The Western Union Telegraph Co., Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1939

11 N.L.R.B. 1154 (N.L.R.B. 1939)

In the Matter of THE WESTERN UNION TELEGRAPH COMPANY, INC.
and THE COMMERCIAL TELEGRAPHERS' UNION
Case No. R-1016-Decided March 15, 1939
Communications Industry-Investigation of Representatevcs : controversy con-
cerning representation of employees : rival organizations ; controversy as to
appropriate bargaining unit-Unit Appropriate for Collective Bargaining: em-
ployees in local unit not to be denied benefits of collective bargaining because
Nation-wide employer-unit not yet organized ; employees in the traffic, commer-
cial, messenger , and plant departments , excluding executives , lawyers, and
persons with the right to hire and discharge-Election Ordered
Mr. Herbert 0. Eby, for the Board.
Mr. Paul E. Lesh, Mr. Francis R. Stark, and Mr. Ralph H. Kim-
ball, of New York City, for the Company.
Mr. Patrick J. Taft and Mr. Hugh C. McKenny, of Washington,
D. C., for the C. T. U.
Mr. Daniel Driesen, of New York City, for the A. C. A.
Mr. James F. Dulligan and Mr. J. Daniel Dougherty, of New York
City, for the Association.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 11, 1938, the Commercial Telegraphers' Union, herein
called the C. T. U., filed with the Regional Director for the Fifth
Region (Baltimore, Maryland) a petition, and on July 6, 1938, an
amended petition alleging that a question affecting commerce had
arisen concerning the representation of employees of The Western
Union Telegraph Company, Inc., Washington, D. C., 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 July 14, 1938,
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 1,
11 N. L. R. B., No. 104.
1154
THE WESTERN UNION TELEGRAPH COMPANY ET AL . 1155
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 27, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the
C. T. U., upon American Communications Association, herein called
the A. C. A., and upon Association of Western Union Employees,
herein called the Association, labor organizations claiming to repre-
sent employees directly affected by the investigation. Pursuant to
the notice, a hearing was held on September 12, 13, and 14, 1938, at
Washington, D. C., before William Seagle, the Trial Examiner duly
designated by the Board. The Board, the Company, the C. T. U., the
A. C. A., and the Association, were represented by counsel and par-
ticipated 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. At the beginning of the hear-
ing the A. C. A. moved to dismiss the petition pending a decision by
the Board upon charges previously filed by the A. C. A. that the
C. T. U. had received the encouragement and support of the Com-
pany in violation of the Act. The Company and the Association like-
wise moved to dismiss the petition pending a decision by the Board
in Case No. C-344, entitled Matter of Western Union Telegraph
Company and American Radio Telegraphists' Association, a pro-
ceeding in which the Company has been charged with fostering the
Association in violation of the Act. The Trial Examiner denied all
these motions.' The Trial Examiner reserved ruling on the motion
of the Company to dismiss the petition on the ground that no ques-
tion concerning representation had arisen at the time the petition
was filed. This motion is hereby denied. The Company moved to
consolidate the instant proceeding with Case No. 0-344. The Trial
Examiner reserved his ruling on this motion and it is hereby denied.
During the course of the hearing the Trial Examiner made several
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed all the rulings of the Trial Ex-
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 January 20,
1939. The Company, the C., T. U., the A. C. A., and the Association
were represented by counsel and participated in the argument.
'On October 5, 1938, the A. C. A. withdrew the charges with respect to Company
support of the C. T. U. The proceeding relating to the motions of the Company and
the Association is discussed below.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
is engaged, throughout the United States and in various foreign
countries, in the receiving and transmission by telegraph and cable
of intrastate, interstate, and international communications. On De-
cember 31, 1937, the Company employed 46,891 persons in the United
States and 1,484 outside of the United States. The present petition
concerns only those employees of the Company working in Wash-
ington, D. C. There are approximately 700 employees in this group.
The Company admits that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
The Commercial Telegraphers' Union is a labor organization affili-
ated with the American Federation of Labor, admitting to its mem-
bership all employees of the Company working in the commercial,
traffic, plant, and,messenger departments in Washington, D. C., ex-
cluding executives, lawyers, and employees with the right to hire
and discharge. '
American Communications Association is a labor organization
affiliated with the Committee for Industrial Organization admitting
to its membership employees of the Company. The record does not
show the precise limits of its jurisdiction.
