Capital Transit Co.

National Labor Relations Board - Board Decisions

Oct 21, 1955

114 N.L.R.B. 617 (N.L.R.B. 1955)

CAPITAL TRANSIT COMPANY 617
Capital - Transit Company and Division - 689,•, Amalgamated Asso-
ciation of Street, Electric Railway and Motor Coach Employees
of America, AFL. Cases Nos. 5-CA-667 and 5-RC-856. October
21,1955
SUPPLEMENTAL DECISION, DETERMINATION,
AND ORDER
OnJune 16, 1953, the Board issued a Decision and Order in Case
No. 5-CA-667,1 in which it found that Capital Transit Company,
herein called the Respondent, or the Company, had violated Section 8
(a) (5) and (1) of the National Labor Relations Act, as amended,
and ordered ,the . Respondent to cease and desist and to take certain
affirmative remedial action.
Thereafter, the case was considered by the United States Court of
Appeals, District of Columbia Circuit, upon the Board's petition for
enforcement of its Order. The Respondent contested the validity of
the Order by challenging the Board's earlier certification 2 in Case
No. 5-RC-856 upon the grounds that: (1) It was based upon an invalid
election; and (2) inspectors, who were included within the bargaining
unit, were supervisors. On February 17, 1955, the court handed down
its opinion 3 in which it found the Respondent's first contention with-
out merit. However, with respect to the Respondent's second conten-
tion, the court remanded the case to the Board for further findings as
to the status of inspectors under Section 2 (11) of the Act.4
In its decision finding that "inspectors are not supervisors within the
meaning of the Act" the Board stated, inter alia:
It is also their duty to see that safety rules and regulations of
the Employer are observed and schedules maintained. If they ob-
serve an operator ignoring such rules ... in more serious violations
they are required to make a factual written report. However, in
no case does the violation report contain a recommendation of any
kind. In extreme cases involving the public safety such as operat-
ing a vehicle while under the influence of alcohol, the inspector is
required to remove the operator from the vehicle and place him
in the hands of an official, the police, or take him to the Employer's
doctor. Inspectors do not, in the course of their duties, receive a
1 105 NLRB 582
3 Certification was issued on October 27, 1952, based on proceedings reported at 98
NLRB 141 and at 100 NLRB 1173.
3 221 F. 2d 864.
6 Section 2 (11) provides : "The term 'supervisor ' means any individual having authority,
in the interest of the employer , to hire, transfer , suspend, lay off, recall, promote, discharge,
assign , reward , or discipline other employees , or responsibly to direct them , or to adjust-
their grievances , or effectively to recommend such action , if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requites the use of independent judgment ." [ Emphasis supplied.]
114 NLRB No. 102. _
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report as to any action taken after investigation of the violation
reports turned in by them.
... The direction and control exercised by inspectors is con-
cerned primarily with equipment rather than personnel, and any
direction or control of personnel is incidental thereto. The Board
has held that this is not "responsible direction" within the meaning
of the Act.
In remanding the case to the Board, the court stated, in pertinent
part :
The Board found that in extreme cases involving the public safety
the inspectors are required to remove an operator from his vehicle.
It did not find whether or not inspectors have authority to 'sus-
pend' operators. . . . There is evidence in the record which indi-
cates that the control exercised by inspectors relates primarily to
equipment.. . .
But there is also evidence which indicates the existence of other
inspector authority not so closely related to traffic control as to be
merely incidental thereto. The Company's rule-book provides
that an inspector may relieve from duty any operator found violat-
ing any rule in the manual or operating his vehicle in a reckless or
dangerous manner... .
The Board failed to determine, as a matter of fact, the extent, if
any, to which rule-book authority was actually exercised. Nor did
it determine, as a matter of its own policy, the difference, if any,
between the effect of actual and merely potential authority... .
Pursuant to the court's direction, the Board has reexamined the
record regarding the "rule-book authority" of inspectors, with par-
ticular reference to those portions of the rules referred to by the court,
and the record as it relates to other instructions, including oral direc-
tions, issued to inspectors regarding their duties, responsibilities, and
authority.
