Western Union Telegraph Co.

In the Matter Of WEST^RN UNION TELEGRAPH COMPANY and NATIONAL. WESTERN UNION COUNCIL OF A. F. OF L. FEDERAL UNIONS AND C. T. U. LOCALS Case No. R-2448.-Decided May 3, 1941 Jurisdiction : telegraph industry. - Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; election necessary. Unit Appropriate for Collective Bargaining : employees of the Company work- ing in and about Philadelphia in the Commercial , traffic, plant , and accounting departments , excluding named supervisory employees. Mr. David E. Krueger, of New York City, for the Company. Mr. Henry H. Silverman, and Mrs. Julia Parker, of New York City; Mr. Leroy W. Peacock and Mr. James F. Sheridan, of Philadelphia, Pa., for the A. F. of L. Boudin, Cohn d Glickstein, by Mr. -Victor Rabinowitz, and Mr. Sidney Cohn, of New York City, for the A. C. A. Mr. Herman E. Cooper, by Mr. Moss Schenkman, of New York City, for the Guild. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 20, 1940, Federal Labor Union #22492, herein called Federal Labor Union, filed " a petition, and on January 27, 1941, National Western Union Council of A. F. of L. Federal Unions and C. T. U. Locals, herein called the Council, filed an amended petition,' with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) alleging that a question affecting commerce had arisen concerning the representation of employees of Western Union Tele- graph Company, Philadelphia, Pennsylvania, herein called the Company, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Re- 1 At the hearing the amended petition was amended to join the Federal Labor Union as a petitioner 31 N L. R. B., No. 92. 560 WESTERN UNION TELEGRAPH COMPANY 561 lations Act, 49 Stat. 449, herein called the Act. The Council and the Federal Labor Union are-hereinafter collectively referred to as the A. F. of L. On March 19, 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 March 24, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the A. F. of L., and upon American Communications Association, herein called the A. C. A., and Communications Guild, herein called the Guild, labor organizations claiming to represent employees directly affected by the investigation. On March 28, 1941, the Regional Di. rector denied a request by the A. C. A. and the Guild for a post- ponement'of the hearing. The ruling of the Regional Director is hereby affirmed. Pursuant to the notice, a hearing was held on .April 3, 1941, at Philadelphia, Pennsylvania, before Geoffrey J. Cunniff, the Trial Examiner duly'designated by the Chief Trial Ex- aminer. The Trial Examiner granted a motion by the A. C. A. to intervene in this proceeding. The Company, the A. F. of L., the A. C. A., and the Guild were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the 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. Pursuant to notice, a hearing was held before the Board at Wash- ington, D. C., on April 17, 1941, for the purpose of oral argument. The A. C. A. and the A. F. of L. were represented by counsel 'and par- ticipated in the'argumert. The Guild and the A. C. A. filed briefs with the Board, which have been duly considered. 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 with its principal office in New York City, is engaged throughout the United States and in foreign countries in the receipt and trans- mission by telegraph and cable of intrastate, interstate, and interna- tional communications. In the operation of its national and inter- 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national communications system the Company owns and/or operates 211,530 miles of pole lines, 4,070 miles of land line cable; 1,776,876 miles of wire, 30,324 nautical mules of ocean cable, and 19,543 tele- graph offices. The present proceeding concerns only those employees of the Company working in and about Philadelphia, Pennsylvania, where the Company employs over 1,000 persons. The Company admits that it is engaged in interstate commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED National Western Union Council of A. F. of L. Federal Unions and C. T. U. Locals and Federal Labor Union #22492 are labor organizations affiliated with the-American Federation of Labor. The latter admits to membership employees of the Company at Philadelphia. American Communications Association is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. The Communications Guild is an unaffiliated labor organization, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company refuses to recognize the A. F. of L. as the statutory representative of its employees at Philadelphia, Pennsylvania, until the A. F. of L. is certified as such by the Board. There was, introduced in evidence a report prepared by the Re- gional Director, showing that a substantial number of employees within the unit hereinafter found to be appropriate have designated the American Federation of Labor and an unnamed affiliate thereof as their representative for the purposes of collective bargaining.2 The A. C. A. moved to dismiss the petition _on the ground that the petitioner had made no showing of representation in this pro- ceeding, since none of the cards submitted were applications for membership in the petitioner' (A. F. of L.) or' designated it as an exclusive bargaining representative. The motion is hereby denied. Inasmuch as these cards are applications for membership either in "American Federation of Labor and Federal Labor Union #______ of ____________" or in "American Federation of Labor and all affiliated labor organizations," it is clear that employees thereby intended to 'The Regional Director reports that the A. F. of L. submitted 524 application cards signed by employees whose names appear on the Company 's March 1, 1941, pay roll. One hundred sixty-three cards are undated , and the balance were signed between October 1940 and