Western Union Telegraph Co.

In the Matter of WI,STERN UNION TELEGRAPH COMPANY and AMERI- CAN COMMUNICATIONS ASSOCIATION LOCAL 54-B, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-1703.-Decided May 15,19-110 Communications Industry-Investigation of Representatives: controversy concerning representation of employees : Company refused requests made by Union for sole recognition in local unit; controversy as to appropriate unit- Unit Appropriate for Collective Bargaining: employees in local unit not to be denied collective bargaining until employees are organized on Nation-wide basis ; employees in the commercial, traffic, and plant departments, including furloughed and "furloughed force reduction" employees, but excluding execu- tives, lawyers, confidential employees, temporary messengers, and supervisory employees ; exclusion of employees in the accounting department and district superintendent's office; exclusion of minor supervisory employees-Election Ordered: ballot: no provision made on, for organization found to be company- dominated ; name of rival union not to appear on, in view of absence of claim or evidence showing that it represents employees in appropriate unit-Dissent by Mr. Leiserson: since Company admits it has continued to deal with a labor organization which the Board found company-dominated and ordered Company to disestablish, petition should be dismissed pending court determination of validity of Board's Order Mr. Henry Shore, for the Board. Mr. William Wendt, and Mr. Ralph H. Kimball, of New York City, for the Company. Mr. Benjamin C. Sigal, and Mr. Arthur R. Rack, of Pittsburgh, Pa., for the A. C. A. Mr. Hugh C. McKenny, of Washington, D. C., and Mr. S. Harold Grossman, of Pittsburgh, Pa., for the C. T. U. Mr. J. H. Krug, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 26, 1939, American Communications Association, Local 54-B, affiliated with the Congress of Industrial Organizations, herein called the A. C. A., filed with the Regional Director for thA 23 N. L. R. B., No. 87. 824 WESTERN UNION TELEGRAPH COMPANY 825 Sixth Region (Pittsburgh, Pennsylvania) a petition, and on Decem- ber 16, 1939, an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of The Western Union Telegraph Company, Pittsburgh, Pennsyl- vania, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 22, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 13, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the A. C. A., and upon The Commercial Telegraphers Union, affili- ated with, the American Federation of Labor, herein called the C. T. U. On January' 22, 1940, Association of Western Union Employees, herein called the Association, a labor organization claim- ing to represent employees directly affected by the investigation, filed with the Regional Director a motion and petition to intervene. On the same day the Regional Director denied the motion and peti- tion. The ruling of the Regional Director denying the motion and petition is hereby affirmed. Pursuant to notice a hearing was held on January 25 and 26, 1940, at Pittsburgh, Pennsylvania, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board, the Company, and the A. C. A. were represented by counsel and participated in the hearing. The Association and the C. T. U. entered special appearances. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded the Board, the Company, the A. C. A., and the C. T. U. At the opening of the hearing the Com- pany moved that the proceeding be dismissed or, in the alternative, that it be adjourned pending disposition of its petition for review and of the Board's petition for enforcement of an Order of the Board in Matter of The Western Union, Telegraph Company, a Corporation and American Communications Association," herein called Case No. C-344, pending before the Circuit Court of Appeals for the Second Circuit. The Association joined in this motion. The Association also moved that the hearing be adjourned until a rul- 117 N L R . B. 34. In its Decision and Order in that case the Board found that the Company had dominated and interfered with the administration of the Association, and ordered the Company to disestablish the Association as the revresentative of its employees for the purposes of collective bare ainina. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing was made on a motion theretofore filed by the Association with the Circuit Court of Appeals for the Second Circuit seeking to stay the Board from all proceedings involving the Company and the Association. These motions were denied by the Trial Examiner. The Association renewed its motion to intervene, which was also denied by the Trial Examiner. The above rulings are hereby affirmed.2 The Company moved that the evidence in the record in Case No. C-344 showing the history of collective bargaining by the Company with the Association on a Nation-wide basis and the difficulties of bargaining on any other basis be incorporated by ref- erence in the record of the instant case. The A. C. A. moved that the evidence in the record in Case No. C-344 showing which em- ployees of the Company exercise supervisory functions be similarly incorporated in the record. Both motions were granted by the Trial Examiner. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the ad- mission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. With the exceptions noted immediately below, the rulings are hereby affirmed. On March 1, 1940, the Board reversed the rulings of the Trial Examiner granting the afore-mentioned motions to incorporate by reference certain evidence in Case No. C-344, and ordered that the record be reopened and that a further hearing be held. On March 6, 1940, the Regional Director issued a notice of further hearing, copies of which were duly served upon the Company, the A. C. A. and the C. T. U. Pursuant to the notice a further hearing was held on March 14, 1940, at Pittsburgh, Pennsylvania, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board, the Company, the A. C. A., and the C. T. U. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. At the opening of the hearing the Company renewed its motion, made at the previous hearing, that the proceeding be continued until the final court decision in Case No. C-344. Trial Examiner Maguire denied the motion. During the course of the hearing he made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of Trial Examiner Maguire and finds that no prejudicial errors were committed. The rulings are hereby affirmed. 2 See 11attei of The Western Union Telegraph Company and Commercial Telegraphers Union. Indianapolis Local Western Union Div #2, Aff. with A. F of L., 17 N. L. R B 683 WESTERN UNION TELEGRAPH COMPANY 827 Subsequent to the close of the second hearing, pursuant to per- mission granted by the Board, the A. C. A. and the C. T. U. filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 3 The Western Union Telegraph Company, a New York corporation with its principal office at New York City, is engaged throughout the United States and in foreign countries in the receiving and trans- mission by telegraph and cable of intrastate, interstate, and interna- tional communications. At the close of 1939 the Company employed approximately 43,500 persons, of which number approximately 1,350 were located outside the United States. The present proceeding con- cerns only those employees of the Company working in Pittsburgh, Pennsylvania, where the Company employs approximately 540 persons. The Company admits that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED American Communications Association, Local 54-B, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to its membership employees of the Company at Pittsburgh, Pennsylvania. The Commercial Telegraphers Union is a labor organization affili- ated with the American Federation of Labor, admitting to its membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The A. C. A. claims to represent a majority of employees of the Company at Pittsburgh, Pennsylvania, within an appropriate unit. During 1939 the Company refused several requests made by the A. C. A. for recognition as exclusive bargaining agency for such employees. The Company contends that all the employees throughout its entire system constitute an appropriate bargaining unit and that they are represented by the Association. The Company and the Association contend that the pendency of Case No. C-344 before the Circuit Court of Appeals precludes the existence of a question concerning representation. We find no merit in this contention. 3 These findings are based on a stipulation of facts 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and 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 A. C. A. contends that the unit appropriate for the purposes of collective bargaining should be confined to employees of the Com- pany in Metropolitan Pittsburgh. The Metropolitan Pittsburgh area consists of the city of Pittsburgh and several adjacent communities, including McKeesport, Coraopolis, Braddock, Sewickley, Homestead, Ambridge, and East Pittsburgh. As stated above, the Company contends that all its employees throughout its entire system constitute an appropriate unit. The Board has in many decisions involving the communications industry found a Nation-wide bargaining unit appropriate, and under ordinary circumstances would give considerable weight to,the claim made by the Company in the determination of the appropriate unit.4 In Case No. C-344 it appeared that the Association had or- ganized and bargained with the Company on a Nation-wide basis. In that case, however, we found that the Company had dominated the administration of the Association, and ordered the Company to disestablish the Association as a collective bargaining representative. Thus, while the A. C. A. has organized employees of the Company in Metropolitan Pittsburgh and claims to represent them, no bona fide labor organization is now requesting a bargaining unit more extensive in area than Metropolitan Pittsburgh. To deprive the employees in the localities to which union organization has extended, of the possibility of collective bargaining until such time as the employees of the Company are organized on a Nation-wide basis 4See Matter of Mackay Radio Corporation of Delaware , Inc, and Mackay Radio t Telegraph Company, a Corporation, and American Radio Telegraphists' Association, 5 N. L R. B . 