At the outset, before discussing the specific matters presented to us
by the remand, we believe it appropriate to make certain general ob-
servations with respect to court and Board precedents that establish
the framework within which our determination will be made.
It is well settled that the mere title of supervisor as applied to cer-
tain positions does not establish supervisory status under the Act.5
Rather, it is the functions, duties, and authority of the individual which
must be determinative according to statutory standards.6 And the
power'or authority bestowed' must not "be `routine' in the natural sense
of that word." 7 Nor may the discretion accompanying the duties be so
5 See Mother 's Cake and Cookie Company, 105 NLRB 75, 85, and cases cited therein.
" See Red Star Express Lines of Auburn, Inc v N. L. R B, 196 F. .2d 78, 80 (C A. 2).
a See Precision Fabricators , Inc v N. L R B., 204 F. 2d 567 (C A. 2). Also see
Potomac Electric Power Company , 111 NLRB 553.
CAPITAL TRANSIT- COMPANY 619
circumscribed by limitations, either in the authority granted or in the
specific conditions placed upon the exercise of such authority, as to
negate the use of independent judgment.' Further, it may not be a
sporadic assumption of a position of command and responsibility."
On the other hand, the real existence within an individual's regularly
assigned duties of any of the powers enumerated in Section 2 (11) will
make a man a supervisor even though the necessity for the exercise of
such power is infrequent.10 But where the issue is the actual existence
of a supervisory power, the absence of any exercise of authority may
negative its existence.il Thus, there is precedent for the position
that frequency or infrequency of the exercise of authority becomes
irrelevant only where there is no question that the authority conferred
is supervisory.r- Having outlined the precedents applying the Act's
definition of a supervisor, we turn now to a consideration of the par-
ticular issues arising from the court's remand.
We view the remand as requiring the Board to determine whether
the rules vest in inspectors statutory supervisory authority.13 In reach-
ing such a determination the court's opinion indicates that the Board,
in its additional findings, is to consider : (1) Whether inspectors have
any authority to suspend operators; (2) whether inspectors exercise
rule-book authority, and if so, to what extent; and (3) whether, under
Board policy, there is any difference between actual and merely po-
tential supervisory authority.
We believe the precedents outlined above can best be applied to the
issues presented by first analyzing the rules themselves and then look-
ing at their application in practice.
8 See Continental Oil Co , 95 NLRB 358, 362, 363, Auto Transport, Inc, 100 NLRB
272, 275 -
8 See X. L. R. B v. Quincy Steel Casting Company, Inc, 200 F. 2d 293, 295 (C A. 1),
citing with approval Great Northern Icing Go , 73 NLRB 116. Also see Helms Motor
Express, Inc, 107 NLRB 132, 135 ; Amer loan Broadcasting Co , 107 NLRB 74, 75.
18 Peter Ksewst Sons' Company, 106 NLRB 194, 195, United States Gypsum Company,
93 NLRB 91, 92, particularly footnote 8 therein and cases cited See also Ohio Power
Co. v. N. L R. B , 179 F 2d 385 (C A 6), discussed and distinguished in N. L. R. B. v.
Leland Gifford Company, 200 F 2d 620, 625 (C A 1).
11 Wood Mfg. Co., 95 NLRB 633, 647; The Steel Products Engineering Co., 106 NLRB
565, 579; The Clinton Construction Co., 107 NLRB 946, 947, WCAU, Inc, 93 NLRB
1003, 3005; Sherold Crystals, Inc., 104 NLRB 1072, 1075. See also N. L. R. B. v. Whitin
Machine Works, 204 F. 2d 883, 886 (C. A. 1).
1s See N. L. It. B. v. Quincy Steel Casting Company, Inc., footnote 9, supra.
13 As noted in our earlier decision, and by the court, it is undisputed that inspectors do
not possess the supervisory authority vested in the personnel department, the division
superintendents and their assistants, or the superintendent of transportation. Further,
with respect to the Board's finding that the authority of inspectors "responsibly to direct"
operators was primarily concerned with equipment and not "responsible direction" within
the meaning of the Act, the court stated : "To the extent that their direction of operators
is related to that function (e. g ordering operators to drive new routes), it might reason-
ably be viewed as incidental to their control over the movement of vehicles." Thus, the
determination to be made is what, if any, supervisory authority directed to personnel
rather than to the movement of vehicles is conferred upon inspectors by the rule book.
