY, A
CORPORATION and AMERICAN COMMUNICATIONS ASSOCIATION
Case No. C-344.-Decided November 1, 1939
Telegraphic Comunications Inditstry-Interference, Restraint, and Coercion-
Company-dominated Union: initiated by the employer in 1918 for purpose of
preventing encroachment of outside labor organizations and in defiance of the
then current public policy of according employees freedom of organization ; from
initiation to July 5, 1935, in furtherance of original purpose of thwarting organ-
izational efforts of rival labor unions, accorded various forms of financial and
promotional support, good will and prestige deliberately enhanced, utterly dom-
inated by employer in dealing with it as to terms and conditions of employment
and as to internal orperatidns, actively utilized by employer to engage in espion-
age against rival organizations and to combat enrollment of employees in such
organizations ; on and after July 5, 1935, no attempts to disestablish, all prior
forms of support continued, and earlier role of cooperating with employer in
preventing advance of outside organizations emphasized ; some forms of support
discontinued on August 17, 1937, not as sincere purge but merely for purpose
of concealing obvious vulnerability to charges of company domination, other
valuable forms of support, important promotional techniques, and established
course of dealings unaffected by action of August 17, 1937, enjoyment of favored
status continued ; remained as symbol of interference with rights guaranteed
by Act ; employer ordered to withdraw recognition from, as collective bargain-
ing agency, to disestablish completely as such agency, to cease and desist from
enforcing contracts with, and to refund to members amounts checked off from
wages as dues since July 5, 1935, on ground check-off coercive-Discrimination:
practical application of outstanding agreements and arrangements with com-
pany-dominated union for preferential hiring of applicants indicating willingness
to join contracting organization and for preferred treatment of members as to
terms and conditions of employment, constitutes discrimination in favor of
company-domiinated union and against other labor organizations ; employer or-
dered to post notices of cancelation of agreements and arrangements.
Mr. Will Maslow and Mr. Morris Weinfeld, for the Board.
Mr. R. H. Kimball, Mr. Francis R. Starrlc, and Mr. John H. Waters,
of New York City, for the respondent.
Boudin, Cohn, and Glickstein, by Mr. Sidney Elliott Cohn, of New
York City, for the A. C. A.
Mr. James F. Dulligan and Mr. J. Daniel Dougherty, of New York
City, for the Association.
Miss Ida Klaus, of counsel to the Board.
17 N. L. R. B., No. 5.
34
THE WESTERN UNION TELEGRAPH COMPANY
DECISION
AND
ORDER
35
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American Radio
Telegraphists' Association, subsequently known as American Commu-
nications Association and herein called the A. C. A.," the National
Labor Relations Board at Washington, D. C., herein called the Board,
issued its complaint, dated April 8, 1938, against The Western Union
Telegraph Company, New York City, herein called the respondent,
alleging that since July 5, 1935, the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
The charges, the complaint, and the accompanying notice of hearing
were duly served upon the respondent, the A. C. A., and the Association
of Western Union Employees, herein called- the Association, a labor
organization alleged in the complaint to be dominated by the respond-
ent. The complaint charged, in substance, (1) that the respondent
had, since July 5, 1935, dominated, controlled, and interfered with
the administration of the Association and contributed financial and
other support to it by permitting the Association, initiated by the
respondent in 1918 and thereafter aided, maintained, and assisted by
the respondent, to continue to function on and after July 5, 1935, and
by continuing to accord the Association earlier forms of support and
to engage in other aspects of domination over it; (2) that the re-
spondent had discriminated against its employees generally and
against six named individuals specifically with regard to hire and
tenure of employment and other terms and conditions of employment
for the purpose -of encouraging membership in the Association and
discouraging membership in other labor organizations; and (3) that
the respondent had, through persuasion, warnings, threats, espionage,
and other acts of coercion, encouraged membership in the Association
and attempted to prevent affiliation of its employees with other labor
organizations , particularly the A. C. A.
On April 23, 1938, the respondent filed its answer, admitting the
accuracy of the allegations of the complaint as to the nature of its
1 At the hearing, upon earlier stipulation of all parties , the complaint was amended to
insert in the caption thereof the word "The" before the name of the respondent ;' to insert
after the name American Radio Telegraphists ' Association the phrase "now known as the
American Communications Association" wherever the former appears in the complaint and
to add thereto the following paragraph : "On April 15 , 1938, by referendum , a vote of its
members, the American Radio Telegraphers Association changed its name to American
Communications Association."
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business, admitting the truth of certain allegations of the complaint
as to the respondent's participation.in the initiation of the Association
but denying that it had dominated the formation of the Association,
admitting that for some time after July 5, 1935, it continued to grant
certain privileges to the Association but averring that such privileges
have been discontinued, admitting the possible truth of the allegation
of espionage, and denying . all other material averments of the
complaint.
On. April 16'and•,May 2', 1938, the Association petitioned the Board
for permission to intervene in the proceeding "as an interested party,"
and on May 6, 1938, the Board granted the Association leave to inter-
vene "to such extent and upon such terms as the Trial Examiner
to be designated by the Board shall, from time to time during the
course of the hearing, deem just." 2 Thereafter on June 1, 1938, the
Association filed ,its answer to, the complaint, admitting the truth of
allegations as to the, respondent's business, denying that it has` any
knowledge or,information sufficient to form a belief as to certain alle-
gations, and denying 'other material allegations as to unfair labor
practices involving the Association.
- Pursuant to notice, a hearing on the complaint was held from June
1, up to and including July 25, 1938, at New York City, before Alvin
J. Rockwell, the Trial Examiner duly designated by the Board. The
Board, the respondent, the A. C. A., and the Association were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing 'on the.iss'ues was afforded all parties. During the
course of the hearing counsel for the Board moved to amend the com-
plaint by striking therefrom.all allegations of discrimination with
regard to hire ' and tenure of employment as to six named individuals.
The motion was granted by the Trial Examiner and his ruling is hereby
affirmed. ,The complaint will, in thisrespect, hereinafter be dismissed
without prejudice.. Various rulings'were made by the Trial Examiner
during the course of the hearing on other motions and on objections
to the admission,of evidence and further rulings were made in 'his
Intermediate Report 'upon motions as to which he had reserved, de-
cision during the hearing. The Board has reviewed these rulings and
finds that no prejudicial errors 'were committed. The rulings are
hereby affirmed.
On May 11, 1938, the Association filed with the U. S. Circuit Court of Appeals for the
Second Circuit a petition to review the Board's order of intervention, seeking to have said
order modified so as to permit the Association to intervene in the proceeding before the
Board "in equal status 'with the other parties thereto," and requesting a stay of the
Board's proceeding pending determination of the petition to review . On May 20, 1938,
under authority of Section 10 (f) of the Act, the Court dismissed the Association's peti-
tion and denied its application for a stay.
THE WESTERN UNION TELEGRAPH COMPANY 37
Upon the conclusion of the hearing counsel for the Board and
counsel for the respondent-argued orally before the Trial Examiner
on the evidence, opportunity to present argument having been given
to all parties. Subsequently, counsel for the Board, the respondent,
and the Association submitted briefs for the consideration of the
Trial Examiner.
On October 12, 1938, the Trial Examiner, after having been
directed by the Board on July 25, 1938, to prepare an Intermediate
Report, filed such Intermediate Report, finding that the respondent
had engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the Act, and recon-unending that the respondent cease and desist
therefrom and take certain specified affirmative action deemed neces-
sary to effectuate the policies of the Act. Thereafter the respondent,
the Association, and the A. C. A. filed exceptions to the Intermediate
Report and argued thereon orally before the Board on January 20,
1939. The Board has considered, the exceptions to the Intermediate
Report and, in so far as they are inconsistent with the findings, con-
clusions, and order set forth below, finds' no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TILE BUSINESS OF THE RESPONDENT
It was stipulated between counsel for the respondent and counsel
for the Board for the purpose of this proceeding only, and we find,
that :
The Western Union Telegraph Company is a corporation organized
and existing pursuant to the laws of the State of New York. Its
principal office is located. at New,York City.. It is engaged through-
out-the United States and in various,foieign countries in the receiving
and transmission by. telegraph and cable of intrastate, interstate, and
international communications. In the United States, it maintains a
vast system of wire network, connecting with virtually every city,
town, and hamlet, for the, purpose of receiving and transmitting com-
munications. In addition to its communications system in the United
States, the respondent owns or leases cables connecting directly or
indirectly certain points in foreign countries and in the United States.
In operating its national and international communications system
the respondent owned or operated as of December 31, 1937, 214,220
miles of pole lines, 4,160 miles of land cable, 1,876,993 miles of wire,
30,444 nautical miles of ocean cable, and 20,445 telegraph offices, not
including about 17,000 telegraph-agency stations.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the close of 1937 the respondent employed 48,375 persons, of
which number 1,484 worked outside the United States , 813 were
emergency messengers , and approximately 300 were connected with
the cable service in the United States.
The stipulation entered into by counsel for the respondent and
counsel for the Board stated that the respondent is engaged in com-
merce within the meaning of Sectioii'2 ( 6) and (7) of the Act and is
subject to the jurisdiction of the Board.
This case is concerned with the land -line system of the respondent
in the United States and not with its cable operations . The respond-
ent's operating structure in the United States is set out in Appendix
A, attached hereto and made a part hereof.
IT. THE ORGANIZATIONS INVOLVED
American Communications Association , affiliated with the Com-
ln;ttee for Industrial Organization,3 is a labor organization. It
admits to membership all classes of employees engaged in communi-
cations work , except those having the right to hire or discharge.
Association of Western Union Employees is an unaffiliated organ-
ization . It admits to active membership' all land-line employees of
the respondent except certain classes of employees who actually em-
ploy and discharge , the latter " classes being admitted to associate
membership . It maintains locals in the United States , Mexico, Cuba,
and Canada.
III. THE UNFAIR LABOR PRACTICES
A. Domination and slnpport of the Association
1. Outline of events leading up to formation of the Association
It is necessary to review the history of the Association and the
course of the respondent's dealings with it prior to the effective date
of the Act in order to determine the propriety of the, respondent's
conduct since the effective date of the Act.4
For some time prior to 1915 the respondent's subordinate officers
throughout the country, upon direction of the respondent's presi-
dent, executed a policy of hostility to all outside labor organizations,
and particularly to the Commercial Telegraphers' Union of America,
a labor organization affiliated with the American Federation of
3 Now the Congress of Industrial Organizations.
4 See Matter of Pennsylvania Greyhound Lines, Tue
.'
Greyhound Management Company,
Corporations and Local Division 1%'o. 1063 of The Amalgamated Association of Street, Elec-
tric Railway and Motor Coach Employees of America , 1 N. L. R. B. 1, 303 U. S. 261; and
Matter of Bethlehem - Steel Corporation, a Delaware Corporation, Bethlehem Steel Com-
pany, a Pennsylvania Corporation and Steel Workers Organizing Committee, 14 N. L.
R. 13. 539.
THE WESTERN UNION TELEGRAPH COMPANY 39
Labor, admitting to membership telegraphers and r other classes of
the respondent's employees and herein called the C. T. U. As an
important adjunct of this policy, the respondent had developed a
system of espionage against the C. T. U. which was carried out
by special agents and by some of its own employees. The latter
group executed the respondent's mission in this respect through the
"medium of membership in the C. T. U. Both groups reported to
the respondent on C. T. U. membership and operations, and their
findings were relied upon by the respondent's officials in selecting
applicants for employment and in determining the fitness for fur-
ther employment of those already hired. Hence no persons whose
membership in the C. T. U. was known to the respondent's employ-
ing officials could successfully seek employment with the respondent
and no employee with similar affiliation could remain on the pay
roll after the respondent's awareness of such affiliation. Employees
discharged for C. T. U. membership were expressly informed of the
reason for the termination of their employment, and the respondent
thereafter retained a record of such membership. In a statement
issued to stockholders in 1918, the respondent epitomized as follows
its -attitude in this -respect during the period under consideration
and in 1918: "The company says in effect to its employees : If you
desire to join the C. T. U. A., then we must part." The respondent's
answer admits that prior to 1918 the policy of its president was to
discourage employees from joining, or otherwise associating them-
selves with any labor organization controlled by persons having no
connection with the telegraph business and employing the strike
weapon. Newcomb Carlton, president of the respondent from 1914
to 1933, stated at the hearing that discharges had occurred prior
to 1918 in furtherance of such policy. There was during the period
under consideration no labor organization for the respondent's em-
ployees which carried the respondent's imprimatur and in which
membership did not endanger tenure of employment.
In April 1915 Carlton appointed a committee of minor executives
to consider and report on the advisability of forming a national
association of the respondent's employees. The committee reported
on July 30, 1915, that, after having given serious thought to its
assignment and earnest consideration to the problem of the extent
of the respondent's probable control over such an organization, it
would be inadvisable at that time to form a national association.
Among the reasons assigned by the committee for the position as-
sumed in its report were that formation of such an association would
give the employees "an exaggerated idea of their importance and
their power, with the result that the employees would demand
greater concessions and changes than the Telegraph Company could
247384-40-vol. 17-4
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afford to make"; that no national organization of employees could
be. formed which would prevent the personnel from leaving the re-
spondent's service in a body in the event of a refusal to grant con-
cessions which might be demanded; and that such an organization
would facilitate and actually bring about membership in the C. T. U.
The committee proposed instead that the respondent take certain
preliminary steps: at that. time, ."which will gradually lead, up: to the
formation of such an association at a later date," if results and con-
ditions should later justify such action. The preliminary steps rec-
ommended by the committee were concerned with methods of pro-
viding greater opportunity to employees of bringing to the attention
of the management situations "which they consider not entirely
satisfactory." No further explorations into the subject appear, to
have been made by the respondent until the latter part of May
1918. Carlton testified that his inaction in this regard during those
3 years did not indicate abandonment of the idea of forming an
employees' association but was rather due to his preoccupation with
other matters. All 'manifestations of hostility toward outside,.labor
organizations, and particularly to the C. T. U., persisted during the
period between the date of the committee's report and the 3 years
which followed.
On April 8, 1918, while this country was at war, Woodrow Wilson,
then President of the United States, issued a proclamation estab-
lishing the National War Labor Board; herein called .the War Labor
Board, enunciating the principles and policies by which industry and
labor should be governed, investing the War Labor Board with power
+,o deal with labor relations in accordance with those principles and
policies, and appealing to employers and employees to cooperate with
the War Labor Board by utilizing its services in dealing with labor
disputes. Among the principles and policies thus formulated by
Woodrow Wilson -for* the 'government of labor relations' during' the
period of the war were the following: (1) Strikes and lock-outs were
prohibited; (2) "the right of workers to organize in trade-unions and
to bargain collectively, through chosen representatives," was recog-
nized and affirmed, and interference with such right was enjoined;
and (3) the discharge of workers for membership in trade-unions or
for legitimate trade-union activities was prohibited. The powers and
functions 'vested in the War Labor Board were limited to settlement
by 'mediation and conciliation of controversies arising between em-
ployers and workers "in fields of production necessary for the effec-
tive conduct of the war," and in other related fields of national
activity. The War Labor Board was empowered to render a binding
decision only if the parties to a controversy agreed -in advance to
submit their case to the War Labor Board and to abide by its decision.
THE WESTERN UNION TELEGRAPH COMPANY 41
In cases where both parties did not so agree, the War Labor Board
was powerless to compel action and could merely consider the
controversy ex parte and issue a recommendation
The President's proclamation left the respondent's policy of op-
position to the C. T. U. unchanged. At. least' 140 employees who
attended organization meetings of the C. T. U. after appointment of
the War Labor Board were discharged, upon orders of the respond
ent's president. Virtually the entire personnel of the Seattle, Wash-
ington, office of the' respondent, numbering from 350 to 400 persons,
was discharged at that time for joining the C. T. U. Carlton testified
at the hearing that Woodrow Wilson had labor theories "which I did
not share." Carlton had, after creation of the War Labor Board,
toured the Pacific Coast and warned the respondent's employees at
meetings in that section of the country that those who proposed to
engage in a strike against' the respondent would be discharged and
that those who joined any organization employing the strike weapon
in settlement of labor disputes gave the respondent notice of their
intention to resort to strikes. The respondent had learned through
its,spy system of the C. T. U. affiliation of the employees discharged
during this period. The C. T. U. complained to the War Labor
Board on behalf of the employees thus discharged, charging the
respondent with violation of the principles enunciated in the Presi-
dent's proclamation of April 8, 1918. Upon refusal of the respondent
to submit the controversy to the War Labor Board and to agree to
abide by its decision, the War Labor Board recommended to the
parties as a means of settling the dispute that the respondent re-
instate all the discharged employees pursuant to the following con-
ditions : (1) The respondent was to receive and bargain with a com-
mittee of its employees, and, in the event no agreement could thus
be reached, the matter was to be referred to the War Labor Board
for disposition. (2) The respondent was not to be required to recog-
nize or deal with the C. T. U. (3) The C. T. U. was to guarantee to
the War Labor Board that it would not initiate, and would not per-
mit its members to engage in, any .strike. (4) Failure of C. T. U.
employees to abide' by their union's guarantee would be punishable
by discharge. The War Labor Board's recommendation was accepted
by the C. T. U. Carlton, however, on behalf of the respondent,
rejected the recommendation and submitted a counterproposal by
letter. - •
Carlton's communication .to the War Labor Board stated that the
respondent's. primary' obligation was to, the United States Govern-
ment and that "this end can' not be achieved if its telegraph operators
are members of the C. T. U. A." The counterproposal suggested
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a referendum be conducted among employees of the respondent
having a "reasonable length of service" on whether they desired the
C. T. U. or an "independent organization" not employing the strike
weapon. If the referendum resulted in favor of the C. T. U., the re-
spondent would not discharge its members but would not recognize
it or deal with it. If the vote was in accordance with the second
alternative, the respondent's policy as to membership in the C. T. U.
would be continued and machinery for the initiation of such an
"independent organization" would be set up by joint agreement
between the War Labor Board and the respondent. The War Labor
Board, through William Howard Taft, refused to accept Carlton's
counterproposal on the ground that it denied employees the right
to join unions of their choice and asked Carlton to reconsider the
War Labor Board's original proposal. On May 27, 1918, the re-
spondent again rejected the War Labor Board's recommendation
and on June 2, 1918, the War Labor Board made public its report
in the matter, stating : "In view of the correspondence it does not seem
useful to further prolong the mediation. The construction of our
principles, as set forth in Mr. Taft's telegram to Mr. Carlton, leads
to the conclusion that The Western Union Telegraph Company should
accept this compromise as therein stated." No further action was
recommended by the War Labor Board. It merely published its
report and apprised the President of the United States of the
respondent's attitude.
On June 11, 1918, Woodrow Wilson wrote to Carlton asking him
to cooperate with the War Labor Board. On June 17, 1918, Carlton
replied as follows :
We have for years maintained the position that our essential
employees, those working the wires, should not affiliate with
organizations employing the strike either for their own benefit
or sympathetically for the benefit of others. This policy has
been long known to our employees and we have considered ab-
stention from such affiliation a condition of their service, and
to-day there are no members of such organization in our employ.
Under the plan of Mr. Walsh, concurred in by Mr. Taft, an
outside union which has for many years been frankly hostile
to the Company would . . . carry on a propaganda for the
purpose of enlisting sufficient of the Company's employees for
no possible result that it would attain during the war, but only
that it might furnish the nucleus for the disorganization of our
service through demoralized discipline and the use of the strike
immediately after the exigencies of the war had ceased and
released it from its promises.
THE WESTERN UNION TELEGRAPH COMPANY 43
Carlton and J. C. Willever, a vice president of the respondent
since 1914, testified at the hearing that the reason for the refusal to
accede to the War Labor Board's request to recognize the C. T. U. in
exchange for the latter's promise not to strike was that such promise
was unreliable. Willever testified further that an additional reason
for rejecting the recommendations for settlement of the controversy
was that the C. T. U. would become entrenched in the company dur-
ing a period of possible governmental control of the respondent's
business.
Carlton's refusal to abide by Woodrow Wilson's request to cooperate
with the War Labor Board exhausted all possible and appropriate
sanctions then available to the executive branch of the government for
settling the dispute between the respondent and the C. T. U. over the
discharges which had occurred after April 8, 1918, and both sides
were consequently left to their own devices. The C. T. U. thereupon
announced that its membership had voted to strike against the re-
spondent in support of Woodrow Wilson's proclamation of April 8,
1918, and for the purpose of compelling compliance with the recom-
mendations of the War Labor Board. The decision to strike was
subsequently withdrawn. News of the strike vote and of its with-
drawal appeared in the public press.5
On July 22, 1918, pursuant to authority granted to him by the Con-
gress on July 16, 1918, Woodrow Wilson issued a proclamation and
order taking possesssion and assuming control and supervision of all
telegraph and telephone systems within the jurisdiction of the United
States and directing that supervison, possession, control, and opera-
tion of such communications systems should be exercised by and
through Albert S. Burleson, then Postmaster General. The order be-
came effective on August 1, 1918. In his annual report for the year
1918, the Secretary of Labor of the United States reviewed the history
of the conflict between the respondent and the War Labor Board and
said of the conduct of the former that it represented the "first-resist=
ante" to a decision of the War Labor Board. The annual report
stated further that after Carlton had refused to accept the War Labor
Board's recommendations and to comply with Woodrow Wilson's
appeal, the latter applied to the Congress for authority to take over
the telegraph and telephone lines.
Carlton had, meanwhile, during the period between his final re-
jection of the War Labor Board's recommendations and the date on
which the Postmaster General assumed possession and control of the
respondent's telegraph system, concerned himself with a plan of or-
The New York Times for July 8, 1918, reported that on July 7, 1918, S. J. Iionenkamp,
international president of the C. T. U., had called off a strike against the western Union
Telegraph Company, scheduled for July 8, 1918.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization for the respondent's employees. On May 31, 1918, he had
appointed a committee consisting of minor executives to study forms
of organization and to draft a plan to be used in uniting the re-
spondent's employees in a Nation-wide 'association. On the same day,
he addressed the committee and outlined to them the following general
principles on which their plan of organization of the projected associ-
ation-was to be based : (1) membership was to be confined to Western
Union employees; (2) employees who were members of any A. F. of L.
affiliate were to be ineligible for membership in the association; (3)
the association was to pledge itself not to engage in or support strikes
or other coercive measures; and (4) in consideration of the associ-
,ition's pledge, the company would accord the association representa-
tion on the then existing pension-fund committee and would deal with
it in collective bargaining and in the adjustment of grievances. Ac-
cordingly, on June 7, 1918, the committee submitted its plan to Carlton
and 4 days later, pursuant to his instructions, presented him with a
draft of a call to all employees announcing the plan of organization
and outlining the procedure to be followed in setting up the associ-
ation. According to Carlton's testimony at the hearing, the reason
for his appointment of a committee at this time, in spite of an earlier
committee's report of the inadvisability of forming an employees'
association, was that "Labor was boiling and it was desirable, highly
desirable, that if the employees were to be denied the joining of
labor unions that employed the strike . .., it was necessary in all
fairness and in cultivating the value of family spirit, which means
the cooperation of officers and employees, that the employees have an
opportunity to. express their dissatisfaction or their satisfaction."
On June 13, 1918, Carlton issued a bulletin to all employees stating
that the respondent's board of directors had 2 days earlier given
careful consideration to an employees' petition for an association ;
that the respondent was prepared to help in any way it could; and
that Carlton had been asked by the board of directors to communi-
cate the suggestion to all the respondent's employees that they choose
representatives for a convention to perfect an industrial constitution,
such convention to be held at Chicago on July 10, 1918, and the
necessary costs 'thereof, including the salaries and expenses of dele-
gates, to be borne by the respondent. The bulletin announced fur-
ther that the essential features of the proposed industrial constitution
should be those of an association completely controlled by the
employees and representative of them, and that the employees pro-
ceed to the election of delegates in accordance with a designated
election method. The petition to which Carlton had referred in his
bulletin was dated June 11, 1918, and bore the signatures of a group
of the respondent's Chicago employees. Addressed to Carlton, it
THE WESTERN UNION TELEGRAPH COMPANY 45
declared that the signers had been informed through the public
press that Carlton favored the formation of an association for the
respondent's employees. The signers then apprised Carlton that
they desired to form an association confined to Western Union
employees "upon the plan' generally outlined by you and firmly estab-
lished upon the principle that the strike shall not be employed, nor
shall the Association thus formed affiliate with any other Association
or Organization which would resort to the strike either for itself or
others." " Carlton, in his testimony at the hearing, stated that the
petition had probably reached him through the mails and explained
that, although it had apparently been composed on the same day on
which the respondent's board of directors had considered it in New
York, he had obtained some intimation of its contents before it was
actually received.
On June 17, 1918, Willever issued and sent by wire to- all the
respondent's managers throughout the country instructions to conduct
an election for electors among employees under their jurisdiction, the
electors in turn to select delegates to the constitutional convention to
be held at Chicago on July 10. Supervisory employees were declared
ineligible for selection as electors or delegates. Willever's message
outlined the election procedure to be followed and directed the man-
agers to have the instructions printed and posted on the respondent's
bulletin boards not later than June 19. Need for extreme urgency
in carrying out the instructions was emphasized. At the hearing
Carlton and Willever testified that the extreme urgency was caused
by the imminence of Government control. Carlton explained his
desire to perfect organization of the association before the Govern-
ment took over the respondent's property by saying, "Well I suppose
I thought that [we] might find some insurgency in Government
ranks." Various other communications on the conduct of the elec-
tions, on the need for arousing enthusiasm among the employees for
the, projected association, and on the procedure to be followed by
electors in exchanging information with each other were sent by the
respondent's vice presidents to the respondent's officials throughout
the country. Among these communications was a message from
Willever to general managers, stating: "* * * I am sure that you
and your associates can so manage the initial steps in the formation
of the Association that they will be properly taken and be adequately
supported by the keen interest of the employees without giving the
proceedings an unnecessary official tinge." Willever stated at the
hearing that his instructions to refrain from investing the inchoate
association with an "official tinge" were motivated by a desire to avoid
the erroneous impression that the respondent intended to dominate
that organization.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the period between the call for the constitutional conven-
tion and the opening of the convention communications were also
addressed to the employees to arouse their interest in and zeal for the
respondent 's plan of organization . These communications appear to
have been induced by the threat of the C. T. U.'s outstanding vote to
strike against the respondent and by the latter's fear that its plans
for establishing an association as an alternative to the C. T. U. might
be seriously - hampered by the materialization of that threat.. Thus
on July 1, 1918 , there appeared in the Western Union News, a house
organ published by the respondent for distribution among its employ-
ees and dealing with employer -employee relations , an article on the
forthcoming convention and on the value to the respondent and its
employees of the projected organization . The article read in part as
follows :
Eventually the machinery of the organization will be working
so smoothly that all of us will wonder how we ever got along
without it . . . It, too, will grow bigger and stronger and
more effective in helping every worker in the company secure
for himself what he needs for his happiness . . . Needless
to say, this organization of Western Union employees will receive
the heartiest support of the management . Without this support,
the organization would be valueless , just as the management
would have little of value if it were not backed up by the loyalty
and efficiency of the workers in the ranks.
Again on July 4, 1918, 6 days before the scheduled convention and
while the C. T. U. was preparing to execute its strike vote, Carlton
addressed a 'bulletin by wire to 7,000 offices of the respondent an-
nouncing that the respondent would enter into an exclusive contract
with the association when formed , under which the respondent would
deal with that association with respect to conditions of employment,
sick benefits , pensions , life insurance , and other matters affecting the
interests of the employees. The bulletin warned employees - against
being "urged to do something foolish by self-seeking individuals,"
who planned "to call you-loyal men and women of the Western
Union-from your work in order to defeat the Association which
you are about to form." Carlton concluded his statement with an
expression of confidence that the employees would answer the attempt
to defeat the association "by an additional demonstration of your
loyalty to your Government by continuing at your post of duty
without fear of criticism by right-minded people." Carlton testified
at the hearing that he was aware at the time he dispatched the bulle-
tin of an effort on the part of the C . T. U. to call a strike. He stated
also that, although he had no knowledge at the time of the kind of
HE WESTERN UNION TELEGRAPH CODIPANY 47
constitution the association would adopt or of the nature of the de-
mands it might make upon him , he had nevertheless determined to
enter into a contract with it upon its formation. "We had confi-
dence," he explained concerning his intimations as to the probable
achievements of the constitutional convention , "that our employees
having resisted the overtures of the labor union would see the wis-
dom, as the country was at war, of adopting a plan and procedure
which would conserve the property and its essential function with
the country then at war." Carlton had in fact, however, been con-
cerned with a constitution and bylaws for the association after he
had issued his call for the convention and before he had sent out the
bulletin of July 4. On June 20 , pursuant to his earlier directions,
Carlton's committee of minor executives had submitted to him a
draft of a proposed constitution and bylaws . On July 8, 1918, in
execution of its further assignment , the committee had prepared and
handed to Carlton a proposed agreement to be entered into between
the respondent and the association.
On the eve of the constitutional convention , the respondent clar-
ified as follows for its stockholders , in a pamphlet entitled "The
Western Union and the War Labor Board," the motives underlying
its plans for an association :
The alternative to the foregoing plan would be for the com-
pany to waive its objections to its employees joining an outside
union and , against its better judgment and experience , open its
doors and subject its service to the disturbance incident to a
propaganda for membership by an outside organization, which
for many years has been frankly hostile to the company and has
now no interest in its service to the public.
After the election machinery and its supplemental instructions had
been executed , 16 delegates , 2 from each of the respondent's 8 terri-
torial operating divisions, met at a hotel in Chicago on July 10
for the :purpose of perfecting a, form of organization for a Nation-
wide association of the respondent 's employees . Although the re-
spondent had issued instructions against the selection of supervisory
employees as delegates , most of the 16 delegates were considered by
Carlton as having held supervisory positions at the time of their
election.,' No minutes of the convention proceedings during the
first 5 days of the session appear to have been taken or preserved.
