Capital Transit Co.

National Labor Relations Board - Board Decisions

Jun 16, 1953

105 N.L.R.B. 582 (N.L.R.B. 1953)

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under Board practice an election must be set aside whenever
there is coercion affecting an election, and that the election
in the instant case should be set aside because the Employer's
misconduct, although directed against both Unions, might have
unequally affected the Intervenor's adherents among the em-
ployees.
We find, for the reasons relied upon by the Regional Direc-
tor, that the Intervenor's objections and exceptions do not
raise material and substantial issues with respect to the
election. We shall therefore overrule them, and, as the
Petitioner has secured a majority of the valid ballots cast in
the election, we shall adopt the Regional Director' s recom-
mendation and certify the Petitioner as the bargaining repre-
sentative of the employees in the appropriate unit.
[The Board certified the Congress of Industrial Organiza-
tions as the designated collective -bargaining representative of
the employees of the Showell Poultry Company in the unit
hereinabove found appropriate.]
CAPITAL TRANSIT COMPANY and DIVISION 689, AMALGA-
MATED ASSOCIATION OF STREET, ELECTRIC RAILWAY
AND MOTOR COACH EMPLOYES OF AMERICA, AFL.
Case No. 5-CA-667. June 16, 1953
DECISION AND ORDER
Upon a charge duly filed November 25, 1952, by Division
689, Amalgamated Association of Street , Electric Railway and
Motor Coach Employes of America, AFL, herein called the
Union, the General Counsel of the National Labor Relations
Board, herein called the General Counsel, by the Acting
Regional Director for the Fifth Region, issued a complaint
dated December 23, 1952, against Capital Transit Company,
herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1)
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, herein called the Act. Receipt of copies of the complaint,
the charge, and notice of hearing was stipulated by all parties.
With respect to the unfair labor practices the complaint
alleges, in substance, that on or about November 17, 1952,
the Respondent refused, and now refuses , to bargain with the
Union as the exclusive representative of certain employees
appropriately a part of the unit the Union currently represents.
The Respondent filed an answer admitting that the Union had
requested the Respondent to bargain as alleged and that the
Respondent has refused to bargain collectively with the Union
as requested, but denying that it had engaged in and was en-
gaging in unfair labor practices within the meaning of Section
8 (a) (1) and (5) of the Act.
105 NLRB No. 72.
CAPITAL TRANSIT COMPANY 583
Thereafter all parties entered into a stipulation which set
forth an agreed statement of facts. The stipulation provides
that the parties thereby waive their rights to a hearing and to
the taking of testimony and the submission of further evidence
before a Trial Examiner, the Board, or any Member thereof,
to the preparation and filing of an Intermediate Report and
Recommended Order, to the making and issuance of proposed
findings of fact and conclusions of law by the Board, and to the
filing of exceptions to any intermediate or proposed report or
recommended or proposed order. The stipulation further pro-
vides that, upon such stipulation and the record as therein
provided, the Board may make findings of fact, conclusions
of law, and enter an order pursuant to the provisions of the
Act.
The aforesaid stipulation is hereby approved and accepted
and made a part of the record in this case. In accordance with
Section 102.45 of National Labor Relations Board Rules and
Regulations--Series 6, as amended, this proceeding was trans-
ferred to and continued before the Board.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its powers in connection with this pro-
ceeding to a three-member panel [Members Houston, Murdock,
and Styles].
Upon the basis of the aforesaid stipulation and the entire
record in this case, the Board, having duly considered the
briefs filed by the Respondent and the Union, makes the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Capital Transit Company, is a corporation
existing by virtue of the laws of the District of Columbia. It
maintains its principal office and place of business in the city
of Washington, District of Columbia, and is engaged in the
operation of a public passenger transportation system by the
use of streetcars and buses in the District of Columbia and
the State of Maryland. The Respondent in the normal course
and conduct of its business uses materials valued in excess
of $1,000,000 annually, of which it causes and has continuously
caused more than 95 percent annually to be purchased, trans-
ported, and delivered in interstate commerce from and through
States of the United States to and through the District of Colum-
bia, and receives fares for the transportation of passengers
in the District of Columbia and the State of Maryland amounting
to in excess of $20,000,000 annually.
We find that the Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction over its operations.
291555 0 - 54 - 38
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IL THE ORGANIZATION INVOLVED
The Respondent here renews its contention made in an
earlier representation proceeding (Case No. 5-RC-856) that
the Union is not a labor organization within the meaning of
Section 2 (5) of the Act. We reaffirm our ruling in the repre-
sentation proceeding rejecting this contention. For the reasons
stated in our Decision and Direction of Election of February 18,
1952 (98 NLRB 141), we find that the Union, Division 689,
Amalgamated Association of Street, Electric Railway and Motor
Coach Employes of America, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and representation by the Union
of a majority therein
The Respondent admits that at all times material herein
the Union has been the exclusive representative for the pur•
poses of collective bargaining of its operating and maintenance
employees. This bargaining unit for which the Respondent
recognizes the Union is described in an agreement dated
August 30, 1951, between the Respondent and the Union as:
All operators, construction and maintenance employees
of the [Respondent], excluding supervisors, professional
employees and guards as defined in the Labor Manage-
ment Relations Act, 1947.