657; Matter of Columbia Broadcasting System , Inc, and American Radio Telegraphists Association, 6 N. L. R. B 166 ; Matter of Columbia Broadcasting System, Inc, and American Communications Association (Formerly American Radio Telegraphists' Association ), 8 N. L R B. .508 ; Matter of R . C A. Communications, Inc., and American Radio Telegraphists Association and Independent Employees Association of R C. A.-C, 9 N L. R B 915 ; Matter of Postal Telegraph -Cable Corporation and Commercial Teleg- raphers' Union, 9 N. L. R. B. 1060. WESTERN UNION TELEGRAPH COMPANY 829 would in no way effectuate the policies of the Act.5 In two recent cases we have rejected a similar contention advanced by the Com- pany, and have determined upon a bargaining unit confined to em- ployees in a single city.' We find that a collective bargaining unit limited to employees of the Company in the Metropolitan Pitts- burgh area is appropriate. Five separate units of the Company's business organization have their headquarters in Pittsburgh. These are the commercial depart- ment, the traffic department, the accounting department, the plant department, and the district superintendent's organization. The A. C. A. contends that the appropriate bargaining unit consists of employees working in Metropolitan Pittsburgh in the commercial and traffic departments, excluding executives, lawyers, solicitors 7 confidential employees, and supervisory employees." The Company apparently contends that if the bargaining unit is confined to Met- ropolitan Pittsburgh, the employees of all five departments should be included, with the exception of supervisory employees having power to hire and discharge. The pay rolls for the period ending January 20, 1940, show that the number of employees in the respective departments who were stationed in Metropolitan Pittsburgh was as follows : Commercial, 201; traffic, 286; district superintendent's office, 6; accounting, 25; and plant, 22. The commercial department deals with the pick-up and delivery of messages and the operation of branch offices in Metropolitan Pittsburgh. The traffic department has charge of the transmission of messages which originate in or which are delivered in Metropolitan Pittsburgh. It operates and maintains the tele- graph equipment located on two floors of the Chamber of Commerce Building in Pittsburgh.' We find that employees in the commercial and traffic departments should be included in the appropriate unit. The plant department serves Western Pennsylvania, including Pittsburgh, most of West Virginia, and parts of Maryland and 5Matter of Postal Telegraph -Cable Company of Massachusetts and American Radio Telegraphists Association, 7 N. L R B 444. 6Matter of The Western Union Telegraph Company , Inc., and The Commercial Teleg- raphers' Union, 11 N L R B 1154; Matter of The Western Union Telegraph Company and Commercial Telegraphers Union, Indianapolis Local #7, Western Union Div. #2, Af WithA F ofL, 17N L R.B 683 'The record does not show what employees the A . C. A intended to designate by the term "solicitors " The A C A clearly wishes to include in the unit certain employees in the commercial department who solicit business . In our finding as to the appropriate unit we shall disregard the A C A request for exclusion of "solicitors." 8 The C T U. contends that the appropriate unit should include, in addition, super- visory employees without the power to hire and discharge , and employees in the plant department and accounting department The C. T U, however, made no showing of, or claim to , representation among employees of the Company in the Metropolitan Pittsburgh area Under these circumstances, we do not consider the contentions of the C. T. U. as to the appropiiate unit O The traffic department also delivers messages by telephone , and through teleprinter lines terminating in the offices of business firms. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western New York. Of approximately 45 employees in the depart- ment, about 22 work in Metropolitan Pittsburgh. These employees maintain the physical plant outside the traffic-department premises and install and disconnect equipment. While the jurisdiction of the plant department extends far beyond Pittsburgh, approximately half of the employees within the department are directly engaged in carrying on the Company's business in Metropolitan Pittsburgh. Although in an emergency these employees may be sent to any part of the area served by the plant department, they regularly are stationed and perform their services in Metropolitan Pittsburgh. We are of the opinion that the plant-department employees who are stationed in Pittsburgh should be included in the