1620 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
A. The rules
The Respondent has compiled - a, rule- book, 14 a copy of which is
furnished to each employee of the transportation department who -is
bound by the rules contained therein as well as special orders and other
instructions. In addition, employees are governed by District of Co-
lumbia, State;,and Federal regulations where applicable, and the rules
so provide. New employees must be able to pass an examination re-
flecting their familiarity with the contents of the rule book.15 This rule
book is voluminous and covers almost to the minutest detail the pro-
cedure to be followed in almost any conceivable circumstance.16
Rules 132 and 238 bear the topic heading "Persons Authorized to
Operate Car (Bus)" and are in two parts. The (b) sections of these
rules referred to by the court and with which we are particularly
concerned here, are almost identical, apparently having been worded
separately for streetcar and bus operations. In combination they
would read :
A motorman or operator (an operator) found violating the rules
laid down in this manual or found operating his car (bus) in
a reckless or dangerous manner or found in such a condition as
to make it inadvisable for him to continue operating his car
(bus) -may be relieved from duty by a supervisor. Such a mo-
torman or operator (an operator) is thereupon required to sur-
render his car (bus) to the supervisor on demand and must
report immediately with the supervisor at Division Office to the
Division Superintendent or his representative.
It will.be noted that these sections refer to relief from duty by a
supervisor. Also, at various other places in the rule book the gen-
eral term "supervisor" is used. Although the rules do not specifically
so state it'would appear from the method of Respondent's operations
set forth in the record that in at least some of those instances where
the term "supervisor" is used it relates to inspectors alone or among
other classifications or titles." And. testimony regarding inspectors'
14 The rile book is entitled "!Manual of Rules1 for the Guidance of Operators and Other
Employees of the Transportation Department
15 If there is any ' doubt concerning the exact meaning of, any rule , special order, or
instruction , employees are requited to obtain an interpretation from their division super-
intendent ( rule 2 (d) ), and any situation riot covered by the rules or instructions involving
unusual complications or accident hazard must be reported immediately ( rule 3 (b)) . '
14 For example rule, 51 on "Courtesy Toward Public" covers both the content of
address and the tone of speech ; rule 31 relating to "Standard Uniforms" not only con-
tains specifications for approved uniform but also includes instructions as to the frequency
of cleaning uniforms , changing to clean linens , and shining hardware and leather, and
rule 37 on "Personal Habits" not only covers employee attitude and conduct toward
fellow employees and the Company and its officials , but also provides that "employees
must. be temperate in their habits . They must adhere to the principles ofi clean living
and decent conduct . . and will not be retained in the service of the Company [if]
(1) Intemperate, mimorai, or dishonest; "
17 Because inspectors are the only persons stationed at specific points along the trans-
portation line,,and„like, officials of the ttausportation , department , cruise, the routes, it
t4•. '' , "%`CAPITAli,TRA,[VSIT+COMPANYI I • - - - - 621
duties indicates that inspectors were included in the term "supervisor"
as used in the (b) sections of rules 132 and 238. But, although in-
spectors are sometimes referred to in the. rules as supervisors, this
appears to be simply a convenient form of broad designation by the
Company to cover situations where company officials other than inspec-
tors may'also,perform the same or:simi.lar.particular functions.- More-
over, ` as- we have 'indicated, the mere title - or - designation of a
person as a supervisor does not make him one within the statutory
definition."'
The (a) sections 19 of rules 132 and 238 forbid the assigned opera-
tor to allow anyone other than certain designated persons to operate
the vehicle, while the (b) sections, quoted above, set forth the specific
conditions under which certain other persons may take over control of
the vehicle with or without the assigned operator's consent. These
rules, in their entirety, appear directed primarily toward who, other
than the assigned operator, is authorized to drive a transportation
vehicle. However, because the (b) sections contain the phrase "may
be relieved from duty," we must determine the nature of the authority
conferred upon those persons doing the relieving.
