Western Union Telegraph Co.

In the Matter of WESTERN UNION TELEGRAPH COMPANY and COM- MERCIAL TELEGRAPHERS UNION In the Matter Of WESTERN UNION TELEGRAPH COMPANY and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS Cases Nos. R-2651 and R-2652, respectively SECOND SUPPLEMENTAL DECISION ORDER AND DIRECTION OF ELECTION January 23, 1942 On August 20, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Elections in the above-entitled proceedings.' The Board therein directed, inter alia, that an election be conducted among the employees of Western Union Telegraph Company, herein called the Company, described as Group (a) in the Direction of Elections, excluding, among others, temporary employees (employees with less than 3 months' continuous service), to determine whether they desired to be represented by American Communications Association, herein called the A. C. A., by Com- mercial Telegraphers Union, herein called the C. T. U., or by Inde- pendent Communications Union, herein called the I. C. U., for the purposes of collective bargaining, or by none of said organizations. Pursuant to the Direction of Elections an election by secret ballot was conducted on September 15, 1941, among the afore-mentioned employees 2 under the direction and supervision of the Regional Director for the Twentieth Region (San Francisco, California). On September 23, 1941, the Regional Director, acting pursuant to Article III, Section 9, of the National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon 1 34 N. L R. B, No 77 2 Pursuant to the Decision and Direction of Elections elections were conducted among certain other groups of employees. A Supplemental Decision and Certification of Repre- sentatives respecting these elections was issued on November 14, 1941, and is reported in 36 N. L. R. B., No. 103. 38 N. L. R. B., No. 103. 483 484 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD the parties an Election Report setting forth the results of the elec- tion,3 and her rulings upon certain of the challenged ballots. On September 27, 1941, the C. T. U. filed its Objections to the Election Report, and on October 4 and 8, 1941, the A. C. A. filed its Objections to the conduct of the election and the Election Report, each of said documents setting forth certain allegations upon which the Objec- tions were based. On October 7, 1941, the A. C. A. lodged with the Board a motion, together with an affidavit in support thereof. In its Objections and motion the A. C. A. requested, inter alia, that a further hearing be held concerning the eligibility to vote of employees with less than 3 months' continuous service. On October 22, 1941, the Regional Director issued a Report on Objections, copies of which were duly served upon the parties, in which she recommended, among other things, that a further hearing be directed at which the evidence introduced be limited to the question of eligibility of employees of less than 3 months' continuous service, whose ballots have been segregated. On November 10, 1941, the Board, having considered the matter, ordered that a further hearing be held for the purpose of admitting evidence to determine whether or not the employees in the San Fran- cisco metropolitan area with less than 3 months' continuous service should be eligible to vote in the election among the employees described as Group (a) in the Direction of Elections issued on August 20, 1941. Pursuant to notice duly served upon the Company, the C. T. U., the A. C. A., and the I. C. U., a further hearing was held on Novem- ber 25, 1941, before John Paul Jennings, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the C. T. U., and the A. C. A. appeared, were represented by counsel or by a representative and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made a ruling on an objection to the admission of evidence.4 The board has reviewed the As to the results of the balloting the Regional Director reported as follows Total number eligible to vote--- ----------------------------------------- 636 Valid votes for C. T. U------------------------------------------------- 240 Valid votes for A C. A------------------------------------------------- 128 Valid votes for I. C. U------------------------------------------------- 92 Valid votes for neither------------------------------------------------- 25 Total valid votes cast________________________________________________ 485 Challenged votes ------------------------------------------------------- 17 Challenged votes stamped " Segregated" to be determined by Board----------- 52 Total votes cast ------------------------------------------------------- 554 The transcript, by apparent inadvertence, does not recite the admission into evidence of Board Exhibits 10 (a), 10 (b), and 10 (c). We hereby direct the receipt into evidence of these exhibits and their incorporation as part of the record WESTERN UNION TELEGRAPH COMPANY 485 ruling of the Trial Examiner and finds that no prejudicial error was committed. The ruling is hereby affirmed. On December 12, 1941, the A. C. A. filed a memorandum which the Board has considered. On December 17, 1941, the C. T. U. lodged with the Board a motion, wherein it requested that the Board direct a run-off election and that permission be granted to file a reply brief. The motion that the Board direct a run-off election is hereby denied for reasons appearing hereinafter. Although per- mission to file a reply brief was granted, no such brief has been received. Upon the entire record in the case, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT THE DETERMINATION OF REPRESENTATIVES In our Decision and Direction of Elections issued on August 20, 1941, in accordance with the stipulation of the parties, we directed that "temporary employees (employees with less than 3 months' continuous service)" be excluded from participation in the election. We have reconsidered this ruling upon the basis of the evidence ad- duced at the further hearing and upon the entire record and conclude that it is erroneous. The evidence adduced at the further hearing shows that "temporary employees" fall generally within two groups : (1) employees hired for the performance of specific tasks, (2) em- ployees hired for regular