appropriate, unit 1o The district superintendent's organization, with headquarters in Pittsburgh, has a territorial jurisdiction covering Western Penn- sylvania exclusive of Metropolitan Pittsburgh, all of West Virginia, and Western New York. Throughout this area the work of the district superintendent's unit is similar to the functions of the Pitts- burgh commercial department. There are approximately 450 em- ployees under the district superintendent, but only 6, including the district superintendent, are stationed in Pittsburgh. These 6 em- ployees have no relation to the Metropolitan Pittsburgh employees of the Company, except that they work in Pittsburgh. Transfers of employees between the district superintendent's unit and the Met- ropolitan Pittsburgh commercial department rarely, if ever, occur. The respective organizations maintain separate seniority systems. We shall exclude the employees in the district superintendent's Pitts- burgh headquarters from the appropriate unit. The accounting department audits the monthly reports prepared by the local offices within the jurisdiction of the district superin- tendent, and it also, apparently, audits the accounts of the Pittsburgh commercial and traffic departments.11 While the work of the ac- counting-department employees is related to the conduct of the Company's business in Metropolitan Pittsburgh, as well as in the district superintendent's territory, these employees are not directly engaged in carrying on the Company's operations in Pittsburgh. We shall exclude them from the unit. As stated above, the A. C. A. would exclude from the appropriate unit all supervisory employees, while the Company would apparently include all supervisory employees except those with power to hire 10 See cases cited in footnote 6, supra "Prior to Novembei 1, 1939 . the accounting staff was within the commercial depart- ment. It is now a part of the auditing department and the Pittsburgh accounting man- ager reports to the division auditor, whose headquarters are in New York City WESTERN UNION TELEGRAPH COMPANY 831 and discharge.' In two recent cases involving the representation of employees of the Company, herein called the Washington case and the Indianapolis case,13 the Board included in the appropriate unit all supervisory employees except those with power to hire and dis- charge. These employees were included in the unit in the Wash- ington case at the request of the C. T. U., and in the Indianapolis case over the objection of the C. T. U., which changed its prior position. In the Indianapolis case the American Communications Association was not a party, and in the Washington case it made no claim with respect to the appropriate unit. Thus the American Communications Association has not heretofore taken a position with respect to the inclusion or exclusion of minor supervisory employees. Under these circumstances, the only bona fide union involved re- questing their exclusion '14 we shall exclude supervisory employees from the unit. The A. C. A. contends that the following employees in the com- mercial department are supervisory and should be excluded from the unit : Superintendent, office manager, delivery manager, assistant delivery manager, delivery supervisors, sales manager, branch solicit- ing managers, cashier, assistant cashier, manager of commercial service, and one J. W. Bartell, who is listed on the Company pay roll as delivery clerk. We shall consider briefly the nature of each of these positions. The superintendent is in charge of the department and will be excluded. The office manager has authority to recom- mend hiring, discharge, and promotion, and to assign work under the direction of the superintendent. We shall exclude him, also, from the unit. The delivery manager supervises the messengers; he assigns work to them and has authority to recommend discharge and promotion. In his absence, these duties are assumed by the assist- ant delivery manager. We shall exclude both of these employees from the unit. There are two delivery supervisors, one of whom works at night. It is the function of the delivery supervisor to see that the messages are delivered. George T. Harris, superintendent of the commercial department, testified that the delivery supervisor 12 See footnote 4, supra By the teams of the American Communications Association Constitution , supei visory employees with power to hire and discharge are ineligible to membership, while other supervisory employees "may be eligible to membership subject to approval by the members present at the regular meeting of a local anion " The record does not show whether or not any supervisory employees in the Metropolitan Pittsburgh area have been admitted to membership by the A. C. A. Mervyn Rathborne, president of Amei ican Communications Association , testified that supervisory employees of the Company exercise a greater degree of authority than employees in similar positions in other communications companies Is These cases are cited in footnote 6, supi a. 14 See, for