We-note that inspectors are all 'qualified operators and there are a
number of instances where -their regular duties include taking over
the operation of the transportation vehicle. For example, they may
take over the operation of a bus to test some mechanical difficulty re-
ported to them by the assigned operator or take the controls of a street-
car in attempting to get it back in operation after a plow has become
pulled. Thus, an inspector may relieve the assigned operator in
the , same sense as one operator relieves another operator under other
specified circumstances.20
is apparent that they are referred to in sonic of the rules by the general term "supervisor"
or included in other more specific groupings Among the various examples available
in the rule book is rule 54 ( 1) which states "At special points where supervisors are
stationed -to assist in the movement of cars or buses , they may dispatch such vehielm
}vithout stopping to receive or discharge passengers ," and rule 72 (h) providing "An oral
report of every ejectment [ of a passenger] must be made by the crew to the first member
of the Supervisory Staff of the Tiansportation Department met or telephoned promptly
to the Central Dispatcher
18 See cases cited in footnotes 5 and 6 , supra.
is Section ( a) in each of these rules , immediately preceding section (b) quoted in the
text, are similarly almost identical and in combination would read
lifotorman or operator ( an operator ) must not permit any person to operate his
t car thus ) except ( 1) uniformed Inspector or Instructor ; ( 2) other properly identified
member of the Supervisory Staff of the Transportation Department ; ( 3) student-
motorman or operator properly assigned by the Training Division ; ( 4) [in 238 only]
' Garage Mechanic or'Forenian detailed to , make mechanical repairs or adjustments.
20 Examples of this are rules 131 and 237 in their entirety , and rules 16 ( c) and (L),
82 (L), 107, 109 (f), 217 ( d), and 219 ( b),` using such phrases as "point of relief";
"detailing another . . : operator to make the relief in accordance with schedule " ;' "when
relief is made on the street" , "on meal relief " ; "When relieving on the road , the crew
making the relief" , "will wait for ielief bus" , "Operator must test brakes in the first
block after relieving another operator," etc •
622 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
=What' is meant or, intended =by the, words'' may be relieved from
duty," as, used here, is somewhat ambiguous in light of (1) the use
of the_ general term "supervisor"-encompassing several classifications
with varying duties and authority-in indicating who may do the
relieving under specific conditions; (2) the primary purpose of the
rules-that of designating who may operate the vehicle; and (3) the
fact that the word "relieve" is commonly used in the rules and else-
where in connection with circumstances wherein someone other than.
its present operator continues the vehicle in service or takes the vehi-
cle to the barn or garage. Thus, "may be relieved from duty" in the
(b) sections might refer either to some form of disciplinary action,
or to the mere substitution of the inspector for an operator in order to
keep the vehicle in service or prevent blocking, of the rails, streets, or
terminals.
Regarding disciplinary action, a number of the rules specifically
state that failure to conform will subject the employee to such action
after investigation, while others even state how many like offenses
will constitute cause for discipline .21 Under the heading "Discipline,"
rule 9 sets forth what shall be considered sufficient cause for discipline"
and provides :
(b) Discipline is administered by Division Superintendents and
Superintendent of Transportation Personnel. It is administered
in the form of cautions, reprimands, suspensions from duty, or
dismissal from the Company's service.
This rule further describes the various types of discipline, classifying
them as (1) cautions or warnings ; (2) reprimands or sharp censures ;
(3) suspensions or temporary layoffs; and (4) dismissal. It also indi-
cates the degree of offense which will justify each of the stated types of
discipline.22
Relief from duty is conspicuously absent from the listed forms of
discipline in rule 9, as is any reference to inspectors or "supervisors"
in the recitation of persons who administer discipline. Thus, it is
apparent that, pursuant to the authority vested in his position by rule
9, if a division superintendent or one of his assistants, were to relieve an
operator from duty under the (b) sections of rules 132 and 238, he
could, when such action is called for, at the same time investigate, de-
termine, and administer discipline. But it does not follow that an
inspector, when performing the same function under the same rules
can exercise the same power. For rule 9 does not give an inspector
21 Examples are rules 16, 102, and 290 (c).
22 Established company procedure is for an operator to be interviewed , when in the
judgment of the authorized official the breach or accumulation of such, breaches of rules
contained on reports warrants such action . After the interview and an investigation by
an authorized officer, he determines whether or , not, to -administer discipline ; andf the
,,.,appropriate type of discipline:
CAPITAL TRANSIT COMPANY 623
such authority and-when he relieves from duty under the same circum-
stances , the (b) sections specifically provide that he must accompany
the operator who "must immediately report at the Division Office of
the Division Superintendent or his representative." The most likely
conclusion to be drawn from the requirement that the inspector go
with the operator to one of these company officials is that the latter
and not the inspector are vested with' the power to administer ap-
propriate discipline.
