Capital Transit Co.

National Labor Relations Board - Board Decisions

Feb 18, 1952

98 N.L.R.B. 141 (N.L.R.B. 1952)

CAPITAL TRANSIT COMPANY 141
at Nederland , Texas, excluding all other employees , office clericals,
guards, watchmen , professional employees , and supervisors as defined
in the Act.
If a majority of the fixed helpers on regular assignment with the
machinists vote for the Petitioner , they will be taken to have indicated
their desire to be included in the unit now represented by the Peti-
tioner, and the Regional Director conducting the election directed
herein is instructed to issue a certification of results of election to that
effect. If, however , a majority of the fixed helpers vote for the Inter-
venor, they will be taken to have indicated their desire to remain in
the unit now represented by the Intervenor , and the Regional Director
will issue a certification of results of election to that effect."
[Text of Direction of Election omitted from publication in this
volume.]
8 See General Electric Company, 97 NLRB 1265.
CAPITAL TRANSIT COMPANY and DIVISION 689, AMALGAMATED ASSOCIA-
TION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES
OF AMERICA, PETITIONER. Case No. 5-RC-856. February 18, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before David C. Sachs, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error, and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, which operates in the District of Columbia, is
engaged in commerce within the meaning of the Act.
2. The Employer moved to dismiss the petition on the ground that,
because of certain provisions in the Petitioner's Constitution and Gen-
eral Laws,' the Petitioner could not represent the employees sought
herein, and in this respect is not a labor organization within the mean-
ing of Section 2 (5) of the Act. This motion was referred to the
' Section 71 of the Petitioner's Constitution and General Laws provides in substance
that directing officials of the Company who have rules and regulations of the Company
to enforce cannot become members of the Union ; that members who are appointed to such
minor official , but nonsupervisory , positions as starter , dispatcher , timekeeper inspector,
streetman , or barn , shop , and track foremanship may retain membership , but while in
such positions their participation in local union affairs must be authorized first by referen-
dum; and that groups of such members may be placed under separate chaster
98 NLRB No. 27.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board. The authority-of a bargaining agent to represent employees
must be sought in the consent of the employees and not in the constitu-
tion of the labor organization 2 We therefore find no merit in the
Employer's position and the motion is hereby denied. We' find that
the Petitioner is a labor organization within the meaning of the Act
.and is claiming to represent certain employees of the Employer.
'3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner currently represents a unit of the Employer's
operating and maintenance employees. It seeks in this proceeding to
-add to the existing unit employees in the following classifications :
-Depot clerks, acting depot clerks, assistant depot clerks, senior division
receivers, assistant or auxiliary division receivers,, inspectors, stock
clerks, assistant stock clerks, junior stock clerks, garage clerks, shop
,clerks, terminal guards, senior fare box pullers, fare box pullers, super-
-visor of fare box maintenance, assistant supervisor of fare box mainte-
nance, fare box inspector, dispatchers, auxiliary assistant dispatchers,
-and assistant collectors of revenue, excluding supervisors,3 guards, and
-professional employees as defined in the Act. Alternatively, the Peti-
tioner is willing to represent these employees in a separate appropriate
unit.
Although the Employer moved generally to dismiss the petition,4
it took no position as to whether an appropriate. grouping of the em-
ployees whom the Petitioner seeks to represent should constitute a
separate appropriate unit, or should be added to the existing unit, in
-the event the Board directs an election herein. The Employer did,
.however, oppose the inclusion in any unit of persons in the following
-classifications on the ground that they are supervisors : Depot clerks,
.acting depot clerks, assistant depot clerks, inspectors, central dispatch-
ers, auxiliary dispatchers, supervisor of fare box maintenance, and
.assistant supervisor of fare box maintenance. In addition, the Em-
ployer urges that because the Petitioner currently represents rank-
and-file employees, it should not be permitted to represent persons in
the last two classifications mentioned above and those in the classifi-
' Pueblo as d Fuel Co v N L. R B, 118 F. 2d 304; Chas les of the Ritz Operating
Corp, 90 NLRB 309.
'Included in the original unit request, but excluded as supervisors by agreement of the
parties during the course of the hearing, are persons falling within the classifications of
senior division supervisors, division supervisors, instructors, collectors of revenue, senior
stock clerks, chief dispatcher, and assistant chief dispatcher
4 The Employer moved for the dismissal of the petition in its entirety, because the
Petitioner sought to include supervisors in a voting group of rank-and-file employees.
