Western Union Telegraph Co.

In the Matter Of WESTERN UNION TELEGRAPH COMPANY, SALT LAKE CITY, UTAH and AMERICAN COMMUNICATIONS ASSOCIATION, AFFILI- ATED WITH C. I. 0. Case No. B-2243.-Decided August 20, 1941 Jurisdiction : telegraph industry. Investigation and Certification of Representatives : existence of question: Com- pany refused to accord union recognition until unions are certified by the Board ; election necessary. Unit Appropriate for Collective Bargaining : employees of the Company at Salt Lake City, Utah, in the traffic and commercial departments, subject to cer- tain exclusions ; plant department employees permitted to determine whether or not they desire to be included with traffic and commercial department employees at Salt Lake City or in a unit of certain other plant departments in the Company's Pacific Division. Mr. M. T. Cook and Mr. W. L. Glasheen, of San Francisco, Calif., Mr. Ralph H. Kimball, of New York City, and Mr. W. H. War and Mr. A. F. Palm, of Salt Lake City, Utah, for the Company. Mr. Bruce Risley, of Los Angeles, Calif., Mr. A. H. Petersen and Mr. Maurice 0. Rose, of Salt Lake City, Utah, Boudin, Cohn d Gl'ickstein, by Mr. Sidney Elliott Cohn and Mr. Victor Rabinowitz, of New York City, and Mr. J. P. Selly, of New York City, for the A. C. A. Mr. F. W. Naish and Mr. Paul M. Peterson, of Salt Lake City, Utah, Mr. Hugh C. McKenney, of Washington, D. C., and Mr. Frank Powers, of Chicago, Ill., for the C. T. U. Mr. Lawson Wimberly, of Washington, D. C., for the I. B. E. W. Mr. Robert F. Koretz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 12,. 1940, American Communications Association, affiliated with C. I. 0., herein called the A. C. A., filed a petition with the Regional Director for the Twenty-second Region (Denver, Colorado) alleging that a question affecting commerce had arisen 34 N. L. R. B., No. 76. 569 570 DECISIONS OP NATIONAL LABOR RELATIONS BOARD concerning the representation of employees of Western Union Tele- graph Company, Salt Lake City, Utah, 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 5, 1940, 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 December 14, 1940, the Regional Director issued a notice of hearing, copies of which, together with copies of the petition, were duly served upon the Company, upon the A. C. A., and upon Com- mercial Telegraphers Union, herein called the C. T. U., a labor or- ganization affiliated with American Federation of Labor, herein called the A. F. L., and claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held at Salt Lake City, Utah, on January 3, 1941, before Willard Y. Morris, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the A. C. A., the C. T. U., and the A. F. L.1 appeared, were represented by their representatives, and participated in the hearing. 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. Near the close of the hearing the representative of the A. F. L. made an oral motion on behalf of International Brotherhood of Electrical Workers, a labor organization affiliated with the A. F. L., herein called the I. B. E. W., to intervene as a party to the proceedings, or in the alternative, to continue the hearing until said A. F. L. representative was able to advise a representative of the I. B. E. W. of a certain issue raised at the hearing purportedly concerning that labor organization. The Trial Examiner denied the motion,2 but permitted said representative to offer proof of the matters which the I. B. E. W. would seek to prove had the motion for intervention been granted. We need not rule on said offer in view of our Decision in Cases Nos. R-2651 and R-2652,3 decided this day. During the course of the hearing the Trial Examiner made several rulings on objections to the admission of evidence. 'The Board has reviewed the rulings of the Trial Ex- 1 Mr. Paul Peterson entered his appearance on behalf of both the C. T. U. and the A. F. L. Y The Tiial Examiner apparently denied the motion to intervene on the ground that it was not in writing, as required by Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended ; the Trial Examiner denied the motion to continue the hearing on the ground that continuance would unduly prolong the pro- ceedings. 8 See footnote 5 infra, and the text annotated thereby. WESTERN UNION TELEGRAPH COMPANY 571 aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on February 18, 1941. The Company, the C. T. U., the A. C. A., and the I. B. E. W. appeared and participated in the hearing. Upon the entire record in the case, the Board makes the following : FINDINGS OF, FACT I. THE BUSINESS OF THE COMPANY Western Union Telegraph Company is a corporation organized and existing pursuant to the laws of the State of New York. Its principal office is located in New York City. It is engaged through- out the United States and in foreign countries in the receiving and transmission by telegraph and cable of intrastate, interstate, and international communications. In the United States, it maintains a vast system of wire network, connecting with virtually every city, town, and hamlet, for the purpose of receiving and transmitting communications. In addition to its communications system in the United States, the Company owns or leases cable connecting directly or indirectly certain points in foreign countries and in the United States. In operating its national and international communications system the respondent owned or operated as of December 31, 1940, approximately 214,000 miles of pole lines, 4,160 miles of land cable, 1,876,000 miles of wire, 30,000 nautical miles of ocean cable, and 20,000 telegraph offices, not including approximately 17,000 telegraph agency stations. At the close of 1940 the Company employed ap- proximately 48,000 persons, of which number in excess of 1,000 worked outside the .United States, approximately 800 were emer- gency messengers, and approximately 300 were connected with the cable service in the United States. The present proceeding concerns only those employees working in, tnd in the vicinity of, Salt Lake City, Utah, where