The Western Union Telegraph Co.

In the Matter of THE WESTERN UNION TELEGRAPH COMPANY and AMERICAN FEDERATION OF LABOR, FEDERAL UNION No. 22460 Case No. R-2309.Decided March 29. 1941 Jurisdiction : telegraph industry Ipvestigation and Certification of Representatives: existence of question: re- fusal to accord union recognition until certified by the Board: eligibility to be determined in accordance with desires of parties: intervening labor organization not to be accorded a place on the ballot where it made no show- ing or claim of designation and does not wish to participate in the election ; election necessary. Unit Appropriate for Collective Bargaining : partial system unit : all employees of the Company working in and in the territory immediately adjacent to Toledo, Ohio, in the traffic department, commercial department (including messengers) and plant department, excluding the traffic manager, early night traffic manager, late night traffic manager, testing and regulating chief, senior supervisor, telephone supervisor, Morse supervisor, tnnekeeper, city super- intendent, chief clerk, delivery manager, sales manager (commercial repre- sentative), chief bookkeeper, and clerk (private secretary to the city superintendent and chief clerk). _ ` Supervisory employees who are in charge of departments, or sub- departments, and who have authority to perform supervisory functions, such as the authority to recommend hiring and discharge, to, consider employee grievances, and to discipline employees, excluded from the unit over the objection of the only labor organization making a claim or showing of employee designation. Employees having confidential duties relating to Company' labor iela- tions excluded from the unit over the objection of the only labor organiza-, tion making a claim or showing of designation. Practice and Procedure Labor organization, which made no claim or showing of designation among employees concerned in representation proceedings limited to metropolitan unit, permitted to intervene to protect its interest in composition of Nation-wide unit which parties agree may in the future be appropriate. Mr. C. W. Cadwallader, of Toledo, Ohio, Mr. E. R. Riddle, of Chicago, Ill., and Mr. J. S. Reichart, of Toledo, Ohio, for i the Company. Mr. G. -P. Hemmeter, and Mr. William F., Sturm, of Toledo, Ohio, for the A. F. L. Mr. William Burke, of Detroit, Mich., for the A. C. A. Mr. Robert F. Koretz, of counsel to the Board. 30 N. L. R. B., No. 105. 1 679, 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 30, 1940, American Federation of Labor, Federal Union No. 22460, herein called the A. F. L., filed a petition with the Regional Director for the Eighth Region (Cleveland, Ohio), alleg- ing that a question affecting commerce had arisen concerning the. representation' of employees of The Western Union Company, Toledo,. Ohio, 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-January 27, 1941, the' National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules. and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 29, 1941, the Regional Director issued a notice of hearing, copies of which, together with copies of the petition, were duly served upon the Company, upon American Communications Association,'herein called the A. C. A.,,upon the A. F. L., and upon the Commercial Telegraphers Union. Pursuant to the notice, a hear- iug was held on February 10 and 11, 1941 at Toledo, Ohio, before Max W. Johnstone, the Trial Examiner duly designated by the Board. The Company, the A. F. L., and the A. C. A. appeared, were represented by their representatives, participated in the hear- ing, and were afforded full opportunity to be heard, to examine and cross examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing the Trial Examiner granted a motion by the A. C. A. to intervene in the proceedings. During the course of the hearing the Trial Examiner made several rulings on other 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. Subsequent to the hearing the A. F. L. submitted a brief 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 The Western Union Telegraph Company, a New York corporation with its principal office at New York City , is engaged throughout. THE WESTERN UNION TELEGRAPH COMPANY 681 the United States and in foreign countries in the receiving and transmission by telegraph and cable of intrastate, interstate, and in- ternational communications. At the close of 1939 the Company employed 44,299 persons, of which number 1,333 were located out- side the United States. The present" proceeding involves., the ap- (proximately 151 persons employed in and immediately adjacent to Toledo, Ohio. The Company admits that it is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED American Federation of Labor, Federal Union No. 22460, a fed- eral labor union affiliated with American Federation of Labor, and American Communications Association, affiliated with Congress of Industrial Organizations, are labor organizations admitting to mem- bership employees of the Company at and in the vicinity of Toledo, Ohio. - - III. THE QUESTION CONCERNING REPRESENTATION The Company refused and refuses to recognize the A. F. L. as statutory representative of its employees'at Toledo, Ohio, until the A. F. L. is certified by the Board. At the hearing there was introduced in evidence a report by a Field Examiner of the Board showing that a substantial number of employees within the unit hereinafter found to•be appropriate have designated the A. F. L. as their representative for the purposes of collective bargaining.' 