duties, but who are not classified by the Company as regular employees until they have served a probationary period. The A. C. A. and the C. T. U. agree that employees in the first group should be excluded from participation in the election; the C. T. U. mould exclude, while the A. C. A. would include, em- ployees in the second group.5 Employees in the first group, such as messengers employed for a particular distribution job and persons hired to replace regular employees who are ill or to work during . seasonal peak periods, are advised that their work is to be temporary, and have little, if any, expectancy of regular employment. Accord- ingly, we shall exclude from participation in the election directed herein employees in the first group. Although employees in the sec- ond group must serve a probationary period of 3 months and, except- ing messengers, are classified on the Company's employment records as temporary employees until they have served said probationary period," they are nevertheless hired to fill regular positions with the 5 The Company stated that it was taking no position with respect to the eligibility of these groups of employees but that it felt that neither or both should be declared eligible. 6 Employees other than messengers are placed upon the Company 's "Authorized Roll" as regular employees when retained after the 3 months' probationary period . Because of the large turnover among messengers , there is no "Authorized Roll" for messengers , and for accounting purposes all messengers are treated as temporary employees , although it appears that only those hired for specific tasks are listed as temporary on the "messenger roll " 486 DECISIONS OF NATIONAL LABO'R RELATIONS BOARD Company.' The record shows that these employees are hired with the expectation that their employment will become permanent if their work proves satisfactory, and that "more than half" of such employees become regular employees. Under these circumstances, we shall direct that all persons in the second group, including messengers,' shall be eligible to participate in the election." The I. C. U., although served with notice of hearing, did not enter an appearance at the further hearing held on November 25, 1941. G. A. Ford, who appeared on behalf of the I. C. U. at the original hearing and who was then president of the I. C. U., testified without contradiction that the I. C. U. has ceased its activities and "is no longer an organization." As appears above, the results of the election held on September 15, 1941, show that none of the organizations participating therein re- ceived a majority of the valid votes cast and counted. Although a number of "temporary employees" sought to participate in the elec- tion and were given ballots which have been segregated and thus far not counted, we have no method of ascertaining upon the record before us whether these ballots were cast by persons now declared eligible, or by persons now declared ineligible, to vote. Moreover, since our Direction of Elections specifically excluded all "temporary employees," contrary in part to our present decision, there can be no doubt that many eligible employees were dissuaded from seeking to cast ballots. Furthermore, although the I. C. U. appeared on the ballot originally and obtained a substantial number of votes, it is no longer a candidate for designation as exclusive representative, and it is not unlikely that were we to confine further balloting to eligible "temporary employees," the result of the entire election would still be inconclusive and a run-off election would be necessary. Under these circumstances and upon the entire record, we find that the best method of effectuating the policies of the Act is to set aside the election held on September 15, 1941, among the employees in Group (a) and to direct a new election by secret ballot among such em- ployees who were employed during the pay-roll period immediately preceding this Direction of Election, subject to such limitations and additions as are set forth in the Direction, 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 s 7Matter of The Western Union Telegraph Company and Telegraph Workers Independent Union, et al., 36 N L R B 812. 8 Cf. Matter of Western Union Telegraph Company, Salt Lake City, Utah and American Communications Association, affiliated with C. 1. 0., 34 N. L. R. B, No. 76; Matter of The Ohio Public Service Company and International Brotherhood of Electrical Workers (A. F. of L.) at al, 36 N. L. R. B. 1269. e Inasmuch as we herein order that the election ' mentioned above be set aside , we find it unnecessary to decide certain of the issues raised by the objections to the election and to the Election Report issued thereon. THE WESTERN UNION TELE'G'RAPH COMPANY 487 ORDER By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations 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 HEREBY ORDERED that the election in this proceeding held on September 15, 1941, among the employees in Group (a) set forth in the Direction of Elections issued on August 20, 1941, be, and it hereby is, set aside. 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, 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 hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Western Union Telegraph Company, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of the Direction, under the direction and super- vision of the Regional Director for the Twentieth 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 all employees of the Company in the San Francisco metropolitan area in the traffic, commercial, accounting, and purchasing and stores departments, and in the San Francisco division offices, and including the clerk to the city foreman in the plant department, 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, and employees temporarily detailed to another department, office, city, or company, but excluding the em- ployees occupying the positions listed in Appendices A and B of the Decision and Direction of Elections issued on August 20, 1941, 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 Com- munications Association, or by Commercial Telegraphers Union, for the purposes of collective bargaining, or by neither.