Association of Western Union Employees is an unaffiliated labor
organization admitting to membership employees of the Company
on a Nation-wide basis.
III. THE QUESTION CONCERNING REPRESENTATION
On August 20 1938, counsel for the C. T. U. sent a letter to the
superintendent of the Company's Washington office advising him that
the C. T. U. represented 400 employees of the Company in Wash-
ington and requesting that he meet with representatives of the
C. T. U. for the purpose of negotiating a collective bargaining con-
tract. On August 27, 1938, the superintendent replied stating, in
substance, that the Company was unable to recognize the C. T. U.
for the purposes of collective bargaining because it had entered into
a collective bargaining agreement with another labor organization
which represented a majority of its employees.
We find that a question has arisen concerning representation of
employees of the Company.
THE WESTERN UNION TELEGRAPH COMPANY ET AL. 1157
IN. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Com-
pany described in Section I above, has a close, intimate, and sub-
stantial 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 C. T. U. 'seeks a bargaining unit composed of employees of
the Company in the traffic, commercial, messenger, and plant depart-
ments in Washington, D. C., excluding executives, lawyers, and em-
ployees with the right to hire and discharge. The Company and the
Association contend that all the Company's employees throughout its
entire system constitute a unit appropriate for purposes of collective
bargaining. The A. C. A. made no claim with respect to the appro-
priate unit.
Under ordinary circumstances we should give considerable weight
to the claim made by the Association in our determination of the
appropriate unit. The Company operates its business as a unified
enterprise. Policies in regard to matters of hours, wages, and other
conditions of employment are centrally controlled. Furthermore,
because of the nature of telegraphic communication, the work of the
employees of the Company in the various offices throughout the
country is closely coordinated and highly interdependent. The effect
of stoppage of service in one locality is inevitably widespread and
accordingly serious 2 The Association has organized the Company's
employees on the basis of a Nation-wide unit and it describes a
history of successful collective bargaining over a period of 20 years
on the basis of such unit. The foregoing factors are strongly per-
suasive of the appropriateness of a Nation-wide unit.
However there is now pending before the Board for decision a
case entitled Matter of Western Union Telegraph Company and
American Radio Telegraphists' Associations herein called Case No.
C-344. The complaint therein, issued by the Board upon charges
filed by the A. C. A.,4 alleged that the Company had dominated the
formation and administration of the Association, and had contributed
support thereto, in violation of Section 8 (1) and (2) of the Act.
2 See Matter of Postal Telegraph -Cable Company of Massachusetts and American Radio
Telegraphists Association , 7 N. L. R. B. 444.
S Case No. C-344.
4 At that time called "American Radio Telegraphists ' Association."
164275-39-vol. xi-74
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the conduct of a hearing in Case No. C-344, the Trial
Examiner therein issued his Intermediate Report in which he found
that the allegations of the complaint had been sustained and recom-
mended that the Board order the Company to disestablish the Asso-
ciation as a collective bargaining representative and to cease and
desist from recognizing it as such representative for any of its em-
ployees. It would be manifestly improper in this proceeding to
pass upon the merits of the Trial Examiner's findings and recom-
mendations in Case No. C-344. It would be inexpedient, however,
to adopt the contentions of the Association as to the appropriate-
ness of a Nation-wide unit and order the conduct of a Nation-wide
election among the Company's employees, if thereafter the Associa-
tion, upon which the determination of such unit would depend,
should be found incapable of serving as representative of employees
because of employer domination, interference, or support. On the
other hand, it should be noted that the C. T. U. neither filed the
charges upon which Case No. C-344 is predicated nor intervened in
that case. To deprive the employees in the unit which it claims
appropriate of the, possibility of collective bargaining for a period
of time occasioned by the delays incident to the disposition of a
lengthy and intricate case in which, to the extent that they are repre-
sented by the C. T. U., they have no present interest, would in no
way effectuate the policies of the Act. We shall, therefore, consider
the question of the appropriateness of the unit claimed by the
C. T. U., and shall not, for the reasons indicated above, consider
the contentions of the Association.
In the absence of a showing that the employees of a company have
been organized on a Nation-wide basis, a unit composed only of
those employees in the localities to which union organization has ex-
tended may properly be deemed appropriate for the purposes of
collective bargaining.5 Applying this principle to the present pro-
ceeding pending the disposition of Case No. C-344 and until there-
after a bona Fide labor organization requests that we reconsider our
determination herein, we shall adopt as appropriate the unit claimed
by the C. T. U. for the purposes of collective bargaining.
