The Western Union Telegraph Co., Inc.

In the Matter of THE WESTERN UNION TELEGRAPH COMPANY, INC. and THE COMMERCIAL TELEGRAPHERS' UNION Case No. R-1016-Decided March 15, 1939 Communications Industry-Investigation of Representatevcs : controversy con- cerning representation of employees : rival organizations ; controversy as to appropriate bargaining unit-Unit Appropriate for Collective Bargaining: em- ployees in local unit not to be denied benefits of collective bargaining because Nation-wide employer-unit not yet organized ; employees in the traffic, commer- cial, messenger, and plant departments, excluding executives , lawyers, and persons with the right to hire and discharge-Election Ordered Mr. Herbert 0. Eby, for the Board. Mr. Paul E. Lesh, Mr. Francis R. Stark, and Mr. Ralph H. Kim- ball, of New York City, for the Company. Mr. Patrick J. Taft and Mr. Hugh C. McKenny, of Washington, D. C., for the C. T. U. Mr. Daniel Driesen, 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. Mr. Edwin L. Swope, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 11, 1938, the Commercial Telegraphers' Union, herein called the C. T. U., filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition, and on July 6, 1938, an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of The Western Union Telegraph Company, Inc., Washington, D. C., herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 14, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, 11 N. L. R. B., No. 104. 1154 THE WESTERN UNION TELEGRAPH COMPANY ET AL . 1155 as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On July 27, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the C. T. U., upon American Communications Association, herein called the A. C. A., and upon Association of Western Union Employees, herein called the Association, labor organizations claiming to repre- sent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on September 12, 13, and 14, 1938, at Washington, D. C., before William Seagle, the Trial Examiner duly designated by the Board. The Board, the Company, the C. T. U., the A. C. A., and the Association, were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hear- ing the A. C. A. moved to dismiss the petition pending a decision by the Board upon charges previously filed by the A. C. A. that the C. T. U. had received the encouragement and support of the Com- pany in violation of the Act. The Company and the Association like- wise moved to dismiss the petition pending a decision by the Board in Case No. C-344, entitled Matter of Western Union Telegraph Company and American Radio Telegraphists' Association, a pro- ceeding in which the Company has been charged with fostering the Association in violation of the Act. The Trial Examiner denied all these motions.' The Trial Examiner reserved ruling on the motion of the Company to dismiss the petition on the ground that no ques- tion concerning representation had arisen at the time the petition was filed. This motion is hereby denied. The Company moved to consolidate the instant proceeding with Case No. 0-344. The Trial Examiner reserved his ruling on this motion and it is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed all the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on January 20, 1939. The Company, the C., T. U., the A. C. A., and the Association were represented by counsel and participated in the argument. 'On October 5, 1938, the A. C. A. withdrew the charges with respect to Company support of the C. T. U. The proceeding relating to the motions of the Company and the Association is discussed below. 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Western Union Telegraph Company, a New York corporation, is engaged, throughout the United States and in various foreign countries, in the receiving and transmission by telegraph and cable of intrastate, interstate, and international communications. On De- cember 31, 1937, the Company employed 46,891 persons in the United States and 1,484 outside of the United States. The present petition concerns only those employees of the Company working in Wash- ington, D. C. There are approximately 700 employees in this group. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED The Commercial Telegraphers' Union is a labor organization affili- ated with the American Federation of Labor, admitting to its mem- bership all employees of the Company working in the commercial, traffic, plant, and,messenger departments in Washington, D. C., ex- cluding executives, lawyers, and employees with the right to hire and discharge. ' American Communications Association is a labor organization affiliated with the Committee for Industrial Organization admitting to its membership employees of the Company. The record does not show the precise limits of its jurisdiction. Association of Western Union Employees is an unaffiliated labor organization admitting to membership employees of the Company on a Nation-wide basis. III. THE QUESTION CONCERNING REPRESENTATION On August 20 1938, counsel for the C. T. U. sent a letter to the superintendent of the Company's Washington office advising him that the C. T. U. represented 400 employees of the Company in Wash- ington and requesting that he meet with representatives of the C. T. U. for the purpose of negotiating a collective bargaining con- tract. On August 27, 1938, the superintendent replied stating, in substance, that the Company was unable to recognize the C. T. U. for the purposes of collective bargaining because it had entered into a collective bargaining agreement with another labor organization which represented a majority of its employees. We find that a question has arisen concerning representation of employees of the Company. THE WESTERN UNION TELEGRAPH COMPANY ET AL. 1157 IN. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Com- pany described in Section I above, has a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The C. T. U. 'seeks a bargaining unit composed of employees of the Company in the traffic, commercial, messenger, and plant depart- ments in Washington, D. C., excluding executives, lawyers, and em- ployees with the right to hire and discharge. The Company and the Association contend that all the Company's employees throughout its entire system constitute a unit appropriate for purposes of collective bargaining. The A. C. A. made no claim with respect to the appro- priate unit. Under ordinary circumstances we should give considerable weight to the claim made by the Association in our determination of the appropriate unit. The Company operates its business as a unified enterprise. Policies in regard to matters of hours, wages, and other conditions of employment are centrally controlled. Furthermore, because of the nature of telegraphic communication, the work of the employees of the Company in the various offices throughout the country is closely coordinated and highly interdependent. The effect of stoppage of service in one locality is inevitably widespread and accordingly serious 2 The Association has organized the Company's employees on the basis of a Nation-wide unit and it describes a history of successful collective bargaining over a period of 20 years on the basis of such unit. The foregoing factors are strongly per- suasive of the appropriateness of a Nation-wide unit. However there is now pending before the Board for decision a case entitled Matter of Western Union Telegraph Company and American Radio Telegraphists' Associations herein called Case No. C-344. The complaint therein, issued by the Board upon charges filed by the A. C. A.,4 alleged that the Company had dominated the formation and administration of the Association, and had contributed support thereto, in violation of Section 8 (1) and (2) of the Act. 2 See Matter of Postal Telegraph -Cable Company of Massachusetts and American Radio Telegraphists Association, 7 N. L. R. B. 444. S Case No. C-344. 4 At that time called "American Radio Telegraphists' Association." 164275-39-vol. xi-74 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following the conduct of a hearing in Case No. C-344, the Trial Examiner therein issued his Intermediate Report in which he found that the allegations of the complaint had been sustained and recom- mended that the Board order the Company to disestablish the Asso- ciation as a collective bargaining representative and to cease and desist from recognizing it as such representative for any of its em- ployees. It would be manifestly improper in this proceeding to pass upon the merits of the Trial Examiner's findings and recom- mendations in Case No. C-344. It would be inexpedient, however, to adopt the contentions of the Association as to the appropriate- ness of a Nation-wide unit and order the conduct of a Nation-wide election among the Company's employees, if thereafter the Associa- tion, upon which the determination of such unit would depend, should be found incapable of serving as representative of employees because of employer domination, interference, or support. On the other hand, it should be noted that the C. T. U. neither filed the charges upon which Case No. C-344 is predicated nor intervened in that case. To deprive the employees in the unit which it claims appropriate of the, possibility of collective bargaining for a period of time occasioned by the delays incident to the disposition of a lengthy and intricate case in which, to the extent that they are repre- sented by the C. T. U., they have no present interest, would in no way effectuate the policies of the Act. We shall, therefore, consider the question of the appropriateness of the unit claimed by the C. T. U., and shall not, for the reasons indicated above, consider the contentions of the Association. In the absence of a showing that the employees of a company have been organized on a Nation-wide basis, a unit composed only of those employees in the localities to which union organization has ex- tended may properly be deemed appropriate for the purposes of collective bargaining.5 Applying this principle to the present pro- ceeding pending the disposition of Case No. C-344 and until there- after a bona Fide labor organization requests that we reconsider our determination herein, we shall adopt as appropriate the unit claimed by the C. T. U. for the purposes of collective bargaining. We find that the employees of the Company working in Washing- ton, D. C., in the commercial, traffic, messenger, and plant depart- ments, excluding executives, lawyers, and persons with the right to hire and discharge, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of The Western Union Telegraph Company, Inc., in Washington, D. C., 5 See Matter of Postal Telegraph-Cable Company of Massachusetts and American Radio Telegraphists Association, 7 N. L. R. B. 444; Matter of R. C. A. Communications, Inc. and American Radio Telegraphists' Association, 2 N. L. R. B. 1109. THE WESTERN UNION TELEGRAPH COMPANY ET AL . 