9 According to the record of an earlier hearing before the Board in a proceeding against
the respondent , parts of which were incorporated in the record in the instant proceeding,
Carlton testified that all the delegates held positions of importance with the respondent,
most of them having been supervisors at the time of their election , but that they were
elected by democratic process. Matter of Western Union Telegraph Company and Mes-
sengers Local No. 40 of the Commercial Telegraphers Union, 3 N . L. R. B. 375.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the testimony of two delegates, this time was spent in
getting acquainted, in considering telegrams which had arrived from
employees throughout the country, and in exchanging suggestions.
W. A. League, one of the delegates from the respondent's Southern
division, testified that the delegates were uncertain as to how to
proceed, as they were without experience in drafting a constitution.
On one of the first 3 days of the session, Carlton appeared at the
convention for a few minutes and addressed the delegates informally,
leaving with them a copy of a proposed constitution and of a proposed
agreement to be entered into between the respondent and the new
organization which was to emerge from the convention. Carlton
testified that he had given the delegates a rough draft of the con-
stitution to "hack at"; that they were not bound by his proposals ;
and that he had cautioned the delegates in the following manner with
respect to any constitution they might draw up : "This must be an
employees' document and the hammer marks must be on it."
Although he could not recall at the hearing whether he had expressly
informed the delegates that the respondent would not deal with an
organization employing the strike weapon, he stated with assurance
that, if there appeared to him during his visit to have been any
reason for impressing that fact upon the delegates, he had certainly
done so. He testified, further that any failure on his part to inform
the delegates that one of the conditions of recognition of the asso-
ciation was the renunciation of the right to strike and the acceptance
of arbitration as a substitute was due to a mere oversight. No further
visits to the convention were made by any of the respondent's officers.
The minutes of the convention, recording only the proceedings of
the regular sessions and- not of the various committees or of the ses-
sions during which the delegates met as a committee of the whole,
show that from July 15 to 22 the delegates concerned themselves with
drafting a constitution. In exercising this function they were guided
by Carlton's draft and the constitutions of the C. T. U. and the
Order of Railroad Telegraphers. A final draft, the composite of
three separate documents compiled independently by. each of three
groups of delegates, was presented to the entire body for discussion
and approval. Each section was read, discussed, and submitted to a
vote. There was little serious disagreement or heated debate on any
question except that of including a strike clause in the constitution.
Ray Miller, a "delegate from the Metropolitan division, moved to
substitute for a proposed section in the tentative draft, which followed
precisely a provision in Carlton's draft for the amicable settlement
of disputes, a section investing the board of directors of the. asso-
ciation with the power to call a strike upon the failure of attempts
at amicable adjustment, such substitute provision to be inoperative
THE WESTERN UNION TELEGRAPH COMPANY 49
during the period of Government control. Miller made a very vig-
orous stand in favor of his motion, pointing out that the organization
would be wholly ineffective if it disabled itself from striking. He
talked also on behalf of his constituents who had informed him of
their strong desire to be empowered to strike. Only one other dele-
gate spoke in favor of Miller's motion, saying that many of the
employees whom he represented had instructed him earlier not to
forget "the strike clause, to protect all of us."
The prevailing tenor of the debate against Miller's motion was that
Carlton had made it quite clear to the delegates that inclusion of a
strike clause in their constitution would preclude the respondent from
recognizing the association and from entering into an agreement with
it, one delegate arguing in that connection that they had all come to
the convention in acquiescence to Carlton's plan of organization and
could not, therefore, disregard his admonition against arming the
association with the strike weapon. Although Miller countered by
attacking his associates for abiding by the dictates of the respondent,
his motion was tabled and was not thereafter reconsidered by the
convention. The original section providing for settlement of dis-
putes by arbitration was formally voted upon and adopted. When
Miller later offered an amendment to the proposed section dealing
with arbitration procedure, this motion was also defeated after some
debate during which one of the delegates stated that he was uncertain
as to whether the' amendment would be acceptable to Carlton, as it
meant a departure from Carlton's proposal on the subject.? At least
one other amendment was defeated for the same reason.
After the delegates had agreed upon a constitution, but before its
final adoption, a committee was appointed to confer with Cronkhite,
general manager at' Chicago, on Carlton's reaction to the document.
The committee reported to the convention on July 20 that it had pre-
sented the proposed constitution to Cronkhite, who advised them that
he would confer with Carlton on the matter. After communicating
with Willever, Cronkhite received from him a teleg'rani dated July
IS stating that Carlton "would not care to pass on the constitution as
he feels this -is entirely an employees matter" but adding that he,
Willever, thought "the company will be satisfied with a fair document
that submits real differences to impartial arbitration. The company
would not other than oppose an association that proposes to deal by
strike. What are the facts as to arbitration and strike." On July
22 there was read to the delegates and incorporated in the minutes a
telegram from Willever to Cronkhite, dated July 21, stating that
'Although the respondent had thus insisted upon the adoption of arbitration procedure
as a substitute for the strike clause in the constitution of the association , as noted below,
such procedure was never invoked to settle any of the disputes which arose between the
respondent and the association.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the company assumes a fair document and that being true is pre-
pared to enter into contract with association. Company should not
be placed in position of accepting constitution which is a prerogative
of association members." At the hearing Willever clarified the term
"fair document" by stating that he had in mind a constitution and
bylaws substituting arbitration for the strike. He also explained the
.apparent freedom of draftsmanship accorded the delegates by stating
that he had considered the constitution tentatively agreed upon by
the delegates satisfactory to the respondent after he had been
apprised of its contents.
The convention adjourned on July 22, after electing permanent
officers and designating a committee to meet with Carlton at Omaha,
Nebraska, on July 25 to negotiate a contract. One of the closing
speeches of the convention was made by its acting chairman, who
commented as follows upon the work of the delegates : "I believe we
have kept the faith and have produced a document which' will be
satisfactory to the employer and the employee . . ." On the after-
noon of that day the delegates met as a general assembly and
formally adopted the constitution as formulated by the convention.
Thus there came into being the Association of Western Union
Employees.
After adopting the constitution, the general assembly discussed the
terms of a proposed agreement with the respondent and, guided by
the draft submitted by Carlton during his brief visit to the conven-
tion, agreed upon a proposed document. The general assembly ad-
journed on July 23, and, with the exception of the bargaining
committee which was to meet with Carlton at Omaha, all delegates
returned to their posts with the respondent. The respondent had
paid all expenses of the delegates incident to their attendance at the
convention and general assembly and to their travel to and from
Chicago. No deduction from their salaries was made for the period
of their absence from work.
The constitution as finally drafted by the delegates and adopted
by the general assembly provided- for a Nation-wide organization
composed of local membership assemblies, governed by local officers
and empowered to deal in the first instance with membership griev-
ances and other matters. Membership local assemblies were in turn
to be grouped into eight territorial divisions, for the most part
coterminous with the respondent's operating divisions, and were to
be immediately subject to the jurisdiction of ,a divisional vice presi-
dent,s authorized to appoint a division committee to handle griev-
ances on appeal from local assemblies and directed to devote his
s By subsequent amendment to the constitution, the title of these officers was changed to
division president.
THE WESTERN UNION TELEGRAPH COMPANY 51
"entire time to the interests of the Association." The "Supreme
Body" of the Association was to be the general assembly. Composed
of two national officers, the eight divisional vice presidents, and two
delegates from each division, it was to meet annually and to consti-
tute the final source of power with regard to all matters of policy
and operation.9 A .general president, directed "to devote his entire
time ,to the work of the Association,'.'. and., a general . secretary-treas-:..
urer were to be the national officers of the Association, their salaries
and those of the divisional vice presidents to be established and
regulated by a board of directors during the first year and, there-
after, by each general assembly. During the recess of the general
assembly, the Association was to be governed by a board of directors,
composed of the general president and the eight divisional vice
presidents, its action to be subject to the disapproval of the general
assembly. The board of directors was authorized to handle all
matters concerned with the proper functioning of the Association, to
adjust in conference with the respondent all cases referred to it by
the divisions, "to arrange- methods to effect amicable and satisfac-
tory adjustment," and to render a report of its acts-to the, general,...
assembly. Provision was made for the payment of dues by the
members of the local assemblies, part of which was to be retained
by the local assembly and part to be sent to the general offices of
the Association. A board of arbitration, composed of one Associa-
tion representative, one company representative, and a third mem-
ber chosen by the first two was provided for, and a procedure for
handling grievances was outlined.
A comparison of the Association constitution and the draft sub-
mitted by Carlton shows that the two documents are dissimilar as to
structural set-up, Carlton's draft having merely provided for suc-
cessive committees of original, intermediate, and final jurisdiction to
handle grievances and to act as governing bodies. They are almost
exactly alike in the statement of aims and objects, in the eligibility
provision and other membership requirements, and in the provision
for a board of arbitration. In a number of respects the Association
constitution shows evidence of having been modeled on the constitu-
tions of the Order of Railroad Telegraphers and the C. T. U. It
is, however, strikingly unlike the basic documents of each of these
organizations in its utter silence as to the power to call a strike in
the event of an inability amicably to adjust disputes. That the
effect of the omission of a strike clause and the insertion of Carlton's
arbitration provision was to disable the Association under all condi-
tions from exerting economic pressure by means of the strike weapon
0 By subsequent amendment of the constitution the general assembly met biennially after
1921.
52 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
and to compel it instead to accept as a last resort the decision'of a
board of arbitration , is evident from the debate of the delegates
during ' the convention . Moreover , two of the delegates ' testified at
the hearing that it was their' understanding at the convention that
the Association ' had renounced the right to strike ' by adopting the
arbitration provision . Carlton's testimony was to the same effect.
Miller ' stated at the hearing in' this connection that' he -left Chicago
greatly disappointed at his lack ' of success in urging the insertion
of a strike clause and in establishing it labor 'organization "with some
teeth init."
In accordance with prior arrangements , Carlton and three Associ-
ation representatives 'met at Omaha on July 25 and on the same day
executed an agreement , herein called the Omaha Agreement . On that
day a telegram bearing the names of the 16 delegates was addressed
to all employees announcing the adoption of a constitution and urging
the'addre'ssees to stand squarely behind the Association and to defend
it against outside influences . The three Association representatives
who met at Omaha were subsequently paid by the respondent for the
time spent between the conclusion of the general assembly session and
their return to work, and all expenses incurred by them during this
period were also borne by the respondent . In its introductory clauses
the Omaha Agreement states that the Association hopes "to secure
as members practically all of the employees occupying permanent
positions in the company " and that the respondent is desirous of es-
tablishing "on a permanent basis" its relations with its employees as
represented in the Association . By means of the substantive pro-
visions of the Omaha Agreement the respondent assumed toward the
Association the obligation to accord preference of employment to those
applicants who would indicate a willingness to join the Association, to
bargain with members of the Association as to terms and conditions
of employment, to limit the discharge of Association members to situ-
ations constituting "adequate cause," to grant to any employee having
a grievance the' privilege of dealing with local company officials in
the first instance , with an ultimate right of appeal through the general
assembly, to limit the causes for which an Association committee
member' might be discharged , to furlough full-time and part-time
officers of the Association during periods of 'non-employment oc-
casioned by the execution of their duties . as such officers , and to accord
the Association representation , through its division committees, in
the administration of the sickness and accident aspects of the then
existing company benefit -payment plan . In addition , both parties
bound themselves to refer to a board of arbitration , in accordance
with the Association 's constitution, any dispute between them con-
cerning the interpretation of the Omaha Agreement or concerning
THE WESTERN UNION TELEGRAPH COMPANY 53
terms • and conditions of employment. The Omaha Agreement was
to remain. in effect indefinitely, except that it might be terminated
upon 6 months' notice by either party.10
By supplemental agreement, also :signed at Omaha on July 25, the
parties•.zagreed further (1) that. all employees who had been released
from the service of the respondent after January 1, 1918, "because
of undesirable affiliations," would be reemployed upon application
and: submission of evidence that they had joined the Association
10 The text of the agreement reads as follows :
1. The Company agrees to hereafter prefer for . employment those applicants for posi-
tions who indicate their willingness to become members of the Association.
2. The Company undertakes to treat individually or "collectively with members of the
Association through their duly constituted committees and officers of the Association with
respect to grievances , wages and the broad questions involved in working conditions.
3. Individual matters may be adjusted locally , but no general schedule of working hours
or wages shall be put into effect until it. has received the approval of the General Officers
of the Company and such Association officers or committees authorized to represent the
Association in such natters.
4. Memorandum agreements may be executed between the Association and the Company
embodying undersfandings reached with respect of general conditions of employment, wage
schedules and other matters of joint interest . Such agreements shall be in as full force
and effect as if they were incorporated in this agreement at the time of its execution.
5. This agreement shall continue in force for an indefinite period except that it may be
terminated by either 'party, upon giving ' six months ' notice to the other party of its
intention so to do.
6. It is recognized that members of the Association and the Company are engaged in
performing a continuous public service and that such continuity of service is necessary at
all times as well as during the present war emergency. It is agreed that the Company
shall not discharge ' any member of the Association from its employment without adequate
cause, except that in view of the fluctuating nature of the Company's business, the Coin-
pany reserves the right to reduce its working forces as the fluctuations of traffic may
require. Employees laid off for lack of work shall be selected from those most recently
employed, and shall be furloughed so that their service record shall not be broken.
7. Any employee having a grievance is privileged to take the same up without prejudice
with the local employing official either individually or through the local committees, and
failing a satisfactory adjustment shall have the right of appeal up to the General Assembly
through the committees representing the employees and the Company.
8. The Company agrees that no employee while serving as a member of any committee
of the Association shall be subject to discharge except for grave infraction of the Com-
pany 's rules and regulations or other serious cause and then only by resolution of the
Executive Committee of the Board of Directors . In all cases of discharge by the Executive
Committee a statement of the grounds of such action shall be lodged with the Board of
Directors of the Association.
9. If any dispute between the Association and the Company shall rise concerning the
interpretation of this agreement or respecting the hours of employment, working condi-
tions, or wages, which cannot be settled satisfactorily to both parties by negotiation, then
it is agreed that such disputes shall be referred to a Board of Arbitration as now provided
for in the Constitution of the Association.
1.0. It is further agreed that nothing herein contained shall affect in any particular the
plan for employees' pensions, disability benefits and death benefits created by the Company
and, now being administered by a Committee of employees appointed to carry out said
plan, except that the-Association through its Division Committees shall be represented
in the administration of the plan in so far as sickness and accident benefits are concerned.
11. It is further agreed that members who while serving as officers of the Association
find it necessary to devote their time wholly or in part to the affairs of the Association
shall be furloughed by the Company during such periods of non-employment by the
Company, so that their service record will remain unbroken.
12. It is agreed between the parties that except as herein expressed, the Company sus-
tains no obligation to or control over the Association or the provisions of the Constitution
governing the Association.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and relinquished "the undesirable outside affiliation," provided that
no such employee had "sought to damage the company's property, to
produce confusion in its plant, or to interfere with other employes
in the discharge of their duty"; (2) that employees reinstated in
accordance with the first provision of the supplemental agreement
would be entitled to a continuous service record; (3) that on and
after August 4, overtime ancl','Sunday time ,.Would be 'eomplite&,'ae
time and one-half; and (4) that the respondent would at a later
date consider and make effective, if agreed upon, wage schedules
and collateral items.
According to Carlton's testimony, one of the reasons for meeting
at Omaha almost immediately after the close of the constitutional
convention was his eagerness "to close the matter, if possible, before
the Postmaster General or the Government took over the wire" so
that the Postmaster General might be presented with "an accom-
plished fact." The purpose of the meeting, he explained at the hear-
ing, was to agree on a constitution and to sign an agreement. "We
must have accepted their constitution . as. satisfactory," he testified-;-,
"otherwise, we would not have signed an agreement." More specifi-
cally with respect to the failure of the delegates to insert a strike
clause in the constitution, he admitted that that circumstance was
an important factor in his decision to sign the Omaha Agreement
and that he would not have approved any agreement unless the con-
stitution had, in accordance with his earlier pronouncements to the
employees and to the public, provided for arbitration as a means
of settling disputes. Carlton explained further that he was careful
to see to it that the Omaha Agreement also contained a provision
that the men would not strike.
As no minutes appear to have been taken of the discussion of the
delegates on the Carlton draft of an agreement and on other possible
terms favored by them, it cannot.be..determined directly whether,
the Omaha Agreement and the supplemental agreement represent
the results of an interchange of ideas or a voluntary unilateral ex-
pansion by Carlton of the scope of his original draft. At the hear-
ing Carlton claimed fatherhood of the idea of according preference
of employment to applicants indicating a willingness to join the
Association. He also' acknowledged authorship of the sense of the
last clause of the Omaha Agreement whereby the company expressly
disclaimed control over the Association, stating as his reason therefor
a desire to avoid "a very natural suspicion" that the Association
night be considered as company controlled.
Comparison of the Omaha Agreement and the draft of the pro-
posed contract submitted by Carlton to the convention delegates
reveals that both documents are essentially alike. Their differences
THE WESTERN UNION TELEGRAPH COMPANY 55
.are, for the most part, occasioned by the variance as to the structure
of the Association between the Association constitution and the draft
of a proposed constitution left by Carlton with the convention dele-
gates. Thus, since the Association constitution deviated from the
Carlton suggestions as to grievance machinery, the Omaha Agree-
ment, in so far as it was adapted to the alternative machinery out-
lined in the Association constitution, differed from the Carlton draft
.of an agreement. Although Carlton had announced in his bulletin
of July 4 an intention to accord the Association representation on
the committee administering the company benefit-payment plan, this
point was not expressly incorporated in his draft of an agreement.
The Omaha Agreement designates the manner of representation.
Two differences are, however, discernible in the two documents:
The Omaha Agreement limited'the 'situations under which Associa-
tion committee members could be discharged, while the Carlton pro-
posals were silent on that subject. Furthermore, the Omaha Agree-
ment provided for the furloughing of full-time or part-time
Association officers, while Carlton suggested that the respondent pay
the salaries of employees absent from work because of attendance
at Association meetings.
On August 1, 1918, the Postmaster General of the United States
assumed control of the respondent's telegraph system, and in 1919 the
lines were returned to the respondent.
2. Conclusions as to formation of the Association
There is no dispute in the evidence as to the respondent's labor rela-
tions policy or as to the events which preceded the formation of the
Association, as hereinbefore outlined. Indeed, the policy and many
of the events are admitted in the respondent's answer. The respond-
ent denies, however, that the undisputed facts are reasonably sus-
ceptible of the inference that it interfered with, dominated, or con-
trolled its employees in the formation of the Association and avers
affirmatively in its answer that it impressed upon its employees and
upon the delegates to the constitutional convention that the sole pur-
pose of forming an employees' association was to create machinery
for collective bargaining which would be "absolutely independent"
of the respondent. Carlton stated at the hearing, in support of the
respondent's answer to the complaint, that the respondent had co-
operated with its employees in materializing their desire to form a
labor organization by according to them, in their initial efforts,
various forms of guidance,. aid, and support merely for the purpose
of helping them "to get started" on the path of independence. "We
247384-40-vor,. 17-5
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did all we could by encouragement," he said of the respondent, "to
make the Association ... virile and independent."
We believe that the facts as hereinbefore related successfully chal-
lenge the respondent's contention and validly support a contrary
conclusion. Admittedly hostile to the C. T. U. and to other outside
labor organizations, the respondent began in 1915 to consider .'lie
wisdom of introducing among its employees a plan of organization
which it hoped might at once divert their interest from the C. T. U.
or any other organization employing the strike weapon and satisfy,
a recognized desire on their part for some, kind of collective action.
Study of the problem at that time revealed, however, that there were
two pitfalls to be avoided in setting up such an organization: (1).
the right of employees to strike and (2) the freedom of the employees
to Join a union of their own choosing. To overlook either of these
hazards would be to imperil the very purposes for which such an
organization was being considered. Apparently unwilling or unpre-
pared to deal with the problem further, the respondent permitted
its idea of promoting the organization of a Nation-wide association
for its employees to lie fallow. for 3 years. After., April 8; 1918,
however, a public policy as to labor relations was sanctioned by
Woodrow Wilson which tended to encourage promotional efforts by
the C. T. U. Although the respondent, nevertheless, chose to con-
tinue to be governed by its own labor policy and to invoke the penalty
of discharge against those who disobeyed its injunction against join-
ing the C. T. U., the need for a concrete, positive plan 'to reinforce
its position became evident, if it were to emerge victorious in its
campaign against the C. T. U. and its intransigence with respect to.
the War Labor Board's recommendations. Time was of the essence
in the battle, as there loomed the probability of governmental control
with the concomitant danger of superimposition upon the respond-
ent's employees of the prevailing public policy as to labor relations.
Thus Carlton resumed consideration of the plan he had abandoned
in 1915 and set about, on behalf of the respondent, to confront the
C. T. U. and the Postmaster General by August 1, 1918, with "an
accomplished fact"-the Association.
The pitfalls of which the respondent had been made aware in 1915
were now carefully to be avoided and Carlton was to be assured in
advance of organization that the Association would renounce the
right to strike and accept, instead, the principle of arbitration as a'
means of settling disputes and that the Association would serve as
an effective bulwark against any C. T. U. encroachment. By means
of statements to the press and bulletins issued directly to the em-
ployees, Carlton laid down the terms upon which recognition of the
THE WESTERN UNION TELEGRAPH COMPANY 57
Association would be based. The Chicago employees responded al-
most at once, indicating their adherence to Carlton's principles.,'
Where obstacles in the form of employee indifference or C. T. U.
opposition were perceived, the respondent attempted to overcome
them by appeals to loyalty, heartening words, and promises of com-
pany cooperation. The machinery for bringing the Association into
being was also devised by the respondent and all promotional ex-
penses incurred were borne by it. The delegates thus arrived at the
convention committed to Carlton's mandate, repeated in the draft
of a constitution which he handed them, to renounce the strike as a
means of settling disputes. Satisfied that they had executed that
mandate in their constitution, Carlton negotiated the Omaha Agree-
ment, obligating the respondent to prefer for employment applicants
for positions indicating a willingness to join the Association and to
accord various forms of preferential treatment to its members and
officers, and thereby achieved his second objective of minimizing the
opportunity for further encroachment by the C. T. U.
We find that the respondent initiated the Association for the ac-
complishment of the foregoing purposes and that such purposes are
inconsistent with independence of the Association and freedom from
domination thereof by the respondent.
Whether, in spite of the plans of its parent, the Association suc-
ceeded during its infancy or in later years in emancipating itself
from the respondent's control and in emerging as the freely chosen
representative of its members is to be determined from the history
of its dealings with the respondent.
3. Dealings with the Association from its initiation to July 5, 1935
a. Contribution of forms of financial support
In his first annual report delivered before the Association' s general
assembly at Denver, Colorado, in 1919, Joseph P. Hayes, then general
president of the Association, reviewed the growth of the Association
since its initiation "a little more than a year ago in response to the
Company's invitation to hold a Constitutional Convention," reported
upon its financial progress, and summarized the results of its dealings
with the respondent. He stated that, upon their return home. from
the organizing convention in 1918, the divisional. vice presidents and
all but three of the delegates undertook the task of permanent organi-
1 The development of events up to June 11, the date of the Chicago' petition , negatives
entirely the contention that the idea of forming an association originated with the signers
of the petition and that the respondent's role was merely that of cooperator and guide.
The facts show that, had the sense of the petition not been made known to Carlton, his
plans would, nevertheless, have proceeded in accordance with the pattern he had already
laid out.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation of the Association in their respective divisions and that their
efforts had resulted in the establishment of 161 locals with a total
membership of 20,000. Of the three delegates who had not joined
in the promotional endeavors of their associates, he reported that
they had deserted the Association "because of adverse influences that
were brought to bear upon them," one having thus become a rene-
gade immediately upon his return to New York City. This reference
appears to have been made to Ray Miller. With respect to the finan-
cial position of the Association, his report declared that the Associa-
tion had embarked upon its career without any funds and that its
officers had rejected a suggestion advanced by some of the members
that the respondent be asked to extend a. loan to the Association
"inasmuch as the Company took the initial step." Instead, the officers
proceeded to set up the Association by establishing "proper credit
relations" and without asking "the loan of a cent."
The record shows that, in the years that followed, the Association
grew in membership and local assemblies, attaining its peak in 1930
when it had enrolled as members 37,683 persons out of a total number
of 49,824 land-line employees. Annual collective bargaining confer-
ences were held with the respondent and numerous agreements were
reached. The Association also became the recipient of special treat-
ment, sometimes as a result of negotiations with the respondent and
at other times without demand or agreement. An intimate relation-
ship between the respondent's officials and the Association's officers,
in which the former's counsel was extended to the latter with and
without solicitation, was established during the infant years of the
Association and became noticeably cemented during later years.
Evidencing<-this relationship are, among other things, the° substance
and tone of correspondence between the Association's officers and
Carlton and Willever. Thus on August 3, 1919, Hayes wrote to
Carlton asking to be advised whether in Carlton's opinion certain
employees of another company of which Carlton was also the presi-
dept were eligible for membership in the Association. Carlton, in
reply, counseled Hayes that such employees were ineligible for mem-
bership, as their wages were not derived from the respondent, and
suggested that they might, "of course," form their own association.
As to a similar problem, the respondent agreed on April 7, 1920, not
to object to membership in the Association on the part of joint rail-
road employees receiving regular compensation, at least in part, from
the respondent. On the occasion of the Association's establishment
of a local assembly at Havana, Cuba, early in 1920, Hayes promptly
informed Carlton by letter of that aspect of the Association's growth
and of the report that the Havana employees "are enrolled 100%
strong under our banner." Attached to Hayes' note was a letter
THE WESTERN UNION TELEGRAPH COMPANY 59
from the Association's representative in Havana, and Hayes com-
mented upon it as follows to Carlton : "The interesting portion of
his letter is wherein he advises that they have the strike disease
down there and having turned their minds in the proper channels,
they now think of something else." Carlton's reply congratulated
Hayes on the success of the Association's organizational efforts in
Havana.
Typical of the state of this relationship 10 years after the Associa-
tion's birth is an exchange of correspondence between Willever and
Burton, president of the Association since 1927, on the formation of
credit unions among the respondent's employees. Burton advised
Willever that such a project had been conducted through the efforts
of the Credit Union National Extension Bureau 'of Massachusetts
and requested an expression of the respondent's attitude toward credit
unions. Willever, in reply, endorsed the credit union idea but
expressed personal regret "to see outsiders leading the movement."
"I should not expect," he continued, "the formation of these local
credit organizations to work adversely in themselves to the Associa-
tion, but having in mind the desirability of having the Association
function as actively and continuously as possible in the interests of
its membership, and considering that this cannot always take the
form of concessions from the company because they would serve to
milk the animal quite dry, it seems too bad that the Association itself
did not undertake to operate along similar lines. Of course there is
another side to it and that is the difficulty of guarding against the
possibility of breach of trust, when money is involved, and the
unfavorable reaction upon the members if they should find that their
accumulated funds had been dissipated."
As already stated herein, from the date of its organization the
Association became the recipient of various forms of special treat-
ment accorded to it by the respondent.
(1) Payment of salaries of general assembly delegates and free
transportation
What Hayes had failed to report to the general assembly of 1919
in connection with the financial position of the Association was the
undisputed fact that Carlton had arranged to have the respondent
pay the salaries of the delegates to that general assembly and to fur-
nish them with free railroad transportation facilities. The follow-
ing year the Association again received the same support from the
respondent. In 1921 and 1923, by arrangement between the Associa-
tion and the respondent, the latter paid the salaries of delegates to
the conventions held during those years and was thereafter reim-
bursed by the Association. On May 6, 1925, Willever wrote to Hayes
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating that he assumed the Association wished to follow the usual
custom of having the respondent advance the salaries of delegates
to the forthcoming general assembly and that he would be pleased to
receive a list of the delegates-elect. Five days later Hays replied
that the Association would not request the advancement of salaries
that year because of its improved financial condition and commented
as to past favors as follows : "The aid extended at Detroit and St.
Louis proved to be a life saver." Thereafter the respondent made
deductions from the salaries of delegates for absence from work
occasioned by their attendance at general assembly sessions. The
respondent had thus for several years extended valuable aid to the
Association during its formative period and had, in return, received
the gratitude of the Association.
After Association officers and delegates to. the general assemblies
had enjoyed for a while the benefits of free railroad transportation
spontaneously tendered to them by the respondent, the extent of that
privilege was limited by an agreement between Carlton and Hayes
on December 14, 1920, whereby the respondent undertook to issue or
request the issuance of free railroad passes only for officers or con-
ferees of the Association for the following purposes: (1) to attend
annual or special meetings of the Association board of directors, (2)
to attend meetings with officers of the respondent for discussion and
adjustment of wages, working conditions, and other matters, and (3)
to comply with a request of any officer of the respondent for attend-
ance at his office or elsewhere. Written application was to be made
in each instance by the Association's president to the general manager
of the respondent's division in which the person on whose behalf
application was being made desired to travel. Transportation to
and from general assembly conventions was specifically excluded.
The agreement was to remain in effect for a trial term of 1 year but
the respondent,was expressly privileged to cancel it at any time by
written notice to the Association's president. A copy of the agree-
ment was sent to all vice presidents of the respondent. The scope of
this arrangement was subsequently clarified by Carlton on January
8, 1921, in a letter to Hayes explaining that 11 named railroads billed
the respondent for transportation costs incurred by the latter's em-
ployees and that, in the case of these railroads, the respondent settled
bills rendered to it by cash payments. The letter closed with the
advice that, "in order to avoid criticism," Carlton would thereafter
furnish to Hayes statements of all cash disbursements made by the
respondent for transportation provided for Association members in
order that the Association might reimburse the respondent for such
expenditures.
