Western Union Telegraph Co.

In the Matter Of WESTERN UNION TELEGRAPH CO. and COMMERCIAL TELEGRAPHERS UNION, WESTERN UNION DIVISION No. 2, LOCAL No. 16, AFFILIATED WITH THE A. F. L. Case No.R-1988.Decided September 9, 1940 Jurisdiction : telegraph industry. Investigation and Certification of Representatives :, existence of question : re- fusal to accord recognition to union ; election necessary. Unit Appropriate for Collective Bargaining : partial system unit:. restaurant and cafeteria employees exclusive of managerial and supervisory employees. Ornstein cC Silverman, by Mr. Henry H. Silverman, of New York City, for the C. T. U. Mr. William Wendt and Mr. Ralph H. Kimball, of New York City, for the Company. Boudin, Cohn c6 Glickstein, by Mr. A. L. Shapiro, of New York City, for the A. C. A. Mr. James F. Dulligan, of New York City, for the Association. Mr. William Kincheloe, of New York City, for Local 302. Mr. David H. Karasick, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 4, 1940, Commercial Telegraphers' Union, Western Union Division No. 2, Local No. 16, affiliated with the American Federation of Labor,' herein called the C. T. U., filed with the Regional Director for the Second Region (New York City) a petition, and on July 19, 1940, an amended petition, alleging that a question affecting 'coin- merce had arisen concerning the representation of employees of West- ern Union Telegraph Company, New York City, herein called the Company, and requesting an investigation and certification of repre- ' Incorrectly designated in the original and the amended petition as Commercial Telegraphers' Union, A. F. L., Western Union Division No. 16. 27 N. L. R. B., No. 33. 150 WESTERN UNION TELEGRAPH CO. 151 sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 17, 1940, the Na- tional Labor Relations Board, herein called the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director, to conduct it and to provide for an appropriate hearing upon due notice. On July 19, 1940, the Regional Director issued a notice of hearing, and on July 26, 1940, a notice of postponement of hearing, copies of which were duly served upon the Company; the C. T. U.; the American Communications Association, herein called the A. C. A..; the Cafeteria Employees Union, Local 302, affiliated with Hotel and Restaurant Employees International Alliance and Bartenders In- ternational League of America, A. F. L., herein called Local 302; 2 and the Communications Guild. Pursuant to notice, a hearing was held on August 8, 1940, at New York City, before Shad Polier, the Trial Examiner duly designated by the Board. All the parties ap- peared and were represented by counsel or by their representatives. A representative of the Association of Western Union Employees, herein called the Association, moved to intervene in the proceedings. The Trial Examiner denied the motion. The-ruling of the Trial Ex- aminer is hereby affirmed.3 Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Counsel for the Company moved to dismiss the petition on the ground that the Board lacks jurisdiction. The Company and the A. C. A. also moved to dismiss the petition for the reason that the unit proposed by the C. T. U. is not an appropriate one for the purposes of collective bargaining. The Trial Examiner reserved ruling on these motions. The motions are hereby denied. Upon the entire record in the case, the Board makes the following : 2 The president of Local 302 stated at the hearing that his organization had no interest in the present proceedings , and did not desire to participate in the hearing or in an election. 8 The Association is a labor organization which the Board has ordered the Company to disestablish. See Hatter of the Western Union Telegraph Company, a corporation and Arne? scan Comntnn?catton8 Ascoc?atton, 17 N. L. R. B. 34, enf'd as mod, The Western Union Telegraph Co. v. N. I. R. B., August 9, 1940 (C. C. A. 2). 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a New York corporation, with its principal office- at 60 Hudson Street, New York City, is engaged throughout the United States and in foreign countries in the receipt and transmis- sion by telegraph and cables of intrastate, interstate, and interna- tional communications. - The Company employs approximately 43,500 persons, df which number approximately 1,350 are located outside the United States. Approximately 7,104 persons are employed in New York City and its immediate environs. The Company owns the building at 60 Hudson Street in which its- telegraph equipment is located, and occupies the principal part of the premises for the use of its various departments. In this building the Company also operates a restaurant and cafeteria which is maintained exclusively for the use of approximately 3,738 em- ployees who are located in the building. The restaurant and cafe- teria is open 24 hours a day, 7 days a week. Ninety-one persons, exclusive of the manager and assistant manager, both of whom have authority to discharge, are employed in its operation. The cable equipment and other departments are located in a build- ing which is leased by the Company at 40 Broad Street. In this building also the Company operates a restaurant and cafeteria for the exclusive use of approximately 400 to 500 employees who are located on the premises . The restaurant and cafeteria at 40 Broad Street is operated from midnight to 8:15 in the evening from Mon- day to Friday, inclusive, and from midnight to 3 o'clock in the afternoon on Saturdays . Its operation requires the employment of 11 persons, none of whom have authority to discharge. ` H. THE ORGANIZATIONS INVOLVED Commercial Telegraphers' Union, Western Union Division No. 2, Local No. 16, affiliated with the American Federation of Labor, is a labor organization admitting to its membership employees of the Company. American Communications Association is a labor organization admitting to its membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The parties stipulated, and we find , that shortly before the peti- tion was filed on May 7, 1940, the C. T. U. demanded, and the Com- - WESTERN UNION TELEGRAPH CO. 153 pany refused, recognition as the bargaining agent under the Act of the employees in the unit alleged to be appropriate. A report by the Regional Director of the Board with respect to the representation claims of the C. T. U. was introduced into evi- dence at the hearing. The report, which was 'based on membership ,application cards and authorizations designating the C. T. U. as bargaining agent, shows that the C. T. U. represents a substantial number of employees of the Company in the unit alleged to be appropriate. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the, Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. TILE APPROPRIATE UNIT The C. T. U. urges that all the restaurant and cafeteria employees of the Company at 60 Hudson Street and 40 Broad Street, New York City, exclusive of managerial and supervisory employees , constitute an appropriate bargaining unit. The Company and the A. C. A. contend that such a unit is not appropriate. The C. T. U. is a national labor organization , affiliated with the American Federation of Labor. Separate divisions of the national organization exist for each company whose employees the division seeks to organize. Western Union Division No. 2 organizes the employees of the Western Union Telegraph Company. Local No. 16 is a chartered subdivision for New York City. The restaurant and cafeteria employees who are members of Local No . 16 comprise a separate subdivision which has its own officers and conducts its own meetings. There is no showing that the A . C. A. or any other bona fide labor organization claims any members among this group of employees. The functions and working conditions of the restaurant and cafeteria employees are separate and distinct from those of the Company's other employees. The Company maintains a separate seniority roster of employees in each of its various . departments . The restaurant and, cafeteria employees of the Company are regarded as a separate department, 154 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD have their own seniority list; and, as is true of other departments, their seniority is not interchangeable with that of employees engaged in other work in New York City. Although under other circumstances, the broader unit urged by the A. C.' A. and the Company might be appropriate, since the C. T. U. is the only labor organization which has organized the cafe- teria employees, and since no other organization claims to represent a majority in a more inclusive unit, upon the basis of the present extent of organization we find that the unit sought by the C. T. U. is appropriate. We find that the restaurant and cafeteria employees of the Com- pany at 60 Hudson Street and 40 Broad, Street, New York City, exclusive of managerial and supervisory employees,4 constitute a unit appropriate for purposes of collective bargaining and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The C. T. U. did not seek to prove its majority at the hearing, but instead requested that the Board hold an election. We find that the question which has arisen concerning the representation of employees of the Company can best be resolved by an election by secret bitllot.5 The parties agreed that the pay roll immediately 'preceding the date of the Direction of Election be used for the purpose of deter- mining eligibility to vote. We shall direct that those eligible to vote shall be the employees in the appropriate unit whose names appear upon the Company's pay roll immediately preceding the date of this Direction of Election, including any employees who did not work during said pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of the Western Union Telegraph Company, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. - 4 The parties stipulated that managerial and supervisory employees be excluded if the Board should find that the restaurant and cafeteria employees constituted . an appropriate unit. 5 Counsel for the A. C . A. declared that it did not wish to appear on the ballot if the Board should find the unit alleged in the petition to be appropriate. WESTERN UNION TELEGRAPH CO. 155 2. The employees of the Company at its restaurant and cafeteria located at 60 Hudson Street, New York City, and at its restaurant and cafeteria located at 40 Broad Street, New York City, exclusive of supervisory and managerial employees, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning , of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with the Western Union Telegraph Company, New York City, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Direc- tor for the Second Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the restaurant and cafeteria employees at 60 Hudson Street and 40 Broad Street, New York City, whose names appear upon the Company's pay roll immediately pre- ceding the date of this Direction of Election, including any em- ployees who did not work during said pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding supervisory and managerial employees, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Commercial Telegraphers' Union, affiliated with the American Feder- ation of Labor,° for the purposes of collective bargaining. [SAME TITLE] CERTIFICATION OF REPRESENTATIVES October 18, 1940 On September 9, 1940, the National Labor Relations Board issued a Decision and Direction of Election in this proceeding. Pursuant to the Direction of Election, an election by secret ballot was conducted At the hearing, counsel for the C. T. U. requested that it be so designated on the ballot. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on September 26, 1940, under the direction and supervision- of the Regional Director for the Second Region (New York City). On September 28, 1940, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, issued an Election Report, copies of which were duly served upon the parties. No objections to the con- duct of the ballot or to the Election Report were filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total number eligible to vote_______________________________ 102 Total number of ballots cast_______________________________ 93 Total number of valid ballots______________________________ 92 Total number of votes in favor of Commercial Telegrapher's Union, affiliated with the American Federation of Labor____ 83 Total number of votes against the aforementioned union ----- 9 Total number of blank votes________________ ------------------------------- 1 Total number of void ballots_______________________________ 0 Total number of challenged votes___________________________ 0 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, - IT IS 7IEREBY CERTIFIED that Commercial Telegraphers Union, West- ern Union Division No. 2, Local No. 16, affiliated with the American Federation of Labor, has been designated and selected by a majority of the employees of the Western Union Telegraph- Company at its restaurant and cafeteria located at 60 Hudson Street, New York City, and its restaurant and cafeteria located at 40 Broad Street, New York City, exclusive of supervisory and managerial employees, as their rep- resentative for the purposes of collective bargaining, and that pur- suant to Section '9 (a) of the National Labor Relations Act, Com- mercial Telegraphers Union, Western Union Division No. 2, Local No. 16, affiliated with the American Federation of Labor, is the ex- clusive representative of all such employees for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. 27 N. L. R. B., No. 33a.