1159 the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES There was introduced in evidence at the hearing lists of the em- ployees of the Company in the commercial, traffic, and messenger departments in Washington, D. C., as of the pay-roll periods ending July 9, 1938, and September 10, 1938, and lists of the employees in the plant department in Washington, D. C., as of the pay-roll periods ending July 15, 1938, and September 15, 1938. These later pay rolls, i. e. September 10, 1938, and September 15, 1938, contain the names of 672 employees in the appropriate unit. The C. T. U. submitted in evidence 419 membership application cards most of which were signed between April 15, 1938, and Sep- tember 1, 1938. The Company submitted certain pay vouchers signed by its employees in Washington, D. C., in order that the Board could compare the signatures appearing on the cards with those on the pay vouchers to determine the genuineness of the signatures on the cards. A comparison of the cards submitted by the C. T. U. and the Company's list of employees in Washington, D. C., in the traffic, commercial, and messenger departments as of September 10, 1938, and of the employees in the plant department as of September 15, 1938, shows that 345 employees whose names appear on the ap- plication cards were employed by the Company within the appro- priate unit at Washington, D. C., during the aforesaid period. The Association introduced in evidence a list of 435 employees in the appropriate unit and an officer of the Association testified that he had prepared the list from signed membership applications. A comparison of this list with the membership cards introduced by the C. T. U. shows that a substantial number of the employees in the appropriate unit are claimed to be members of both of these labor organizations. We therefore find that an election by secret ballot is necessary to resolve the question concerning representation. The circumstances which preclude a consideration of the Associa- tion's claim for a Nation-wide unit are not controlling in a deter- mination of the representative of the employees in the appropriate unit. The Association is accordingly entitled to participate in the election that we shall order. As we have made our determination of the appropriate unit subject to reconsideration after the disposition of Case No. C-344, similarly, if the Association should be chosen by a majority of the employees in such unit as their representative for the purposes of collective bargaining, our certification of the Associa- tion as the exclusive representative thereof shall be subject to with- 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drawal should we thereafter find in Case No. C-344 that the Asso- ciation is not a bona file labor organization within the meaning of the Act. Since the A. C. A. introduced no proof of membership among the employees in the appropriate unit nor made any claim to representation of such employees, we shall not provide that its name appear on the ballots. We shall, therefore, direct that an election be conducted among all the employees in the appropriate unit who were on the pay roll of the Company during the pay-roll period next preceding the date of this Direction to determine whether they desire to be represented by the C. T. U., by the Association, or by neither. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Western Union Telegraph Company, Inc., in Washington, D. C., within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The employees of the Company in the traffic, commercial, mes- senger, and plant departments, excluding executives, lawyers, and persons with the right to hire and discharge, constitute a unit ap- propriate for the purposes of collective bargaining, within the mean- ing of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with The West- ern Union Telegraph Company, Inc., Washington, D. C., an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction under the supervision and direction of the Regional Director for the Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Arti- cle III, Section 9, of said Rules and Regulations, among the em- ployees in the traffic, commercial, messenger, and plant departments who were employed by the Company in Washington, D. C., during the pay-roll period next preceding the date of this Direction, but ex- cluding executives, lawyers, and persons with the right to hire and THE WESTERN UNION TELEGRAPH COMPANY ET AL. 1161 discharge, to determine whether they desire to be represented by The Commercial Telegraphers' Union, affiliated with the American Federation of Labor, or by Association of Western Union Employees, an unaffiliated labor organization, for the purpose of collective bar- gaining, or by neither. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Direction of Election.