THE WESTERN UNION TELEGRAPH COMPANY 61
The record shows that the Association availed itself of the benefits
of the free -transportation agreement continuously during the period
under '. consideration in this aspect of the case . In addition, free
transportation was furnished by the respondent to delegates to Asso-
ciation division assemblies . Travel passes issued to Association
officers, conferees , and delegates at times carried the designation "in-
spector" as the traveler 's occupation with the respondent . They also
bore the notice : "Good only when travelling on business in connection
with Western Union Telegraph Lines upon the Railroad Company's
right of way ." It was explained at the hearing by some of the
respondent 's officials that this arrangement with the Association re-
ouired no actual cash expenditure by the respondent as the latter had
agreements with some of the railroads whereby they undertook to
furnish the respondent with free transportation . Willever indi-
cated that this undertaking by the railroadsiwas limited to transpor-
tation in connection with company business . The notice appearing
on the railroad passes indicates the same limitation . In justification
of the agreement and of the respondent 's practice thereunder, Will-
ever testified at the bearing that the respondent considered trips of
Association officers to be "company business " and, therefore , within
the scope of the respondent 's contract with the railroads . "We con-
sidered it ," he explained , "to be the business of the Company because it
had to do with the details of our business on which the Association
had an appeal , or being on behalf of an employee , some matter of that
sort came up , under the purview of the Association who had under-
taken to protect its members against injustice , discrimination, and
arbitrary treatment ." He justified the extension of the transporta-
tion privilege to delegates to division assemblies on the ground that
such delegates were concerned in part with questions arising out of
contracts between the respondent and the Association and that it was,
therefore , "logical and reasonable to consider those local meetings
had a sufficiently company complexion to warrant us in making
this transportation available."
Willever contended at the hearing that the Association was not
enjoying a unique privilege under the free transportation agreement,
as the railroads had accorded similar treatment to railroad unions.
The Association joined in this contention and called as a witness
Wilbur C. Pitman, supervisor of the Pennsylvania Railroad Com-
pany Wage Bureau , in charge of labor relations for the New York
Zona of that railroad . Pitman testified that the Pennsylvania Rail-
road Company accorded the perquisite of free transportation on its
roads in the form .of annual card passes to certain classes of em-
ployees and , through collective bargaining , to union representatives.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent cannot successfully defend its support of the Asso-
ciation in this respect by pointing to a similar practice among the
railroads where union representatives by collective bargaining enjoy
a privilege extended by the railroads to their employees. The record-
in this proceeding shows that the respondent had of its own accord'
assumed payment of transportation expenses incurred by the Associa-
tion for the travel of its delegates and officers from the date of its.
inception to December 14, 1920, thereby relieving the Association
during its formative stages of a financial burden which might have-
retarded its growth and prevented its immediate execution of the
role of a Nation-wide organization. Free transportation was thus.
one of the forms of company aid extended to the Association for the.
purpose of helping the latter, in the language of Carlton's testimony
with regard to the respondent's assumption of expenses of the consti-
tutional convention, "to get started." The agreement with the Asso-
ciation for free transportation, by which the respondent voluntarily-
extended the term "company business" to include Association opera-
tions, was hence clearly not the result of genuine bargaining between
the parties for a condition sought by the Association. It was rather
in the nature of a declaration by the respondent that it would con-
tinue at its pleasure to dispense forms of largesse already enjoyed'
by the Association.
That the respondent realized it was granting aid to the Association-
by sparing it the expense of railroad transportation and that the-
Association considered itself the recipient of a valuable gratuity is
evident from correspondence between the Association's president and_
Willever. On April 26, 1934, while the present Act was being con-
sidered by the Congress, Willever wired all general managers that-.
the "Wagner Bill" recognized "unaided company unions" and sug-
gested that the respondent, "to be on the safe side;" discontinue cer-
tain forms of beneficence, including free railroad transportation.
On April 28, 1934, Burton replied to Willever objecting to the pro--
posed cancellation of privileges, particularly that of railroad trans-
portation. "The question of transportation," he wrote, "is of course.
vital to both the Company and, through the Association, the eni--
ployees, and while this concession may, under the terms of the pro--
posed labor bill if and when such bill becomes law, constitute aid to.
the Association, we should much dislike its cancellation, unless and'.
until such cancellation was absolutely necessary as a matter of corn--
plying with the law."
We' find that the grant of the free-transportation privilege to the
Association constituted a contribution to its support, regardless of
whether or not the respondent thereby incurred any out-of-pocket
THE WESTERN UNION TELEGRAPH COMPANY 63
expenses, and that the Association's officers were aware of the value of
such aid and of the power of the respondent to withdraw it at any
time.
(2) Grant of free use of bulletin board space
On October 7, 1925, after the Association had operated for about 7
,years, Willever sent to all general managers a communication stating
that, at a recent conference with the Association, it was proposed by
the Association that the respondent permit the former to install bul-
letin boards in the respondent's offices for exclusive Association use,
the location of such boards to be determined jointly by local company
officials and the Association. The communication continued with the
report that the respondent had not agreed to this proposal "as a firm
understanding" but that Willever had informed the Association con-
ferees that, as far as the commercial department was concerned, there
would be no objection to the installation of bulletin boards if a suitable
place was available and "if the matter posted thereon is submitted to
the City Superintendent or the Manager as to its satisfactory and
proper character, before it is posted. The idea is, of course, that
nothing which is subversive of authority or calculated to be injurious
to the Company shall be permitted to be posted in Company premises."
On the following day J. J. Welch, vice president in charge of the
traffic department, sent a memorandum on the same subject to all di-
vision traffic superintendents, stating that the Association had re-
quested the privilege as to certain traffic department offices and that
"no change, however, was made in the existing regulations." He
then advised the addressees that bulletin boards used for company
notices would suffice for Association notices except that the respondent
would furnish any additional boards which might be needed in the
larger offices. The memorandum continued with the instructions that
the boards in the operating rooms "must belong to the Company and
nothing should be placed on any bulletin board in the operating
TOOMS without the Chief Operator's inspection and approval," the
:second injunction to apply to company and Association bulletins.
It is clear that the respondent again readily extended to the Associ-
ation the additional favor of furnishing it on company property and
without cost facilities for circularizing its members as to all matters
to be brought to their attention. The respondent at the same time
retained the ultimate power of censorship over the use of facilities
which it thus made available to the Association. Since the arrange-
ment was admittedly not considered by the respondent to constitute
an agreement with the Association, submission to the power of censor-
ship was the price paid by the Association for the continued enjoy-
ment of this privilege.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willever admitted at the hearing that this privilege constituted
financial aid to the Association. Both the respondent and the As-
sociation contended at the hearing and in their briefs that the Asso-
ciation was not the sole labor organization enjoying the benefit of
free use of company bulletin boards. In this connection, Pitman
of the Pennsylvania Railroad Company testified as an Association
witness to an arrangement between that railroad and railway labor
organizations for the free use of bulletin boards by the employees'
majority representative. His testimony as to the extension of the
privilege to minority groups is not clear. Counsel for the Board
introduced in evidence copies of . collective bargaining agreements
which the A. C. A. had executed in 1937 with the Postal Telegraph
Company and the R. C. A. Communications, Inc. Each of these
agreements permits the A. C. A. to maintain bulletin boards in places
designated by the employer. Neither of them empowers the em-
ployer to pass upon the propriety of union notices. Mervyn Rath-
borne, president of the A. C. A., testified that each of these contracts
had been obtained as a result of collective bargaining, the contract
with the Postal Telegraph Company having been entered into in
settlement of a strike. The distinction between the respondent's
dealings with the Association and those of the other employers men-
tioned is that the latter yielded to the persuasive bargaining powers
of the representatives of their employees and incorporated the re-
sults of such bargaining in a definite agreement without reserving to
themselves the power to supervise the use of the privilege agreed
upon.
We find that the grant of bulletin board space to the Association
constituted a further form of support to be enjoyed by the Associa-
tion at the discretion of the respondent.
(3) Other forms of financial support
According to the testimony of Willever and others, the respondent
of its own motion permitted local assemblies to meet on company
property without charge; extended its mimeographing and other
mechanical facilities to Association officers; sanctioned the conduct
of Association elections on company time and property; provided
free space for a cooperative grocery which one of the local assem-
blies had engaged in at one time; and, according to Willever, granted
it "possibly one or two small things which constituted financial aid."
In addition, on May 1, 1926, Carlton announced to all employees
the authorization by the respondent's stockholders of a stock sub-
scription plan "for the twofold purpose of encouraging systematic
saving and assisting employees to acquire a financial interest in the
THE WESTERN UNION TELEGRAPH COMPANY 65
Company." Fifty thousand shares of common stock of the Western
Union Telegraph Company were thus offered for sale at less than
market -value to the respondent's employees. The offer was made
at $120 a share, payable in installments, no more than 50 shares to
be sold to any one subscriber. The general officers of the Association,
who might otherwise have been ineligible to participate because of
their indefinite furlough from the respondent's employ, were ex-
pressly qualified to subscribe for stock under the plan on their own
account and trustees of local assemblies were permitted to subscribe
on behalf of local assemblies. In 1928 a similar offer was made at
$130 per share, and the privilege of participation was extended to
the general assembly for the Association. The Association and its
general officers and several local assemblies took advantage of these
offers. By stipulation between counsel for the Board and counsel
for the respondent, it was agreed that participation was as follows :
12 local assemblies purchased a total of 161 shares ; the general as-
sembly bought for the Association 50 shares ; and the general officers,
including division presidents, subscribed for a total of 89 shares.
Payment was in most cases made on the installment plan by monthly
payments. The amount invested in the name of the Association
in the respondent's common stock was $6,500.
The respondent had thus made available to the Association and its
officers, as well as to its employees, an opportunity for financial gain
and the Association and its general officers, in availing themselves of
that opportunity, acquired a financial stake of considerable signifi-
cance to them in the very corporation with which they purported to
deal at arm's length as the representatives of that corporation's
employees.
b. Contribution of forms of promotional support
(1) Grant of check-off privilege
On November 14, 1919, Willever sent instructions to all general
managers setting out a procedure to be followed by the respondent's
local cashiers in making periodic deductions from the salaries of
Association members for dues owed to the Association. The deduc-
tions were to be made in cases where the local assembly secretary had
submitted to the respondent's local cashier an authorization bearing
the member's signature. Similar instructions were sent out to divi-
sion superintendents by the respondent's vice presidents in charge of
the traffic and plant departments. This arrangement was thereafter
referred to as the check-off. In each case, a covering letter accom
panied the instructions. - In his covering letter, Willever stated that
the procedure had been the subject of an agreement between the
'66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and the Association's president and commented : "The
Association is anxious to make the arrangement effective as' soon as
possible." A few months later Willever issued further instructions
prohibiting the respondent's cashiers and others making the deduc-
tions from retaining any part thereof as remuneration for their serv-
ices and directing that the entire amount be remitted to the local
assembly secretaries. The usual practice of memorializing the results
,of collective bargaining by a formal written document signed by both
parties and called a "memorandum of understandings" was not fol-
lowed as to the check-off arrangement.
According to the testimony of some of the Association's division
presidents and local secretaries; the check-off became a prevalent
method of paying dues, some local assemblies adopting the practice
of paying local company cashiers a small gratuity for' their services.
At the hearing Willever testified that, although he could not recall
whether the Association and the respondent had ever executed a
specific agreement as to the check-off, he was sure that the subject had
come up, "every now and then" at annual conferences, and that "the
Association, like all other labor unions, [was] finding difficulty in
collecting dues from members that were scattered thinly over con-
siderable territory." He could not state with certainty that- the
privilege had been granted outside of a regular conference with the
respondent but thought that the question had probably been raised
at a conference and that the respondent had assented to it at a later
date by an exchange of letters. No' such exchange of letters was
produced at the hearing. Upon' examining his covering letter and
instructions on the subject at the hearing, Willever commented that
this correspondence gave no indication of reluctance on the part of
the respondent to grant the privilege of the check-off to the Associa-
tion. He explained that his purpose in entering into the arrange-
ment was to make the Association "really effective"; that he was
thereby pursuing the intent and policy of the management of making
available to its employees the advantages of "a militant organization
that was engaged in the process of collective bargaining for their
benefit"; and that he had not thought that the employees themselves
would appreciate the value of a militant organization and would
-voluntarily finance the Association. He recognized that the effect of
this privilege had undoubtedly been to facilitate the collection of
dues and thereby to stabilize the Association's finances to the extent
that it could definitely rely on a fixed income.
The value of the check-off to the Association and the latter's under-
standing of the respondent's interest in that practice are further
revealed in a letter dated July 7, 1933, from the president of the
Association's Southern division to the general manager of that divi-
THE WESTERN UNION TELEGRAPH COMPANY 67
sion. The division president asserted in his letter that the inability
of the Association to collect dues in some of the respondent 's units
where the check-off had been discontinued, coupled with the failure
of Association members in those units to participate in wage increases,
had created "a fertile field for outside organizations." Stating. that
"neither we nor the company want any outside influence now," the
division president urged that, in view of the "mutual interest" of the
respondent and the Association in the matter, "anything you may
suggest as a means of keeping them in our organization will be
appreciated by us and I am sure, be mutually beneficial to all."
Thereafter, on December 21, 1933, Willever issued instructions to
general managers to institute the check-off, upon advice from the
Association that authorization therefor had been obtained from each
member, in those units of the respondent where no local assembly
existed.
We find that the respondent readily accorded the Association the
privilege of the check-off without charge for the two-fold purpose
of facilitating the incidents of membership, thereby overcoming the
reluctance of employees to join and assuring the adherence of those
who had joined, acid 'of stabilizin the A"ssociatiofi' s income, a factor
essential to its growth and strength. We find also that the Associa-
tion officers were cognizant of the reasons underlying the respondent's
conduct in this regard.
(2) Distribution of Association literature
and other forms of solicitation
As part of its own' campaign to augment its membership rolls, the
Association had prepared for distribution among the respondent's
employees leaflets describing the benefits and advantages to be ob-
tained from signing up with the Association. an March 22, 1921,
Welch addressed a memorandum to all division traffic superintendents
referring to an earlier ruling by Carlton that the respondent 's obli-
gation under the Omaha Agreement to prefer for employment appli-
cants indicating a willingness to join the Association did not require
employing officials to distribute. Association leaflets to applicants for
positions. By October 1922 Carlton had become concerned about the
apparent inability of the Association to attract the respondent's em-
ployees and to sustain the interest of those who had joined. He
consequently conducted a personal investigation among the respond-
ent's regional officials to determine the underlying causes of the
difficulty and thereafter attempted-to institute such remedial devices
as he deemed necessary. On October 24, 1922, Carlton wrote to
Hayes as follows concerning the results of his personal inquiry:
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the recent Division Conference, it was reported that
the Pacific Division membership percentage in the A. W. U. E.
was below normal.
The Association has undoubtedly suffered from. weak leader-
ship and a disposition on the part of the Vice-President to direct
affairs from his desk rather than from the field. It will be
gratifying to you to know that the Division Superintendents are
more vigorously than ever concerning themselves with the Asso-
ciation and doing everything possible to bolster up the meetings.
In Los Angeles, it seems that the Association has been par-
ticularly unfortunate in the matter of leadership, but with the
new President it is hoped that more interest will be shown.
San Diego has been granted a charter independent of Los
Angeles and is now 100% strong.
It seems that the Pacific Division has had discouraging expe-
riences in Association politics, and there have been many with-
drawals because the employees at non-functional offices felt them-
selves entirely out of touch with headquarters except on re-
mittance dates. This became more acute when the new reg-
ulations:cutting their overtime went into effect and will have to
be overcome.
Mr. Cook is' awaiting the roster of employees which you
promised him and which will help him materially.
Hayes replied to Carlton about a week later in a nine-page letter
thanking Carlton for his note "respecting Association membership
conditions, especially on the Pacific Coast," defending the Associa-
tion's Pacific division from Carlton's attack of "weak leadership,"
casting some of the blame upon local officials of the respondent for
their failure to make inquiry "as, to whether all was well at home"
in the face of a paucity of grievances, explaining organizational
difficulties at Los Angeles on the basis of an uncooperative attitude
on the part of local officials of the respondent, and indicating what
plans the Association had under consideration to quicken member-
ship interest,- improve membership morale, and augment Association
affiliation in non-functional offices. Hayes also referred as follows
to the effect of Carlton's personal interview with the respondent's
regional officials :
I did not give any of our boys an advance tip of your talk to
the division heads. Modestly I simply awaited results. Within
two weeks, it was quite evident from some of the letters from
our boys: that reached me, that out of Heaven a nugget of gold
had been, dropped. The whole atmosphere seemed to change over
THE WESTERN UNION TELEGRAPH COMPANY 69
night. Needless to say, we are delighted, delighted beyond.
measure.
When our membership reached a point of saturation, and we
couldn't seem to push ahead, notwithstanding our urge, there
was only one conviction that I could reach, and that conviction
was, that there was an undertow, intangible in character, that was
holding us down to a level, above which it seemed impossible to
rise. The open sesame was, I truly believed, to be found in a
kindly word from you to your directors of affairs in the Com-
pany's various- divisions.
In closing, Hayes again thanked Carlton for the latter's kindness
and commented as follows : "The unbounded faith which the em-
ployees have in you is the real and indisputable answer to why the
organization still lives."
Carlton's investigation appears also to have brought about a change
in the respondent's earlier policy of refraining from cooperating
with the Association in the distribution of Association literature to
new employees. On August 2, 1923, Willever in-formed all general
managers of the respondent's agreement to hand to new employees
any pamphlets which the Association might prepare "describing the
functions and objects of -the Association and calculated to sell the
Association to our employees." He further directed general man-
agers to arrange for the distribution of such pamphlets, "to the end
that the new employee may be early acquainted with the existence
of the Association, its purposes, etc." Two days later, in counter-
mand of his earlier instructions that the Omaha Agreement did not
require company distribution of Association literature, Welch ad-
vised all division traffic superintendents that the Association had
had printed a small folder "designed as a welcome to new em-
ployees and an invitation to join the Association"; that he had
informed Association officials that he would not object to "our em-
ployment supervisors handing a copy to each new employee, the
Association, of course, to supply the folders"; and that a specified
procedure should be followed for the distribution of the folder to
employees not hired through an employment bureau. Several
months later, similar advice went out to all division plant superin-
tendents. The record shows that employing officials throughout the
country complied with these instructions.
Willever testified at the hearing that justification for his instruc-
tions lay in the preferential hiring provision of the Omaha Agree-
ment. . Welch explained at the hearing that "pressure from the
Association" had led him to relax his earlier prohibition against
distribution of Association literature by employing officials. He con-
sidered himself unqualified to declare whether similar pressure had
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been exerted by the Association at the time of his earlier instructions.
With regard to the effect upon new employees of his later instruc-
tions, Welch stated at the hearing that he could not estimate with
certainty whether the execution of those instructions tended to coerce
membership in the Association, as such a judgment would necessarily
have to be based on the personal characteristics of each recipient of
Association literature.
With the onset of the general business depression in 1931 and the
concomitant 'drop in the respondent's pay roll, the problem of enlist-
ing new employees for the Association diminished considerably, and
the respondent turned its efforts toward attracting as recruits those
who had withstood earlier forms of solicitation and those who had
succumbed to such solicitation only temporarily. These efforts took
the form of furnishing to local assembly officers, upon request, a list
of employees within the assembly's jurisdiction, containing the name,
the date of employment, and current assignment of each employee.
Lists thus furnished were used by the local assembly. as a basis for
canvassing members. The respondent did not rely on this device
alone but implemented it by a more direct method of company
solicitation. On October 16, 1931, Cronkhite, acting vice president
in. charge of the commercial department, wrote to all general man-
agers suggesting that the'latter instruct their subordinates "to help
in the upbuilding of the Association by explaining to non-member
employees the theory of the fifty-fifty relationship and emphasizing
the fact that membership in the Association is more or less an obliga-
tion on employees accepting benefits that the Association has been
instrumental in securing." The term "fifty-fifty relationship" was
used in the letter to characterize the spirit of mutual cooperation
which had been established between the respondent and the
Association.
Continued imperviousness of some employees to all forms of com-
pany"pressure and the threat of encroachment by competing labor
organizations, occasioned by the public policy as to labor relations
enunciated in the National. Industrial Recovery Act of 1933, com-
pelled. the Association to conduct an active drive for members in
1934. Again the respondent felt called upon to cooperate but real-
ized that it was restricted to less overt means than it had employed
in the past. On March 6, 1934, Willever addressed a memorandum
marked "confidential" to all general managers, informing them of
possible Association requests for employee lists, "the information
being wanted in a membership drive." The' memorandum continued
a.s follows :
Since we are interested in having an organization which has
functioned as efficiently and as fairly as the Association has,
THE WESTERN UNION TELEGRAPH COMPANY 71
represent as many of our employees as possible I see no reason
why under existing conditions the information should not be-
supplied. In view, however, of the current attacks on "com-
pany unions" which as a class are distinctly different in many-
respects from the Association of Western Union Employees, and-
because of the undesirability in the circumstances of doing any-
thing which could possibly be distorted into the influencing, not
to say the coercion, of employees in favor of any particular labor-
orgariization, I" suggest that the matter be handled discreetly and.
as quietly as possible.
Willever testified as follows with regard to this memorandum :
The membership drive to which he had referred represented the..
Association's initial effort at that form of solicitation and was..
launched at a time when an outside organization had been attempting-
to enroll the respondent's messengers. In stating that the Associa-
tion had functioned "efficiently" he had had in mind its "marvelous..
record" of accomplishments for its members and for other employees ;
and in characterizing its method of operations as "fair" he had bad.
reference to its attitude toward the respondent, particularly as shown
in its literature, which he considered to be quite different from the.
literature distributed by the A. C. A. His reference to attacks on.
"company unions" had been based on the, tenor of discussions evoked.
by proposed codes of fair competition; however, his own belief at the""
time, shared by other officials of the respondent, was that the Associa-
tion did not fall within that designation.
As ordinary employees of the respondent do not deal directly with
the chief officer in charge of the territorial division in which such
employees work, instructions issued during. this period by the re-
spondent's vice presidents to general managers, division traffic super--
intendents, and division plant superintendents as to the policy to be.
followed with regard to individual employees required further dis-
semination among all subordinate officials within the jurisdiction of"
these divisional officers. There is evidence in the record of the dis-
semination and execution of instructions issued by the respondent's:
vice presidents to support the Association in its promotional efforts.
Employees in charge of hiring and those empowered to recommend,
discipline and, under certain circumstances, to suspend employees,
under them summarily did in fact execute the mandates of the re-
spondent's vice presidents in this regard.'2 Mary Elizabeth Bean,.
"By agreement between the respondent . and the Association , executed on December 19.
1919 , an employee could be dismissed summarily or suspended "by his immediate superior"
or by the head of the department in which he was employed for certain designated offenses.
As to other offenses not listed In the agreement , prior warning was required before a dis-.
missal or suspension . The immediate superior of an offending employee could administer,
the warning and only "managers, supervisors , assistant chief operators , and foremen" were,
empowered to dismiss or suspend after warning.
247384-40-vol. 17-6
X72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed at Washington , D. C., in the traffic department of the
Eastern division, testified that for about 3 years, starting in 1926,
she had been in charge of interviewing and hiring applicants for
positions and, particularly , students for the operators ' training school
maintained by the respondent at Washington , D. C. After an appli-
cant was employed by her, she followed the practice established by
her predecessors in the employment office of informing such person
of the existence of the Association and of the fact that every new
employee was expected to join. She would thereupon , her testimony
continued , hand the new employee an application for membership in
the Association together with Association literature . Where the new
employee failed to accede to her request after the lapse of a short
time, she renewed her earlier efforts and almost invariably succeeded
in obtaining a signed application for membership in each case. She
could recall no instance in which her efforts in this respect had failed
to yield favorable results. Bean testified also with respect to the
practice of her superior , Miss McDuffey, who was similarly engaged
in hiring new employees , and stated that McDuffey informed suc-
cessful applicants for positions with the respondent that they had
been , employed with 'the understanding that( ' they would join the
Association . Richard D: Hallett, - trained in the operators ' training
school in Washington , D. C., in 1929 , testified that he had been inter-
viewed by Bean when he applied for employment and that, after his
training was completed , she had handed him a note asking him to join
the Association . He complied with her request . That this practice
was not confined to the Eastern division is evident from the testimony
,of an employee in the respondent 's Metropolitan division who stated
that she joined the Association in 1928 at the request of her instructor
at the respondent 's training school in New York City.
Other employees testified that they had been asked by their super-
visors to become members of the Association and that they had ac-
ceded to such requests . These supervisors were empowered to recom-
mend discipline and to inflict the penalty of summary dismissal in
.some instances . An employee working for the respondent in New
York City testified in this connection , that she had joined the Associ-
ation in 1928 under the following circumstances : A day or two after
-she had been hired, her supervisor , whose job designation was that of
"force chief ," sent for her and said, "We have an Association here and
.everybody belongs to it." Whereupon he handed her "'a paper to,
sign," and she complied with his direction , thereby achieving- the
status of membership in the Association . She stated at the hearing
-that the paper appeared to her at the time she signed it to be an appli-
cation for membership in the Association . Upon cross-examination
by counsel for the respondent , she stated as her reason for signing the
THE WESTERN UNION TELEGRAPH COMPANY 73
application, "Well, I felt that since my superior told me to sign it, and
I was so new in the company, I felt that it was necessary in order that
I work, and continue to work." The testimony of another employee,
working in one of the respondent's offices at Washington, D. C., is that
the joined the Association because her immediate supervisor had said
to her of the Association, "Eileen, I think it would be better for you
to join it, because you will get more benefits by joining." A third
employee, working for the respondent in New York City, testified
that he. rejoined the Association in 1929 or 1930 because the "force
chief" in one of the units had said to him, "We just noticed that you
are not a member of the Association, and you have such a swell job.
If you want to keep it, you really ought to join the Association again,
because you know how things are." The testimony of another em-
ployee who worked in the traffic department at New York City is that
one of the "force chiefs" had advised her that joining the Association
would help her keep her job and "get all the breaks" possible. She
thereupon joined. A messenger stated at the hearing that he had
joined the Association in 1930 when one Bodeck, whom the witness
considered a supervisor, handed him an application for membership
and told him-to sign it. . Other messengers, according to this witness,
were recruited as members under, similar circumstances. The testi-
mony of these witnesses was uncontroverted, and we find their state-
ments to be credible.
Under the Association's constitution all employees, except those
"who actually employ and discharge," are eligible for active member-
ship. The record shows that some employees who interviewed and
hired applicants for positions were, nevertheless, active members of
the Association during the period under consideration. Similarly,
employees with supervisory titles who were empowered to recommend
discipline for `their subordinates and to dismiss such subordinates
summarily under certain circumstances were, in practice, not regarded
as falling within the class of employees ineligible for active member-
ship in the Association. We find, on the basis of the testimony of
their subordinates and the job descriptions and job designations pre-
pared by the respondent, that these employees perform supervisory
functions and represent the respondent in their dealings with subor-
^clinates.
A large number of such supervisory employees were officers of local
assemblies and were otherwise active in Association affairs. While
it might therefore be argued that such supervisory employees solicited
members among those whose work they directed in pursuance of the
functions incident to their offices in the Association, the record shows
that they were also acting on behalf of the respondent. In view of
the respondent's policy of supporting the Association in its efforts to
'74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD?
enroll members, as evidenced by the instructions of its officers to,
general managers, division traffic superintendents, and division plant
superintendents, we find that the respondent sanctioned and encour-
aged the promotional endeavors of supervisory employees who irb
some measure exercised personnel functions and' who at the same
time were members and officers of local assemblies.
(3) Preferential treatment of Association members
The respondent's policy of discharging empl'oye'es` who joined the-
`C. T. U. or any other outside labor organization remained generally
unchanged during the period under consideration in this section of
the case. Espionage activities continued as in the past and were
supplemented by an exchange of intelligence between the Association
and the respondent on the extent of outside union operations la
There is some evidence that for a short time in 1933', after the re-
spondent had signed in modified form the President's Reemployment
Agreement in pursuance of the spirit of the National Industrial Re-
covery Act, a vague attempt was made to relax temporarily the rule
proli"ibitiii membership in outside" labor Organizations1
The problem of encouraging membership in the Association on the
part of those employees who refrained from joining other labor
'organizations because of fear of discharge but who', nevertheless,
remained aloof from the Association was met by the' respondent
through devices which were less direct but more effective than actual
solicitation or the sanctioning of solicitation. Among these devices
was the endowment of Association members with preferred status as
to terms and conditions of employment. The earliest manifestations
of the respondent's efforts in this connection are to be found in the
13 In this connection the record contains a letter from W. C: Titley, in ' charge of the
plant department, to Hayes dated April 18, 1927, replying to Hayes' inquiry as to the
scope of the activities of the International Brotherhood of Electrical Workers in Dallas,
Texas. Titley informed the Association president that the division plant superintendent in
that area had reported that the International Brotherhood of Electrical workers planned
first to organize power companies in Texas and thereafter to extend their organizational
efforts to the respondent and other communications companies . Titley also stated that this
information was being forwarded to all division plant superintendents for the purpose of
ascertaining whether parallel programs of organization were being undertaken in their com-
pany divisions . The letter closed with the statement that Titley was returning Hayes'
file on the matter.