We find that the employees of the Company working in Washing-
ton, D. C., in the commercial, traffic, messenger, and plant depart-
ments, excluding executives, lawyers, and persons with the right to
hire and discharge, constitute a unit appropriate for the purposes of
collective bargaining and that said unit will insure to employees of
The Western Union Telegraph Company, Inc., in Washington, D. C.,
5 See Matter of Postal Telegraph -Cable Company of Massachusetts and American Radio
Telegraphists Association, 7 N. L. R . B. 444; Matter of R. C. A. Communications, Inc.
and American Radio Telegraphists' Association, 2 N. L. R . B. 1109.
THE WESTERN UNION TELEGRAPH COMPANY ET AL . 1159
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
There was introduced in evidence at the hearing lists of the em-
ployees of the Company in the commercial, traffic, and messenger
departments in Washington, D. C., as of the pay-roll periods ending
July 9, 1938, and September 10, 1938, and lists of the employees in
the plant department in Washington, D. C., as of the pay-roll periods
ending July 15, 1938, and September 15, 1938. These later pay
rolls, i. e. September 10, 1938, and September 15, 1938, contain the
names of 672 employees in the appropriate unit.
The C. T. U. submitted in evidence 419 membership application
cards most of which were signed between April 15, 1938, and Sep-
tember 1, 1938. The Company submitted certain pay vouchers
signed by its employees in Washington, D. C., in order that the Board
could compare the signatures appearing on the cards with those on
the pay vouchers to determine the genuineness of the signatures on
the cards. A comparison of the cards submitted by the C. T. U.
and the Company's list of employees in Washington, D. C., in the
traffic, commercial, and messenger departments as of September 10,
1938, and of the employees in the plant department as of September
15, 1938, shows that 345 employees whose names appear on the ap-
plication cards were employed by the Company within the appro-
priate unit at Washington, D. C., during the aforesaid period.
The Association introduced in evidence a list of 435 employees in
the appropriate unit and an officer of the Association testified that
he had prepared the list from signed membership applications. A
comparison of this list with the membership cards introduced by
the C. T. U. shows that a substantial number of the employees in
the appropriate unit are claimed to be members of both of these
labor organizations. We therefore find that an election by secret
ballot is necessary to resolve the question concerning representation.
The circumstances which preclude a consideration of the Associa-
tion's claim for a Nation-wide unit are not controlling in a deter-
mination of the representative of the employees in the appropriate
unit. The Association is accordingly entitled to participate in the
election that we shall order. As we have made our determination of
the appropriate unit subject to reconsideration after the disposition
of Case No. C-344, similarly, if the Association should be chosen by
a majority of the employees in such unit as their representative for
the purposes of collective bargaining, our certification of the Associa-
tion as the exclusive representative thereof shall be subject to with-
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drawal should we thereafter find in Case No. C-344 that the Asso-
ciation is not a bona file labor organization within the meaning of
the Act. Since the A. C. A. introduced no proof of membership
among the employees in the appropriate unit nor made any claim
to representation of such employees, we shall not provide that its
name appear on the ballots.
We shall, therefore, direct that an election be conducted among
all the employees in the appropriate unit who were on the pay roll
of the Company during the pay-roll period next preceding the date
of this Direction to determine whether they desire to be represented
by the C. T. U., by the Association, or by neither.
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 The Western Union Telegraph Company,
Inc., in Washington, D. C., 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 in the traffic, commercial, mes-
senger, and plant departments, excluding executives, lawyers, and
persons with the right to hire and discharge, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the National Labor Relations 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 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with The West-
ern Union Telegraph Company, Inc., Washington, D. C., an election
by secret ballot shall be conducted within fifteen (15) days from the
date of this Direction under the supervision and direction of the
Regional Director for the Fifth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Arti-
cle III, Section 9, of said Rules and Regulations, among the em-
ployees in the traffic, commercial, messenger, and plant departments
who were employed by the Company in Washington, D. C., during
the pay-roll period next preceding the date of this Direction, but ex-
cluding executives, lawyers, and persons with the right to hire and
THE WESTERN UNION TELEGRAPH COMPANY ET AL. 1161
discharge, to determine whether they desire to be represented by
The Commercial Telegraphers' Union, affiliated with the American
Federation of Labor, or by Association of Western Union Employees,
an unaffiliated labor organization, for the purpose of collective bar-
gaining, or by neither.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision and Direction of Election.