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, hasi 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 bur- dening and obstructing commerce and the free flow of commerce. 1 The Field Examiner reported that the A. F. L. had submitted to him 99 applications for membership in the A. F. L. dated between October 7, 1940, and January 6 , 1941; that all but one of said applications bear apparently genuine and authentic signatures ; that 89 of said signatures are the names of persons whose names appear on the Company 's pay roll for the period ending January 18, 1941 ; and that 3 of said signatures are the names of persons who were then ill or on furlough . As set forth above, the Company employs about 151 persons at Toledo, Ohio. ,682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT, The A. F. L. requests that the unit appropriate for the purposes of- collective bargaining be confined to employees of the Company in and in the territory immediately adjacent to Toledo, Ohio, where the Company's operations are carried on by employees in the traffic, ,commercial,2 and plant departments. No contention or showing was made llerein which warrants a departure from the request of the 'A. F. L.3 We are satisfied, and we find, that a collective bargaining' unit limited to employees in and in the territory immediately ad- jacent to Toledo, Ohio, is appropriate. The principal issues raised at the hearing concern the proposed exclusion from the unit of certain supervisory and confidential em- ployees. The A. F.,L. and the Company agreed' to exclude the traffic manager, testing and regulating chief, and senior supervisor in the traffic department; the city superintendent, chief clerk, de- livery manager, and sales manager (commercial representative) in the commercial department; and the city foreman and three section ?linemen G in the plant department. We see no reason to depart from 'Although messengers weie at times referred to in the record as a class of employees -sepaiate from employees in the commercial department, it appears that inessengeis lire within the commercial department Accordingly, any reference herein to employees w ithin the commercial department as a group shall be construed to include niessengeis 'At the hearing the Company stated its contention that all its employees throughout its enthe system constitute an appropriate unit, but further stated that it would "adjust itself to any unit that may be determined by the Board" herein in the light of previous decisions of the Boaid in which it was held that where, as here, no bona fide labor organization re- quests a baigaining unit more extensive than a metropolitan aiea, to deprile the employees -hi the localities to which union organization has extended of the right to collective bargain- ing tin ii such time as the employees of the Company are organised on a Nation-wile basis would in no way effectuate the policies of-the Act Matter of The l1'cstciis Union Tele- graph Company, Inc and The Commercial Telegraphers' Union, 11 N. I. It It 11,54 ; Ma tter of The lVestein Union Telegraph Company and Commercial Telegraphers Union, Indian- apolis Local #7, Western Union Div #2, aff. with A. F. of L., 17 N. L R. B 683; Matter of Western Union Telegraph Company and American Communications Association Local 5/i-B, affiliated with the Congress of Industrial organizations, 23 N. L R B. 824. 4 Although the A. C. A. made no claim or showing of designation by employees at Toledo, It was permitted to intervene because the A. C A. has representation anroug employees of the Company in other cities ; the A C. A. and the A. 'F. L, as well as the Company, are -apparently in agreement that a Nation-wide unit of employees of the Conipanl may in the future be appropriate; and the A C. A has considered such intervention neceosary in order to protect its interests in the composition of the Nation-wide unit The Board's appro- priate unit finding depends, of course, "in each case," (Section '9 (b)), upon the record then before it. Thus, in the instant case, the Board determines the inclusions in and exclusions from the Toledo unit upon all the facts in the present record, including the fact that no Toledo employees have designated the A. C A. (Cf. Matter of Western Union Telegraph Company and Amciican Cominicivications Association, Local 54-B, affiliated ii ith the Con- gi ess of Indust) bat Organizations, 23 N. L R B. 824 ) Similarly, the instant findings as to the metropolitan unit will not determine the propriety and composition of a Nation- wide unit in any subsequent proceeding, since the decision therein will necessarily depend on all the facts in the record then before us - 6 The title "senior supervisor" as applied to this person corresponds to the title "assistant -chief opeiatei" used at larger offices of the Company in other localities. "These persons are W. W. Fishback, F. Kelser, and J R. Knoch The pay-roll classifica- tion of these persons, indicates that their work is performed outside the metropolitan area to which the unit is limited. THE WESTERN UNION TELEGRAPH COMPANY - 683, the desires of these parties in this regard and we shall exclude these persons from the unit. I The A. F. L. and the Company agreed that the following traffic- department