14 On September 1, 1933 , the respondent sent to all vice presidents and general managers
and to Barton an announcement that it had executed on the previous day a "modified
form" of the President ' s Reemployment Agreement . The announcement explained quite
fully all wage and hour provisions of,the Agreement and contained specific instructions
on these points. It merely stated categorically , without explanation or accompanying
instructions , that Section 7A of the National Industrial Recovery Act was' included in the
respondent 's undertakings by stating that "the right of employees to organize and bargain
collectively through representatives of their own choosing without interference from
employers , etc., as prescribed in Sub -section ( a) of Section (7) of the N. I. R. A. is
established."
THE WESTERN UNION TELEGRAPH COMPANY 75
Omaha Agreement, constituting the record of its initial dealings with
the Association. In the first section of that document the respondent
undertook "to hereafter prefer for employment those applicants for
positions who indicate their willingness to become members of the
Association." It had also at the same time agreed not to discharge
"any member of the Association from its employment without ade-
quate cause." As the Association had not, at the time of the meeting
in Omaha, advanced beyond the embryonic stage of a general struc-
tural outline formulated by the constitution and implemented by a
group of officers, the three representatives who negotiated on behalf
,of the Association obviously exerted no bargaining power in dealing
-with Carlton but merely acquiesced in the grant of such perquisites
to future Association members as Carlton had previously stated he
would bestow upon the supporters of any association which might
:be formed in pursuance of his principles. Carlton's purpose in cloth=
ng his former promises in legal language and in reducing them to
the 'forni of an agreement was clearly to place an official stamp of
company approval on the newly formed Association and to encourage
the growth of that organization in at least two ways: All prospec-
tive applicants for employment were put on notice that successful
consideration of their applications would be conditioned upon their
willingness to join the Association. Those already employed were
apprised that the respondent would qualify its prerogative of dis-
,cliarge if they became members of the Association but would continue
the absolute exercise of that prerogative if they joined any other
labor organization. A section of the Omaha Agreement provided
that memorandum' agreements might thereafter be executed between
the Association and the respondent embodying understandings which
might be reached as to general conditions of employment, wage scales,
uncl other matters of joint interest, such memorandum agreements
to have the same force and effect as if incorporated in the Omaha
Agreement at the time of its execution. The first memorandum
agreement was executed on the same day as the Omaha Agreement.
The respondent further clarified its intention to strengthen the Asso-
ciation and to close its doors to other labor organizations when it
undertook in that memorandum agreement to reinstate all employees
who had been released from its service since January 1, 1918, "be-
'cause of undesirable affiliations" upon submission of evidence that
they had joined the Association and relinquished "the undesirable
outside affiliation."
In its subsequent enunciation of company policy and in its later
-dealings with the Association the respondent sought to perpetuate
the underlying aim of the Omaha Agreement and the first supple-
mental agreement by discriminating in favor of Association members
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to conditions of employment and by expressly informing non-
members that they did not merit the same treatment as their more
fortunate fellow employees because, unlike the latter, they had not
indicated their support of the Association. The traffic department
appears to have inaugurated the principle of preferred treatment of
Association members on July 18, 1921, by a letter from the vice presi-
dent in charge of that department to all division traffic superintend-
ents, which contained instructions that, "where force reduction is iii
progress and the duties of a particular job can be as expertly and
satisfactorily handled by an available Association member as by ai
non-member, the Association member should be given the work, pro-
vided there is no great difference in their length of service." Three
months later, at a conference with Association representatives, the
respondent generalized its policy by executing a formal "memoran-
dum of understandings", whereby it agreed ..that "as between member-
and non-member of the Association, the member shall receive pref-
erence at all times where the Company's interest will not be impaired,
by so doing." All division heads were thereupon instructed accord-
ingly. In a subsequent memorandum to general managers, Willever
declared that the agreement of 1921 had been induced by the Asso-
ciation's undertaking "to assist in the maintenance of an efficient,.
willing, and stable force, and to cooperate with the management in an
economical and efficient administration of the service." Since the-
1921 agreement is silent as to the obligations assumed by the Associa-
tion in exchange for the respondent's undertaking, it must be inferred
that the quid pro quo upon which the respondent relied was implied
in that agreement by mutual understanding. This appears to have
been the only formal agreement as to preferences entered into be-
tween the respondent and the Association, all other instructions on
the subject having been issued upon the initiative of the respondent's
vice presidents. About a year after the execution of the 1921 agree-
ment, thei respondent's vice president in charge of the plant depart-
ment clarified for the division plant superintendent of the Central
division the practical implications of that agreement by quoting as:
follows from a communication issued by the traffic department oil
the same subject :
... The provision is to be interpreted in a fair and common-
sense manner. The Company has said that it will prefer for
employment those expressing a willingness to become a member
of the Association and it naturally follows that it will favor
them in its employment, but it is not to be inferred therefrom
that a non-member has no service or seniority rights as contrasted
with the rights of a member. Each case must be considered oii
THE WESTERN UNION TELEGRAPH COMPANY .77
its individual merits and no arbitrary rule can be made that
will fit all cases at all times.
Where reduction of force is in progress and the duties of a,
particular job can be as expertly and satisfactorily handled by
an available Association member as by a non-member, the Asso-
ciation member-should be, given the work provided there is no
great difference in their length of service.
By the end of 1923, the respondent had recognized that the success
of its preference policy required a practical application of outstand-
ing instructions on the subject which would unequivocally indicate
to members and non-members that the disparity of privilege as to
working conditions between the two groups was attributable solely
to a difference in their attitude toward the Association. Thus on
December 21, 1923, Willever wrote to all general managers reminding
them of the. 1921 preference.agreement and reporting that complaints
had been made by the Association of the non-observance of that
agreement or of its application "at any rate not in a form which can
be identified" and directing them to correct "the situation complained
of." The manner in which the 1921 agreement was to be given a
more effective practical application was formulated as follows :
if in weighing the merits of candidates for particular
jobs, promotional or otherwise, the choice in a case where the
qualifications, experience, especial fitness, length of service, etc.
are substantially identical,-turns upon the question of Associa-
tion membership. If in such cases the Association member is
given the preference which the, understanding clearly contem-
plates, as against a non-member no better qualified, and if the
appointee understands. that a preference based upon membership
actually was given in his case while the non-member who might
otherwise have got the place is frankly told that his or her
failure to participate in the work and obligations of the Asso-
ciation indicated a reluctance to participate for the common
purposes of the Association and the company, and that this fact
militated against his or her selection for the position,-both the
letter and the spirit of the undertaking will be kept.
The memorandum closed with directions to general managers to see
that "the above is fully understood by all employing commercial
officials in your territory" and to exercise "some pains to check up
its practical observance in appointments made." A similar memo-
randum was addressed about a week later by Titley, in charge of the
plant department, to all division plant superintendents. In 1925 all
division traffic superintendents received instructions of the same
'78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenor as those sent by Willever and Titley, and Willever again sent
copies of those instructions to all general managers.
At the hearing counsel for the Board questioned Willever concern-
ing the objective underlying his memorandum of December 21, 1923.
We quote from his testimony :
Q. The purpose of that was to get the non-member into the
Association; was it not?
A. That was very active in the early part of the Association
and we were rather active in trying to help the Association to
get going so far as membership was concerned, because for the
reason that Mr. Carlton had taken the initial step in the first
,place.
We were very much concerned that our employees should have
'the benefit of collective bargaining by an organization, by an
organization which used arbitration instead of the strike weapon
for enforcing its demands.
Q: But this Was five years after the Association was organ-
ized. Were you still interested in building up a membership
for it?
A. They started from scratch, and it takes time, you know.
I think I would like to add to that statement, also there is the
fact that came to our knowledge quite early, that in our or-
ganization certainly there was a certain number of employees
who were very glad to have the benefits of the collective bar-
gaining transacted on their behalf by the Association, but who
would accept those benefits without helping to defray the cost
'by taking on its membership.-
When force reductions became necessary during the early part
yof the general business depression, the respondent refused to accede
to the Association's request that its members receive favored treat-
ment as to lay-offs at that time. The respondent's refusal was based
upon the ground that such an undertaking would be dangerous and
'impracticable. In 1931 and in 1933 the respondent's vice presidents
'apprised their subordinates in the field of the respondent's position
on the matter but reminded them that the relationship of mutual
-cooperation between the respondent and the Association remained
unchanged, "unless it be," as Titley stated to division plant super-
intendents, "that they are more strongly cemented together." Field
.officers were advised that the relationship was to continue through
Favored treatment of Association members in matters other than
force reduction. Thus Willever suggested to general managers that,
in view of the Association's cooperation with the respondent as to
THE WESTERN UNION TELEGRAPH COMPANY 179,
wage deductions and other measures necessitated by shrunken traffic
and earnings, members "must be preferred in employment" and that
the Omaha Agreement should be made "more of a living thing than it
has-perhaps been in the past." It is apparent from the testimony
of Willever and Titley and from a letter from Willever to the
Association's general president that the respondent's failure in 1933'
and early in 1934 to extend the scope of its preferential treatment
of Association members to staff curtailments was occasioned by the-
fact that it had signed the President's Reemployment Agreement as
well as by the fear that the Association might otherwise be char=
acterized as a company-dominated union. That the respondent had,,
nevertheless, continued to accord favored treatment in other respects
to Association members is evidenced by the advice of its vice presi-
dents in 1933 to their regional subordinates and also by Willever'sz
instructions to general managers on November 22, 1934, to extend
preferential treatment "in numerous little ways" to messenger-
members.
We find. that, by favoring Association members as to terms an&
conditions of employment, the respondent attempted to compel mem-
bership in the Association, thereby fostering the growth of an organ-
ization which it had initiated for its employees as a means of pre-
venting their affiliation with labor unions of which it disapproved-
(4) Enhancement of Association prestige
Contrasting markedly with the respondent's disapproval of the-
C. T. U. and its concomitant outlawing of membership in that organ-
ization, was its program dedicated to enhancement of the Associa-
tion's prestige in the eyes of all employees and aimed at inculcating
in the minds of employees the belief that the Association was an.
indispensable factor in their welfare as workers. In executing this.,
program the respondent assumed the role of guardian of the dignity
of Association officials and sought, through various devices, to create-
the impression among its employees that the Association performed
vital and important functions on their behalf. Typical of the-
respondent's efforts to shield Association officials from the indifference-
and possible antagonism of minor local company officials is Willever's.
reply to the charge of such conduct made by Association representa-
tives in the course of a conference on January 8, 1921. "I'll deal'
with those kind of people in my department," he warned, "and I will
say right here that anyone who is antagonistic to the Association or
their officers or committees better change his tack to save his job.
I would like to get a line on officials of that sort. You folks should
bring such cases to our attention without delay and we will remedy."
80, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Association apparently found no reason for further complaint
until November of 1934, when it was faced with the threat of organ-
izational efforts by outside unions and with the charges of members
that their grievances were being prosecuted unsatisfactorily. Asso-
ciation officers complained to Willever of the lack of concern and
unfriendliness of local company officials during this critical period
and pointed to the fact that Association officials were being trans-
ferred and reassigned "quite openly" because of activities on behalf
of the Association and that the conduct of Association work was
being prohibited during working hours. Willever thereupon dis-
patched two letters to all general managers apprising them of the
Association's complaint and of his immediate answer to the com-
plainants that he could not believe that "any Commercial official
would jeopardize his status" by violating the respondent's announced
policy as to treatment of Association officials. He pointed out to the
general managers that these complaints confirmed the respondent's
impression that, as the result of prevailing discussions on proposed
codes of fair competition and the attempts of "would-be rival organ-
izations" to discredit the Association as a "so=called company unit,"
the membership of the Association had shown an increasingly
captious disposition and a tendency to criticize Association officials
for alleged ineffectiveness in the handling of grievances. He called
to the attention of the general managers the fact that the respondent's
inability to deal successfully with employee grievances during the
economic depression imposed upon local company officials a duty to
be "scrupulously impartial" toward Association representatives so
that "instead of discrediting Association officials with employees every
proper opportunity shall be availed of to strengthen such Association
officials in the esteem of their members. Any discerning company
official can find ways to do this without interference with manage-
ment and without sacrificing the company's interest." Titley of the
plant department sent a letter to all division plant superintendents
expressing somewhat similar ideas. Willever testified in this con-
nection that a feeling of gratitude toward the Association for its
history of achievements on behalf of the respondent and its employees
had impelled him to write these letters. He stated also that he had
found no further need for sending letters of a similar vein after the
two already referred to had been received.
A further device to which the respondent resorted for the purpose
of strengthening the good will of the Association among its em-
ployees was the "tying-in" practice, a procedure whereby Association
representatives were afforded an opportunity to make recommenda-
tions as to the grant of special privileges to employees and whereby
the recipients of such privileges were made to understand that the
THE WESTERN UNION TELEGRAPH COMPANY 81
Association had participated in the determination to make the grant.
Since in practically all instances the benefits in question had been
available to employees as an incident of the respondent's established
personnel program long before the initiation of the Association, the
"tying-in" practice merely required a modification of existing pro-
cedure in each case to include Association representation.
The earliest evidence of this practice is to be found in a section of
the Omaha Agreement providing that "nothing herein contained
shall affect in any particular the plan for employees' pensions, dis-
ability benefits, and death benefits created by the Company and now
being administered by a Committee of employees appointed to carry
out said plan, except that the Association through its Division Com-
mittees shall be represented in the Administration of the plan in so
far as sickness and accident benefits are concerned." The effect of
this provision was not only to place the Association in a position of
importance in the granting of sickness and accident benefits but also
to produce the impression among employees that successful consid-
eration of their applications for, such valuable incidents of the re-
spondent's personnel program was to depend in the future upon their
-membership in the Association. The respondent's undertaking in
this respect, against the background of its determined attempt to
utilize the Association for the purpose of conferring prestige upon
the Association, could clearly not be regarded as a measure of the
Association's bargaining power on July 25, 1918, but rather repre-
sented a materialization of Carlton's earlier promise in his bulletin
of July 4, 1918, that the respondent would enter into an exclusive
contract with the Association upon its formation whereby the re-
spondent would deal with that organization concerning conditions of
employment, sick benefits, pensions, life insurance, and other matters
affecting the interests of the employees. This provision of the
Omaha Agreement subsequently became the pattern for further deal-
ings with the Association and the practice thus instituted with re-
spect to the sickness and accident, aspects of the respondent's
employee-insurance plan was extended by the respondent, upon its
own initiative or upon the request of the Association, to other phases
of the respondent's personnel program. Thus in 1923 and 1924
advisory boards, composed of company officials and Association rep-
resentatives, were instituted by the respondent for each department
in each of its operating divisions to consider and advise upon indi-
vidual salary increases and to recommend methods for improving the
service generally. Individual increases had been granted by the re-
spondent before this period without the advice of Association repre-
sentatives, and thus the new procedure did not alter the past practice
except that the Association was permitted to recommend the names
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of persons among whom the amount which the respondent made
available for increases was to be distributed. The Association did
not, however, enjoy the privilege of complete freedom of choice of
its representatives on advisory- boards in the plant ^ department since
the Association was counseled by Titley as to the kind of persons to
select for these positions. The vice president in charge of the traffic
department had independently conceived the idea of establishing ad-
visory' boards for his department and had instructed regional traffic
officials in 1922 "to definitely tie the Association in with all salary
ratings and increases in non-supervisory positions" and to make Asso-
ciation representatives feel that they were important members of the
boards and active participants in their work. At the same time these
regional officials were told by Welch, vice president of the traffic de-
partment, that provision for the participation of Association repre-
sentatives in salary ratings and salary increases "does not mean that
both the initiative and the final decision in both cases do not rest with
the responsible local official, because obviously his responsibility and
authority cannot be diluted." Welch instructed them further that
"when increases which have been made the subject of conferences
(and all except supervisory should be so made) are approved or
recommended, as the case may be, the Association representative
should be at once advised, since it is only in this way that the Associa-
tion can be identified with increases in the minds of the employees
concerned." Willever further revealed the respondent's purpose in
arranging for consultation as to salary ratings and increases with
Association representatives, known in the commercial department as
"rating conferees," when he wrote as follows to general managers on
February 6, 1924, concerning the practical operation of the "tying-in"
device :
. .. when the employing official comes to advise the employee,
he will, while making it clear that the increase was arranged
on the basis of merit or whatever other factor may have
governed, be at some pains to have the fact appear that the in-
crease was duly arranged on consultation with the local rating
conferee, so as not to cut the ground from under the latter's feet..
At a conference with the Association in 1926, the respondent under-
took, in spite of the Association's demand for a general wage in-
crease, to allot a specified sum for merit increases in 1927 and to tie
the Association in with such merit increases through representation
on special advisory committees or through the advisory boards.
The respondent's desire to identify the Association in the minds of
employees with the enjoyment of merit increases is again apparent
from the "tying-in" of the Association and from instructions issued
THE. WESTERN UNION TELEGRAPH COMPANY 83
by the comptroller in October 1927 to the effect that, "where a- Divi-
sion Auditor finds it expedient to grant merit increases in the inter-
vals between meetings of Advisory Boards, it is unnecessary for him
to consult the Association member of the Advisory Board before
exercising his authority. The Association, nevertheless, should be
identified with such interim cases; that object can be obtained by
-verbal advice to the Association's representative on the Advisory
Board, at the time such action is taken." Thereafter, until the ad-
vent of the general economic depression, the Association continued
to be tied in with salary increases, either by advance consultation of
its representatives or by subsequent advice to such representatives of
the respondent's decision to grant an increase. Employees were thus
made to feel, by. means of the extension of the "tying-in" device to
salary increases, that membership in the Association enhanced con-
siderably their chances of obtaining coveted increases and favorable
salary ratings.
The Association was also placed in a position of apparent im-
portance when, during the period from 1925 to 1929, the respondent
amplified its earlier procedure with respect to applications for more
favorable working hours, for furloughs, and. for premature retire-
ment pensions to include Association representation. . With regard to
"tying-in" the-Association with the consideration of furlough appli-
cations, Willever informed general managers that the respondent had
not agreed -to that practice by means of a "firm understanding" but
that it had, at the request of the Association, undertaken to write a
letter suggesting to regional officials that Association representatives
be consulted wherever practicable, before -furloughs were granted or
service records were bridged, '"the idea being,", he told, general..man-
ngers, "that the Association representative sometimes will be in a
position to be helpful to us in determining the reasonableness of re-
guests for furloughs or record-bridging-and that it will be of value
to the Association to be tied in with our functioning in such matters."
Titley sent a similar communication to division plant superintend-
ents. Employees were thus further led to believe that membership
in the Association was.also an indispensable prerequisite to favorable
consideration of their applications for better working hours, for fur-
loughs, and for premature pensions.
With the advent of the business depression the respondent was no
longer in a position to increase its operating costs by granting further
salary increases. At the same time, outside labor organizations were
attempting to enlist as members the. respondent's , employees and,
particularly, its messengers. The respondent was consequently faced
.with the problem of retaining in the minds of its employees the
impression, previously created through the participation of advisory
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boards in recommending salary increases, that the Association was-
still a vital factor in their enjoyment of 'valuable incidents of em-
ployment. Titley attempted to deal with this situation by instruct-
ing division plant superintendents on January 26, 1933, that the.
Association was to be tied in with "spreading the work" projects-
Willever's concern about the problem and his attempts to deal with it
are reflected in the following communication, which he sent to general
managers on November 19, 1934:
In considering how we can best proceed to enhance in a proper,
and legitimate manner the Association of Western Union Em-
ployees in the estimation of the supporting membership and of
other employees, I suggest that you give some thought to tying
in more closely with Association conferees in matters which con-
cern the personal fortunes of their associates. The enforced'
discontinuance of deserved increment in pay has, I presume,,
in some territories resulted in the virtual elimination of all
functioning on the part of these. conferees, and I am not sure
that this is wise if we are concerned, as we should be, to ad-
vance the interests of the Association as a recognized instrumen-
tality for promoting the welfare of our employees and their
just satisfaction in the conditions of their employment. It should
be possible without opening a way for busybodies to make a.
nuisance of themselves under cover of their Association repre-
sentation to get considerable value from the suggestions which
the familiarity of the conferees with the personal equations in-
volved will prompt them to make when force adjustments are in.
order.
By November 22, 1934, Willever had conceived a specific solution for-
the respondent's problem in this respect in so far as messengers':
were concerned and he advised the general managers as follows
"... it was agreed of the current conference that the Association will-,
be tied in on all messenger uniform cancellations whether or not can-
cellation is arranged as a result of • their proposal,-so that the an-
nouncement to messengers in all cases may be made by the Associa-
tion." It is clear that in this instance the "tying-in" device was for-
the purpose of misrepresenting to employees that benefits granted to.
them solely upon the initiative of the respondent had been achieved
through the efforts of the Association.
Willever and Burton testified at the hearing that the purpose of-
the "tying-in" practice as far as the Association was concerned was:
to prevent discrimination and the exercise of undue preference on,
the part of the respondent's officials against the employees. By
providing for Association consultation and advice in advance of a.:.
THE WESTERN UNION TELEGRAPH COMPANY 85
determination by the respondent's officials as to particular terms and
conditions of employment, they contended, the fair treatment of em-
ployees concerned was assured. We cannot accept this testimony as
an accurate statement of the Association's position, as the record
shows that the Association officials at various times unequivocally
and clearly contended before the respondent's officials that they were
interested in protecting members only and were not concerned with
the welfare of those who had chosen not to join the Association.
Willever admitted at the hearing that benefits with which the Asso-
ciation had been tied in had not generally been agreed upon by col-
lective bargaining between the Association and the respondent and
that the respondent had, by means of the "tying-in" practice, merely
afforded the Association an opportunity to offer recommendations as
to the circumstances under which such benefits were to be dispensed.
In reply to a question of counsel for the Board as to whether the
respondent was not in fact attempting to raise the Association in
the esteem of its members by the tying-in practice, he stated, "Un-
doubtedly. That was our policy from the beginning." With respect
to_;his instructions to tie the Association in with the cancellation of
inessenge.r uniform rentals, Willever admitted further that his pur-
pose was to enhance the prestige of the Association in the eyes of the
respondent's messengers so that they might not succumb to the efforts
of outside labor organizations. Welch and Titley denied categori-
cally that they had tied the Association in with incidents of employ-
ment in an effort to build up its good will with the employees and
asserted affirmatively that they were primarily interested in trying to
do what "was good for the service." Welch stated in this connection,
however, that his primary aim of benefiting the service required him
to strengthen the Association through the tying-in practice. Titley
interpreted at the hearing a statement he had issued to all division
plant superintendents in November 1926, that tying the Association
in with the granting of furloughs would be of value to the Associa-
tion, to mean that such practice would afford the Association an
opportunity to aid in building up the respondent's service. We re-
gard Titley's interpretation as an attempt to distort the clear meaning
of his statement of November 1926 and therefore reject as implausible
his testimony on this aspect of the respondent's dealings with the
Association.
We find that, by means of the "tying-in" practice, the respondent
attempted to clothe the Association with powers of importance for
the purpose of leading employees to believe that favorable conditions
of employment could be achieved only through membership in the
Association.
t
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Domination of the Asspciation and its officers
(1) The respondent's control over bargaining for conditions of
employment
It is apparent thus far that the Association made no attempt during
its infancy or in later years to overthrow the control which the
respondent had assumed over it during its formation. Instead, it
gratefully accepted the various forms of support tendered to it by
'the respondent and passively undertook performance of the role
which the respondent had created for it in 1918. That the Associa-
tion's officers were constantly mindful of the help extended to the
Association by the respondent and extremely anxious to retain all
benefits received, is evident from the manner in which they purported
to bargain for terms and conditions of employment.
Under the Omaha Agreement the respondent undertook "to treat.
individually or collectively with members of the Association through
their duly constituted committees and officers of the Association with
respect to grievances, wages and the broad questions involved in
working conditions." The Association constitution invested the
board of directors of the Association with "administrative and ap-
pellate jurisdiction during the recess of the General Assembly" and
provided that decisions thus made by the board of directors "shall
stand as the judgment of the General Assembly until reversed by
that body." In accordance with these two basic documents a pro-
cedure was worked out by the respondent and the Association for
periodic bargaining conferences between the parties. From the date
of the Omaha Agreement until October 1935, 26 conferences were
held between representatives of the respondent and representatives
of the Association, consuming a total of 200 days and participated
in by. an average of 11 Association conferees per conference. All
conferences were held at the respondent's offices in New York City.
The respondent was represented in negotiations by its vice presidents,
and the Association conferees consisted of the 9 members of its board
of directors and, such additional persons as the general assembly
designated from time to time. Association representatives were
known as the conference committee. Most conferences were initiated
by submission to the respondent of agenda prepared by the Associa-
tion conferees in accordance with the resolutions of the general
assembly, accompanied by the general president's request for the
fixing of a conference date. Agenda thus submitted were examined
by the respondent's vice presidents and turned over by the latter
to the respondent's president, who approved or disapproved the
items listed in advance of the scheduled conference. His decision
THE'WESTERN UNION TELEGRAPH COMPANY 87
was binding upon the vice presidents when they met with the 'con-'
ference committee. New matter, not listed on the Association's
agenda, could also be brought up for negotiation at conferences and
in such instances approval of the respondent's president was neces-
sary to bind the respondent. Association conferees met before each
scheduled bargaining conference and reached a binding accord as
to each item on the agenda; The Association's general president
usually presided at conferences and opened negotiations by announc-
ing at times the withdrawal of certain items from, the agenda and
by presenting the hatters not withdrawn. Vice presidents answered
on behalf of the. respondent and, where wage increases or other
expenditures. were involved, presented 'financial statements 'through
the respondent's statistician in support of their position., The stat-
istician answered all questions raised-by the Association conferees
concerning the validity of . his, conclusions as to the respondent's
financial 'condition. On occasion the Association conferees called
upon one of their members in the.accounting department for guid-
ance in analyzing financial statements. At times, the respondent
furnished, in confidence, financial data to Association representatives
upon their request. When an accord on any item was reached by
the parties, it was reduced to a document known as a memorandum
of understandings, if the respondent's vice presidents agreed with
the Association's contention that such memorandum was necessary.
Where.. no :memorandum .of understandings was entered into to me-
morialize a particular agreement, instructions were sent by the re-
spondent's vice presidents to _ their immediate regional subordinates
announcing the final accord of the parties, and a copy was forwarded
to the Association.. Upon the conclusion of a conference the Associa-
tion conferees proceeded to report the results to the membership at
local assembly meetings and through the medium of the Telegraph
World, the official Association publication. The general assembly
was empowered under the constitution, to reject the decisions made
by Association conferees at bargaining conferences.
Not all matters proposed by the Association were successfully con-
sidered at bargaining conferences.. Although the establishment of
minimum wage rates for certain classes of employees was proposed by
the Association conference committee in 1927 and 1928, the respondent
failed to grant the request, and thereafter that item was.dropped from
the Association agenda. A prominent item on the Association's
agenda from 1922 to 1926 was the.matter of a general wage increase,
which was regularly rejected by. the respondent's representatives. In
1926 the respondent again refused to.yield to the Association's request
in this regard and insisted successfully in continuing ,its ,practice, of
granting individual increases on the basis of merit but agreed to allot
247384-40-vol. 17-7
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in advance a' definite sum of money for such merit increases.. When
the Association agenda as received by the respondent in 1927 repeated
the demands of earlier years for a general wage increase, the assistant
to the respondent's president wrote to the Association's general presi-
dent as follows':
Among the various items included in the Association's agenda
for the coming general conference is one requesting that a 10%
general increase in salaries, effective January 1, 1928, be granted
all employees.
Inasmuch as Mr. Carlton has repeatedly declined to entertain
any proposition involving a horizontal wage increase, he thinks
there must be some misunderstanding in presenting it again and
requests that it be stricken from the agenda, as it will not be
discussed.
The Association's president replied that he could not give a definite
answer on the request to strike the general increase- from the agenda
but that he would immediately submit the matter to the members of
the last general assembly. He thanked Carlton's assistant for stating
Carlton's attitude on the proposal and expressed assurance that a
definite statement of the Association's position would be forwarded at
the earliest possible date. The bargaining conference which followed
resulted in the continuance of merit increases, and the following year
the Association's agenda omitted any reference to a general wage
increase but merely contained a proposal to continue the granting of
merit increases. The latter affected less than half of the respondent's
employees. It is thus manifest that the respondent controlled the
subjects of collective bargaining and that the Association yielded to
that control without attempting to invoke the arbitration machinery
provided for in its, constitution and in the Omaha Agreement.
Memoranda of understandings were executed on a great many sub-
jects dealing with terms and conditions of employment and with the
participation of the Association in the application of incidents of
employment made available by the respondent to its employees on its
own initiative without prior consultation with the Association.
Among the concessions which the Association obtained from the re-
spondent at bargaining conferences were the expansion and protection
of seniority rights, overtime compensation, relief periods, vacations
with pay, periodic review of salaries, and posting of notices of
vacancies.
Not all terms and conditions of employment enjoyed by the re-
spondent's employees after formation of the Association were,
however, agreed upon at bargaining conferences. The respondent
on its own initiative decided to institute both favorable and unfavor-
THE WESTERN UNION TELEGRAPH COMPANY 89
able changes in working conditions without prior consultation with
the Association.' Thus in 1919 the respondent's board of directors
authorized the institution of a'profit-sharing plan and directed that
the details be worked out in consultation with an Association com-
mittee. The following year the features of the plan, which was to
operate only when the respondent's surplus attained a specified
minimum, were announced by Carlton to all employees. At subse-
quent' conferences with the respondent, the Association merely re-
quested continuance of the plan, and the respondent complied with
that request only during those years when it considered that its
profits were available for such purposes. Among the classes of
employees benefited by the plan'were those who were ineligible for
membership in the Association. There is no evidence of any resist-
ance on the part of the Association to the respondent's decision not
to distribute 'profits during certain periods.