example, Matter of A. Fink and Sons Co, Inc, and Amalgamated Meat Cutters & Butcher Workmen of N A, Local 422, A F of L, 9 N L R B 441; Matter of Southern California Gas Company and Utility ll'oikers Omganizinq Committee , Local No., 132, 10 N L R. B 112^ 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "supervises the operations of the delivery department rather than supervising the messengers." Although Harris was evasive, it is apparent from his testimony and from that of Michael Sotek, a mes- senger, that the delivery supervisors exercise a substantial degree of supervision over the messengers. We are of the- opinion that they are essentially identified with the management and that they should be excluded from the unit. We shall also exclude the sales manager who, under Harris' direction, assigns work to the sales employees and has authority to recommend promotion and discharge. Branch managers and branch soliciting managers are in charge of branch offices, one to each office ; in addition, branch soliciting managers have the duty of soliciting business. Every branch solicit- ing manager has at least one clerk and one messenger under his supervision. The Company's pay roll for the period ending Jan- uary 20, 1940, bears the name of 9 branch clerks, 109 messengers, and 11 temporary messengers. The same pay roll contains the names of 5 branch soliciting managers and 31 branch managers.15 Since every branch soliciting manager supervises at least one branch clerk, and since there are only nine branch clerks, it is evident that, with possibly one or two exceptions, none of the branch managers exer- cises supervision over a branch clerk. Branch soliciting managers are thus entrusted with greater supervisory powers than branch managers.16 We shall exclude branch soliciting managers from the unit and include branch managers. In addition to the cashier and assistant cashier, there is only one other employee, a clerk, in the cashier's office. We are of the opinion that the cashier and the assistant cashier should be included in the unit. The A. C. A. would also exclude an employee designated as "Manager, Commercial Service." The only testimony in the record is to the effect that this employee supplies information to the public. We shall include her in the unit. The A. C. A. would also exclude J. W. Bartell, who is listed on the pay roll as a delivery clerk. Sotek, a messenger, testified as witness for the A. C. A. that "the messen- gers are hired from the Uniform Department with the approval of the delivery manager," and that Bartell is in charge of the uniform department. Harris did not testify regarding the duties of Bartel]. We think the evidence in the record is insufficient to warrant the exclusion of Bartell as a supervisory employee. We shall therefore include him in the unit. Ii Of the 31 branch managers, 2 are designated on the pay roll as "relief manager" and 1 as "manager." 11 Harris testified that some employees listed as branch managers also solicit business, and that occasionally a designation of blanch manager is changed to branch soliciting manager. It is clear from his testimony, however, that the number of branch soliciting managers on the pay roll is always small, and that ordinarily there are not more than 7 or 8 employees so designated. WESTERN UNION TELEGRAPH COMPANY 833 Of the traffic-department employees, the A. C. A. would exclude from the unit the traffic manager, night traffic managers, assistant chief operator, automatic chief, testing and regulating chief, night testing and regulating chief, repeater chief, automatic supervisors, teleprinter supervisors, telephone supervisors, Morse supervisor, route supervisors, service supervisors, and automatic monitor. We shall exclude from the unit the traffic manager, who is in charge of the department, and the two night traffic managers, who take the traffic manager's place during their respective night shifts. The traffic department is divided functionally into the following depart- ments : Automatic, teleprinting, testing and regulating, telephone, Morse, route, and service. The assistant chief operator is in charge of the automatic and teleprinter departments. He assigns work to the employees in these departments, and has authority to discipline by caution and warning, and to order temporary suspensions from duty for infractions of the rules. We shall exclude the assistant chief operator from the unit. The automatic chief reports to the assistant chief operator. He supervises the work of at least seven employees and assigns work to them. We shall exclude him from the -unit. We shall also exclude the testing and regulating chief, who has authority in his department similar to that possessed by the assistant chief operator. The night testing and regulating chief is in charge of the department on the early night shift. We shall exclude him from the unit. Subordinate to the testing and regulating chief is the repeater chief, who supervises the work of approximately eight assistant re- peater chiefs.', We