February 194]. There are approximately 1,000 employees in the unit hereinafter found to be appropriate. WESTERN UNION TELEGRAPH COMPANY 563 authorize bargaining on their behalf by an affiliate of the American Federation of Labor. No labor organization other than the A. F. of L. has made any showing of representation among, the -Company's employees at Philadelphia. ' 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. F. of L. and the A. C. A.3 agree that the unit appropriate for collective bargaining should be confined to employees of the Company in and about Philadelphia , Pennsylvania4 The Company did not object to this unit , but stated for the purposes of the record, as it has done in other cases , that it considers a Nation-wide unit appropriate. The Guild contends , as it did in a prior representation proceeding involving employees of the Company at Pittsburgh, Penn- sylvania, herein called the Pittsburgh case,' that a division-wide unit is appropriate. We fully considered and discussed this contention of the Guild's in the Pittsburgh case and concluded that it was with- out merit. No additional evidence has been adduced or argument 8 Although the A. C. A. made no claim or showing of designation by employees at Phila. delphia, it requested to intervene because it has representation among employees of the Company in other cities ; the A. C. A. and the C. T. U, as well as the Company , are appar- ently in' agreement that a Nation-wide unit of employees of the Company may'in the future le appropriate ; and the A. C. A. has considered such intervention necessary in order to protect its interests in the composition of the Nation -wide unit. The Board 's appropriate 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 Philadelphia unit upon all the facts in the present record , including the fact that no Philadelphia employees have designated the A. C. A. (Cf. Matter of Western Union Tele- graph Company and' American Communications Association, Local 54-B, affiliated with the Congress of industrial organizations, 23 N. L. R. B. 824 ). Similarly, the instant find- ings "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 4 This area includes the city of Philadelphia and the adjacent communities of Upper ,`Darby, Jenkintown , and Bryn Mawr, Pennsylvania , and Camden , New Jersey. Matter of Western Union Telegraph Company and American Federation of Labor, Com- mercial Telegraphers Union, 30 N L. R. B. 1169. 441843-42-vol. 31-37 ' 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advanced which warrants a different conclusion in this proceeding.° Under all the circumstances, we find that a bargaining unit limited to the Company's employees in and about Philadelphia is appropriate. Five separate departments of the Company's business organization have their headquarters at Philadelphia. These are the commercial, traffic, plant, accounting and district superintendent's departments: The A. F. of L. and the A. C. A. agree, and we find, that the appropriate bargaining unit includes employees in the commercial and -traffic departments. The A. F. of L. would include all employees in the plant department,, while the A. C. A. would exclude those employees who work exclusively outside the, Philadelphia area. The A. F. of L. proposes, and the A. C. A. opposes, the inclusion of the accounting and the district superintendent's departments. The plant department serves the Philadelphia area as well as other territory in eastern Pennsylvania. Of approximately 70 employees in this department, about 25 or 30 work exclusively outside of Phila- delphia; about 10 work exclusively in Philadelphia; and about 30 work both in and out of Philadelphia. We find that the employees in this department who work exclusively outside the Philadelphia area should be excluded from the unit as not working in or about Philadelphia. The accounting department does auditing and accounting work for offices located in and about Philadelphia as well as for other offices outside of this area. The record shows that all 40 of the accounting department employees are stationed -in and do all their work in Philadelphia, and that about 75 per cent of their time is devoted to work for the Philadelphia offices and 25 per cent for the offices outside of this area. Under the circumstances, we shall include the account- ing department employees in the appropriate unit. The district superintendent's organization, with headquarters in' Philadelphia, has a- territorial jurisdiction covering at least the. eastern part of Pennsylvania, exclusive of the Philadelphia area. There are seven employees under the district superintendent stationed in Philadelphia. These employees have no relations with the other employees of the Company in Philadelphia. Transfers of employees between the district superintendent's unit and the commercial depart- ment in Philadelphia rarely occur. We shall exclude the employees of the district' superintendent's Philadelphia headquarters from the appropriate unit. s Pursuant to a stipulation between the parties, the record in the "Pittsburgh case was incorporated in the instant record for the purpose of presenting the contentions of the parties -as to the appropriate geographical unit. .l WESTERN UNION TELEGRAPH COMPANY 565 Questions arose at the hearing concerning the exclusion of-certain supervisory employees from the appropriate unit We shall consider these exclusions by departments. Commercial Department All parties agree, and we find, that the superintendent, city com- mercial manager, sales manager, messenger personnel manager, de- livery manager, office manager (chief clerk ), cashier, manager of the uniform depot, and field supervisor in this department , should be excluded from the unit. The A. F. of L. would include and the A. C. A. would exclude the night delivery manager. This employee is