Among the unfavorable conditions 'imposed by the respondent
upon 'its employees without prior advice to or bargaining with the
Association was the cancellation of premium payments in certain
offices for overtime and for work performed on Sundays and holidays.
This change in working conditions was achieved by telegraphic in-
structions dated September 24, 1921, from three of the respondent's
vice presidents and its - comptroller to general managers, division
plant 'superintendents,' division traffic superintendents, and division
auditors, announcing cancellation of the existing overtime premium
and stating that the respondent's financial condition had compelled
the action. The change was to become' effective on October 1, 1921.
Although bargaining conferences were usually held in October of
each year, the respondent did not defer its plans in this regard
pending the outcome of the next bargaining conference.' While the
record does not show what the agenda for that year's conference were,
it is evident that the matter was discussed at the conference of Octo
ber 1921 and that the respondent agreed to modify its earlier instruc-
tions to a limited extent. ' Before acquiescing in the plan as modified,
the Association conferees submitted the proposal to a referendum
vote of the membership and issued an accompanying statement to the
effect that, while the Association representatives did not agree with
the respondent's views and were not convinced of the economic justi-
fication for the proposal, they were of the firm conviction that
members' interests would best be served by yielding to the respondent
rather than by submission of the question to arbitration. The refer-
endum appears to have resulted in favor of the respondent 's position
and the Association representatives acceded to the respondent 's wishes
in this -regard. In October 1924, the' respondent agreed to restore
premium payments for work performed on Sundays. Another in-
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stance of the respondent's imposition of changes in working condi
tions without prior conference with the Association is to be found in
the institution of the system of tour rotation in traffic-department
offices. Although the 'Association subsequently objected to this
innovation, it was nevertheless continued after several attempts on the
part of the respondent to convince Association officials of the merits
of tour rotation.
Execution of a memorandum of understandings as to a particular
matter did not necessarily indicate that Association members were
satisfied with, or convinced of the need for, the terms of the agreement
in which the conference committee had acquiesced. Already demon-
strated by the agreement of 1921 with respect to the cancellation of
premium payments for overtime, Sundays, and holidays, this fact is
further borne 'out by the tenor and* general plan of negotiations in-
voked by the respondent in 1931 for effecting "a decrease in' the salary
of its employees. After preliminary correspondence between the re-
spondent's officials and the Association's general president on the re-
spondent's proposal to shorten hours of work and thereby to effect a
decrease in wages, the general assembly of June 1931 instructed the
conference committee to resist any move to lower wages and, in the
event such resistance was unsuccessful, to conduct a referendum
among the membership on the question of a wage decrease prior to
the execution of any agreement. The following September the re-
spondent's president and Willever conferred with Burton, the Associ-
ation general president, at Chicago and informed the latter that the
respondent's depressed 'financial condition left it with the alternative
of bankruptcy if the pay roll were not reduced. Subsequently, at a
regular conference in October of that year Carlton described the re-
spondent's financial condition as verging on bankruptcy and placed
the respondent's proposal before the conferees. After some dis-
cussion, the Association representatives offered several counterpro-
posals which were'rejected on behalf of the respondent and the parties
finally agreed on October 13 to a 10-per cent deduction in wages, which
meant that basic wage rates were not disturbed but that salaries were
nevertheless reduced. Reduced salaries were to remain in effect "until
in the opinion of the Board of Directors of the Company conditions
warrant restoration of earnings wholly or in part." On October 13,
Burton sent a telegram to his secretary informing her of the terms of
the agreement and of the understanding of the conference committee
that the respondent's board of directors had reduced dividends for
the last quarter of that year, and instructing her to disseminate the
message among local assemblies at Chicago. No prior referendum
had been conducted on the subject and no request for arbitration was
made by the conference committee.
THE WESTERN UNION TELEGRAPH COMPANY 91
Notes taken of the conference by the Association's general secre-
tary-treasurer show that Burton commented, in discussing the question
of a referendum, that, since the proposal involved the reduction of a
stipulated percentage from earnings without disturbing basic rates,
there was no need for a referendum. These notes indicate further
that, when the Association conferees considered among themselves
whether a referendum vote should be taken, Burton declared, "I think
talk of a referendum is inopportune at this time." They show also
that Association representatives alluded to possible withdrawals from
the Association as a result of the agreement and asked for further
'membership preferences to avert that contingency. Burton remarked
in that connection, "We are going to be in a difficult situation and will
need help." Whereupon the respondent's vice presidents offered to
draft instructions to their regional subordinates and turned to Burton
for suggestions. In reply to questions of the conference committee
as to the practical application of such instructions by chief operators
in the traffic department, Welch explained to them, "I would not want
him to say I am going to fire you unless you belong to'the Association.
If you have a lot of Traffic members resigning from the Association I
would like the names of those fellows in order to see whether they are
batting the ball. I want to find out who they are" Cronkhite of
the commercial department endorsed Welch's statement with the re-
mark, "That goes for me too." In a section of these notes entitled
"Excerpts of remarks made by President Newcomb Carlton at the
conclusion of the conference held in New York on October 5th to 15th,
1931, inclusive," the following comments by Carlton were recorded :
I am interested in the names of the Association people who
think so little of the organization as to want to pack their
baggage and leave. The present situation was an opportunity
to help the Company. We have never coerced the members to
join or leave the Association. But I don't mind having a dashed
well understanding that people who leave the Association now
are attracting lightning. I don't feel quite as pleasant to lean
on people who run in times of stress. It does not show a mental
character of a long pull. The contemplated withdrawals of
membership in the Association may all dissolve in anticipation.
If they do not dissolve, I want to know it. . . . If there are
any employees who make trouble, I am interested.
... If there is any such movement I certainly will take
part in the support of the Association. . . . This is an ag-
gressive.time of the Association. When business becomes better
and stronger the Association and Company will be more cohesive
than ever before.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am interested in the preservation of the spirit of
cohesion of the Telegraph Company.... You fellows have
done a great job and can go home with your chin in the air
conscious that you have done the only thing you could. There
was not an ounce of give and take. It could not have been any
less. We dealt frankly with you and you with us.
Failure of the conference committee to submit the question to the
membership seems quite clearly to have precipitated considerable
criticism of the action of the Association representatives by the
membership, which in turn led to various attempts at justification
by the representatives. In the Telegraph World of November 1931'
there appeared an article by one of the Association conferees entitled
"The Recent Conference-The Results alfd Their Effect." It stated
in part:
Your conference committee has just completed its annual Fall
Conference with 'the Company, and it is no secret that the con=
ference did not end in a scoreless tie-it wasn't, even a tie. But
I absolutely refuse to believe that the seemingly ill results of
those deliberations will see any serious loss of support or mem-
bership to the Association. If all our would-be critics knew or
cared to learn the truth, they would soon and gladly soft-pedal
their lamentable wailings !
... The first few words of our universally respected Presi-
dent Carlton's farewell talk to the Conference Committee,just be-
fore its departure from New York were "Hello Heroes !" How
endearing were those words, spoken by the great man that'he is
and the great friend that he has always been to all of us, to the
ears of your conference group who were forced by their better
judgments to accept the famous 10°Jo ultimatum in spite of their
concerted and somewhat heroic efforts to stave off the inevitable
and who despite a most honorable and notable exhaustion of wit
and brains were immediately showered with a comparative
deluge of critical and in some cases abusive telegraphic 'expres-
sions from certain members who most probably had never given
them too'-great credit for their many glorious victories of pre-
vious years.
The article closed' with a plea not to withdraw from the ranks of the
Association and with the statement that the.Association conferees
"have nothing to become apologetic about ! If it had not been abso-
lutely necessary to accept the wage abatement, they certainly would
not have done so!" In an editorial in the same issue of the Tele-
graph World its editor described the conference as "one of the most
strenuous conferences ever experienced in the history of the Associa-
THE WESTERN UNION TELEGRAPH COMPANY 93
tion," defended the action taken, and appealed to the membership to
remain loyal to the Association.
The Telegraph World for January 1932 ' contained an article by
Burton which , although entitled "Annual Review," was devoted al-
most entirely to the October conference . The article explained that,
from the opening . moments of the conference , "the Association con-
ferees were confronted with a series of difficult problems , but never
were problems attacked with more courage , and never was forlorn
hope pursued with greater valor. " It went on to state that every
possible way of avoiding the 10-per cent wage deduction had been
considered but that the Association conferees had become convinced
.of the respondent 's need for direct and immediate relief after long
hours of discussion had satisfied them that the financial statement
presented by the respondent , "although estimated ," was substantially
correct. In justification of their ready acquiescence to the respond-
.ent's demands, he asserted :
We thought of arbitration , we thought of referendum ; we
thought of the Seattle General Assembly resolution, and we
thought of the many concessions the Company had given us in
past years , but here was a situation not technically a reduction
of basic wages-not technically a compromise offered by the
Company, nevertheless , a situation vitally affecting the lives of
our members . A referendum meant serious , vital , perhaps fatal
delay.
The article ended with a plea not to turn criticism of the Associa-
tion's officers into disloyalty against the Association, particularly
during a period of adversity.
The Association constitution provided as follows for the submission
of questions to a referendum vote of the, membership :
In the event the Company wishes to compromise with the As-
sociation Board of Directors or any conference committee on
general matters of vital importance, such as salaries, income
participations, classification or differentials, such changes shall
first be submitted to the Local Assemblies for ratification by
them and if rejected without qualification shall be referred to
the Board of Arbitration for final adjustment, such final adjust-
ment to be absolute.
In addition to this provision by which the conference committee
should have been bound in any event, the general assembly had di-
rected them to conduct a referendum among the membership in ad-
vance of any agreement if immediate resistance to the respondent's
proposal proved unsuccessful. At the hearing, several Association
officers testified on the procedure of the. conference committee in 1931.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. W. Farren, Association Lake division president and a member of
the conference committee, admitted that the period during which the
wage cut was to remain in effect was unquestionably indefinite and
also that a referendum vote afforded the sole opportunity for the
membership to pass directly upon acts of the conferees. Burton de-
nied that the conference committee had regarded the respondent's
proposals as an ultimatum to the Association representatives to accept
its terms or to see the Association dissolved, although pertinent ex-
cerpts from the articles appearing in the Telegraph World of Novem-
ber 1931 and January 1932 were read to him at the hearing. He
justified the failure to conduct a referendum on the ground that the
board of directors, who, he claimed, had exclusive power ta.interpret
the constitution, had decided that the situation did not come within
the language of the constitution, as no compromise by the Association
was involved, but that the procedure rather required a concession by
the Association to the respondent on a matter proposed by the latter.
He explained in a similar manner the committee's non-conformance
with the directions of the general assembly. Although the wage cuts
agreed upon on October 13 were not to become effective until Novem-
ber 1, he stated as a further reason for not holding the referendum
that the delay occasioned by the conduct of such a vote might have
been fatal to the respondent. Farren was unable to explain why the
proposal had not been submitted to arbitration, or to recall whether
arbitration had ever been mentioned at the ;conference. Burton of-
fered no „explanation for the committee's silence as to arbitration ex-
cept the reasons he had already given for the failure to conduct a
referendum. The dissatisfaction of the membership with the terms
of the agreement was analyzed by Burton as stemming from lack of
acquaintance with the significant financial data. We find that the
failure to hold a referendum clearly evidenced the respondent's
control over the Association's officers and overrode the will of the
membership as expressed in the constitution and in the mandate of
the general assembly.
In January 1932 the respondent again summoned the Association
representatives to a conference and placed before them on January
4 a second proposal for curtailing expenditures by reducing hours of
work in many offices with a concomitant reduction in pay of 81/3 per
cent, by suspending the salary differential between day and night
work, by eliminating holiday premium payments and certain bonus
payments for plant-department employees, and by other means. On
January 6, the Association conferees sent a telegraphic message to
all local assemblies setting out the respondent's proposals,: stating that
the respondent desired to make them effective on January 9, that
Carlton had convinced the Association conferees of the urgent need
THE WESTERN UNION TELEGRAPH COMPANY 95
for the proposed economies, and that the Association conferees were
strongly of the opinion that the concessions should be agreed to im=
mediately, and asking that a special meeting of each local assembly
be called that evening to consider the matter so that a telegraphic
reply could be received no later than the following day on the
vote taken by the local assemblies. The referendum as conducted
resulted in a favorable vote for the respondent' s proposals and a
memorandum of understandings was executed accordingly. Carlton's
parting remarks to the Association conferees at the close of this con-
ference were : "When we emerge from this thick weather we want
to find the Association here stronger than ever. The Association
must be kept intact. It has a splendid work in the future and you
are in the present situation as deeply as we are."
As a full account of the proceedings of this conference was not
recorded in the Telegraph World, the membership was unable to de-
termine the actual need for the agreement as well as the exact results
of the referendum. At the general assembly of 1933 one of the dele-
gates commented as follows on the inability of some local assemblies
to participate effectively in the referendum : "... we were in such
a big hurry for a decision, it cost us $3,400 to get telegraphic replies
from Local Assembly messages, and then we did not get our vote in
until after it was decided." In reply to that comment, Ross, Associa-
tion Eastern division president, stated, "I submit that will never
happen again." Whereupon the 'first delegate retorted, "We' never
thought it would happen before."
Burton testified that the only information made available to the
local assemblies on the proposals submitted to referendum vote was
the statement of the conference committee in the telegram announc-
ing the referendum. He stated further that the sole reason for de-
manding a reply within 24 hours was the urgent financial condition
of the respondent. With regard to the decision to conduct a refer-
endum in January 1932 and the failure to follow a similar procedure
in October 1931, Farren admitted that, although the conference com
-mittee was governed by the same constitutional provision in each
instance, it did not consider that the emergency confronting the re-
spondent on the second occasion was so great as to warrant depriving
the membership of an opportunity to pass upon the proposal.
We find-that the Association officers did not properly or fairly sub-
mit the second proposal to a vote of the membership and that their
failure in this respect indicates clearly the powerful control of the
Association's officers by the respondent. We find also that such con-
duct is inconsistent with genuine representation and collective
bargaining.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conference committee was again summoned to New York City
by the respondent in July 1932 and was confronted with a third
proposal for a further 10-per cent deduction from: salaries. On
July 23 the conference committee sent a letter to all local assemblies
describing the respondent's proposal, summarizing the financial data
presented to the conferees in support of the respondent's position,
and stating that Carlton and his vice presidents had convinced the
Association representatives of the need for the proposed economies
in balancing the budget in the event of a future decline in revenue.
The conference committee stated further that its members did not
believe revenue would in fact decline. For that reason, the letter
stated, the respondent had agreed to attach a condition -to -the pro-
posal that it would, starting on December 31 and continuing through
successive 6-month periods, pay back to those affected by the decrease
any net ' income which the additional wage deduction might yield
after fixed charges had been provided for. Local assemblies were
requested to send the results of the vote to Chicago not later than
August 5. Notes of this conference taken by the Association's general
secretary-treasurer. show that the respondent's officials suggested that
the referendum be conducted by telegraph .and that one of the Asso-
ciation conferees replied that a telegraphic referendum' disabled the
Association from reaching 30 per cent of its membership.
Burton wired Carlton on August 6 informing him that the pro-
posal had been approved by ' a. majority of the- local assemblies and
by the Association's board of directors and asking whether, in view
of the apparent improvement in business conditions generally, the
proposed deduction could not possibly be deferred or cancelled. Carl-
ton replied that conditions had not yet improved, that the wage de-
ductions were still needed to balance the budget, and that when an
improvement occurred the terms of the refund provision would be
made effective. On August 16 the respondent sent to Burton for
signature a memorandum of understandings embodying the terms
and conditions agreed upon.
The Telegraph World for September 1932 does not indicate how
the locals voted in the referendum of August 1932 but merely reports
the vote by geographic divisions. At the general assembly conven-
tion in 1933 one of the delegates intimated that the results of the
referendum had been against acceptance of the respondent's pro-
posal and complained as follows on the report in the Telegraph World :
"On ratification of the ten per cent decrease, all we said in the Tele-
graph World was a little section. We wanted a list of. just. how every
local voted so in case there was a mistake, some local could contest
the mistake in the publication. We,did not believe honestly that the
THE WESTERN UNION TELEGRAPH COMPANY 97
peaple voted in the ten per cent cut. We still feel that most locals
said no." 15
At a conference held at the instance of the respondent in January
1933 it was further agreed to cancel vacations with pay, to compel
certain classes of employees to take 1 month's .vacation without pay
and certain other classes to take 2 weeks without pay, and to cut
in half some of the sickness and accident benefit payments made
under the respondent's benefit-fund plan. No referendum was held
on these proposals. Notes taken of this conference record the fol-
lowing question by one of the respondent's vice presidents : "You
will not submit the proposals to the field for a referendum?" Fur-
ther according to these notes, Burton replied in the negative. At
the hearing, Burton advanced.as the reason for not holding a ref-
erendum in January 1933 the. argument that he had formerly made
for not having conducted a referendum in October 1931. Elsden,
Association Metropolitan division president, explained the, failure
to submit the 1933 proposals to a vote of the membership by stating
that the Association conferees had decided that the matter was not
of sufficient importance to warrant such a procedure.
We find. that the Association conferees again acted as agents of
the respondent, rather than as the true representatives of the mem-
bership, in deliberately depriving the Association members of an
opportunity to. decide whether to accept unfavorable working con-
ditions which the respondent was determined to force upon them.
That the membership was displeased with the manner in which
the Association representatives had yielded to the respondent's de-
mands at the four conferences hereinbefore discussed and with their
failure to invoke the arbitration provision of the Omaha Agree-
ment and to threaten to abrogate that agreement on 6 months' notice,
is evident from the introduction of an amendment to the referendum
provision of the constitution at the 1933 general assembly and from
the discussion on that proposed amendment. The amendment as
adopted provided as follows :
In the event the Company negotiates. with the Association
Board of Directors or any Conference Committee on general
matters of vital importance adversely affecting the membership,
such as salaries, classification or differentials, such changes shall
first be submitted to the local assemblies for ratification by them
before being accepted or rejected, and if rejected without quali-
fication shall be referred to the Board of Arbitration for final
35 A later issue of the Telegraph world, published In February 1937, contained a report
by locals on a referendum 'conducted on the question of whether the general assembly con-
vention of 1937 should not be held. Burton stated.at.the hearing that he was unable to
explain why a.different procedure had been followed in reporting the August 1932 vote.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adjustment, such final adjustment to be absolute. -The decisions
of Local Assemblies by a two-thirds vote of only the Company
Department Group affected shall' be determined by their mem-
bership votes cast by numerical strength.
During the discussion on the proposed amendment, Pickett, Pacific
division president, spoke in favor of its adoption and summarized
as follows the general reaction evoked by the four conferences and
by the failure on the part of the Association to invoke the arbitra-
tion provision for settlement of the questions before those confer-
ences and of other questions :
Now, on the six months' notice : It has been my experience
that through the life of the Association, our six months' notice
meant nothing. Our arbitration clauses meant nothing.
There have been no. such things in the life of the organization,
for the simple reason that every time any one has suggested
arbitration; every time anyone has suggested six months' notice,
a reply always is, "You are jeopardizing the life of the organiza-
tion when you resort to that, when you invite disaster."
Now, I have no great quarrel with that argument. I am more
or less in agreement. When we do those things, it invites dis-
aster, but it proves to you our organization is, fundamentally
weak when we must follow the dictates of. the company, and
therefore we must follow their dictates and if we don't do it,
it is the destruction that minute,. and the only question you gen-
tlemen have got to decide-and you. have got to decide it some-
time-is whether you are going to have an organization that is
able to do some of the things you think should be done or whether
you are going to continue to follow the leadership of the company.
Now leave that in there. If our organization is not worth a
damn, let's kill it and get another organization..
We find, on the basis of the evidence hereinbefore discussed, that
the Association was powerless to represent its members in' dealing
with the respondent ; that the respondent compelled Association con-
ferees to act as- its agent and did not permit them to serve as the
independent representative of its employees; -and. that agreements
reached as a result of conferences on both sides did not represent the
fruits of genuine collective bargaining between parties independent
of one another but rather represented spontaneous action. on the part
of the respondent in according favorable working conditions to its
employees and ready submission by the Association to demands made
by the respondent which adversely affected personnel. We find
further that these . characteristics of the relationship between the
respondent and the Association unquestionably establish utter dom-
THE WESTERN UNION TELEGRAPH COMPANY 99
ination of the Association by the respondent and that such domina-
tion was directly attributable to the persistence of the respondent's
original purpose in initiating the Association and to the various forms
of support which it had accorded the Association in execution of that
original purpose.
(2) Use of the Association to thwart the organization of messengers
The basic purpose for which the respondent had initiated the
Association was, as we have already found, to prevent outside labor
organizations from enrolling the respondent 's employees as members.
Until 1934 the respondent was able to achieve its aim merely by
fostering the growth of the Association and by continuing its espio-
nage activities with the aid of the Association . Although it became
aware in 1933 of attempts on the part of the C. T. U. to organize
its employees , the respondent manifested no great concern over the
consequences of such action, as it relied upon the effectiveness of ex-
isting means for combatting C. T. U. efforts . In this connection,
Willever wrote Burton on July 10, 1933, stating that Willever was
taking it for granted that Burton was doing everything possible to
"buck up" Association members and to "keep them from being
stampeded" by efforts of the . C. T. U. to gain a foothold among
the respondent 's employees . Existing methods had apparently
worked`satisftctorily with those classes of employees whom the Asso-
ciation took in as members . They proved inadequate , however, with
respect to messengers , who were ineligible for membership in the
Association unless they were at least 18 years of age and had been
in the respondent 's employ no less than 1 year. The Association had
also been unenthusiastic about enrolling those messengers who were
qualified under the constitution to become members . It had per-
mitted messengers who joined its ranks to form sublocals without
authority to operate as active units. It had in fact not bargained
for-any of the messengers and regarded them as a negligible factor
arnorig - the' "re 'spondent's `employees. In 1921 Willever had written
Hayes, then general president of the Association , that the respondent
had never considered that messengers were covered by, collective
agreements and that a contrary notion would be regarded "as unde-
sirable from the standpoint of the Company and the Association
alike." The respondent's attitude as thus expressed persisted until
1934.
In the spring of 1934, while the National Industrial Recovery Act
enunciating the principle of freedom of organization was still in
effect, the respondent began to detect signs of unrest among its
messengers and evidences of imminent inroads by outside organiza-
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions upon that class of its employees. It accordingly called upon
the Association to undertake organization of messengers only .in
those areas where such conditions had been detected and to promise
new messenger members only such minimum improvements in work-
ing conditions as were necessary to keep them away from. rival or-
ganizations. In accordance with the respondent's instructions, the
Association exerted its earliest efforts in the Pacific northwest. In
August of 1934 it undertook the organization of messengers at
Fresno and Long Beach, California, and on August 14, f934, Burton
wrote to Willever announcing the practically perfect success of its
endeavors at these two cities. He wrote also that the messenger
members at Fresno and Long Beach had requested cancellation of
uniform rentals and that an early favorable decision on that point
would be appreciated.- Willever replied on' August 16 stating that
the respondent had -acceded to the demand of the messengers:in those.,
two cities merely because it appeared that they had joined the Asso-
ciation on the representation that they would be relieved of rental
payments and that the respondent consequently had no alternative
but to. agree to the cancellation of such payments. Willever then
called Burton's attention to the fact that the Association's activities
in Fresno and Long Beach had been conducted without regard to
the understanding between the respondent and the Association that
promotional efforts among messengers would be confined to divisional
cities "which were thought to be most susceptible to labor agitation"
and would not be extended to smaller cities where there was little to
be gained by organizing "except perhaps to stimulate expectation
on the part of the messengers." The letter declared further that
recent "labor trouble" on the Pacific coast might have made it de-
sirable to extend organizational operations to Fresno and Long
Beach.
The Association found that it could not carry out the respondent's
mandate unless it offered messengers a tangible, improvement in
working conditions. It therefore urged the respondent to extend
to messengers the benefits of outstanding agreements as to working
conditions. The respondent, however, could not be persuaded to
accept the suggestion. On September 5, 1934, Farren, Lake division
president, wrote to Burton explaining the difficulties which con-
fronted him in organizing messengers in his division and said of the
respondent's refusal to accede to the Association's suggestion :
If they are going to call on us to.help them keep messengers
free from outside labor agitators they must concede their protec-
tion under our agreements until such time as something different
is agreed. to through the usual methods,of negotiation;
THE WESTERN UNION TELEGRAPH COMPANY ' 101
Farren, nevertheless, continued to execute the respondent' s instruc-
tions within 'the limits imposed. By November 22, 1934, the Associa-
tion had at least succeeded in persuading Willever to instruct general
managers to extend preferential treatment " in numerous little :ways"
to messenger members in those areas where the Association "is active
in enrolling our messengers." On November 23, 1934, Willever clari-
fied the respondent's objectives in a letter to general managers. He
wrote that, when the Association had undertaken in the spring of 1934
to organize messengers "in order to head off sporadic attempts of out-
side influences to foment dissatisfaction in the ranks,"" it had been
understood that such efforts would be limited to those offices where
"disturbing influences" might arise and that, when it had seemed de-
sirable to, organize messengers , the respondent had agreed to cancel
uniform rentals' in order to defer salary increases . He explained
further that it was his personal feeling that shortness of messenger
tenure did not warrant their enrollment 'in the Association "where
there is little or no likelihood of unrest." "To organize," he explained,
"is to stimulate expectation and discontent and the Association for
its part recognizes that its prime interest must-be in-individuals who
as a class are likely to remain identified with the service." The letter
closed with the statement that Association officials "have our encour-
agement" in the matter of active organization among messengers in
the larger cities.
That the Association was merely acting as the agent of the re-
spondent in organizing messengers and that it felt itself handicapped
in this connection-by the narrowness of Willever's directions and by
Willever's reluctance to grant attractive concessions to messengers
whose activities it was to control, is clearly indicated by a resolution
on the subject introduced at the Lake division assembly in 1935. The
resolution was accompanied by a statement declaring that "in the past
the Company has never been interested in messengers belonging to the
Association which would give them a voice in the determination of
working conditions, wages, etc., but due to a change in conditions the
Company requested Association officers in certain cities to organize the
messengers to keep them from joining other Unions." The statement
explained further that the Association had assumed the task assigned
to it by Willever after the latter had agreed verbally to extend to
messengers the same rights and privileges enjoyed by ordinary com-
merical-department. employees who were members of the Association.
A complaint was then made. that the respondent had failed to execute
its verbal undertaking and had indicated, that Association activities
in this regard should be limited to those cities where, there was a'like-
lihood of "labor trouble." The resolution as introduced 'and'ado'pted
placed the'Lake division on record in favor either of or'ganizing' all'
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
messengers and treating them on equal terms with other members
or, in the event this contingency was impossible of achievement, of
abandoning the entire project . The resolution was in fact not trans-
mitted to the respondent.
At the hearing , Willever , in whose department messengers were
employed, admitted that he had instructed the Association to organize
messengers and stated that his reason for these instructions was that
the Association had been the sole bargaining agency for the respond-
ent's employees and that the respondent had been unwilling to com-
plicate the situation by concerning itself with other bargaining rep-
resentatives . We regard Willever's testimony as an admission that
the respondent had directed the organizational operations of the
Association. Farren, who had been very active in conforming with
the respondent 's directions in this regard , testified that the real reason
for those directions was the respondent 's desire to protect other em-
ployees and the Association against the ill effects of fomented dis-
satisfaction among messengers . We do not regard Farren's testi-
mony as a full explanation of the respondent 's purposes.
It is clear from the evidence , and we find, that the respondent
utilized the Association to thwart the efforts of outside organizations
to enlist messengers as members ; that concessions made to messen-
gers were confined to the minimum requirements necessary to satisfy
this purpose ; and that neither the respondent nor the Association
recognized the right of all messengers to organize.
4. Conclusions as to dealings with the Association before July 5, 1935
Although Carlton contended at the hearing that the respondent
had endeavored to make the Association "virile and independent,"
from the date of its inception , the evidence points decidedly to a
contrary underlying objective . Having created the Association in
conformity with a pattern designed by the respondent , as a means of
diverting the attention of its employees from the attractions of
outside labor organizations , the respondent sought at all times during
the period under consideration in this aspect of the case to control
the activities of the Association and to direct its operations in a man-
ner consonant with the purpose for which it had been created.
Accordingly , at the outset , the respondent undertook through various
means the task of nurturing the growth and development of the organ-
ization it had selected for its employees . It made available to the
Association various forms of financial assistance which lightened con-
siderably for the Association the burden of, economic maintenance
under which independent labor- organizations struggle during the
early years of their existence . Promotional programs , which inde-
THE WESTERN UNION TELEGRAPH COMPANY 103
pendent organizations must conduct through their own devices and
on their own resources, were assumed for the most part by the re-
spondent on behalf of the Association through direct solicitation and
through. other valuable forms of cooperation. Good will and pres-
tige, which independent organizations seek to establish for them-
selves on their own merit by astutely protecting the interests of their
members and others in bargaining collectively with the employer,
were consciously built up for the Association by the respondent
through various means designed to enhance the apparent importance.
of the Association and to create the impression that membership
therein was an indispensable factor in the enjoyment of favorable
working conditions.