the Company employs about 140 persons. II. THE ORGANIZATIONS INVOLVED American Communications Association is a labor organization affiliated with Congress of Industrial Organizations, admitting to membership through its Local 63-B employees of the Company at Salt Lake City, Utah. Commercial Telegraphers Union is a labor organization affiliated with American Federation of Labor, admitting to membership 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through its Local No. 30 employees of the Company at Salt Lake City, Utah. International Brotherhood of Electrical Workers is a labor or- ganization affiliated with American Federation of Labor, admitting to membership employees of the Company at Salt Lake City, Utah. III. THE QUESTION CONCERNING REPRESENTATION The Company refuses to recognize the A. C. A. or the C. T. U. as statutory representative of its employees at Salt Lake City until they are certified as such by the Board. At the hearing the Trial Examiner made a report for the record showing that both the A. C. A. and the C. T. U. have been designated by a substantial number of employees of the Company at Salt Lake City as their representative for the purposes of collective bargaining.4 ' 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 bur- dening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The A. C. A. in its petition requests the Board to find appropriate a unit composed of all employees of the Company in Salt Lake City. At the hearing the C. T. U. requested that a separate unit of em- ployees in the traffic department be established, and further requested that employees in the plant department be excluded from any unit established at Salt Lake City. The Company, while favoring a single Nation-wide bargaining unit, admits, as contended by the A. C. A. and the C. T.' U., that its employees in Salt Lake City should not be denied the right of collective bargaining pending or- 4 The Trial Examiner reported that the A . C A. submitted to him 78 membership application cards bearing apparently genuine signatures , of which 28 are dated between January 1 and June 30, 1940, and 50 between September 1 and December 31, 1940, and of which 72 contain the names of persons whose names are on the Company's pay roll of December 21, 1940; and that the C. T. U. submitted to him 47 authorization cards bearing apparently genuine signatures , dated between September 1940 and January 1941, of which 45 contain the names of persons whose names are on the Company 's pay roll of December 21, 1940. As set forth above, the Company employs about 140 persons at Salt Lake City. WESTERN UNION TELEGRAPH COMPANY 573 ganization of employees on a Nation-wide basis. We find that a collective bargaining unit limited to employees of the Company in Salt Lake City is appropriate. The Company's operations at Salt Lake City constitute a local unit within the Company's Pacific Division, which extends through- out nine western States. The Company's operations are conducted in Salt Lake City in three departments, namely; traffic, commercial, and plant. The traffic department at Salt Lake City, in which there are some 63 employees, is engaged in the transmission and receipt by wire of messages to and from Salt Lake City and, in, connection therewith, maintains and operates the equipment in the Company's main office building. The commercial department, in which there are about 74 employees, including some 35 messengers, deals principally with solicitation and development of business; the delivery to, and receipt from, the public of messages; and the management and opera- tion of the Company's six branch offices at Salt Lake City. The plant department, in which there are about 4 employees, is engaged in maintenance, and construction of equipment located outside the main office building. Operations in the three departments are inter- dependent and closely integrated. At the hearing the C. T. U. contended, in support of its position that employees in the traffic department constitute an appropriate unit, that traffic department employees are highly skilled workers who are thereby differentiated from employees in other departments. In this connection it is shown that the skilled employees in the traffic department, chiefly operators, are upon occasion transferred to work in the commercial department; that operators in the branch offices, which are within the commercial department, perform work and pos- sess skills similar to certain operators in the traffic department; that the C. T. U. would include in the unit traffic department employees such as the janitor and clerks who perform work similar to certain employees in the commercial department; and that the C. T. U. admits to membership employees in the commercial department and has enrolled some as members. At the oral argument before the Board, the -representative of the C. T. U. stated : "We concede that in . . . Salt Lake, in applying for units' smaller than the city-wide unit, it, was improper and shouldn't have been done as long as there was a contending union (in) that particular jurisdiction." We find that employees in the traffic and commercial departments are within the unit. At the hearing the C. T. U. contended that employees in the plant department should be excluded from the unit on the ground in sub- stance that the I. B. E. W. has "jurisdiction over these people", Rho "have expressed the desire to be members of the I. B. E. W." It is 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plain, in view of the interdependence and integration of the three departments at Salt Lake City, that employees in the plant depart-, ment may appropriately be included in the unit herein, and we so find. However, in Cases Nos. R-2651 and R-2652,5 decided this day, we further find, for reasons there set forth, that said employees may appropriately be included in a unit of certain other plant-department employees in the Company's Pacific Division. Accordingly, the de- sires of these employes will be controlling, and in our Decision and Direction of Elections in