The fact that a petitioner may seek to represent groups which may not properly be a part
of a unit or voting group finally determined to be appropriate by the Board does not
require the dismissal of the petition. Accordingly, ne find no merit in the Employer's
position and the motion is hereby denied.
CAPITAL TRANSIT COMPANY 143
cations of senior fare box pullers, fare box pullers, fare box inspectors,
and assistant collectors of revenue, on the ground that the work per-
formed by them is confidential. The Employer did not question the
right of the Petitioner to represent receivers, assistant or auxiliary
division receivers, assistant stock clerks, junior stock clerks, garage
clerks, shop clerks, and terminal guards.
The Employer maintains over-all control of its transportation sys-
tem from a central office. The personnel office does all hiring and
firing and maintains complete records of employees, including com-
plaints, violations of rules, and commendations. A division attached
to the personnel office investigates complaints and administers dis-
-ciplinary action on a uniform basis. A comprehensive book of rules
and instructions is issued to employees, and various additional instruc-
tions are issued from time to time. A scheduling department estab-
lishes the schedules which are to be put into operation, and a treasury
department centrally handles receipts of fares.
Ten operating divisions of the Employer are located in various sec-
tions of the city of Washington, from which streetcars and busses
operate. Each division, under the direction of a division superintend-
ent, generally puts into operation the services scheduled by the central
office. Division supervisors, next in line of authority at the divisions,
-assign operators to their vehicles, see that they leave on schedule, order
more men when necessary, take charge of the division's operations in
the absence of the division superintendent, and on occasions are dele-
gated-the authority to reprimand or discipline operators in the initial
stages of a violation or complaint.
Depot clerks, acting depot clerks and assistant depot clerks handle
nil of the clerical work of the operating divisions and are under the
supervision of the division supervisor. Their duties include the
preparation of report forms of various types, including reports on
accidents, delays of vehicles in service, operators on duty, and extra
men assigned on duty. They also handle phone calls including those
from operators reporting late for duty or wishing to be excused from
duty. In disposing of these telephone requests for excused absences,
the depot clerks apply predetermined rules and instructions. The
depot clerks make account reports of change, token, passes, and sales
for each operator and for the division, and on occasion prepare, hand
,out, and receive traps consisting of tokens, passes, and money issued to
each operator. They have at times been instructed to withhold the
issuance of traps to operators reporting for their equipment without
proper uniform or badge, and although they may at times report such
violation of rules they have no authority to take disciplinary action or
effectively to recommend such action.
In maintaining that the depot clerks are supervisors, the Employer,
however, relies principally upon its contention that in preparing the
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
daybook the clerks responsibly assign work. In the preparation of the
daybook, depot clerks insert into the operating schedule the runs which
regular operators have picked on a seniority basis. Vacant runs are
then filled from a rotating seniority schedule of extra men and that
information is posted on the extra board. The seniority lists are also
used by the depot clerks in preparing vacation schedules and in re-
ceiving bids for picking open runs. Because of the manpower short-
age, it is sometimes necessary, in order to fill the operating schedule,
for the depot clerks to request operators to take extra runs or as a last
alternative to switch operators from less important regularly assigned
routes to vacant runs on which it is necessary that service be main-
tained. Operators desiring to perform extra duty make that fact
known to the depot clerks, who use this knowledge when such situa-
tions arise. If the need is immediate and a volunteer is not available
at the division, depot clerks canvass and try to persuade operators
who are present until a willing operator is obtained.
From the foregoing, it is clear that the assignment of operators is
governed by seniority and does not involve the use of independent
judgment. In those instances where extra duty operators are neces-
sary, it does not appear that depot clerks have authority to order regu-
lar operators to perform such extra duty. Generally, therefore, the
daybook duties, as well as the other duties of the depot clerks, are rou-
line. Under all circumstances, we find that depot clerks are not
supervisors within the meaning of the Act:
Inspectors have the primary duty of maintaining service for the
travelling public in accordance with established schedules of the
Employer. The 60 inspectors, under the direction of the superin-
tendent of road operations, work either at fixed points or in radio
scout cars on assigned areas of the, Employer's transportation system.
In the performance of their duties, inspectors check vehicles in opera-
tion to see that headways are maintained in accordance with schedules.
In case of delay they investigate to determine and eliminate the cause
of trouble. While handling tieups they cooperate with the police
and fire departments, reroute cars or busses whenever necessary, and
generally put forth the necessary effort to restore service to schedule.