In Case No. 5-RC-856 the Union sought by representation
petition to add to the operating and maintenance unit the
following group of employees:
All depot clerks, acting depot clerks, assistant depot
clerks, senior division receivers , assistant or auxil-
iary division receivers, inspectors, stock clerks, assis-
tant stock clerks, junior stock clerks, garage clerks,
shop clerks , terminal guards, senior fare box pullers,
fare box pullers, assistant supervisor of fare box main-
tenance, fare box inspector, dispatchers, auxiliary as-
sistant dispatchers, and assistant collectors of revenue;
excluding supervisor of fare box maintenance, senior
division 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.
The Board in that proceeding found, over objections of the
Respondent renewed herein, that the group of employees pe-
titioned for had a sufficient community of interest with
operating and maintenance employees to be added, if they
CAPITAL TRANSIT COMPANY 585
desired, to the existing unit. It therefore directed an elec-
tion in the group, stating that if a majority of the employees
voting in the election cast their ballots for the Union they
would have indicated their desire to be included in the exist-
ing unit and that the Union might then bargain for them as a
part of that unit, and the Regional Director conducting the
election should issue a certification of results of election
to that effect.
In the election conducted on March 13, 1952, pursuant to
the Board's direction, a majority of the employees voting
did not cast ballots for the Union. The Union filed objections
to the election, and in a supplemental decision (100 NLRB
1173) the Board set aside the election on the ground that the
Respondent had created an atmosphere incompatible with
freedom of choice by its employees. We reaffirm our findings
in that supplemental decision contested by the Respondent in
this proceeding. A second election was conducted on October
16 and 17, 1952. The Union received a majority of the valid
votes cast in this election; and on October 27, 1952, the
Regional Director certified that the Union had been designated
by a majority of the employees voting in the election and was
their exclusive representative within the meaning of Section
9 (a) of the Act.
Since the representation proceeding the Respondent has
supplemented the duties of certain employees who were in-
volved in the election, and their unit placement is raised in
this proceeding. The employees in question were included
in the voting group as assistant collectors of revenue. They
are now known as "revenue guards" and the Respondent
contends that they should be excluded from the bargaining
unit as guards within the meaning of Section 9 (b) (3) of the
Act. The Union contends that they should continue in the
bargaining unit but should be designated by their new job
title. The General Counsel considers the contentions of the
Respondent and the Union to be in the nature of a motion to
clarify the appropriate unit.
At the time of the representation hearing assistant collectors
of revenue performed the following duties: As the "money
wagon crew" they drove a special truck to each division,
entered the division farebox room with two auditors as
observers, unlocked the fareboxes which had been removed
from the various vehicles and stored in the farebox room,
dumped the money from the fareboxes into bags and tied
them with string denoting the route line involved, placed
the bags in leather pouches, and took the pouches to the depot
office. If they observed evidence that fareboxes had been
tampered with, they separated these fareboxes. The pouches
taken to the depot office by the money wagon crew were
thereafter picked up by Brinks, Incorporated, and trans-
ported to the Respondent's main office where the money
was sorted and counted and then transferred by Brinks to
banks and the United States Treasury. Effective January 15,
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1953, the Respondent terminated its arrangement with Brinks,
acquired an armored truck, and on January 16, 1953, began
performing through the money wagon crew the functions pre-
viously performed by Brinks. Since that time the members
of the money wagon crew have been armed, uniformed,
given the title of revenue guards, and appointed special
policemen by the municipal authorities of the District of
Columbia. The present duties of revenue guards are de-
scribed by stipulation as follows:
Their day's work is begun at the General Offices of
the Company where they board the armored truck which
has been loaded by other employees with (1) cash which
has been counted and separated into appropriate denom-
inations for deposit at a bank or delivery to the U.S.
Treasury, and (2) amounts of coin and tokens to be
delivered to at least two division offices for distribution
to operators for use in making change. These employees
proceed in the armored truck first to the bank and
deliver the currency marked for deposit, then to the
U.S. Treasury, and deliver the coin, and then proceed
to each of the ten division offices. At each division
office, they pick up the cash receipts at the Depot Office
and place same in the armored truck. Also at some
divisions, usually about two divisions per day, they
leave cash for distribution to operators for making
change. At each division point they perform the same
functions previously performed by the money wagon
crew as described in the Record (#5-RC-856) with the
exception that instead of placing the bags which contain
the contents of the fare boxes in leather pouches and
taking same into the Depot Clerk's office, such bags
are now placed directly in the armored truck. The same
procedure is followed at each of the ten divisions and
the bags of money thus collected are brought to the
Respondent's General Offices and placed in a vault.