shall exclude him from the unit. On the traffic-department pay roll are six automatic supervisors," five teleprinter supervisors, four telephone supervisors, a Morse su- pervisor, two route supervisors, and two service supervisors. The automatic and teleprinter supervisors are subordinate to the assistant chief operator, while the others report directly to the traffic manager. The record is clear that all these supervisors have essentially the same degree of authority in their respective departments. The aver- age difference between the salary of each supervisor and of the oper- ators who work under him is approximately $40.00 per month. The supervisors assign work to the employees who work under them and have general responsibility for the performance of that work. Upon all the evidence we shall exclude the above supervisors. The A. C. A. would also exclude an employee listed as automatic Inonitor.19 This employee reports on the quality and quantity of 11 Certain titles on the traffic-department pay roll appear to be misnomers. Assistant repeater chiefs, assistant wire chiefs, assistant regulating chiefs, assistant testing chiefs, and assistant automatic chiefs apparently do not supervise other employees. 11 One of these is entitled senior automatic supervisor. 19 It is not clear whether this employee works in the automatic department or in the telephone department 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work performed by the employees of her department. We shall exclude the automatic monitor from the unit. The A. C. A. requests that in the event the Board includes in the unit employees of the plant department, the maintenance foreman and city foreman be excluded. The maintenance foreman, in charge of the plant department, will be excluded from the unit The city foreman assigns work to all except four of the plant_department em- ployees who work in Pittsburgh. He inspects the work, supervises the manner in which it is performed, and reports to the maintenance foreman any infractions of the rules. Although the city foreman has no authority to discipline employees or to hire and discharge, he exercises such supervisory authority that we believe he is essentially identified with the management in the minds of the employees, and we shall exclude him from the unit. On the commercial-department pay roll for the period ending Jan- uary 20, 1940, there are 109 messengers and 11 temporary messengers. The record shows that temporary messengers are hired at rush pe- riods and that there is little or no prospect that they will be changed to a permanent status. We shall exclude temporary messengers from the unit. The A. C. A. desires'to include in the appropriate unit furloughed employees and "furloughed force reduction" employees. Furloughed Employees are those who are granted voluntary furloughs for a period not exceeding 6 months; the furlough may be extended beyond the 6 months' period on the approval of a vice president of the Company. During the furlough period, these employees may return to work whenever they so desire, and they are expected to return at the expi- ration of the period. "Furloughed force reduction" employees are those furloughed by the Company for reasons of economy. The fur- lough period continues for 2 years. We shall include the furloughed and "furloughed force reduction" employees in the unit.20 We find that the employees of the Company working in Metropoli- tan Pittsburgh in the commercial, traffic, and plant departments, in- cluding furloughed and "furloughed force reduction" employees, but excluding executives, lawyers, confidential employees, temporary mes- sengers, and the supervisory employees occupying the positions listed in Appendices A, B, and C, constitute a unit appropriate for the pur- poses of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. 20 See the Indianapolis case , footnote 6, supra WESTERN UNION TELEGRAPH COMPANY VI. THE DETERMINATION OF REPRESENTATIVES 835 At the hearing the A. C. A. claimed to represent a substantial number of the Company's employees in the appropriate unit but did not introduce documentary evidence showing such representation. The A. C. A. requested an election to settle the question concerning representation. We find that an election by secret ballot is necessary to resolve the question concerning representation. Those persons eligible to vote shall be the employees in the appropriate unit who were em- ployed by the Company during the pay-roll period next preceding the date of our Direction of Election'21 including employees who did not work during such pay-roll period because they were ill or on vaca- tion and furloughed and "furloughed force reduction" employees on the pay roll of the Company, but excluding employees who be- tween such pay-roll date and the date of the election have quit or been discharged for cause. Since we found in Case No. C-344 that the Company dominated and interfered with the administration of the Association and that the Association must be disestablished as a bargaining representative, no provision will be made for the designation of the Association upon the ballot. The C. T. U. did not participate in the first hearing, except to state its contentions regarding the appropriate unit. At the second hearing counsel for the C. T. U. cross-examined several witnesses with respect to the authority of supervisory employees. The C. T. U. did not introduce evidence showing that it represents employees in the appropriate unit, nor did it claim to represent any such em- ployees. Under these circumstances, we are of the opinion that the name of the C. T. U. should not appear upon the ballot. 