employees should be included in the unit: the automatic chief, repeater chief, wire chief, teleprinter supervisor, early night telephone supervisor, early night automatic supervisor, telephone operator (statistical clerk), service clerk, and one Meyerhuber, an operator classified on the pay roll as "chief clerk," but who has not served in this capacity for approximately 10 years. The A. F. L. and the Company further agreed that the following commercial de- partment employees should be included in the unit : the early night delivery clerk, the late night clerk, and branch managers. There is no showing that any of the afore-mentioned persons at Toledo- have authority to recommend hiring and discharge, to assign employ- ees to,their duties, to discipline employees, or to consider employee ,grievances, or that any of them perform confidential duties. While- some of these persons perform certain supervisory functions, we are- satisfied that they are minor in nature and do not require us to deviate from the desires of the A. F. L. and the Company., We shall include- them in the unit. The A. F. L. would include in the unit and the Company would' exclude from the unit the following persons in the traffic department.. The early night traffic manager is in charge of the traffic department from 4 p. in. to midnight. During this period there are 30 to 35- - employees under his supervision. He has authority to recommend hiring, discharge, and discipline of employees. The traffic man- ager testified that his recommendations "carry considerable weight."- . The early night traffic manager considers grievances of employees- working,under his supervision. We shall exclude the early night traffic manager from the unit. The late night traffic manager is in charge of the traffic department from midnight to 8 a. in. He is the sole representative of the management in the department during this period. There are from 2 to 15 employees under his supervision - at various times during his hours of work. The traffic manager testified that the late" night traffic manager has the same' degree of- authority over his subordinates as the early night traffic manager has over the persons working under him. While the late night traffic- manager testified that he has never recommended the hiring or- discharge of an employee, we are satisfied from the testimony of the- traffic manager that he has the authority to-do so. Moreover, the testimony of the late night traffic manager shows that he -has author- ity to request employees to work overtime, to recommend promotion of employees, to call an employee to work to replace an employee who- failed to report for work, 'to report misconduct of employees to the- 684 DECISIONS Or NATIONAL LABOR RELATIONS BOARD traffic manager, and to discipline employees who act in a manner detrimental to the department's operation by temporary ' suspension from work. We shall exclude, the late night traffic manager from the unit. The telephone supervisor is in charge of the telephone de- partment, which is located in a separate room at the Toledo office. There are about 16 operators in this department. The telephone supervisor spends about half of his time working as an operator and devotes the remainder of his time to supervision. He assigns all telephone operators to their tours of duty subject-to the approval of the traffic manager, considers employee grievances, has authority to recommend hiring, discharge and discipline of employees, to assign overtime work to employees, and, in the absence of the traffic man- ager, to discipline employees by temporary suspension from duty.' When extra help is needed in his department, he recommends to the traffic manager 'the- persons to be assigned to this work. The' traffic manager testified that the telephone supervisor's recommenda- tions carry considerable weight; the record shows that an employee was discharged pursuant to his recommendation. We shall exclude the telephone supervisor fi om the unit. The Morse supervisor is in charge of the Morse department in which there are approximately 12 ,operators. He has authority to recommend hiring, discharge, and promotion, and he considers employee grievances. The traffic man- ager testified that his duties were "exactly" comparable to those of the telephone supervisor. We shall exclude the Morse supervisor from the unit. The timekeeper performs the duties both of timekeeper and chief clerk. The traffic manager testified that the title "private sec- retary" would properly describe her position. She handles the traffic manager's confidential and personal correspondence, performs all timekeeping and statistical work, and keeps the traffic department employment records. We shall exclude the timekeeper from, the unit because of her confidential duties. The A. F. L. would include in the unit and the, Company would ex- clude from the unit the following employees in the commercial de- partment. The chief bookkeeper is responsible for the performance of all accounting work for the Company at Toledo and in connection therewith supervises the work of two regular employees and one tem- porary employee. He assigns, duties to his subordinates, reports on the quality of their work to the chief clerk, has authority to recom mend hiring, discharge, promotion, salary increase, and disciplinary action and to consider minor grievances. We shall exclude the chief bookkeeper from the