We conclude from the foregoing that the inspectors' authority under
the (b) sections of rules 132 and 238 to relieve operators is not synony-
mous with authority to suspend or discipline. Since when they take
over a vehicle, they cannot administer any punishment for infrac-
tions of the rules, their authority is apparently limited in such cir-
cumstances to acting merely as substitutes for the operators. Viewing
the rules and related instructions and procedures as a whole, it seems
therefore that if inspectors possess any "real" supervisory authority,
it must be found not in the rules themselves, but in their application in
practice.
B. The evidence as to the,application in practice of the rules
The testimony regarding the duties of inspectors is voluminous.
Nine individuals who had worked in the classification of inspector from
6 to 16 years, representing approximately 75 man-years, were ex-
haustively examined with respect to all of their duties. In addition a
division superintendent, who had worked as an inspector for 8 years,
and 2 operators testified with respect to inspectors' duties. A num-
ber of the inspectors were specifically asked what authority they were
enabled to exercise under the (b) sections of rules 132 and 238 or under
instructions relating to the same subject. Several inspectors testified
that they understood that they had authority to take control of a ve-
hicle only if an operator was intoxicated; and that the specified pro-
cedure was to take the vehicle with the operator to the barn and turn
the operator over to a supervisor or accompany him to the company
doctor. Some testified that they understood this also extended to
situations involving illness and injury of an operator. One inspector
indicated he felt it his duty to take control of a vehicle if an op-
erator was driving dangerously or recklessly, not because of any par-
ticular rule or instruction, but for the safety of the passengers, the
public, and the Company. He also expressed his conviction that one
of the, other operators would be "bound" to do likewise. And, as
stated by the court in its opinion, some of the inspectors apparently
did not even know that they possessed any such authority.
At the time of the hearing, the parties were well aware of the exist-
ence of the rules and spared no effort in bringing forth what facts they
624 DECISIONS OF-NATION •AL--LABOR; RELATIONS BOARD
could from the 80 -plus man-years of experience represented 'by the,
witnesses . Despite this fact, the incidents which could be related
to the ( b) sections of rules 132 and •238 -are few.
Three of the inspectors had occasion to take over control of a vehicle
when an operator was intoxicated . On two of those occasions the mat,
ter was called to the attention of the inspector , by a supervisor, who
informed ., the: inspector , that,, a specific operator ; in a particular . vi-
cinity was intoxicated , and instructed the inspector as to'the procedure
to follow. The third inspector accompanied a supervisor to the loca-
tion of the vehicle and took over its operation while the supervisor
took charge of the intoxicated operator . In each of these incidents
specific instructions had been given by a superior . None of the other,
inspectors had ever - encountered a situation involving an intoxicated
operator. -
One of the inspectors had an occasion to take over a vehicle because
the' operator was ill and another inspector took over, the vehicle when,
the operator suffered an eye injury in an accident . In each of these
incidents the inspector was merely substituting because of immediate
necessity rather than as a disciplinary measure.
There were four occasions when an inspector took over the opera-
tion of the vehicle when its operator walked off. On each of these
occasions the inspector wrote a factual report of the incident. On the
first, the operator refused to take an additional run as he was required
by the rules to do when his relief failed to show up. , The sec 'ond'in-
volved an operator who was consistently running slow on his ' schedule.
Upon his second caution by the inspector he told the inspector that
since he -could not operate the vehicle to the inspector 's satisfaction
the inspector could take over. The inspector tried to persuade him
to remain and do the best he could , but the operator refused. On the
third, an operator was delaying his departure time while filling his
change carrier and was blocking the terminal and street traffic: The
police ordered the inspector to clear the way. The ' inspector told the
operator to pull out on his trip or to pull around on a side street to
fill his carrier . The operator failed to comply . The inspector fe-
turned and told the operator to pull out or get off the bus. The opera-
tor got off the bus. On the last occasion , an operator was wearing a
nonregulation leather jacket . The inspector spoke to him about it.