It is also their duty to see that safety rules and regulations of the Em-
ployer are observed and schedules maintained. If they observe an
operator ignoring such rules they call it to his attention, and in case
of repeated minor violations or in more serious violations they are re-
quired to make a factual written report. However, in no case does
the violation report contain a recommendation of any kind. In ex-
treme cases involving the public safety such as operating a vehicle
while under the influence of alcohol, the inspector is required to remove
5 See New England Transportation Company, 90 NLRB 539.
CAPITAL TRANSIT COMPANY 145
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 report as to any action taken
after investigation of the violation reports turned in by them.
Admittedly inspectors do not possess any of the supervisory author-
ity vested in the personnel department and division superintendents
as outlined above. The direction and control exercised by inspectors
is concerned 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 Acts Accordingly, we find, contrary to the contention of
the Employer, that inspectors are not supervisors within the meaning
of the Act.
Dispatchers and auxiliary assistant dispatchers, under the super-
vision of the chief and assistant chief dispatcher, are located in an
office equipped with a number of telephones, a two-way radio, a
headway recording device, and a large map of the system. This
office serves as the communication and nerve center of the transit
system. Police and fire department calls are received here by short
wave radio and where the problems confronting those departments
also affect any part of the transit line, the proper persons are alerted.
The dispatchers receive calls both by telephone and radio requesting
information, equipment and services such as extra busses, towtrucks
and mechanical repairs, and reliefs for operators. They also receive
reports on tieups and accidents. Operators are required by rules
and instructions to call the dispatcher's office in case of any trouble
either with their vehicles or on the line. Dispatchers give inter-
mediate instructions and contact inspectors, the garage, or the division
for whatever action necessary. The same thing is true of calls
received from inspectors. When the headway recording device reflects
a sufficient delay on a particular line to indicate trouble, that infor-
mation is relayed to an inspector in the area so that the matter' may
be investigated. The dispatchers simultaneously make records of all
calls and action taken and prepare certain summary reports of such
information as detentions and headway backups.
In carrying out these functions, the dispatchers rely on information
contained in the rules and instructions of the Employer for the oper-
ation of the transit equipment, and their knowledge of operational
setup of the company and the schedules established. They are trained
on the job, and although each situation which they handle represents
a departure from the planned operations, such situations generally
fall within a familiar pattern of departure and require only the
8 Union Street Railway Company , 93 NLRB 782 , The Baltimore Transit Company, 92
NLRB 688.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application of established procedure necessary to restore normal oper-
ations. No contention is made herein that the dispatchers Wave the
power to hire, discharge, lay off, or discipline other employees. Nor
do we believe that intermediate instructions to operators constitute
`,responsible direction" within the meaning of the Act 7 Accordingly,
we find, contrary to the contention of the Employer, that the dis-
patchers and auxiliary assistant dispatchers are not supervisors.
Supervisor of fare box maintenance and assistant supervisor of
fare box maintenance, together with the fare box inspector and a
mechanic who is already in the existing bargaining unit, constitute
a subdivision of the maintenance department. The supervisor of
fare box maintenance is responsible directly to the head of the main-
tenance department for the work performed by this unit. It is the
responsibility of this group to inspect fare boxes and to maintain
them in good working condition. All but the fare box inspector
perform mechanical repairs and at the same time investigate evi-
dence of tampering. The fare box inspector works at night, going
to the various operating divisions of the Employer and inspecting
fare boxes for any mechanical irregularities. At the same time he
looks for any unusual markings or defacement which might indicate
tampering.
The supervisor of fare box maintenance is an expert mechanic who
devotes part of his time to designing improvements for the fare boxes
and cabinets used by the Employer and has obtained a number of pat-
ents on such improvements. He keeps a record of the location of
cabinets and fare boxes, rotates them, arranges for their inspection and
repair, and responsibly assigns this work to the other three employees,
and otherwise generally directs the work of the group. He has, in the
past, effectively recommended the transfer of a mechanic from his
group. We find from the foregoing that the supervisor of fare box
maintenance is a supervisor within the meaning of the Act.
On the other hand, the record fails to establish that the assistant
supervisor of fare box maintenance possesses supervisory authority.
He works the same hours as the supervisor. There is no indication
that during the absence of the supervisor his direction of the mechanic,
the only other employee in the department on duty at the same time,
is anything more than the direction by a craftsman to his helper. We
therefore find that he is not a supervisor within the meaning of the Act.