unit. The clerk, Mrs. Mildred Varner, acts as private secretary to the superintendent and chief clerk. She han- dles personal correspondence , for the superintendent and chief clerk, including confidential matters relating to labor relations, and THE -WESTERN UNION TELEGRAPH COMPANY 685 takes care of the superintendent's personal files. We shall exclude her from the unit. The cashier receives and records cash collections, deposits receipts, disburses money for office expenses and wage pay- ments, and also acts as a counter clerk in receiving money orders. He supervises the work of one part-time money order clerk, but has no authority to hire, discharge, or recommend hiring and discharge. We are of the opinion that the cashier has no supervisory or confidential duties which warrant his exclusion. He shall be included in the unit. - We find that all employees of the Company working in and in the the territory immediately 'adjacent to Toledo, Ohio, in the traffic de- partment, commercial department (including messengers) and plant department, excluding the traffic manager, early night traffic manager, late night traffic manager, testing and regulating chief, senior super- visor, telephone supervisor, Morse supervisor, timekeeper, city super- intendent, chief clerk, delivery manager, sales manager (commercial representative), chief bookkeeper, and clerk (private secretary to the city superintendent and chief clerk), constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to 'self- organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. At the hearing the A. F. L. and the Company agreed that eligibility to vote in the election should be determined by the pay roll for the period immediately preceding the Direction of Election; that "tempo- rary" employees hired for temporary duties, "other employment" em- ployees,' and employees who have since quit or been discharged for cause, should not be eligible to vote in the election; and that "tempo- rary" employees' serving a probationary period, "unassigned" em- ployees," and employees who,did not work during such pay-roll period because they were ill or on unexpired ordinary furlough, unexpired force reduction furlough, and unexpired military furlough, should be eligible to vote in the election. We see no reason to depart from the desires of the parties. Our Direction of Election will provide accord- ingly, subject to such other limitations and additions as are set forth therein. - 7 "Other employment" employees are persons regularly employed by an employer other than the Company, but who occasionally perform work for the Company 8 "Unassigned" employees do not have regular tours of duty and are assigned to work on a day-to-day basis. However, they work a substantial number of hours and have an expec- tation of becoming regular employees. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the A. C. A. made no showing or claim of designation by em- ployees and does not wish to participate in the election, we shall not include the name of the A. C. A. upon the ballot., Upon the basis of the above findings of fact and upon the entire rec- ord 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, Toledo, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company working in and in the territory immediately adjacent to Toledo, Ohio, in the traffic department, com- mercial department (including messengers), and plant department, excluding the traffic manager, early night traffic manager, late night traffic manager, testing and regulating chief, senior supervisor, tele- phone supervisor, Morse supervisor, timekeeper, city superintendent, chief clerk, delivery manager, sales manager (commercial representa- tive), chief bookkeeper, and clerk (private secretary to the superin- tendent and chief clerk), 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of - the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with The Western Union Telegraph Company, Toledo, Ohio, an elec- tion 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, Eighth 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 employees of the Company working in and in the territory immediately adjacent to'Toledo, Ohio, in the traffic department, commercial department (including messengers), and plant department, who were employed during the pay-roll period immediately preceding the date of this Direction, including "tempo- rary" employees serving a probationary period and "unassigned" em- THE WESTERN UNION TELEGRAPH COMPANY 687 a ployees, and further including employees who did not work during such pay-roll period because they were ill or on vacation or on unex- pired ordinary furlough, unexpired force reduction furlough, and unexpired military furlough, but excluding the traffic manager, early night traffic manager, late night traffic manager, testing and regulating chief, senior supervisor, telephone supervisor, Morse supervisor, time= keeper, city superintendent, chief clerk, delivery manager, sales man- ager (commercial representative), chief bookkeeper, and clerk (private secretary to the superintendent and chief clerk), and further excluding "temporary" employees hired for temporary duties, "other employ- ment" employees, and employees who have, since quit or been discharged for cause, to determine whether or not they desire to be represented by American Federation of Labor, Federal Union No. 22460, for the purposes of collective bargaining.