The aid thus extended to the Association was further relied upon
by the respondent as a means of controlling the Association and
its officers in dealing with them concerning terms and conditions
of employment. It had from the start deprived the Association
of the power to enforce demands through the strike weapon and had
subsequently exacted so high a degree of gratitude for favors volun-
tarily and designedly heaped upon the Association after its forma-
tion that other possible means of enforcing demands had been rele-
gated to an academic status through utter disuse. In dealings* be-
tween the respondent and the Association both parties were con-
stantly. aware of the fact that the formation and, growth of the As-
sociation, as well as its future existence, depended upon the gen-
erosity and inclinations of the respondent. This realization was
not particularly controlling when a proposal which the Association
advanced for the respondent's consideration was consonant with the
respondent's general policy of personnel management. In such cir-
cumstances, the respondent had only to determine the advisability
of extending its personnel program. However, when the respondent
expressed disapproval of any request made by the Association or
itself presented demands to the latter, Association representatives
were plainly aware of the serious consequences of persistence or
opposition. To incur the respondent's disfavor was to jeopardize
the life of the Association. Hence Association representatives
yielded readily to the respondent's demands notwithstanding the
fact that such ready acquiescence contravened the Association con-
stitution and provoked dissatisfaction and censure among the mem-
bership. Although arbitration purported to serve as a substitute
for the strike weapon which the Association had renounced at the
behest of the respondent, that substitute was in fact never invoked
by the Association. The, arbitration provision was, thus imposed
upon the Association by the respondent as a subterfuge for depriv-
ing its employees of any freedom of action with respect to working
247384-40-vol. 17-8
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions. Even the referendum provision of the Association's con-
stitution was disregarded when the respondent indicated its dis-
approval of that method of ascertaining the wishes of Association
members. By achieving such control over the ' Association, the re-
spondent succeeded in presenting its employees with a carefully
selected substitute for an effective labor organization and in pre-
venting the encroachment of all outside organizations. In fact, the
Association played not only a passive role in achieving the respond-
ent's purpose but, under express directions of the respondent, actively
served as a medium for absorbing into its ranks those classes of
employees whom rival organizations were attempting to attract as
members.
Thus subjugated to the will and designs of the respondent, the
Association.-did not, and in fact could not, function as a bargaining
agency in any realistic sense. At most, it served as a medium for
execution of a personnel policy unilaterally formulated by the
respondent.
We find that, until July 5, 1935, the effective date of the Act, the
Association' was a labor organization clearly controlled and dom-
inated by the respondent through interference with its administra-
tion and contribution to its support.
Whether the Association could, or did in fact, on or after July
5, 1935, emerge as the freely chosen representative of the respondent's
employees, is to be determined by the character of its further activi-
ties ands dealings with the respondent.
5.. Dealings with the Association from July 5, 1935, to
August 17, 1937
The effective date of the Act, July 5, 1935, and the declaration of
its validity by the Supreme Court of the United States on April 12,
1937, brought no immediate changes in the operations of the Associa-
tion and in the established course of dealings between the respondent
and the Association. The latter made no attempt to divest itself of
the respondent's control and the respondent did not undertake in any
way to emancipate the Association from its long years of. subjugation.
All prior forms of support, both financial and promotional, continued.
Thus the agreement for free transportation remained in effect and
Association officers and representatives enjoyed without interruption
the privilege of free railroad transportation in accordance with that
agreement. In 1935 and 1936 the respondent rendered no bills to the
Association for railroad transportation, as the total transportation
cost incurred by the Association and the respondent during those
years did not exceed the maximum contract allowance accorded the
THE WESTERN UNION TELEGRAPH COMPANY 105
respondent .by the railroads. Free use of bulletin boards an& of the
respondent's mechanical and clerical facilities continued unabated.
As in the past, local assembly meetings were held on the respondent's
premises and Association elections were conducted on company time
and property. The check-off system of collecting dues remained
unaltered. Local company officials continued to furnish local Asso-
ciation officials with lists of employees and cooperated with the Asso-
ciation in soliciting those listed as non-members. Supervisory
employees remained active in the Association and the general as-
sembly and made no effort to curb their promotional endeavors on
behalf of the Association among their subordinates. Preferential
treatment of Association members, particularly with respect to the
assignment of working hours, proceeded without restriction. The
"tying-in" practice described above was also not abolished.
The respondent's opposition to outside unions and its established
system of espionage persisted. R. B. White, who succeeded Carlton
in 1933 as president of the respondent, testified in 1937 at an earlier
hearing before the Board 1" that the respondent's policy of opposi-
tion to unions employing the strike weapon remained unchanged at
that time and that the respondent's officials were cognizant of the
persistence of this policy. A report submitted by the respondent to
the subcommittee of the Committee on Education and Labor of the
United States Senate and introduced in evidence at the hearing in
the instant: proceeding showed that the respondent had employed
special:.operatives in 1935 and 1936 through the Railway Audit and
Inspection Company to report generally on union activities among
utility-company employees, including the respondent's employees, and
specifically on the work of the Office Workers' Union and the . Tele-
graph Messengers' Union and on attacks made by such organizations
against the Association. Willever testified that general managers
were permitted to hire special agents pursuant to their general
authority to adopt appropriate means of ascertaining facts with
regard to personnel.
Surveillance of the activities of messengers , whom outside organi-
zations were militantly attempting to enroll, was accompanied in at
least one of the respondent's offices by a notice of July 30, 1935,
addressed to "all messengers" warning those employees that they
would be dismissed for visiting any labor organization office, except
that of the Association, or for conferring with any person on the
streets or elsewhere while on duty and in uniform. Espionage as to
"'The hearing was held at Seattle , Washington , from August 9 through 14, 1937, in
Matter of Western Union Telegraph Company and Messengers Local No. 40 of the Commer.
cial Telegraphers Union, 3 N. L. R. B. 375.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
messengers was further implemented by an increasingly vigorous pro-
gram of utilizing the Association to divert the interest of messengers
from rival organizations. In some of the respondent's offices mes-
senger strikes were being threatened or called in 1936 and 1937, and
the respondent attempted, with the aid of the Association, to avert
the materialization of strike threats and to curtail the duration of
strikes which had already become effective. Where the respondent's
local officials learned in advance of an intention to strike, they im-
mediately notified the appropriate Association officers and directed
the latter to investigate and determine the source of the prevailing
discontent which was impelling messengers to join outside labor
unions and to consider striking against the. respondent. In addi-
tion, Association officers were instructed to bargain with the respond-
ent for the granting to messengers of only such concessions as were
necessary for pacification and for the prevention of an impending
labor dispute. Where strikes had already been called, the Associa-
tion was notified immediately by local company officials and, clothed
with sole authority to negotiate on behalf of complaining messen-
gers, it thereupon proceeded toward a settlement of the particular
controversy. The Association was also expected to ascertain through
its own devices, wherever possible, the nature of collective action con-
templated or commenced by messengers. The right of all messengers
to organize was still disregarded and enrollment of messengers in
the Association was still limited to those areas where trouble or,
danger was foreseen or had actually become manifest. The Associa-
tion's reward for its successful efforts lay at first in its tie-in with all
improvements in working conditions accorded messengers under these
circumstances. At a conference held from March 15 to 23, 1937, the
Association was further requited with a written exclusive-recogni-
tion agreement although it had enlisted as members only a small
proportion of the respondent's messengers.
The respondent's campaign in this connection required local com-
pany officials to report to their divisional superiors on the detection _
of signs of messenger unrest and on steps taken in cooperation with
the Association to dissipate the underlying causes. Thus on Janu-
ary 28, 1937, the respondent's city superintendent at Detroit advised
the general manager of the Lake division that some messengers were
on the verge of revolting against the Association ; that the latter was
doing its utmost to retain and placate its members; and that, at the
suggestion of the Association, the superintendent was segregating
and closely watching certain classes of messengers in order to insulate
them against the influences of discharged or disgruntled messengers.
This. letter. was forwarded by the general manager to the Associa-
THE WESTERN UNION TELEGRAPH COMPANY 107
tion's Lake division president and also became the subject of a con-
ference between Burton, general president of the Association, and the
general manager.
On February 2, 1937, the Detroit superintendent reported to his
divisional superior that a petition signed by about 30 messengers
and expressing an intention. to strike in protest against prevailing
wages and working conditions had been placed upon the desk of one
of the local company officials at Detroit The letter informed the gen-
eral manager further that after Association officials had been apprised
by local company officials of the discovery of the petition, the Associa-
tion called a special meeting of the local assembly in that 'area and
invited the signers of the petition to attend: As a result of that meet-
ing, the report continued, the Association, with the authorization of
the messengers, bargained with the Detroit superintendent for an
adjustment of the grievances enumerated in the petition and succeeded
at least temporarily in allaying the prevailing discontent. The super-
intendent also advised his - superior that the special meeting, had
yielded the names of four boys who had been responsible for the
general "agitation" among messengers in that area. Concerning the
activities of these boys and the action he had taken to suppress their
activities, he reported in part as follows :
Meanwhile the ringleader, whose name is Donald Cudney, had
been active in spreading agitation among all the boys he could
contact and it became obvious that he was bent upon overthrow
of the Association. He and another boy named Wilkinson were
very active and various rumors reached us of their activities.
The two other boys involved had been dismissed some time pre-
viously and Cudney was trying to have them reinstated.
Yesterday Wilkinson was dismissed for making a disturbance
in the room where the reserve messengers were quartered.
Shortly afterward Cudney turned in his 'uniform with the
remark that he was going to find out why we had dismissed
Wilkinson and the two other boys. He failed to report at two
assignments and was timed off as resigned. Last night when he
returned and found that he was out of the service he became
enraged and denied that he had resigned. For obvious reasons
he was not reinstated.
... It is quite possible that he may have had some outside
influence although we are unable to locate such a source. - . . .
There was no mistake. in his purpose to. gain control of the
messengers and overthrow the association. . . .
Although he threatened to call .out a strike last night nothing
had developed. Obviously, as we found, most of. the boys who
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed the petition did so without any such contemplated action
and he'lost support when we dismissed him. . . . We have taken
suitable precaution should he or any of the others make any
attempt at sabotage.
When messenger dissatisfaction was discovered in one division;
Willever apprised the general managers of other divisions to that
effect and instructed them on methods for avoiding similar occurrences
elsewhere. Thus on March 5, 1937, he addressed a memorandum
marked "confidential" to the general managers in all divisions except
the Lake division, informing them that efforts were being made "by
outsiders". to stir up ' discontent ' and strikes among messengers in the
Lake division and instructing them as follows :
It is. quite, possible. that similar attempts will be made in other
territories, and I suggest that you keep your ear close to the
ground and arrange to get the Association in promptly on any
sign of dissatisfaction or unrest. Meanwhile you will wish to
consider carefully at each place of importance whether there is
anything in our set-up, including average or minimum earnings,
which is likely to constitute a sore spot and might serve as a rally-'
ing point for starting something. In the correction of such con-
ditions, if found, the Association should be tipped off so that there
will be a' clean-cut tie-in of 'the Association with the ameliora-
tion of the condition,-and no adjustment of wages or other con-
ditions: should. at any time be made independently of the Associa-
tion while our agreement with it lasts. You will, of course, not
overlook, in connection with any trouble which may develop
through outside agitation, that under our agreement with the
Association that organization 'is the recognized and sole inter-
mediary between employees and the company. Quite gen-
erally, I think, the Association should be encouraged to enroll
messengers before the latter become the prey of outside agitators.
A copy of this memorandum was also sent to Burton.
On the same day, Willever outlined his ideas more specifically by
setting forth several concrete suggestions .to all general managers on
the kind of improvements in working conditions of messengers, other
than increased wage schedules, which might be introduced "in order
to remove recognized causes of dissatisfaction." After discussing each
of the suggestions,' Willever commented as follows on their probable
effectiveness :
While any of these proposals would save the boys money, it is,
I suppose, doubtful if the boys would collectively appraise the
advantage to them at anything like the cost to the company, and
the granting of this concession might therefore have little or no
THE WESTERN UNION TELEGRAPH COMPANY 109
effect upon their aspirations towards a larger pay-check. The
question is whether the conditions call for schedule revisions
first, where found necessary or advisable, to be perhaps followed
later with some of the other suggested arrangements as a matter
of allaying dissatisfaction, or whether as the cheaper method we
should allay these causes first and trust to their effect to postpone
or eliminate necessity for direct pay increases.
The letter closed with a request for comments on the question posed.
Association officials were also concerned with the problem of pre-
venting local sporadic attempts at collective action from developing
into a widespread movement. Inspired by the respondent's general
directions, these officials sought to parallel Willever's instructions to
general managers with suggestions to subordinate Association officers
on the kind of preventive action to be undertaken by Association
local assemblies.. On March 8, 1937, Welch, Association Gulf
division president, wrote to the presidents of seven local assemblies
in that division informing them that at a few places in the North,
the messenger boys had been stirred, up by "outside organizations"
and that the difficulties in each case might have been averted "if
precautionary measures had been taken." The letter continued with
the following advice and directions :
... the precaution which we can take is to have at least some
of the messenger boys belong to the Association, and keep a sharp
look-out for possible outbreaks of trouble.
The epidemic of trouble threatens to spread into our section
of the country. Larger centers are usually most vulnerable, but
the messengers can be incited to some foolish but serious move
by an individual anywhere. One very serious case came up in
the East a couple of years ago where a professional agitator
affiliated with no organization induced the boys to strike-and
none of the boys belonged to the Association.
I wish you would set out at once to do this : take into your
your local membership about six or twelve, messengers of the
most intelligent and representative type and keep them in the
organization as a nucleus for further organization if it becomes
necessary. You personally meet with these boys and keep your-
self informed as to the temper of the whole group of messengers.
Go to the superintendent with working conditions which seem
to warrant improvement. While you must necessarily be respon-
sible for this task, you may of course take counsel with such
adults as you select, such as delivery manager or delivery clerk.
This may be particularly helpful to you if your Company duties
do not throw you into contact with the delivery department.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The* Constitution requires per capita dues of 300 where you
do not have a messenger sublocal but you may, if your Local's
By-Laws permit, not charge any local dues-just 300. If you
take in more than 20 boys you then must form a sub-local for
the boys.
Please let me know right away what is being done.
Having received no response from the seven local assembly presi-
dents by March 30, Division President Welch again wrote to them on
that day, emphasizing the importance of the program he had dealt
with in his earlier communication, and directing that the action
therein outlined be undertaken at once. The general instructions
issued to the seven presidents on March 8 were made more specific this
time by orders to call upon the respondent's city superintendents for
help in executing the following directions :
Select from six to twelve boys of the highest type; High school
graduates, clean cut, intelligent, good personality; parents known
to be not of communistic, rabid labor-unionist type. Sell these
boys on the fact that the A. W. U. E. is the parent organization
that deals for all employees in all matters pertaining to the wel-
fare of Western Union employees, and is the only organization
with which the Company deals; that you do not want the boys
to go in for all the expense of the serious business of old employees
of the Company, but that you do want these few outstanding-boys
to be the leaders, set the example for all the messengers for pur-
poses of recreation, social life, and to advise with you on matters
pertaining to the welfare of the boys in connection with their em-
ployment when they see something that needs attention.
Division President Welch cautioned the local assembly presidents
that the boys selected as leaders .were not to engage in an immediate
membership drive among the other messengers "because having all the
boys in sub-locals. may defeat, the purpose." He urged also against
holding. mass ,meetings of all the messegers, "as only demands and
more demands may-be made upon you," and advised that the messen-
ger leaders to be selected proceed gradually by adding one or two new
members at a time. He stressed the fact that organization should
assume a predominant social character of a kind to be determined by
the good.judgment and ingenuity of the local assembly presidents and
the respondent's city superintendents. "On occasion," he suggested,
"it may be well to invite all of the messenger force to a picnic.. You
should invite the few members of the sub-local to whatever social ac-
tivities your Local may have." In concluding his letter, Welch re-
stated as follows the objective, underlying his program and the general
manner of its execution :
THE WESTERN UNION TELEGRAPH COMPANY 111
Your purpose and policy in this matter is to keep the messen-
gers out of rather than get them into serious labor union business
and to reverse the order of your own adult organization and make
of the boys' organization a recreational, social and fraternal
one, with the serious business of a labor union of secondary
importance.
The vigil assumed by the respondent and the Association over
messenger activities required frequent consultation between them for
the purpose of evaluating the effectiveness of measures already
adopted and of devising additional methods to conform to the chang-
ing or increasingly strong organizational tactics of adversary labor
organizations. Thus on March 23, 1937, Willever advised all general
managers that a discussion with Association representatives of the
latter's experiences in attempting to settle "unrest and discontent"
among messengers had revealed the prevalence of a complaint among
these employees that the respondent had failed to perform its promise
of promoting messengers to better positions. Informing general
managers that the respondent's vice presidents had agreed to correct
at once the situation complained of and to fill all suitable vacancies
for certain clerical jobs from among messengers possessing the neces-
sary qualifications, he directed them to execute this policy and to
accord preference to messengers even where the latter were not so
well qualified as other possible candidates. On March 26, Willever
reported once more to the general managers the substance of discus-
sions with Association officials and the action determined upon as a
result of such discussions. He stated that an Association official,
who had achieved considerable success in dealing generally with mes-
sengers, had found motor messengers helpful in handling trouble-
some situations and had observed that this particular class of em-
ployees was in a position "to be aggressive in breaking up a develop-
ing situation that seems likely to get out of control." 17 Reporting
further that the motor messengers were found by the Association to
be unhappy about the disparity of prerogatives between them and
regular employees, Willever suggested that equality might be achieved
by according motor messengers the same privileges, particularly with
regard to vacations, as the respondent had granted to regular em-
ployees. General managers had previously been instructed in general
terms to reward all employees who had aided in pacifying messengers
and to tie the Association in with such rewards.
The manner in which the Association complied with the respond-
ent's,instructions in strike situations is clearly indicated in,the.record.
17 Motor messengers , unlike bicycle and foot messengers , perform the delivery of messages
and other messenger tasks through the medium of motor vehicles. They are as a rule older
than the other two classes of messengers.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Messenger strikes had occurred in 1936 at Reading, Pennsylvania,
and, in 1937, at Toledo, Cleveland, Chicago, Gary and other mid-
western cities, and in the Pacific northwest. The respondent's dis-
trict superintendent for the Reading area had succeeded in handling
the 1936 strike without the aid of the Association but had subse-
quently reported the matter to the Association Eastern division presi-
dent. The latter explained to local assembly officers in the Reading
area that the Association was under a duty to prevent the occurrence
of similar outbreaks and directed those officers to investigate the
general situation and report thereon to him. Most of the other
.strikes were settled by intervention of the Association and by. negotia-
tions conducted by it with local company officials.
The Toledo strike occurred in March 1937 and involved about 45
messengers. Farren, Association Lake division president, was called
.upon by local company officials to comply with the respondent's gen-
eral instructions by adjusting the Toledo dispute. One of the methods
utilized .by Farren in executing his assignment was an appeal by
telegram to the parents of each of the strikers. Farren obtained the
addresses of the parents from the respondent's local officials. The
telegram in each instance advised the parents that their son had, gone
.out on strike through the instigation of a person falsely claiming to
organize on behalf of the C. T. U.; that the strikers were not allied
.with any organization authorized to adjust their demands; that the
Association was the sole agency in a position to negotiate as to the
current difficulties; and that membership in the Association was avail-
able to the strikers. Farren informed the strikers' parents further
of his assurance that, if the boys were removed from the influence
of the imposter organizer, he could negotiate a satisfactory adjust-
ment of their wages and working conditions and effect an immediate
.return to work for these boys, just as he had done for the striking
.messengers in Chicago. Each message contained a request for the
parents' cooperation in detaching their son from the control of the
impotent outside organizer, in dispelling any fear which may have
been instilled in him that free and open discussion of his troubles with
Farren would be harmful to his interests, and in agreeing to authorize
Farren as Association representative to negotiate a settlement of
their son's "troubles." The telegram closed with the statement that
Farren would be pleased to discuss personally with the parents "any
phases of the situation" at any time of the day or night "until the boys
troubles are adjusted." The message was signed by Farren as Asso-
ciation division president.
Messenger strikes occurred in several mid-western cities in June
of 1937 while the general assembly was in session at Portland, Oregon,
and Farren received notice to that effect at Portland from the re-
THE WESTERN UNION TELEGRAPH COMPANY 113
spondent's Lake division officials, who asked for his assistance in ad-
justing "the trouble." He wired Jack Darnell, president of the Chicago
commercial local assembly, to act on his behalf and to enlist the aid of
the president of the Chicago messenger sub-local. Darnell informed
.Farren on June 23, 1937, that the strikers had returned to work after
having been "quite obstinate and strong for C. I. 0." until that day,
when Darnell and his associate were "able to break them down." On
July 1, 1937, Farren reported to Burton that Darnell and his asso-
ciate had done very effective work in dealing with these strikes and
that satisfactory settlements had been effected by the Association in
all instances. The expenditures incurred by the Lake division in
handling those disputes, including payment to Darnell for time spent
away from work, amounted to $276.50, according to Farren's report to
Burton. On July 7, 1937, Cronkhite, general manager of the Lake
division, thanked Farren by letter for the services and assistance ren-
dered the. respondent by the Association "in the adjustment of mes-
senger difficulties."
Although the Association had up to this time, as hereinbefore
demonstrated, complied strictly with the respondent's instructions to
avert messenger unrest and to negotiate on behalf of those who had
gone out on strike, Willever stressed the Association's continuing
obligation with respect to future situations in a letter to Burton
dated June 14, 1937. The letter advised Burton that the respondent
had suspended operations at Seattle, Washington, as a result of its
refusal to deal with another labor organization on the ground that
the Association' had been recognized as the sole bargaining agency
for the respondent's employees. It called to his attention the fact
that the seriousness and importance of the respondent's action in-
vested the Association "with responsibility for seeing that a similar
situation does not develop elsewhere," since suspension of operations
at vital points could 'not be continued indefinitely as a means of pro-
tecting the Association's rights under the exclusive representation
agreement, with the respondent. "This is particularly important,"
the letter concluded, "on the Pacific coast at this time, in view of
the threat which has been made that our messengers will be called
out elsewhere in that section with' a view to precipitating similar
situations elsewhere." A copy of this letter was sent to all division
presidents. There is no evidence that the Association failed to com-
ply with Willever's directions not to relax its watchfulness over the
activities of messengers throughout the country, and particularly,
on the Pacific coast.
The evidence as to the respondent's program to prevent messengers
from joining outside organizations and the Association's actual co-
operation with that program was not contradicted at the hearing.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willever testified, in purported justification of the respondent's activi-
ties in this regard, that the Association had been called upon to deal
with dissatisfied or striking messengers pursuant to an established
arrangement with the respondent whereby the Association had under-
taken to preserve peace among the respondent's employees in exchange,
for the respondent's recognition of the Association as exclusive bar-
gaining representative. There was no need to call upon the Associa-
tion, he testified further, to perform its part of the arrangement with
the respondent while the tenure of messengers continued generally
to be of short duration and while no signs of dissatisfaction were
detected among them. "We felt that a boy who was in today and
out tomorrow," he said of the respondent, "as actually happens in
many cases, was not very good material to get wound up in a whole
lot of understandings about agreements, because they were not here,
long enough to make the performance worth while. In those cir-
cumstances, frankly, as the head of the department, responsible for
the messenger end of the business," his testimony continued, "I had
not encouraged the Association to interest themselves particularly in
the boys until the conditions changed with the length and tenure of
service, .due to lack .of employment in other lines, and also which
developed unrest among our boys. When that happened, I felt it
was time for me to suggest to the Association that they had better
alter their course in that respect." - He explained that his instruc-
tions to general managers to have local company officials acquaint
Association:officials -with "sore spots" in,messenger working conditions
and to tie the Association in with their elimination were issued
pursuant to the respondent's general policy of seeking to identify
the Association with the amelioration of working conditions.
Farren undertook at the hearing to defend the Association's record
of assistance in handling messenger disputes by explaining that the
Association was under a duty as sole bargaining representative to,
deal with all questions concerning conditions of employment and
that it was also obligated to protect the interests of other classes
of employees who might suffer as a result of strikes called by mes-
sengers. Asked by counsel for the Board whether the respondent's
officials had not requested the Association to organize messengers.
he replied :
.
Because the Company recognized us as their sole bargaining
agent and they wanted this discontent among messengers stopped
they asked us to include the messengers among our organizing
program.
We do not regard the testimony of Willever or Farren as a valid
defense of the respondent's control over the Association's operations
THE WESTERN UNION TELEGRAPH COMPANY 115
and of the respondent's attempts to thwart free organization among
messengers.
We find that the respondent continued after the effective date of
the Act to utilize the Association as its agent in preventing freedom
of organization among its messenger employees. We find also that
the Association's compliance with the respondent's instructions, re-
sulting in a half-hearted, limited organization of messengers into
social rather than bona fide membership groups, plainly points to
the respondent's powerful domination of the Association's operations.
The respondent's efforts were directed during this period not only
against the attempts of outside organizations to enlist messengers
but also against the simultaneous campaigns of these organizations
to solicit regular employees. In the past the respondent's hostility
to all; organizations other than the Association had been directed al=
most solely against the C. T. U., as the latter was the only organi-
zation that had attempted, from time to time, to make inroads among
the respondent's employees. After the Association had been formed
and before the Act enunciated anew the right of employees to self-
organization, the respondent's support of the Association served
adequately to ward off any serious efforts on the part of other labor
organizations to gain a foothold among the respondent's regular
employees. The effective date of the Act, however, marked the
beginning of a more persistent program of promotional effort on the
part of rival organizations to enlist those classes of the respondent's
employees'who were also eligible for membership in the Association.
In the spring of 1936, the A. C. A., a new organization, embarked
upon a campaign to organize the respondent's employees and, by the
early part of 1937, its efforts had resulted in the formation of Local
36P for the respondent's employees in New York City. The A. C. A.'s
promotional endeavors in New York City extended to regular em-
ployees and messengers. The respondent undertook to win these
classes of employees away from the A. C. A. by devices different from
those used against, messengers in other parts of the country. Both
these classes of employees at New York City had abandoned the As-
sociation in a desire to affiliate with a labor organization which, unlike
the Association, would serve as a real collective bargaining agency.
Whereas the respondent was able in other areas to appease messengers
and lure them away from outside organizations by offering them lim-
ited membership in the Association and by negotiating with the
Association for the improvement, of working conditions, it could not,
because of the difference in the nature of the basic discontent 'of the
A. C. A. members and of messengers in other areas,, apply the same
tactics against employees in New York City who had gone over to
the A. C. A. In the Metropolitan area, continued preferred treatment
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Association - members, derogatory and hostile statements against,
the A. C. A., surveillance of A. C. A. activities , and discrimination
against A..'C. A. members were 'among the tactics 'employed by the
respondent to preserve ' the Association and destroy its growing rival.
Thus, according to the uncontradicted testimony of one of the re-
spondent 's employees , a supervisor in the New York City traffic-
department office warned several of his subordinates in the fall of 1936
that unless they joined the Association their favorable working hours.
would be assigned to Association members . Daniel J . Saunders, who
had been employed in that office , testified that in February 1937, almost
immediately after he had 'resigned from the Association , he was noti-
fied that his working hours had been changed to a less desirable shift.
His immediate supervisor and all other supervisory officials to whom he
complained stated that he was the victim of a policy to grant pre-
ferred working hours to Association members. Two months later,
after he had threatened to prefer charges of discrimination with the
Board against the respondent and after he had rejoined the Associa-
tion, Saunders was restored to his former shift. Harry Burch , another
employee in the New York City traffic office , testified that he' had been
warned by his immediate superior in February or March of 1937 that
unless he rejoined the Association his schedule of hours would be
changed to a less desirable ' one. The threat was executed and Burch
did not < return to his former schedule until after he had rejoined'the'
Association . John Havard , also employed in that traffic -department
office , testified that, upon. a warning from his immediate supervisor.
that he would be transferred. from the day shift to the night shift
unless he joined the Association , he became a member of the Associa-
tion and attained security of working hours . Castelli , the immediate
superior-of each of the four witnesses at the time of the threats and
discrimination , did not deny the truth of their testimony . Max Weiss,
another -employee at one of the respondent 's New York City offices,
testified that in May of 1937 , after he had joined the A. C. A., Sanan-
gelo, his immediate superior , informed him that he had not been
recommended to the advisory board for a salary increase because of
his non-affiliation with the Association . Sanangelo 's testimony did
not contradict Weiss' statement and in fact corroborted it. Sanan-
gelo testified that he was a member of the advisory board in May 1937
and that he had stated to Weiss, in reply to the latter 's question of why
he had' not been recommended for a salary increase , "I was only con-
cerned with Association members." We find that the testimony of
these witnesses clearly establishes the fact that preferred treatment
of Association members continued after the effective date of the, Act.
The: uncontradicted testimony of several New York City-messengers
who had joined the A. C. A. and solicited in its behalf is that the
THE WESTERN UNION TELEGRAPH COMPANY 117
respondent knew of their A. C. A. affiliation through surveillance of
their activities; that some of them were demoted to less desirable
assignments because of that affiliation; and that supervisors dis-
couraged membership in the A. C. A. and attendance at its meetings
and openly solicited membership in the Association. We find the
testimony of these messengers to be true.
In addition to the specific efforts against. the A. C. A. at New York
City, the respondent attempted by other means to preserve the good
will bf' the Association in the face of vigorous competition presented
by the A. C. A. and other labor organizations throughout the country.
By January 1937, wages had been almost entirely restored to the
1930 level. On March 26, 1937, Vice-President Welch, in charge of
the traffic department, wrote to several of his regional subordinates
that lack of appreciation on the part of some Association members
for the achievements of the Association in bringing about a restora-
tion of wage deductions had led to attacks against the respondent
and the Association. "Obviously it is unthinkable that our people,
who have about the oldest industrial union in existence, should be
left an easy prey to outside agitators who work primarily for their
own selfish interest," he wrote. His letter continued with'the fol-
lowing suggestions for combatting outside organizations and pre-
serving the Association's prestige :
Close conference and cooperation with Association Local and
division officials with respect of trouble elements in our organ-
ization as they are uncovered, and how.they may best be dealt
with.
Care taken to give the Association credit in the case of every
successful appeal or representation on behalf of any individual
employe or group of employes,-instead of striving to have it
appear that the action was taken on the obvious merits of the case
and without reference to an intervention by the Association..