said cases, we direct that a separate election be held among plant-department employees in Salt Lake City to determine their desires. The inclusion of the plant-department em- ployees in the unit of Salt Lake City employees will depend upon the results of this election. Questions arose at the hearing concerning the proposed exclusion from the unit of certain allegedly supervisory or confidential em- ployees in the commercial and traffic departments.6 We shall consider these exclusions by departments. Commercial department All parties agreed to exclude from the unit, the superintendent, chief clerk, sales manager, delivery-department manager, and chief book- keeper. We shall exclude these persons from the unit. At the hearing the C. T. U. and the A. C. A. agreed to the inclusion of branch managers having no subordinates. However, the C. T. U. urged the exclusion,' and the A. C. A. urged the inclusion, of branch managers who supervise other employees. It is shown that there are two such persons, one Crus, who has one clerk-operator, one part-time clerk-operator, and two messengers under his supervision, and one Olsen, who has two clerk-operators and eight messengers under his supervision. They have no authority to hire and discharge employees, nor do they ordinarily recommend hiring and discharge, although such a recommendation would be given "consideration." It appears that only a small part of their working hours are devoted to supervision, and that a majority of their time is devoted to "detailed work in the office" and outside solicitation. We shall include all branch managers in the unit. The C. T. U. would exclude, and the A. C. A. would in- clude, the night manager, who is in charge of the commercial-depart- ment office from about 4: 00 p. m. until midnight. Although he re- ports to the superintendent concerning the work of his subordinates, 5 Case No. R-2652 arises upon a petition by the I. B. E . W. for an investigation and certification of representatives of outside plant -department employees in the Pacific Division of the Company, which includes Salt Lake City. 6 We consider proposed exclusions of employees in the plant department at Salt Lake City in our Decision in Cases Nos . R-2651 and R-2652, decided this day. 7 At oral argument before the Board, the representative of the C. T. U. urged that all branch managers be included in the unit. WESTERN UNION TELEGRAPH COMPANY 575 he has no authority to hire or discharge or to recommend hiring or discharge. It appears that he performs a considerable amount of non-supervisory work of the type performed by clerks. We shall in- clude him in the unit. The C. T. U. would also exclude the late night clerk, who is the only person at work in the commercial department from about midnight to 8: 00 a. in., excepting one messenger. His authority over this messenger consists of, directing the pick-up and delivery of messages, which is the same degree of authority that deliv- ery clerks, whom the parties agreed to include in the unit, have over other messengers. We shall include the late night clerk in the unit. The A. C. A. would exclude as a confidential employee E. M. Eveleigh, who is listed upon the pay roll as a clerk. The C. T. U. would include her in the unit. She acts as secretary to the superintendents, chief clerk, and sales manager of the commercial department and handles the superintendent's employment records. We shall exclude her from the unit. At the hearing the C. T. U. requested the exclusion of messen- gers from the unit on the ground that they are differentiated from other employees by the nature of their work, their youth, and the fact that there is a larger turn-over in employment among messengers than among other employees. Messengers are eligible to membership in the C. T. U. and the C. T. U. has frequently requested their inclusion ,in units of employees of the Company in other localities. The A. C. A. requested their inclusion. We shall include messengers in the unit. Traffic department All parties agreed to exclude from the unit the traffic manager, night traffic managers, assistant chief operator , automatic chief , and secre- tary to the traffic manager (J. P. Delury) $ We shall exclude these persons from the unit. The A. C. A. would exclude from the unit and the C. T. U. would include in the unit the employees discussed below. The assistant automatic chiefs repair and maintain automatic and teleprinter cir- cuits. When there is trouble in the circuit which is purely wire trou- ble they report the matter to the wire chief, who corrects the difficulty. There is no showing that the assistant automatic chiefs and the wire chief have supervisory authority over employees . We shall include them in the unit. E. B. Delury devotes about 2 hours each day to work as a monitor; in this capacity she checks messages submitted for transmission against the messages as transmitted and reports errors to the operators concerned "for their education ." The remainder of her time is devoted to work as an operator. She is classified upon the Company's pay roll as an operator and receives the same rate of pay as other operators. We shall include her in the unit. B. W. 8 This person is listed upon the Company's December 21, 1940, pay roll as service clerk. Z76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cozza, who is also listed upon the pay roll as an operator, is a part- time employee who works one or two days each week as em operator and assists in preparing monthly reports during the first part of the month. The traffic manager testified that she occasionally does sec- retarial work for him, but that it did not involve any confidential mat- ters. We shall include her in the unit. The service clerk (L. H. Prince)9 is in charge of receiving and filing messages. In connection therewith he supervises the work of the three file clerks. He does not have authority to hire, discharge, or to recommend the hire or dis- charge of his subordinates. We shall include him in the unit. Under all the circumstances, we shall direct an