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, Pittsburgh, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. u On January 26, 1940, at the close of the first hearing , before Trial Examiner Lindsay, the A C. A. requested that eligibility to vote in an election directed by the Board be determined by the pay rolls for the period ending January 20, 1940 This request was not repeated at the second hearing, before Trial Examiner Maguire, nor in the brief filed by the A. C A on April 1, 1940 We find that the determination of eligibility to vote by the pay rolls next preceding the date of our Direction of Election will best effectuate the policies of the Act 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The employees of the Company working in Metropolitan Pitts- burgh in the commercial , traffic, and plant departments , including furloughed and "furloughed force reduction" employees on the pay roll of the Company, but excluding executives , lawyers, confidential employees, temporary messengers , and the supervisory employees occupying the positions listed in Appendices A, B, and C, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the authority vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with The Western Union Telegraph Company, Pittsburgh, Pennsyl- vania, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Sixth 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 of the Company working in Metropolitan Pittsburgh in the commercial , traffic, and plant departments , who were employed dur- ing the pay-roll period next preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation and furloughed and "furloughed force reduction" employees on the pay roll of the Company, but excluding executives, lawyers, confidential employees, temporary messengers , and the supervisory employees occupying the positions listed in Appendices A, B, and C, hereto, and further excluding any employees who between such pay-roll date and the date of the elec- tion have quit or been discharged for cause , to determine whether or not they wish to be represented for the purposes of collective bargaining by American Communications Association , Local 54-B, affiliated with the Congress of Industrial Organizations. MR. WILLIAM M. LEISERSON , dissenting : I cannot concur in the issuance of this Direction of Election. In Case No. C-344 the Board found that the Company had engaged in and was engaging in unfair labor practices by dominating and inter- fering with the administration of the Association , and ordered the WESTERN UNION TELEGRAPH COMPANY 837 Company to cease and desist from its unfair labor practices and completely to disestablish the Association as the representative of any of the Company's employees. The Company has not complied with the Board's Order, but has filed a petition to review that Order, and has, according to the statement of its counsel, continued to recog- nize and to deal with the Association. By continuing to deal with the Association the Company is, in the eyes of the Board, engaging in labor practices which the Board has found to be unfair. The Board sets aside elections when it is shown that unfair labor practices accom- pany the conduct of the elections.22 Since the Company admits that it is continuing the practices condemned by the Board, I am of the opinion that the petition should be dismissed pending court determi- nation of the validity of the Board's Order. APPENDIX A Commercial Department Superintendent Delivery supervisors Office manager Sales manager Delivery manager Branch soliciting managers Assistant delivery manager APPENDIX B Traffic Department Traffic manager Night traffic managers Assistant chief operator Automatic chief Testing and regulating chief Night testing and regulating chief Repeater chief Automatic supervisors Teleprinter supervisors Telephone supervisors Morse supervisor Route supervisors Service supervisors Automatic monitor APPENDIX C Plant Department Maintenance foreman City foreman 22 See, for example , Matter of Carrollton Metal Products Company and Amalgamated Association of Iron, Steel cC Tin Workers of North Amertca, Local No 1571, 6 N . L. R. B. 569, 589; Matter of Tennessee Copper Company and A F. of L Federal Union No. 21164, 8 N L R B. 575, 9 N L R B 117, Matter of Pacific Gas and Electric Company and United Electrical and Radio Workers of America, 13 N L R. B. 268, 291, 296. 283034-41-vol. 23-54