The operator indicated he did not care about the rules, he was going
to wear this jacket. Thereupon, the inspector wrote a factual report.
Upon return to duty, after a suspension administered by someone
other than the inspector , the operator encountered the same inspector
and began making unfriendly remarks about this inspector's having
reported him. When the inspector spoke to him and 'indicated he
would demand a public apology
,,
the operator walked off his bus and
quit the job. The inspector took over the operation of the vehicle.'
CAPITAL TRANSIT- COMPANY 625
The, record demonstrates that in' those instances where a factual
report of an incident was filed by ,the inspector, he had no further
connection with any action taken with respect thereto except for an
occasional interview.23 Several of the inspectors have never had to
take over a vehicle for any cause, and some were, not even aware that
they could do so, although all had worked for the Company as opera-
tors .before becoming inspectors.
We do not find in the inspector's role of taking over the operation
of a vehicle, when its operator chose to get off the bus rather than
comply with the rules applicable at the moment, convincing evidence
of the use of independent discretion-for the,inspectors are charged
with the duty of keeping the transportation stock rolling on schedule.
Here as in the case of illness, the inspector's action in operating the
transportation vehicle was not as a disciplinary measure, but rather
was because of immediate necessity. The first two of these incidents
relating (1) to the operator's refusal to take an additional run; and
(2) the operator's refusal to continue on his assigned run, may not
have required immediate disciplinary action because of their nature.
However, the third incident demonstrated a deliberate disregard of
the rules for bus operation and the operator's noncompliance with the
inspector's direction, under police orders, would appear to be of a,
sufficiently serious nature to warrant immediate disciplinary action, if
indeed the inspector possessed any such authority. In these circum-
stances, it is particularly significant that the inspector merely tookr
over the operation of the bus and wrote a factual report: Regarding
the fourth incident, although the operator may have been suspended
because he wore a nonregulation jacket, this does not establish a proxi-
mate relationship between the inspector's position and the suspension,
for his role was merely that of a reporter. Moreover, the fact that the
operator subsequently quit when the,inspector indicated he would
demand a public apology for the operator's disparaging remarks does
not warrant the conclusion that if disciplinary action was required for
this conduct, the inspector could or would make the decision that it be
administered.
There was one other occasion when an inspector observed an oper-
ator wearing a nonregulation shirt. He told the operator to change
on his trip to the barn and to return on his next round in proper
uniform. The inspector then called the division superintendent and
reported the circumstances. The driver returned on his next trip in
proper uniform. Whether this operator complied with the rules vol-
untarily or at the direction of the division superintendent, who had
authority to administer reprimands, is not shown. However, when
21 Occasionally the inspector reporting a violation is called in for additional information
in the investigation stage See footnote.22, supra
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered in contrast with the jacket incident discussed above, this
incident does indicate that being reported for breaking the regulation
uniform rule, in itself , is not necessarily cause for suspension , or even
reprimand. Both of these nonregulation uniform incidents demon-
strate further that the inspector's authority is limited to making a
factual report.
There was one remaining incident which would fall within the
(b) sections of rules 132 and 238. On one occasion an inspector
threatened to take over operation of a vehicle if the operator did not
pull down his glare shade. The operator complied with the rule and
pulled the shade. This was the only incident brought forth by the
testimony having any relation to dangerous or reckless operation of a
vehicle. None of the inspectors ever had occasion to take over the
operation of a vehicle for dangerous or reckless operation.
The fact that in the last-mentioned incident the operator com-
plied, thus obviating the necessity for the inspector to take over
control, as he may have been-authorized to do under the (b) sections
of rules 132 and 238 is of no moment in ascertaining the extent of
authority vested in the inspector in these circumstances. For rule
125 24 gives specific instructions stating when such curtains are to
be drawn and when they are to be raised. Thus, in this situation,
there was no room for discretion on the part of the inspector on the
subject of what constituted safety, as the determination had already
been made by the rules.