In addition to opposing the inclusion of the assistant supervisor of
fare box maintenance in any unit on the ground that he is a supervisor,
the Employer would exclude him as a confidential employee. The
Employer would also exclude employees in the classifications of senior
fare box pullers, fare box pullers, the fare box inspector, and assistant
collectors of revenue as confidential employees.
4 See Baltimore Transit Company, 92 NLRB 1260, and cases cited in footnote 6, supra.
CAPITAL TRANSIT COMPANY 147'
With respect to the assistant collectors of revenue, whose alleged
confidential status stems only from the fact that they handle large sums,
of money, the Board has held that custody of company money does not_
justify separating such employees from other employees for collective
bargaining purposes.8
With respect to the other so-called confidential employees, their work
involves the handling of funds and cash receiving equipment. They-
may observe for any indication of tampering with this equipment,,
develop evidence of tampering and report irregularities, and they are-
permitted possession of keys to places where large amounts of money-
are stored. It is urged that the performance of these duties requires
the undivided loyalty of the employees to the Employer. This is cor-
rect. The Board has previously considered similar arguments in favor-
of limiting the freedom of selection of a.bargaining representative for
employees, other than guards, and has rejected such arguments.° We.
see no incompatibility between the faithful performance of such duty
and the enjoyment of benefits under the Act. The restriction which-
the Employer would here place on the choice of a bargaining repre-
sentative was placed by Congress only on the choice to be exercised-
by guards; the Board will not assume the authority to extend this to
other classifications 10 Accordingly, we find that the assistant super-
visor of fare box maintenance, senior fare box pullers, fare box pullers,
the fare box inspector, and assistant collectors of revenue are not con-
fidential employees.
We have rejected the Employer's contention that certain of its em-
ployees are supervisors, and that certain other employees are confiden-
tial employees. The above-enumerated duties of these employees con-
vince us that they have a sufficient community of interest with operating-
and maintenance employees to be added, if they so desire, to the exist-
ing operating and maintenance unit now represented by the Petitioner.
And, as noted at the outset of the unit discussion, there is no reason
why the other employees whom the Petitioner seeks to represent may
not similarly be added to that unit. We shall, therefore, direct an_
election among the following group of employees : 11
All depot clerks, acting depot clerks, assistant depot clerks, senior
division receivers, assistant or auxiliary division receivers, inspectors,
stock clerks, assistant stock clerks, junior stock clerks, garage clerks,
shop clerks, terminal guards, senior fare box pullers, fare box pullers,
assistant supervisor of fare box maintenance, fare box inspector, dis-
patchers, auxiliary assistant dispatchers, and assistant collectors of
revenue, excluding supervisor of fare box maintenance, senior division-
' American Locomotive Co, Al'co Products Div, 92 NLRB 115.
See Luminous Processes , Inc , 71 NLRB 405
See Detroit Harvester Company, 79 NLRB 1316.
" The parties were at the time of the hearing engaged in negotiating a new contra&-
for the operating and maintenance unit.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors, division supervisors, instructors, collector of revenue,
senior stock clerks, chief dispatcher, assistant chief dispatcher, and all
other supervisors, guards, and professional employees as defined in
the Act.
If a majority of the employees voting in the election cast their ballots
for the Petitioner, they will be taken to have indicated their desire to
be included in the existing operating and maintenance unit and the
Petitioner may bargain for them as a part of that unit. The Regional
Director conducting the election directed herein is instructed to issue
a certificate of results of election to that effect.
[Text of Direction of Election omitted from publication in this
volume.]
PERSHING AVENUE CORPORATION, IVERS & POND PIANO COMPANY, PAUL
G. MEHLIN & SONS AND POOLE PIANO COMPANY and UNITED FURNI-
TURE WORKERS OF AMERICA, CIO, PETITIONER. Cam No. 32-RC-
407. February 18,1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before J. M. Mitchell, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.,
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer consists of four corporations, all wholly owned
subsidiaries of Winter & Co., a New York corporation. These four
corporations occupy one building in Memphis, Tennessee, and carry
on the following endeavors : Pershing Avenue Corporation, real estate
holding and maintenance; Ivers & Pond Piano Company, piano pro-
1 Coopers ' International Union of North America , AFL, was allowed to intervene at the
hearing.
98 NLRB No. 30.