Prompt and alert consultation with suitable A.ssociation
officials whenever there are indications of trouble brewing in
any direction.
Careful observation of our supervisory forces with a view to
the elimination of or-the correction of the practices of indi-
viduals who through arbitrariness, unreason, discrimination or
prejudices or just lack of tact tend to develop discontent and
unhappiness among those under them.
Suppression of wire gossip, which tends to spread unrest and
inflammatory speculations and suggestions.
The prompt adjustment of all grievances instead of allowing
the cases to be strung out through inaction or purely routine
and desultory handlings.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the case of Illinois and any other States where" there are
six-day laws, to carefully consider, how compliance with the
law may be effected with the least disturbance or loss to indi-
vidual employes but within operating conditions and costs which
the management can contemplate.
Finally, .know the facts about the agreements and administer
them in all good faith.
A copy of this letter was sent to all Association division presidents.
Whenever necessary, regional officials of the respondent contributed
their part in retaining the Association's -members and in discouraging
outside organizations from encroaching upon the Association. Thus,
on April 16, 1937, the respondent's traffic manager at Denver, Colo-
rado, wrote to seven of his subordinates that he had been reliably
informed of the arrival at Denver of an organizer for the Committee
for Industrial Organization, who was attempting to work among the
linemen of the local telephone company. Stating that the organizer
would undoubtedly soon extend his activities to telegraph employees,
he advised his subordinates as follows :
... As our people, particularly the younger employees may
not be well versed in labor matters, and some may be guided
by remarks, you, as Company representatives might drop inad-
vertently or. otherwise, I will briefly review. the situation as it
stands today.
The review of the situation referred to the fact that, under the Act,
employees are free to join any labor organization of their choice, and
that if the C. I. O. obtained a majority it would be entitled to recog-
nition with the resultant abrogation of outstanding agreements be-
tween the respondent and the Association. It stated that the, im-
portant question from the employee's viewpoint, and one which he
must decide for himself, "is this-'What does the C. I. O. offer me that
the A. W. U. E. does not?' " As an answer to this hypothetical ques-
tion, he suggested that, while both organizations were alike in their
structure, they were different in that the Association settled its disputes
by arbitration and the C. I. O. resorted to the strike. - "This differ-
ence,?' he emphasized, "is highly important when one considers that
our employees who may join, the C: I. O. might be. called out on strike
in sympathy with the radio operators on the West Coast, Postal em-
ployees in Chicago, etc. Because of frequent necessity for strikes in
such an organization, their dues must be far higher than those of the
A. W. U. E., and there are. frequent calls for special assessments for a
`war chest,' whenever the union official.in power feels he needs more
cash." A further answer to the hypothetical question was. that, on
the whole, the respondent's employees had. fared well, through the
THE WESTERN UNION TELEGRAPH COMPANY 119
:Association and were satisfied with their working conditions. The
letter concluded with the following admonition :
You, as a representative of the Company closest to the em-
ployees should answer questions from a Company standpoint,
.otherwise you will give the appearance of favoring an outside
organization, which I am sure you do not, or you would not
remain a member of the A. W. U. E.
As the organizational campaigns of competitors progressed, a grow-
ing insurgence within the ranks of the Association became apparent
to the Association's officers, and members openly criticized and at-
tacked the Association and its leadership. Concern over the possible
.consequences of such conduct to the respondent and the Association
compelled the latter's officers, as well as the respondent, to take action
calculated to stem the insurgence and defend the Association. On
January 7, 1937, Elsden, Association Metropolitan division president,
reported to one of the Association officials in New Jersey as follows
concerning the counterattack made upon rebels within the Associa-
tion's ranks by that division president :
I've pitched into the radical groups and Association critics
with both hands flying and put the professional Bellyachers to
rout and the silence of these Gentry is now so profound you
could cut it with a knife... .
The manner in which I took command of the situation appar-
ently made quite an impression on some of the high Company
blokes too, so I hear.
Discovery of the distribution of a circular attacking the Association
was reported to Elsden on January 8, 1937, by the president of the
Metropolitan division accounting local assembly. "This is outra-
geous," he commented to Elsden, "and transcends even common de-
cency and am firmly of the opinion that A. W. U. E., through its
Constitutional officers, should take immediate steps, in conjunction
with Company officials, to put a stop to this sort of malicious propa-
ganda." He suggested that such circulars were in contravention of
the Association's constitutional method of dealing with the respond-
ent on subjects affecting employee relations and were consequently
subject to legal injunction. "This sort of `literature,"' he continued,
"thrown all over our streets is doing neither the Association nor the
Company any good notwithstanding the libelous character thereof.
It should be stopped and stopped effectively and for all time." Elsden
reported to the local assembly president on January 12, 1937, that he
had conferred with the management on the matter of anonymous indi-
viduals who were writing "poison-pen stuff" and that. "this last rotten
outburst" seemed to have "jarred 'em and perhaps we'll see some
244384-40-vol. 17 9
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action." Elsden explained that as long as the respondent employed!
the individuals who were anonymously poisoning the Association and
as long as local assemblies accepted their applications for member-
ship, no action could be taken against them without positive proof of
their simultaneous membership in another organization antagonistic
to the principles of the Association. Explaining that the difficulty lay
in the initial employment policy of the respondent which led it to
hire such persons and keep them in -its employ, he predicted, "I
wouldn't be surprised if this isn't the blow-off and we shall see things
happen from now on."
Accusations that the Association was company dominated led its
officials to adopt a varied, policy of disclaimer rather than an
affirmative program of assuring employees that they were now free
to organize. On February 19, 1937, Elsden wrote to Burton ands
other members of the Association's board of directors advising that
the Association refrain from taking any steps in opposition to a
bill pending before the Congress on the restriction of the privilege
of free telegraph service. "Because of our particular position in the
labor picture," he suggested, "seems to me we ought to be supers ,:
cautious about sticking our neck out on the thing. Can easily draw
attention to what may be our most vulnerable spot and furnish our
enemies ammunition." On March 10, 1937, the Association's general
secretary-treasurer announced to all local assembly presidents a
scheduled meeting of the Association's board of directors and re-
quested that "wide publicity" be given to the membership of, the
fact that "the Association is an independent industrial union, and
one, of the oldest of such unions in existence. It is not in any
manner controlled or supported by the Company, its officers, selected
by secret ballot, are paid by the Association which obtains its reve-
nue through the form of per capita tax on its members." Stating
that the Association 'conference committee had, through. periodic
negotiations with the respondent since July 1918, secured for its
members improved working conditions and salary increases amount-
ing to about 60 million dollars, the general secretary-treasurer as-
serted that the Association would continue its policy of "truly repre-
senting its members, and one should realize that the potential value of
the organization is as great today as it has been during the past
nineteen years."
After the United States Supreme Court's declaration of the con-
stitutional validity of the Act, the Association reinforced its earlier
attempts to defend itself as an independent labor organization and
again took no steps to purge itself of its apparent illegality. On
April 16, 1937, the Association's general secretary-treasurer sent a
memorandum to all local assembly secretaries stating that the United
THE WESTERN UNION TELEGRAPH COMPANY 121
States Suprenie Court's action "does not in any,,manner. jeopardize
the continued smooth operation of the Association," and that the,
Association, by agreement with the respondent in March 1937, had
been recognized as the exclusive bargaining representative for all
land-line employees. The communication closed with the statement
that "many of our Association officers feel that the Law definitely
strengthens the position of your Association, and members are re-
spectfully urged to continue their fine, loyal, moral and financial
support and non-members everywhere should be invited to enroll."
On April 30, 1937, Elsden addressed the following mimeographed
notice to local assembly presidents, secretaries, and chairmen, and to
all employees in the Metropolitan division for posting on bulletin
boards assigned to the Association by the respondent.:
Over the past few days many of our Employes have asked me
the question :
Does the Wagner Labor Act make it compulsory for Employes
to join a labor Union (any Union).
Of course the answer is "No"-The Act .specifically guarantees
the freedom of Employes to join or not to join any labor Union
as they may see fit.
This has, as everyone knows, been the fundamental of
A. W. U. E. membership policy among Western Union Em-
ployes,for 20 years.
However, it. would seem that some outside Unions are trying
to frighten some of our Employes by some, insidious propaganda,,
that they must join up with them or else:`-
Such activity merely illustrates the unscrupulous methods such
organizations will adopt when their other efforts to enroll our'
members have failed them.
There is no evidence that the October 1925 instructions of the re-
spondent's vice presidents, requiring the submission of Association
bulletins to local company officials for their approval prior to post-
ing, were not followed with respect to Elsden's notice.
In the April 1937 issue of the Telegraph World, official Association
publication, there appeared under the caption, "Company Unions
Held Unaffected by Decisions. Formation of Employe Representa-
tion Groups Legitimate Manufacturers Association Declares," a re-
print from an article previously published in the Wall Street Journal
of April 19, 1937. The article stated that business men had been
assured in the weekly news letter of the National Association of
Manufacturers that "freely chosen employe representation plans or
legitimate worker organizations confined to the plant" had not been
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outlawed by the United States Supreme Court's decision on the Act.
The reprint continued as follows :
The Act as interpreted does not compel contract or agreement
with anyone, individually or collectively, the analysis said. The
obligation` created is that of reasonable negotiations with the
true representatives of the majority of employes, whether such
representatives be from within or without the employers work-
ing force.
No legitimate organization confined to the plant or any freely
chosen employee representation plan is outlawed. If the em-
ployes prefer an organization confined to the plant for the pur-
pose of collective bargaining it is their right to form one, and
deal with their 'empl'oyer through it and it is the business of the
law to recognize and protect.
The Association had thus followed for the respondent a pattern of
employer anti`-'union behavior, with which we have becon-ie quite
familiar, of pointing out to employees that the Act as validated did
not require. membership in any labor organization.
Action of the respondent following the United States Supreme
Court's decision took the form of two memoranda from Vice-Presi-
dent Welch to division traffic superintendents. The first was written
on April 16, 1937, to six division traffic superintendents. Marked
"confidential,".it stated that Welch was attaching a copy of the Act
and suggested that each of the six officers familiarize himself with
its provisions and discuss them, as occasion permitted, with members
of his office and field staffs. The second was a.-telegram to=all division
traffic,-superintendents, dated * June,. 3, 1937. - It„ read as 4ollows :
In order that no claim may be made that we are guilty unfair
labor practice quietly discontinue use of all bulletin boards except
those needed for Company's routine instructions.
After Welch's telegram had been sent out, the Association Pacific
division president directed presidents and secretaries of local assem-
blies in his ;division to refrain from using the respondent's bulletin
boards for. posting Association notices. Upon learning of the direc-
tions to Pacific division local assembly officers, Willever inquired of
Burton whether that action was the result of a voluntary decision on
the part of the division president or whether it had been necessitated
by a ruling of the respondent's officials in that particular area. Will-
ever's comment on that action was that "to change under fire an old
established custom implies that custom was wrong which seems un-
fortunate , at this time." Elsden, Association Metropolitan division
president, wrote to Burton and other members of the Association's
THE WESTERN UNION TELEGRAPH COMPANY 123
board of directors on July 9, 1937, that he was in agreement with
Willever's comment; that bulletin boards in his division had proved
to be immensely valuable in getting information and news quickly to
all employees, and that. it would, be regrettable to destroy "this one
sure avenue of getting facts before the employees." To discontinue
a practice which had been in effect for many years, he concluded,
would be to "admit error."
The apparently doubtful validity of the free transportation priv-
ilege had caused Burton some concern and he informed the Associa-
tion Pacific division president on April 28, 1937, that mention of the
matter on several occasions to the respondent's officials had evoked the
reply that the practice was legal and did not constitute financial
support' of the Association.
On June 9, 1937, Messengers Local No. 40 of the C. T. U. filed with
the Board a petition for investigation and certification of representa-
tives for the respondent's Seattle, Washington, office and alleged
therein that the local assembly of the Association in that area was
company dominated. On July 16, 1937, charges were filed with the
Board by Messengers Local No. 40 of the C. T. U. Subsequently, on
July 26, 1937, the Board issued its complaint against the respondent,
alleging that the respondent, in the operation of its Seattle office at
Seattle, Washington, had refused to bargain collectively with the
C. T. U. on behalf of certain classes of employees at the Seattle office;
that the respondent had, particularly since July 5, 1935, dominated
and interfered with the administration of the Association and had
contributed financial and other support thereto; that the respondent
had given preference to members of the Association and discriminated
against members of the C. T. U. in regard to hire and tenure of em-
ployment, promotions, and other terms and conditions of employ-
ment ; and that, as a result of these practices, a strike was called by
the C. T. U. on June 9, 1937, which continued to June 18, 1937. Bur-
ton addressed a memorandum marked "confidential" to all Associa-
tion division presidents on July. 12, 1937, reporting on what he
had learned "about the Seattle situation." The report stated in de-
tail what the respondent's position at the hearing would be with re-
spect to the issue of the Association's legality and what evidence
would probably be presented by the Board on that issue. Burton
informed the division presidents that he was gathering "as much
historical and other data as possible" and that he proposed to produce
"at least some files to show that we have, from the very beginning,
resisted Company efforts along various lines." The Association was
permitted to intervene in the 'proceeding at Seattle. Burton testified
at the hearing in the instant proceeding that he would not deny the
fact that he had discussed with the respondent's officials the question
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bf how the charge of domination of the Association should be met at
Seattle or subsequently.
On August 13, 1937, during the hearing in the Seattle proceeding,
all parties, including the Association, agreed upon a stipulation in
settlement of the issues. By means of the stipulation the respondent
agreed, inter alia, to cease and desist from discouraging membership
in Messengers Local No. 40 of the C. T. U. or encouraging membership
in Messengers Sub-Local No. 31, from dominating or interfering with
the administration of Sub-Local No. 31 and from contributing finan-
cial or other support to it, from granting privileges and preferences
to members of Messengers Sub-Local No. 31 of the Association, and
from refusing to bargain collectively with the messengers of Local
No. 40 of the C. T. U. as the exclusive representative of all 'its mes-
sengers employed at Seattle, Washington. The respondent also
agreed, by way of affirmative action, to bargain collectively, upon re-
quest, with Messengers Local No. 40 as the exclusive representative
^f all its messengers employed at Seattle, Washington, in respect to
rates of pay, wages, hours of employment, and other conditions of
employment, unless and. until another appropriate unit should have
been decided under the Act. On August 25, 1937, the Board issued
Decision and Order in the case based upon the stipulation and
following the language of its provisions 18
6. The respondent's instructions on and after August 17, 1937
Following the hearing in the Seattle proceeding, White, the re-
spondent's president, addressed a memorandum on August 17, 1937,
to the respondent's five vice presidents and to its comptroller on
compliance with the Act. The memorandum stated that, in view of
remarks made at the Seattle hearing, each of the six officers,was
being asked to conduct a most thorough investigation into his entire
department to satisfy himself that each supervisor had a copy of the
Act in his possession and that there was no one in a supervisory
capacity who was not fully informed of the requirements, of that piece
of legislation. Asserting that the respondent had always desired to
comply with the Act and that instructions to' supervisors of this
desire should have been unnecessary, the memorandum stated further
that recent experiences required that supervisors be instructed to
observe the Act and to ask questions on any of its aspects which might
not seem clear to them. White asked his six subordinates to take
particular care to explain to supervisors that the prohibition of the
Act against furnishing financial or other support to a labor organiza-
18M.atter of Weetern Union. Telegraph Company and Messengers Local No . 40 of the
Cmnmercial Telegraphers Union, 3 N. L. R. B. 375.
THE WESTERN UNION TELEGRAPH COMPANY 125
Lion was being construed by the Board to cover such matters as use
of the respondent's premises for Association meetings, extension to
the Association of the respondent's typewriter or mimeographing
facilities for Association correspondence, availability of the respond-
ent's bulletin boards for Association notices, solicitation of members
by the Association on company time, and the granting of preferences
to Association members not only as to discharges but also as to as-
signment of working hours and other conditions of employment.
The memorandum concluded with directions to acknowledge receipt
thereof and to advise White "when this work has been completed."
The record shows that the vice presidents in charge of the com-
mercial, traffic, plant, and engineering departments and the comp-
troller had, before the end of September, advised all their immediate
regional subordinates in conformity with White's memorandum and
sent copies of the Act to such subordinates for distribution to super-
visory employees. By the end of September, White had been in-
formed by each of the four vice presidents in charge of regional
,'operations and by the comptroller of their compliance with his in-
structions of August 17. There is also evidence that questions were
asked by field officials about the legality of certain practices with
respect to the Association and that those questions were promptly
answered. Among the practices about which inquiry was made was
the check-off. The answer declared that it was not illegal. In addi-
tion, Vice-President Welch issued instructions to all appropriate
officers of the respondent prohibiting the rental of space, including
meeting rooms, to the Association for any purpose.
The board of directors of the Association sent mimeographed notices
on September 3, 1937, to all local assembly secretaries and division
committee chairmen calling attention to the fact that the Board had
indicated at the Seattle hearing that the following practices tended
to show company domination of the Association and constituted
contributions of financial support to it: (1) holding Association meet-
ings and elections on company property, (2) using company equip-
ment in preparing Association bulletins and letters, (3) preparing
Association bulletins and letters on company time, (4) posting As-
sociation notices on bulletin boards occupying company space, (5)
distributing Association communications by means of company media,
and (6) granting preferences to Association members as to conditions
of employment. The notice stated that the enumerated practices
seemed to be contrary to the letter and spirit of the Act and directed
all addressees to examine the practices in their local assemblies and
to discontinue immediately those designated as illegal.
On advice of the respondent's general solicitor, Welch informed
all division traffic superintendents on October 5 that it was undesir-
able for employees occupying supervisory positions to hold office
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Association if their duties with the respondent, empowered
them to hire, dismiss, discipline, grant preference in the assignment
of hours and vacations, or approve excused absences. Stating that he
had no authority to dictate the action to be taken by supervisory
employees who also held office in the Association, Welch suggested,
that those employees could best serve the interests of the respondent
and the Association by relinquishing one of their posts. Employees
were to understand, he said, that in the future they would be expected
to resign from supervisory positions if elected to office in the Associa-
tion. On October 14, 1937, Titley advised all division plant superin-
tendents of the general solicitor's opinion and asked them to take
whatever action might be necessary to comply with that opinion.
After the respondent's officers had issued instructions as to super-
visors, the Association undertook to investigate the nature of the
duties performed by its members in the course of their employment
with the respondent and to enforce the provision of the Association's
constitution restricting active membership to employees not having
the power actually to employ and discharge. On September 14, 1937,
Elsden wrote to four of the respondent's vice presidents and to its
comptroller stating that it was necessary, in order to conform with
constitutional requirements, for the Association to check the working
status and delegated powers of supervisory employees and asking to -
be advised concerning all employees in the Metropolitan division who
had specific authority to hire and discharge. Eldsen received a reply
from Willever listing the names of persons in the commercial depart-
ment of the Metropolitan division who had authority to hire and
discharge. The respondent's vice president in charge of the engineer-
ing department sent a similar reply, setting forth the names of 20
employees who were ineligible for active membership in the Associa-
tion and stating that it was his understanding that active members
of the Association whose names appeared on that list had already
withdrawn from the Association or were planning to do so. He also
listed the names of 30 employees who had the power to recommend
hiring or recommend discharge. At the hearing, Eldsen testified
that all the five officers to whom he had written on, September 14,
1937, had replied to the inquiry contained in that letter and that
subsequently all local assemblies in the Metropolitan division had been
notified to check their membership lists against the names submitted
by the respondent and to transfer to the associate membership rolls
all active members reported by the respondent as having the power
to employ and discharge.
On September 15, 1937, the Association's general secretary-treas-
urer informed all local assembly secretaries that the Association was
considering the issuance of associate membership cards to employees
who, "because of their position do not desire or should not have full-
THE WESTERN UNION TELEGRAPH COMPANY 127
fledged membership rights." Several witnesses testified at the hearing
that associate membership did not carry the privileges of voting on
questions before the local assembly, of selecting officers, and of being
nominated for or elected to office. By October 12, 1937, the Associa-
tion had not satisfied itelf that all supervisory employees who might
be in a position to influence their subordinates to join the Associa-
tion had withdrawn from active membership. Farren suggested to
Burton by a letter of that date that the Association could defend
itself against attacks of company domination if it cleared its "official
ranks" of employees "who hold positions with the Company who may
be in position to dominate and influence employes to join ..."
There is no showing in the record that employees authorized to im-
pose the penalty of summary dismissal upon their subordinates and
to recommend discharge withdrew from active membership or that
employees empowered to hire or discharge messengers followed the
same procedure. On the contrary, the evidence shows affirmatively
that., as of February 1938, 162 supervisory employees held office in
local assemblies and constituted approximately 24 per cent of the
total number of local assembly officers; and that 15 supervisory em-
ployees held divisional offices in the Association and constituted
approximately 47 per cent of the total number of divisional officers."'
There thus remained in policy-making positions in the Association
supervisors who represented the respondent and were able to coerce
their subordinates to follow the respondent's policy with respect to
the Association.
The uncontroverted testimony at the hearing was that, after pro-
-lnulgation of the instructions hereinbefore discussed, Association
members ceased using the respondent's mechanical facilities in con-
nection with Association work and discontinued the practice of per-
forming Association clerical tasks on company time. Meetings of
local assemblies and other Association groups were no longer held on
company property, although various local assemblies had considered
the question of renting space from the respondent for that purpose.
In this connection, Foster, Association Southern division president,
addressed a memorandum, marked "confidential," to all local as-
sembly officers in his division on October 15, 1937, which read as
-follows :
The following from Burton dated October 11th:
Your memo October 1st, and returning attachments in respects
to having the Company rent us space for meetings, elections, etc.
19 The source of these figures is a list of job designations and job descriptions prepared
by the respondent for all persons who it claimed had been listed as Association officers in
the Telegraph World of February 1938. Our determination of whether an employee thus
listed performed supervisory functions is based upon the respondent 's admissions and the
-character of the job designations or job descriptions.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During my visit in New York this entire question was receiving
the attention of Company officials, particularly because the New
York Local assemblies wanted to rent meeting and election space
in the Company's 60 Hudson Street Building.
Company people were definitely against renting space to the
Association, although I understand the building manager had
worked out the exact rental charge per hour. Company folks
generally felt that they would rather not have the questions
raised at all, because they did not want to definitely and finally
deny the Association's request. They were afraid, however,
to grant such a request because the moment space was rented to
the Association, other organizations would apply for the same
renting privilege and if the Company refused to treat the other,
organizations the same as it had treated the A. W. U. E. the
charge of discrimination could not be avoided and probably
not successfully defended. This, I feel, is a reasonable attitude
and I suggest that we avoid even asking the Company to rent
us space.
The respondent's desire to avoid equal treatment of the Association
and its rivals is hence clearly-apparent and the Association's acqui-
escence in that desire is established.
Free use of company bulletin boards and company bulletin-board
space by the Association was discontinued soon after August 17, 1937.
Thereafter the Association negotiated with the respondent for the
rental of bulletin-hoard facilities and on February 24, 1938, both
parties signed a contract whereby the respondent granted the Asso-
ciation that privilege in return for a monthly rental payment of $45.
On March 7, 1938, a supplemental agreement was signed providing
for the enjoyment of the privilege, at the rate fixed on February 24,
as long as the Association continued to represent a majority of the
respondent's land-line employees. The record shows that the Asso-
ciation paid the contract rate through April 24, 1938: After this
arrangement had been consummated, the secretary of the A. C. A.
local at San Francisco wrote to White on March 30, 1938, stating
that he understood the Association had leased bulletin-board space
from the respondent and requesting the same privilege for the
A. C. A. local at San Francisco. White replied on April 4, 1938,
that it was not the respondent's policy "to make a general practice
of leasing space such as you mention to other persons or organiza-
tions." Informing the A. C. A. local secretary that the Association
had for 20 years been the bargaining representative of a majority
of the respondent's employees, White stated further : "Our arrange-
ment with them with respect to bulletin boards is the outgrowth of
the collective bargaining process, and is a part of our general group
THE WESTERN UNION TELEGRAPH COMPANY 129
of understandings with the Association covering all working condi-
tions. The privilege in their case represents a concession by the
company in lieu of other concessions. It would not be our policy
to extend a similar rate or a similar privilege to any organization
with whom we have no general labor agreement." The Association
thus continued to enjoy a favored status whereby it assumed an ad-
vantage over its competitors in methods of disseminating infor-
mation.
Although the -respondent's instructions ' and those of the Associa-
tion did not prohibit the continued use of the free transportation
privilege accorded to the Association in a memorandum of under-
standings executed on December 14, 1920, the record contains no evi-
dence of any applications for railroad passes by the Association after
September 1937. Willever stated at the hearing that, while the agree-
ment of 1920 had not been cancelled by the parties, the Association
made no requests for railroad passes after December 1937. If any
application had been made, he explained, the respondent would have
refused to honor it on the ground that the transportation privilege
constituted a form of financial assistance. Burton testified that the
Association had taken no definite action with regard to discontinuing
the privilege of free transportation but that a voluntary understand-
ing had been reached among its officers to refrain from invoking the
machinery necessary for the enjoyment of that-privilege. His fur-
ther testimony was that the last time the Association had received
free railroad passes had probably been in the spring of 1937.
While White's information to his immediate subordinates on
August 17 was that preferential treatment of Association members
constituted support of the Association and while there is no evidence
that preferences were in fact accorded Association members after
August 1937, the preferential hiring provision of the Omaha. Agree-
went and subsequent arrangements for favored treatment of Asso-
ciation members were not formally abrogated or superseded by -a
contrary agreement during the bargaining conference of October
1937 or at any later date. Willever explained at the hearing that he
saw no need for abrogating the Omaha Agreement and supplemental
understandings on this subject in view of his opinion that "an agree-
ment which is opposed to a fundamental law, is cancelled by the ap-
plication of that law." Only the preference provisions of the Omaha
Agreement and of supplemental understandings, he testified, had
thus been considered nugatory. Moreover, his instructions to general
managers after August 17, he stated, were intended. to abrogate all
preference agreements and preference practices which had been out-
standing at that time. -Titley of .the plant department testified that
he had issued no instructions and had taken no steps to inform the
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in his department that the Omaha Agreement was no
longer in effect. Burton corroborated Willever's. testimony that no
formal' understanding had been entered into after August 1937 termi-
nating the preference provision of the Omaha Agreement or cancel-
ling that 'document in its entirety. While Burton testified further
that the Association was not contending that the Omaha Agreement
was still in full force and effect, he stated as follows with respect to
the status of that contract :
The situation is we don't know yet whether it is legal or not
under the Wagner Labor Act, and therefore it is in a state of
suspended animation.
The Association did not at any time advise its members that the
preference agreements had been canceled. On November 29, 1937,
Farren informed the Detroit messengers that the Association had at
that time a preferential hiring agreement with the respondent. Fur-
ther inquiry made of Farren on February 8, 1938, by the secretary'
treasurer of the Association messenger assembly at Detroit concern-
ing the status of preference agreements brought the following reply :
On the question of membership preference, we have such an
agreement, but as yet we have not obtained recognition from the
N. L. R. B., as a legitimate labor organization, as have the C. T.
U. A., and A. R. T. A., therefore, if the Company shows any
preference for members as against non-members, and gives as its
reason, non-membership in the Association they would be cited
for unfair labor practice and supporting a Company Union, etc.
The Company therefore is very careful not to do anything
which will give the Labor Board any cause for such charges.
It is clear that the respondent's conduct was not reasonably calculated
to impress the Association with the fact that one of the most valu-
able techniques for soliciting members had been permanently discon-
tinued.
There is no evidence of any, attempt on the • part of the respondent
or the Association to construe in practice the silence of White's in-
structions of August 17 on the "tying-in" technique as an abolition
of that device. Titley testified that he had not rescinded his earlier
letters to district plant superintendents that the Association be tied
in with the granting of furloughs and the practice of "spreading the
work." His further testimony was that the, policy expressed in his
memorandum of November 24, 1933, remained unaltered and con-
tinued to the date of the hearing "within proper bounds." That memo-
randum stated in part: "The relationship between the Association and
the Company has not changed, unless it be that they are more
strongly cemented together, and it is therefore most desirable that we
THE WESTERN UNION TELEGRAPH COMPANY 131
contribute our full fifty per cent of cooperation and effort to operate
and carry on." There is no showing of the countermand of any of
the respondent's instructions as to tying the Association in with vari-
ous improvements in working conditions and with the consideration
of applications incidental to the respondent's established personnel
program. It is also clear from the record that as late as February
28, 1938, the Association officers considered the "tying-in" practice an
effective means of attracting new employees to the Association. On
that day, Farren wrote to Ross, Association Eastern division presi-
dent, in reply to the latter's questions concerning the Association's
position with respect to salary schedules for messengers. Farren ad-
vised Ross that all agreements for guaranteed earnings negotiated in
the Lake division "to settle messenger difficulties" applied only to the
messengers in the service at the time the contracts were consummated
and did not extend to messengers to be hired in the future. He ex-
plained the value of his arrangement as follows to the Eastern,
division president :
This gives the local and division officers an opportunity to do
something for the new employes as they did for the older
ones .. .
Unless that policy is followed, all new boys receive the same
as the older boys, and there is nothing the Association can do
to assist them in so far as wages are concerned, but negotiate
general increases for all messengers, regardless of length of
service or experience.
The new boys coming in at the same pay as the older boys, do
not know the Association was responsible for the wage sched-
ule and give the Association no credit. The older boys like to
see the new ones come in for less and have to work their way
up, as they did.
He further advised Ross that it would be foolish "to try and force
the Company to pay the old schedule to all new boys, and I do not
believe you would be successful in so doing unless trouble was in
prospect."