With respect to other phases of the rules, breaches are usually
handled by calling the matter to the operator's attention or filing
reports discussed in the Board's earlier decision. There is no testimony
indicating that inspectors have ever taken any action in connection
with rules dealing with personal cleanliness, habits, morals, or conduct
toward the public. Much of the substance covered by the rules, as they
relate to operators, aside from the movement on schedule of the
vehicles, is of a type which an inspector would have little occasion
to observe. That the inspector would have insufficient direct contact
with operators to be informed concerning their personal habits is
partly demonstrated on the record by the inability of inspectors gen-
erally to identify the specific operator involved by name when relating
the various incidents mentioned above. 5
2L Rule 1 25 provides • "CURTAINS FOR USE BY MOTORMEN AND OPERATORS.
(a) Motorman or operator , when operating car after dark , with vestibule windows closed,
must keep the 'light' curtain drawn . When vestibule window immediately in front of
motorman or operator is open , curtain must not be drawn. ( b) On P . C C cars , curtains
must always be drawn when -using interior lights "
u It appeared throughout their testimony that the individual inspectors knew very few
of the operators , with whom they came in contact, by name. Because of this the Union
repeatedly urged that this inability on the part of inspectors to identify the person and
the date of the incident seriously impaired the probative value of the testimony because
the Union \sas placed in the position of being unable to obtain evidence to refute the
testimony.
CAPITAL TRANSIT COMPANY 627
We have carefully studied the contents of rules 132 (b) and 238 (b),
their relationship to other rules, and the entire record to determine
whether any authority conferred upon inspectors is supervisory within
the Act's definition. We have concluded that inspectors were included
in'the general term "supervisor" as used in the (b`) sections of'rules
132 and 238. However, as noted above, rules 132 and 238, in their
entirety, are directed mainly toward specifying those classifications
authorized to operate a transportation vehicle. When evaluated in
their context, we conclude that the (b) sections of rules 132 and 238
do not establish within inspectors' regularly assigned duties the real
existence of any of the powers enumerated in Section 2 (11).26
However, because the term "may be relieved from duty" could be
thought to impart authority to suspend, we have looked to other
rules on the subject. From those other rules, we learn that the
authority to suspend and administer other forms of discipline, as
used in the rules is vested in persons other than the inspectors. In
view of the foregoing, and to determine whether "may be relieved
from duty" constitutes actual authority to suspend within the meaning
of Section 2 (11) of the Act we have examined all evidence relating
to the exercise of these particular rules. As noted above, the 3 oc-
casions, in the 80-plus man-years of experience presented in the testi-
mony, when an inspector took over operation of a vehicle because
of the intoxication of the operator, were at the direction, and on one
occasion in the presence, of a superior. They are, therefore, of little
value in determining an inspector's authority to suspend. The two
occasions when an inspector relieved an operator because of illness or
injury and took over the operation of the vehicle, do not, in our opinion
constitute suspension, but they do throw some light on what authority
was conveyed by the words "may be relieved from duty." In these
circumstances it is clear that "may be relieved from duty" is related
to authority to operate the vehicle, and because of necessity rather
than as a form of reprimand. The same may be said of the inspectors'
roles in relation to an intoxicated operator who, according to the rules
automatically discharges himself by his conduct 21 Again, on those
occasions when the particular operator walked off the bus rather than
comply with the rules, the inspector took over operation of the vehicle
pursuant to the requirements of the moment to keep the rolling stock
moving and to maintain schedules.
'From the foregoing, we conclude that the phrase "may be relieved
from duty," when evaluated in light of the application of the rules,
26 See footnote 10, supra.
?! Rule 38 ( e), "An-employee found to be under the influence of intoxicants when 'report-
ing for duty . whileon duty, or on,or . about Company premises at any time , automatically
dismisses himself from the service of the Company." I '
387644-56- vol. 114- 41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not vest in inspectors the authority to suspend within the meaning
of the Act.
As we have found that rules 132 and 238 do not in themselves estab-
lish the existence of any of the "real" powers enumerated in Section
2 (11) of the Act, nor do they, when considered in their context and
application vest in inspectors the authority to suspend, we turn now
to the question of whether in their application these rules confer upon
inspectors any other indicia of statutory supervisory authority.