in charge of the delivery department at night and has approximately 30 -employees under him. We shall exclude him from the unit. Traffic Department- All parties agree, and we find that the traffic managers, assistant chief operators, testing and regulating chief, automatic chief, wile chief, and repeater chief in this department are to be excluded from the unit. - The A. F. of L. would include and the A. C. A. would exclude all employees classified as supervisors. The record shows that the Company employs senior, teleprinter, telephone, route, automatic,, service, and Morse supervisors. All the above supervisors have sub-' stantially the same authority. They supervise the work of employees working under them; assign and distribute work; and have the power to recommend discipline. They earn approximately $50 a month more than persons who work under them. We shall exclude all the above-named supervisors from the unit. Plant Department All parties agree and we find that the 'maintenance, foreman, the city foreman, and the assistant city foreman in this department are to be excluded from the unit. The A. F. of L. would include and the A. C. A. would exclude the building supervisor and his subordinate , the equipment foreman. The latter is a working foreman with three men under him and recommends discipline . We shall also exclude these two employees from the unit. Accounting Department All parties agreeing, we shall , exclude the manager. We find that the employees of the Company working in and about Philadelphia in the commercial , traffic, plant, and accounting depart- .566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments, excluding the employees whose exclusions we have indicated above and whose positions are, for convenience, listed in Appen- dices A, B, C, and D, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full b'enefit' of their rights 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 of employees of the Company can best be resolved by an election by secret ballot. The A. C. A. and the Guild make no showing of designation by employees or request to participate in the election. We shall not 'place their names upon the ballot. The Guild requested, as it did in the Pittsburgh case, that the Board stay the instant proceeding until the determination of the representa- tion proceeding instituted by the Guild in the Second Region. This request is hereby denied.7 We shall direct an election by secret ballot, to be held among all employees within the appropriate unit who were employed during the pay-roll period last preceding the date of this direction, subject to such limitations and additions as are set forth in the Direction. 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 Western Union Telegraph Company, Phila- delphia, Pennsylvania, 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 working in and about Phila- delphia in the commercial, traffic, plant, and accounting departments, excluding the employees "occupying the positions listed in Appendices A, B, C, and D, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (c) of the National Labor Relations Act. I At the hearing the A. C. A. also urged that no election be held pending disposition of a representation proceeding in'the Second Region and of a charge filed by the C. T. U. in the Second Region, involving the legality of the Guild. At oral argument before the Board, the A. C. A. waived this contention. In this connection we note that the A. C. A. does not claim to represent any employees of the Company at Philadelphia and does not request that its name appear upon the ballot in the event that an election is directed herein, and that the Guild, although°it appeared at'the hearing; made no showing of designation or request to participate in any election among, the Philadelphia employees. See Matter of Western Union Telegraph'Company and American Federation of Labor, Commercial Telegraphers Union, 30 N. L. R. B: 1169, and Matter of The Western Union Telegraph Company and National Western Union Council of A. 'F. of L. Federal Unions and C. T. U. Locals, 30 'N.L.R.B. 1181.' , WESTERN UNION TELEGRAPH COMPANY 567 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., bar- gaining with Western Union Telegraph Company, 'Philadelphia, Pennsylvania, 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, under the direction and supervision of the Regional Di- rector for the Fourth 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 employees of the Company working in and about Philadelphia, in the cominercial,'.traffic, plant; and accounting departments, who were employed during-the pay-roll period last preceding the date of this Direction, including employees who did not work during said pay-roll, period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding the employees occupying the positions listed in Appendices A, B. C, and D attached hereto, and further excluding any employee's who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Federal Labor Union #22492, affiliated with the American Federation of Labor, for the purposes of collective bargaining.' , APPENDIX A Commercial Department' Superintendent Office manager (chief clerk) City commercial manager Cashier Sales manager Manager of uniform depot Messenger personnel manager Field supervisor Delivery manager Night delivery manager 568 Traffic managers Assistant chief operators Testing and regulating chief Automatic chief Wire chief Repeater chief Senior supervisors APPENDIX B Traffic Department Teleprinter supervisors Telephone supervisors Automatic supervisors Service supervisors Morse supervisors Route supervisors APPENDIX C Plant Department Maintenance foreman Building supervisor City foreman Equipment foreman Assistant city foreman APPENDIX D Accounting Department Accounting manager DECISIONS OF NATIONAL LABOR' RELATIONS BOARD