Neither White nor any of his immediate subordinates undertook
at any time after August 1937 to rescind instructions previously
issued requiring employing officials to hand Association literature
to new employees. Welch testified that he had issued no orders to
discontinue that practice in the traffic department. Titley's testi-
mony was to the same effect with regard to the plant' department,
The record also shows that a further device which the respondent
had instituted before July 5, 1935, to aid the Association in soliciting
members, had not been abolished by April 8, 1938. On the latter
date, Farren informed the secretary-treasurer of a Chicago local
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assembly that, in accordance with Titley's letter of October 14, 1931,
employee lists could be obtained from local company officers.
The exclusive recognition agreement entered into in March 1937
for the obvious purpose of encouraging messengers to join the Asso-
ciation and discouraging affiliation with rival organizations remained
fully effective as "of the date of the hearing. Nor was the Associa-
tion's custom of informing the respondent's officials of the extent of
organizational progress made by other labor organizations discour-
aged. In the latter connection the Association's Southern division
president wrote to one of the respondent's general managers on No-
vember 2, 1937, informing him that a named organizer for the
American Federation of Labor, who had $40,000 at his disposal for
organizational work, was attempting to enlist employees at some
of the respondent's offices.
The 1919 arrangement for the check-off of Association members'
clues remained-in. effect after August 1937. On September 25, 1937,
Burton wrote to Elsden that the C. I. O. was demanding the check-
off, , privilege for those of its members who were employed by the
respondent at Denver, Colorado, and that the respondent would be
charged with discriminatory treatment of the C., I. O. unless it
extended that privilege to the C. I. O. or withdrew it from the
Association. - Burton's letter dealt also with other aspects of the
respondent's dealings with the Association and it appears to have
been written after consultation with the respondent's officials. The
respondent did not thereafter discontinue the check-off for the Asso-
ciation; and there is no evidence that the C. I. O. requested the
check-off privilege or that its request was granted.
White's prohibition against solicitation by the Association on
company t_ime.- appears to have been observed generally as to all
classes of employees except messengers. One of the respondent's
messengers, employed in New York City, had, in November of 1937
and again 2 months later, been handed an application for member-
ship in the Association by one, Matthews, a fellow messenger em-
ployed in the same office as the messenger in question. Matthews
had informed the messenger in question on the first occasion that a
messenger sergeant, charged with inspecting messenger uniforms and
kits and reporting irregularities in connection therewith to the dis-
trict superintendent, had visited the office and had left applications
for membership with Matthews, instructing him to hand them to all
messengers who, were not members of the Association. On the latter
occasion Matthews stated that two Association organizers had visited
the office, had. checked upon the extent of non-membership in the
Association, and had instructed Matthews to distribute applications
to those who had not' joined the Association. Another messenger,
employed in "one of the respondent's offices in New York City, joined
THEE WESTERN UNION TELEGRAPH COMPANY 133
the Association in September 1937 under the following circumstances :
Upon returning to his office after completing an assignment, but
before finishing his work for the day, he was informed by the night
clerk that the latter had been instructed to keep him in the office,
until the arrival of the president of one of the local assemblies.
When the latter arrived, he handed the messenger an application for
membership in the Association and asked him to sign it. The fol-
lowing day, after having asked the advice of the office manager and
after having been told by the latter that it would be advisable for
him to join, the messenger signed the application blank. We find
that solicitation- of messengers on company time by the Association
did not cease after August 17, 1937.
The record fails to establish the fact that the respondent's labor
policy with respect to messengers changed after August 1937. The
evidence indicates clearly that the respondent did not relax its efforts
to prevent messengers from joining labor organizations other than
the Association. The device of informing messengers that the Asso-
ciation .was the exclusive bargaining representative for the respond-
ent's employees was still used whenever the need arose. Thus on
October 7, 1937, the respondent's city superintendent at Detroit in-
formed his superior, the general manager of the Lake division, that
a vote had been taken by the messenger sublocal at Detroit to with-
draw from the Association and to form an independent unaffiliated
organization; that the messengers had taken the position that the
Association was not supporting them in their negotiations with the
respondent; and that the failure of the last general assembly to rec-
ognize the messengers as regular members had aroused resentment on
their part against paying dues to the Association. The city super-
intendent reported further to his superior that local company officials
had pointed out to the messengers, in informal discussions, that the
respondent recognized the Association as the exclusive bargaining
representative of its employees. Cronkhite, Lake division general
manager, discussed the situation outlined in his subordinate's com-
munication with Burton and thereafter forwarded that letter to Far-
ren, Association take division president. The latter, in a letter to
Cronkhite, expressed his regrets as to the action taken by the Detroit
messengers and stated that he would endeavor to dissuade them from
executing their plans. In the event his efforts proved unsuccessful,
he advised Cronkhite, the Association would insist that the respond-
ent observe its exclusive recognition agreement and refuse to recog-
nize or negotiate with any messenger committee at Detroit or else-
where which was not affiliated with or approved by the Association.
After having conducted a personal investigation into the Detroit
situation, Farren advised Burton that it would be unwise for the
Association to take any action against the contemplated withdrawal
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the messengers "until our position has been definitely established
with the Labor Board...." Should the Association undertake
to oppose their withdrawal, he stated, they would appeal to the
Board and place the Association in a position of being unable validly
to support its claim to represent messengers. The Detroit messen-
gers withdrew from the Association and returned to it after 2
months, when their group was chartered as an independent Associa-
tion local.
The respondent's officials continued their practice of informing
Association officials of the imminence of "messenger trouble," and,
the Association promptly responded by negotiating on behalf of the
messengers in the trouble area. Thus in November 1937 Farren was
informed by the respondent's local officials that the C. I. O. was
attempting to organize messengers in the vicinity of Flint, Michigan.
An Association representative thereupon proceeded to the area in
question and negotiated an adjustment of wages and working condi-
tions for the messengers. According to Farren's testimony, the mes-
sengers nevertheless joined the C. I. O. after the Association had
disposed of their complaints against the respondent. None of them
had been affiliated with the Association when the latter negotiated
on their behalf. Thereafter, at a joint conference between the Asso-
ciation and the respondent held from November 15 to 26, 193 7 , the
respondent agreed to pay premium wages to messengers working on
Christmas Day and to put into effect a vacation schedule for messen-
gers. On December 23, 1937, the respondent issued a printed com-
pilation of all agreements with the Association which were appli-
cable to messengers. Also, as of December 15, 1937, the Association's
constitution was amended to accord full membership rights to mes-
sengers. Thus the August 17 instructions and the respondent's subse-
quent conduct were not seriously intended to, and did not in fact, lead
the Association to believe that the respondent's policy with regard to
the organization of messengers had been altered.
We find that the respondent intended, by means of the instruc-
tions of August 17, to assure the continued existence of the Associa-
tion and to divest it of only such characteristics as made it obviously
vulnerable to charges of company domination without impairing the
favored status which it had unceasingly enjoyed for 19 years. We
are unable to find that the instructions of August 17 were intended
in good faith to purge the Association of the respondent's domina-
tion and to release the respondent's employees from the company-
inspired compulsion to join the Association as a necessary incident
of their employment.
The respondent's continued refusal to deal with any labor organ-
ization other than the Association led to the filing of charges against
it with the Regional Director for the Eighteenth Region of the
THE WESTERN UNION TELEGRAPH: COMPANY 135.
Board by General Drivers, Local No. 116, A. F. of L. A complaint.
was thereafter issued by the Board on March 11, 1938, alleging that
the respondent, in the operation of its office at Fargo, North Dakota,,
had engaged in an unfair labor practice, within the meaning of Sec-
tion 8 (5) of the Act, by refusing to bargain with the representa-
tives of the A. F. of L. local. Although the Association had filed
with the Regional Director a notice of its intention to enter a motion,
for leave to intervene in the proceeding; no such action was taken.
Counsel for the Association was present at the hearing but did not
enter his appearance of record. On March ' 28, 1938, during the.
course of the hearing, the respondent, the A. F. of L. local, and the.
Board entered into a stipulation which effected a settlement of the
case. Counsel for the respondent and counsel for the other parties.
agreed in the stipulation that the A. F. of L. local represented a
majority of the messengers employed by the respondent at Fargo,,
North Dakota, and that the respondent would consider those messen-
gers as constituting an appropriate unit until such time as the Board
designated a different unit as appropriate. The respondent agreed.
also to bargain collectively. with the A. F. of L. local, upon request,
as the sole representative of all its messengers at Fargo,, North,
Dakota. The Board subsequently disposed of the case on June 8,,
1938, by issuing an order in conformity with the stipulation.20
The Association regarded the conduct of the respondent's counsel
in entering into the stipulation which settled the Fargo proceeding-
as a, betrayal of the Association and as a mark of utter ingratitude,
toward that organization for its past efforts in keeping messengers.
out of other labor organizations. On April 4, 1938, Burton issued
a report, to all division presidents on the Fargo proceeding and its,
background, which is summarized as follows: . The. Association . had,...
"for numerous reasons which you all know and understand," made.
no effort to organize the Fargo messengers. The A.Y. of L. had
conducted its promotional work in so unobtrusive a manner "that it,
did not come to the attention of the Association, and consequently,,
no opportunity to offset it was afforded." Before the hearing, Burton
was led to believe by statements of the respondent's law department
that the respondent would oppose the A. F. of L.'s. claim of the,
appropriate unit. Consequently, in reliance on that belief, the Asso-
ciation prepared no evidence on the unit question. At the hear-
ing, hoavever, counsel for the respondent informed Burton and coun-
sel for the tAssociation that he would not contest the A. F: of L.'s
appropriate unit claim and that he would introduce no evidence to.
support the respondent's answer to the complaint. Hence, the Asso-
20 Matter of The Western Union : Telegraph Company and General 1)riteo:s, Local No. 116,_
A. F. of L., 7 N. L. R. B. 974.
247384-40-vol. 17--10
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciation was compelled to refrain from, intervening in the proceeding
and participating in the hearing and was forced to acquiesce in
the stipulation which settled the case.
Burton's report elicited bitter and disillusioned replies from the
`Southern and Gulf division presidents. The report emphasized for
the Southern division president the fact "that we are not getting
as much cooperation from the Company as we have given them in
the messenger situation." Complaining that the Association was
spending money to help the respondent in its battle against outside
labor organizations and that it had been repaid with ingratitude, he
suggested that the Association drop all messengers from its member-
ship "and let the Company have their own battles with them and
the outside labor organization and we remain just an observer in
such battles." In his opinion, the Association's plight was due to the
fact that the respondent's law department had disregarded all in-
structions which Willever had issued to the Association on messenger
organization. "Mr. Willever sicks us on," he protested, "and the
Legal Department chops us off on the limb every time for they seem
to be against messenger organization in the Association." To the
Gulf division president, the Fargo hearing seemed a "fiasco." He
likened the Association's predicament to "that of a prize fighter who
found himself iii the position of having his sponsor step into the
ring before the first round and raise the hand of the opponent to
signify admitted defeat and yourself and your seconds could only
stand agast at the spectacle." His suggestions for future action were
-to organize all messengers and to reach an understanding with White
,on the position to be taken by the Association at subsequent proceed-
ings before the Board involving a defense of the Association.
We find that the Fargo hearing establishes the fact that, where the
.Association was left to its own devices after August 17, it showed
-litter helplessness in dealing with situations for which independent
labor organizations can be and usually are well prepared.
7. Conclusions as to the present status of the Association
The Association stands today, precisely as it has stood since 1918,
:as the servant of the respondent, alert to perform both actively and
passively the role of an obstacle to freedom of organization enun-
ciated by Woodrow Wilson in 1918 and reaffirmed in the Act on
July 5, 1935.
In 1918, after defying the recommendations of the War Board
that discharged employees who were C. T. U. members be reinstated
and after resisting the appeal of Woodrow Wilson that the then
.,current public policy as to labor relations be observed, the respondent
summarized as follows for its stockholders its position with regard to
THE WESTERN UNION TELEGRAPH COMPANY 137
the C. T. U.: "The Company says in effect to its employees : If you
desire to join the C: T. U. A., then we must part." In contravention
of the principles of the United States Government as enunciated by
Woodrow Wilson for the period of the war and in furtherance of
its own policy of prohibiting its employees from joining labor organi-
zations of their choice, the. respondent formulated a program of
organization for its employees; supervised and supported financially
the initiation of the Association in accordance with that program;
and confronted its employees with a sole -substitute for all other labor
organizations.
After 1918 the respondent continued its vigorous opposition to the
C. T. U. and simultaneously heaped numerous forms of largesse upon
the organization of its choice in order to assure its growth. and
progress. Until 1925, it relieved the Association of the financial
responsibilities attendant upon the convocation of general assembly
conventions,' a favor which the Association evaluated as a "life saver."
It voluntarily expanded the concept of "company business" to in-
clude the Association's operations and extended to the Association
the valuable perquisite of free railroad transportation, a concession
which the Association's general president considered "vital to both
the Company and, through the Association, the employees." It made
available to the Association without financial charge but at the cost
of censorship the "one sure avenue," as the Metropolitan division
president had recognized it, "of getting facts before the employees"
by permitting the Association to use bulletin boards and°bulletin-
board space. It afforded the Association the free use of mechanical
and meeting-room facilities and, according to Willever's testimony,
"possibly one or two small things which constituted financial aid.''
When offers of stock at less than market value were made to its
employees, the, respondent expressly permitted the Association and
its officers to participate in the opportunity for financial gain.
During the years which followed the formation of the Association,
the respondent also undertook, according to the instructions of its
officers, "to sell the Association" to its unenthusiastic employees and
assumed for the .Association, as Willever, stated at 'the hearing, the
burden of. "trying to get going so far as membership was concerned,
because for- the reason that Mr. Carlton had taken the initial step in
the first place." Thus it instituted the check-off system for collecting
dues, a privilege 'which Willever admitted at the hearing had facili-
tated the collection of, dues and had stabilized the Association's
finances. It instructed employing officials to distribute to new em-
ployees literature "describing the functions and objects of the Asso-
ciation and calculated to sell the Association to our employees" and
to furnish Association officials with employee lists, "the' information
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being wanted in a membership drive." It sanctioned and encour-
aged the endeavors of supervisory employees n enlisting their sub-
ordinates as members of the Association. It extended to Association
members various preferences as to conditions of employment and
unequivocally pointed out to non-members that the disparity of priv-
ileges between them and their fellow employees was due only to a
difference in attitude toward the Association. It attempted by means
of the "tying-in" technique to enhance the prestige and good will of
the Association and to inculcate in the minds of employees the belief
that membership in the Association was an indispensable factor in
the enjoyment of highly prized incidents of employment.
The respondent's reward for all these bounties lay in the fact that
.it had trained the Association to act as its compliant agent in dealing
with its employees and that it had fashioned the Association into a
weapon for warding off the advance of outside labor organizations
upon the domain restricted to the Association. During the critical
years of 1931 through 1933 the respondent utilized the Association as
a medium for forcing wage deductions on its employees and effec-
tively prevented the submission to arbitration of the serious question
of reducing earnings. When "messenger trouble" broke out in 1934,
the respondent wielded its well-designed weapon in successful com=
bat against labor organizations to which messengers were being
attracted.
The contention is made in the respondent's brief that the privileges
which it-had accorded the Association represented the fruits of col-
lective bargaining between the parties and could not, therefore, be
regarded as outright gifts. We do not agree with this contention.
A number of these perquisites were clearly not even the results of a
purported exchange of promises mutually induced but were origi-
nally spontaneously tendered by the respondent without the solicita:
tion of the Association. In this connection, the "tying-in" practice
is an outstanding example. Where privileges were in part obtained
after a conference on both sides, the nature of the dealings between
the parties which resulted in the grant of the privileges could not.
as we have hereinbefore demonstrated, realistically.be termed collec-
tive bargaining, as the respondent had designedly, through its various
forms of support, deprived the Association of any power to bargain.
as the independent representative of the respondent's employees.
Had the respondent, after the effective-date of the Act, initiated
or supported the Association in- the manner described, its activities.
would unquestionably have been in violation of Section 8 (2) of the
Act, as they constituted domination and interference with the forma-
tion and administration of a labor organization and the contribution
of support thereto.
THE WESTERN UNION TELEGRAPH COMPANY 139
On July 5, 1935 , the activities of the respondent and its dealings
with the . Association came within . the purview of the Act. No new
independent organization thereafter came into being as the successor
to the illegal Association and the latter continued to function with
the same officers, the same constitution , and in accordance with
methods established before July 5 , 1935. The respondent did not
'comply with the prohibitions of the Act by withdrawing recogni-
tion from the Association as the collective bargaining representative
'of its employees and by announcing to them that they were free to
join any labor organization of their choice. Instead, the respondent
4efied the Congress of the United States , which had reaffirmed the
right of employees freely to organize and choose bargaining repre-
sentatives, as it had disregarded in 1918 the War Labor Board's
recommendation and Woodrow Wilson 's plea. On July 5, 1935, and
for 2 years thereafter , while the respondent retained its vigil over the
promotional efforts of outside labor organizations , the Association
continued to enjoy all benefits previously tendered to it, although the
respondent and the Association realized the patent illegality of their
activities . The Association 's role of aiding the respondent in its
battle against outside labor organizations became more pronounced
during this period than it had been previously.
While the respondent went through the motions on August 17;
1937, of reluctantly divesting the Association of some forms of sup-
port , it. did not seriously attempt to place the Association in a posi-
tion of equality with all other labor organizations which had endeav-
.ored to enroll its employees . Although a few illegal practices with
respect to the Association had been modified , the respondent per-
mitted that organization , which it had dominated in the past and
which it was certain could be dominated in the future , to continue
in existence . The Association still retained the benefits of free
railroad transportation , of the use at nominal cost of the respondent's
bulletin boards , of the arrangement to hand new employees promo-
tional literature , of the agreements for preferred treatment of its
members as to hire, tenure, and conditions of employment, of the
valuable "tying -in" device , and of the exclusive recognition agree-
ment. The action of August 17, 1937, designed only to detract atten-
tion from the Association 's vulnerability under the Act, failed to
emancipate the Association and the respondent 's employees from their
19 years of subjugation to the will-of the respondent.
We find, on the basis of the foregoing evidence , that the respond-
ent has , since July 5, 1935 , dominated and interfered with the admin-
istration of the Association and contributed support to it. We find
.also that the respondent has thereby interfered with, restrained, and
,coerced its employees in the exercise of the rights guaranteed to them
by Section 7 of the Act.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discrimination with regard to hire and tenure of employment
The Omaha Agreement as executed and enforced required the re-
spondent "to .hereafter prefer for employment those . applicants for
positions who indicate their willingness to become members of the
Association." By means of the memorandum of understandings signed
in October 1921 the respondent agreed that "as between member and
non-member of the Association , the member shall receive preference at
all times where the Company 's interest will not be impaired by so,
doing." Both agreements were in operation after July 5, 1935, and
have not at any time since then been expressly cancelled.
Section 8 ( 3) of the Act declares that it is an unfair labor practice
for an employer to encourage or discourage membership in any labor
organization by discrimination in regard to hire and tenure of employ-
ment. By express proviso, the making of an agreement "with a labor
organization ( not established , maintained , or assisted by any action
defined in this Act as an unfair labor practice)" requiring as a condi-
tion of employment membership in the bona fide contracting organi-
zation is not prohibited . Since we have found that the Association
has been maintained and assisted by the respondent in violation of
the Act, any contracts made with it and thereafter enforced by the re-
spondent are not expressly or impliedly sanctioned by the proviso.
We find that , in enforcing and failing formally to nullify the prefer-
ence agreements hereinbefore mentioned , the respondent has, since
July 5, 1935 , discriminated against its employees in regard to hire and
tenure of employment , thereby discouraging membership in other labor
organizations and encouraging membership in the Association. We
find also that , by such action , the respondent has interfered with, re-
strained , and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A , subsec-
tions 5, 6, and 7 , and in Section III B, above, occurring in connection
with the operations of the respondent described in Section I above,
have a close , intimate , and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has, since July 5, 1935, domi-
nated and interfered with the administration of the Association and
contributed financial and other support to it in execution of the pur-
pose for which it was originally created by the respondent. Such
THE WESTERN UNION TELEGRAPH COMPANY 141
purpose, we have found, was the thwarting of free organization among
the respondent's employees. We have also found that the respondent's.
instructions of August 17, 1937, were not intended to and did not in
fact emancipate the Association from its dependence upon the, respond-
ent. We shall, therefore, order the respondent to cease and desist from
further domination of and interference with the Association.
In the brief submitted by the respondent for the consideration of the.
Trial Examiner it is argued that the Act does not require the imposi-
tion of the "death sentence" upon the Association. To do so, it is
contended, would be to interfere with the right of the respondent's-
employees freely to choose their bargaining representative. We can,
not agree with the respondent's contention in this respect. The pur--
pose for which, as we have found, the Association was organized and
to which it was thereafter continuously devoted was the coercion of
the respondent's employees in the exercise of their right to self -organi-
za.tion and to bargain collectively through representatives of their
own choosing. That purpose has been outlawed by the Act, and asp
long as the Association remains in existence among the respondent's
employees, even though partially shorn of some of its illegal charac-
teristics, it will constitute an impediment to the exercise of the rights,
guaranteed by the Act. Nothing short of disestablishment can effec-
tively eradicate the effects of 20 years of interference and domination..
If the respondent's employees are to be released from the coercive
restraints to which they have long been subjected, the symbol of that,
coercion must be completely removed. The contracts entered into
with the Association, having been originally executed and subsequently
performed for a purpose now illegal, must cease to be enforced. We
therefore deem it necessary, in order to effectuate the policies of the
Act, to require the respondent to withdraw all recognition from the
Association as the representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, rates of
pay, hours of employment, or other conditions of employment and
completely to disestablish the Association as such representative.
Since we have found that the preferential hiring aspects of the
Omaha Agreement and subsequent arrangements for the favored treat-
ment of Association members are in violation of Section 8 (3) of the
Act, we shall order the respondent to cease giving any force or effect
to such understandings. All other agreements with the Association
are also to be made null and void, as they are part and parcel of the
respondent's general conduct which we have found to be violative of
Section 8 (2) of the Act.
We have further found that the check-off of dues from members'
wages was accorded the Association for the purpose of facilitating the
securing of membership therein and of stabilizing the Association's.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finances. It is apparent that an authorization for the check-off of
dues owed to an organization. dominated and supported by the re-
spondent was not a voluntary act of the employee signing such authori-
zation but represented a further aspect of the employee's compulsion
to abandon his rights under the Act and to support the organization
which the respondent had fostered for a purpose proscribed by the Act.
Under these circumstances we will restore the status quo by ordering
the respondent to reimburse its employees for all amounts deducted
from their wages as dues for the Association since July 5, 1935.21 At
the hearing, it was agreed by all parties that, in the event of an order
by the Board requiring reimbursement of such monies, a supplemental
hearing would be held to determine the exact amount checked off dur-
ing the period covered by the order. Payments to the respondent's
-death-benefit fund are not to be included in the amount thus to be
restored to employees.
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. American Communications Association and Association of West-
ern Union Employees are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. By dominating and interfering with the administration of the
Association and by contributing financial and other support to it, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act. .
3. By preferring for employment applicants indicating a willingness
to join the Association of Western Union Employees and by according
various forms of favored treatment to members of the Association,
thereby discriminating against its employees in regard to their hire
and terms and conditions of employment, thereby discouraging mem-
bership in the American Communications Association and other labor
organizations and encouraging membership in the Association of
Western Union Employees, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
21 Matter of The Heller Brothers Company of Newconrerstoicn and International Brother-
hood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646; Matter of West Ken-
tucky Coal Company and United Mine Workers of America, District No. 2.4, 10 N. L. B. B.
88.
THE WESTERN UNION TELEGRAPH COMPANY 143:
. 5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, The Western Union Telegraph Company of New York, New
York, and its-officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Asso-
ciation of Western Union Employees, or with the formation or ad-
ministration of any other labor organization of its employees, and
from contributing financial or other support to Association of West-
ern Union Employees or any other labor organization of its
employees ;
(b) Recognizing Association of Western Union Employees as the
representative of any of its employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, rates of pay,
wages, hours of employment, and other conditions of employment;
(c) Enforcing or attempting to enforce any agreements, under-
standings, or arrangements entered into with Association of Western
Union Employees;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to. bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Association of Western Union
Employees as the representative of any of its employees for the pur-
poses of dealing with the respondent concerning grievances, labor dis-
putes, rates of pay, wages, hours of employment, or other conditions of
employment, and completely disestablish Association of Western
Union Employees as such representative;
(b) Reimburse each of its employees whose dues were checked off
for the amounts thus deducted from their wages since July 5, 1935,
excluding any amounts deducted for the death-benefit fund;
(c) Immediately post notices in conspicuous places in all its offices
throughout the country, and maintain such notices for a period of
sixty (60) consecutive days, stating (1) that the respondent will cease
144 DECISION'S OF N'ATION'AL LABOR RELATIONS BOARD
and desist as aforesaid , ( 2) that the respondent withdraws, and will
refrain from , all recognition of Association of Western Union Em-
ployees as the representative of any of its employees for the purposes
of collective bargaining and completely disestablishes it as such repre-
sentative, and (3 ) that all contracts, agreements , understandings, and
arrangements entered into between the respondent and Association of
Western Union Employees , including the Omaha Agreement, are
cancelled and will not be given effect.
AND IT IS FURTHER ORDERED that the complaint . be, and it hereby is,
dismissed without prejudice in so far as it alleges discrimination
against six named individuals in regard to their hire and tenure of
employment and their conditions of employment.
APPENDIX A
THE RESPONDENT ' S OPERATING STRUCTURE IN THE UNITED STATES
BOARD OF DIRECTORS
ACCOUNTING
DEPARTMENT
Headed by: Comptroller.
Functions: Accounting prob-
lems.
Structure: 8 territorial divi-
sions!
TRAFFIC DEPARTMENT
Headed by : Vice ppresident.
Functions : Actual transmission of messages at offices not
designated as "nonfunctional" offices: Wire handling of
telegrams , assignment and regulation of the wires, and
employment and assignment of operators of circuits going
to "nonfunctional" offices and railroad points.
Structure : 8 territorial divisions.'
Number of employees (1938): 13,000.
STRTJCTURE OF EACH OF THE EIGHT TERRITORIAL TRAFFIC DIVISIONS
Traffic manager: In charge of
traffic functions of a city with
a large volume of business.
Staff
Headed by: Division traffic
superintendent, directly re-
sponsible to vice president in
charge of Traffic Department.
Chief operator: In charge of
traffic functions of a city with
a smaller volume of business.
ts aff
i The eight territorial divisions of the Accounting, Commercial, and Traffic Departments are cuter-
ruinous, and are designated as follows: Eastern, Metropolitan, Southern, Lake, Central, Gulf, Mountain,
I
COMMERCIAL DEPARTMENT
Headed by: Vice president.
Functions : Terminal handling of all messages accepted from
the public , transmission of messages in "nonfunctional"
offices , delivery of telegrams , public relations , and promo-
tion of the respondent's business.
Structure : 8 territorial divisions.'
Number of employees (1938): 25,000 (over 50 percent of total
employees in the United States).
STRUCTUREOF EACH OF THE EIGHT TERRI-
TORIAL COMMERCIAL DIVISIONS
r
Headed by: General manager,
directly responsible to vice
president in charge of Com-
meroial Department.
District superintendent: In
charge of a district, with Juris-
diction over commercial offices
in small cities within such
district.
Manager: In charge of commer-
cial functions of a small city
within a district.
Branch manager: In charge of a
branch office or store where
messages are filed by the
public.
and Pacific , The Plant Department has only seven territorial divisions . The Eastern Division of the P
Plant Department covers the same territory as the Metropolitan and Eastern Divisions of the other
Departments. The other six Divisions of the Plant Department are coterminous with those of the
Accounting, Commercial, and Traffic Departments.
Source: This presentation is based upon the testimony of three of the respondent's vice presidents
and upon charts prepared by the respondent and incorporated in the record. It does not include all
executive functions and does not show the territorial structure of the Accounting Department, as these
are not necessary for an understanding of the evidence.
I
Staff
I
PRESIDENT
City superintendent: In charge
of commercial offices in a large
city.
Branch manager: In charge of a
branch office or store where
messages are filed by the
public.
affst
Division supervisor
of lines: In charge
of a group of small
cities.
City foreman: In
charge of a small
city.
Staff
Division supervisor
of maintenance:
In charge of a
group of small
cities.
City , foreman: In
charge of a small
city.
StI ff
PLANT DEPARTMENT
Headbd by: Vice president.
Functions : Construction and maintenance of opetating
property.
Structure : 7 territorial divisions.,
Number of employees (1938): 4,000.
STRUCTURE OF EACH OF THE SEVEN TERRI-
TORIAL PLANT DIVISIONS
Headed by: Division plant superintendent, directly respon-
sible to vice president in charge of Plant Department.
Division supervisor
of equipment: In
charge of a group
of small cities.
City foreman: In
charge of a small
city.
I
I
Staff
I
I
I
Division supervisor
of plant: In charge
of a group of small
cities.
City foreman: In
charge of a small
city.
Division chief
clerk: In
charge of a
group of small
cities.
City foreman:
In charge of a
small city.
Division account- Metropolitan plant superintend-
ant: In charge of a ent: Each metropolitan plant
group of small superintendent is in charge of
cities. plant functions of a large city
and combines generally the
functions of division supervisors
of lines, maintenance, equip-
ment, plant, chief clerk, and
probably of the division ac-
City foreman: In countant.
Staff Staff Staff
Functions similar to thoseper-
formed by the six city foremen
in nonmetropoiltan areas are
also performed byy parallel
subordinate officials in this
area.
247384--40
charge of a small
city.
(Face p. 144)