As will be noted from the incidents outlined above, inspectors may
report, in addition to matters related to operation and changes of
schedules, other violations of rules. However, the exercise of this
function has not been extensive. No incident was brought to light
concerning any such report covering rules regarding personal clean-
liness, habits, morals, or manner of speaking, and other conduct toward
the public. There were two such reports concerning the wearing of
nonregulation uniforms. The evidence presented on this subject not
only indicates that the inspectors make no determination as to any
further action to be taken on such reports but also demonstrates that
the penalty, if any, is so variable that an inspector would have no way
of anticipating the results stemming from his report. We conclude,
that the inspector's role, in making such reports, is merely that of a
monitor. Monitoring does not constitute supervisory authority within
the meaning of the Act.28
The remaining incident concerning the rule on the proper position of
the glare shade during night driving is in our opinion a graphic dem-
onstration of the lack of independent judgment or discretion allowed
inspectors under the rules. The specific conditions placed upon the
exercise of any authority by inspectors is so prescribed by the rules
themselves, special orders, and other directives, including oral instruc-
tions and by the requirements of District of Columbia, State, and
Federal regulations that they negate any statutory supervisory author-
ity which might otherwise appear to be present.21
We turn now to the question raised by the court as to whether, in our
judgment there is any difference between actual and merely potential
supervisory authority. We assume that by "potential" the court has
in mind "real" power which has not been exercised because of lack of
an occasion for such action-due to a time element or certain other
factors-and we would find that it would not make an individual any
the -less a supervisor. For, as noted above, the Board and courts have
regarded the real existence of statutory supervisory authority within
an individual's regularly assigned duties sufficient to establish his
29 See Frank G. Shattuck Company, 106 NLRB 838 , 841-844 ; The Clinton Construction
Company, 107 NLRB 946, 948; Potomac Electrso Power-Company, 111 NLRB 553; Super
Vain Stores, Inc, 112 NLRB 55.
20 See footnote 8, supra.
A. WERMAN & SONS, INC. 629
supervisory status without regard to the necessity for frequent exer-
cise of such power.3° However, we have found that inspectors do not
possess any "real" supervisory authority either in the rules or their ap-.
plication.
Under all the circumstances, we conclude that inspectors do not have
the authority to suspend employees, nor do they possess any of the,
other indicia of supervisory authority set forth in Section 2 (11) of the,
Act. Accordingly, the Board respectfully submits to the court' that
there is no basis for reversing our earlier finding that Respondent has,
violated Section 8 (a) (5) and (a) (1) of the Act.
The Respondent's motion for further hearing is denied for the rea-
sons previously stated in earlier portions of this proceeding when the
Respondent made similar requests 31
[The Board denied the motion.]
ACTING CHAIRMAN RODGERS took no part in the consideration of the
above Supplemental Decision, Determination, and Order.
30 See footnote 10, supra Also see Leland-Gafford Company, 200 F. 2d 620, 625 (C A. I).
31 Acting Chairman Rodgers would grant Respondent's motion for a further hearing
and accordingly is not participating in the findings made in this decision.
A. Werman & Sons, Inc. and United Shoe Workers of America,
CIO, Petitioner . Case No. 1-RC-40,'3. October 21, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Thomas E. McDonald, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. The Employer's mo-
tion to dismiss the petition on the ground that the Petitioner had made
no demand for recognition nor claim of majority representation prior
to filing the petition was referred to the Board. In view of our decision
to dismiss the petition for other reasons, we find it unnecessary to con-
sider this contention.
At the hearing the Employer alleged and offered to prove that the
showing of interest made by the Petitioner was by use of undated cards
secured over 2 years ago by misrepresentations, and that the Petitioner
deceived the Board into assuming such cards were evidence of a current
interest . Thus the Employer inferentially requested a dismissal of the
petition on the basis of an inadequate showing of interest. The hear-
ing officer properly declined to admit such evidence into the record on
the ground that the Petitioner's showing of interest was as administra-
tive matter and was not litigable by the parties.'
3 See Morganton Full-Fashioned Hosiery Company, 102 NLRB 134.
114 NLRB No. 103.