election among the employees of the Company at Salt Lake City, Utah, in the traffic and commercial departments, excluding the superintendent, chief clerk, sales manager, delivery department manager, chief bookkeeper, and the secretary to the superintendent, chief clerk, and sales manager (E. M. Eveleigh) in the commercial department; and the traffic man- ager, night traffic managers, assistant chief operator, automatic chief, and secretary to the traffic manager (J. P. Delury) in the traffic de- partment, to determine whether they desire to be represented by the A. C. A., or by the C. T. U., for the purposes of collective bargaining, or by neither. In our Decision and Direction of Election in Cases Nos. R-2651 and R-2652, decided this day, we direct an election among certain employees in the plant department at Salt Lake City, to deter- mine whether they desire to be represented by the A. C. A. or the I. B. E. W. for the purposes of collective bargaining. We shall make no final determination of the appropriate unit at this time. We shall certify the union, if any, designated by a majority of employees within each election unit as the exclusive representative thereof. If the A. C. A. should win both elections, we shall certify it as the exclusive representative of both election units combined. As stated in our De- cision in Cases Nos. R-2651 and R-2652, if the I. B. E. W. should win the election in the unit of plant-department employees at Salt Lake City and elections among other groups of plant-department employees therein defined, all the employees in the groups which so designate the I. B. E. W. shall constitute a single bargaining unit. ,VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by the elections referred to in Section V above. The A. C. A. and the C. T. U. contend that all persons listed upon the Company's pay roll as temporary employees as of the date used to determine eligibility to vote should be allowed to participate in 9 This person is erroneously listed upon the pay roll as route supervisor. WESTERN UNION TELEGRAPH COMPANY 577 the election. The Company would exclude from voting all temporary employees. There are about 40 temporary employees listed upon the traffic and commercial department pay rolls for December 21, 1940, which were introduced, into evidence at the hearing, and evidence was adduced concerning the status of certain of these employees. In' view of the time which has elapsed since this pay-roll period, we shall make no determination with regard to the eligibility to vote of the specific persons concerning whom evidence was adduced. However, the record indicates that certain persons listed as temporary employees, such as temporary messengers, hired for work during rush periods, have little expectancy of regular employment. Accordingly, we shall exclude from participation in the election directed herein temporary employees hired for temporary duties. The record further indicates that certain other persons listed as temporary employees are hired for regular duties, but are not listed as regular employees until they have served for a certain continuous period.1° We believe that such persons have a reasonable expectancy of regular employment and we shall therefore direct that they be eligible to participate in the election. The Company retains on its pay roll and considers as employees, persons who are furloughed voluntarily or because of a reduction in force. They shall be eligible to vote. We shall direct that an election be held among the traffic- and com- mercial-department employees defined in Section V, above, who were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Election, 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: CONCLUSION OF LAW A question affecting commerce has -arisen concerning the representa- tion of employees of Western Union Telegraph Company, Salt Lake City, Utah, within the meaning of Section 9 (c) and Section 2 (6) and (7) 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 10 It appears that "temporary" operators in the traffic department are listed as regular employees after 30 days' continuous service and that "temporary" employees in the com- mercial department are listed as regular employees after 3 months' continuous service. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Western Union Telegraph Company, Salt Lake City, Utah, 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 Director for the Twenty- 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 employees of the Company at Salt Lake City, Utah, in the traffic and commercial departments, who were em- ployed during the pay-roll period immediately preceding the date of this Direction, including temporary employees hired for regular duties, and further including employees who did not work during such pay-roll period because they were ill or on vacation or on fur- lough or in the active military service or training of the United States, or temporarily laid off, but excluding the superintendent, chief clerk, sales manager, delivery-department manager, chief bookkeeper, and secretary to the superintendent, chief clerk, and sales manager (E. M. Eveleigh), in the commercial department; and the traffic manager, night traffic managers, assistant chief operator, automatic chief, and secretary to the traffic manager (J. P. Delury), in the traffic depart- ment, and further excluding temporary employees hired for temporary duties and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by American Communications Association, affiliated with the Congress of Industrial Organizations, or by Commercial Telegraphers Union, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting in part: For the reasons stated in my dissenting opinion in Cases Nos. 8-2651 and R-2652, decided this day,,-, I would not permit employees in the plant department to set themselves apart in a, bargaining unit separate from the unit comprising the remaining employees at Salt Lake City. "Matter of Western Union Telegraph Company and Commercial Telegraphers Union, et al, 34 N. L R. B 579. 1