At the time of collection or delivery to and from the
armored truck, one of the revenue guards remains
behind in the truck to guard the funds in the truck and
to "cover" the other revenue guards from such position.
Each employee in the money wagon crew formerly spent about
6i hours per day, 5 days per week, performing his duties;
each of the revenue guards now spends 8hours per day, 5 days
per week, performing his duties.
It appears from the stipulated facts that the main duty of the
revenue guards continues to be collecting the money from the
fareboxes. Their new duties are incidental to their main job
of collecting. We conclude that the new aspect of their em-
ployment does not convert them into guards for whom Sec-
tion 9 (b) (3) of the Act requires separate representation.'
1See Philadelphia Company and Associated Companies, 84 NLRB 115.
CAPITAL TRANSIT COMPANY 587
Even if our determination were different and we were to
find these employees to be guards within the meaning of the
Act, such a finding would merely require exclusion from the
bargaining group of one classification of employees and
would not affect the appropriateness of the unit involved
and the Union's majority therein, or the Respondent's duty
to bargain for other employees in the bargaining group.
Upon this record we find that since October 27, 1952,
the Union has been and is the exclusive representative of
an appropriate bargaining unit of all the operators, con-
struction and maintenance employees of the Respondent, in-
cluding 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 farebox pullers, farebox pullers,
assistant supervisor of farebox maintenance, farebox inspector,
dispatchers, auxiliary assistant dispatchers, and revenue
guards, excluding supervisor of farebox maintenance, senior
division supervisors , division supervisors , instructors, col-
lector of revenue, senior stock clerks, chief dispatcher,
assistant chief dispatcher, and all other supervisors, guards,
and professional employees as defined in the Act.
B. The refusal to bargain
On November 7, 1952, the Union wrote the Respondent:
Division 689 has been certified by the National Labor
Board as the collective bargaining representative of
certain salaried employees, as a result of which these
employees are now included in the collective bargaining
unit currently represented by this Union.
It is our desire to meet with representatives of the
Company at the earliest possible date to negotiate terms
and conditions of employment for these employees. We
would appreciate your designating a time and place where
such a meeting can be held. At such time we shall submit
a copy of our bargaining demands.
By letter dated November 17, 1952, the Respondent replied:
This will acknowledge receipt of your letter of Novem-
ber 7, 1952, concerning proposed negotiations by Divi-
sion 689 on behalf of certain salaried employees covered
by a certification of the National Labor Relations Board.
As you know, the Company desires to obtain court
review of the determination of the National Labor Re-
lations Board. We have been advised that, in order to
obtain such court review, it is necessary that the Com-
pany refuse, and the Company therefore hereby refuses,
to enter negotiations with Division 689 on behalf of
such employees.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as the Respondent has refused to bargain with
the Union for employees who the Board has found are appro-
priately a part of the bargaining unit and whom the Board has
certified the Union represents, we find that the Respondent
has violated Section 8 (a) (5) and 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, we shall order it to cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act. Having found that the Respon-
dent has refused to bargain collectively with the Union for
certain employees who are part of the bargaining unit, we
shall order the Respondent, upon request, to bargain with
the Union for these employees.
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. Division 689, Amalgamated Association of Street, Electric
Railway and Motor Coach Employes of America, AFL, is
a labor organization within the meaning of Section 2 (5)
of the Act.
2. All operators, construction and maintenance employees
of the Respondent, including 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 farebox pullers,
farebox pullers, assistant supervisor of farebox maintenance,
farebox inspector, dispatchers, auxiliary assistant dispatchers,
and revenue guards, but excluding supervisor of fareboxmain-
tenance, senior division supervisors , division supervisors,
instructors, collector of revenue, senior stock clerks, chief
dispatcher, assistant chief dispatcher, and all other super-
visors, guards , and professional employees as defined in the
Act, constitute a unit appropriate for the purposes of col-
lective bargaining , within the meaning of Section 9 (b) of
the Act.
3. On and after October 27, 1952, the Union has been and
is the exclusive representative of the employees in the afore-
CAPITAL TRANSIT COMPANY 589
said unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing on November 17, 1952, and all times there-
after, to bargain collectively with the Union as the exclusive
representative of certain employees appropriately a part of
the bargaining unit, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 (a) (5) and 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2 (6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Sec-
tion 10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that the Respondent,
Capital Transit Company, Washington, D. C., and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Division 689,
Amalgamated Association of Street, Electric Railway and
Motor Coach Employes of America, AFL, as the exclusive
representative of the following employees as part of the
appropriate bargaining unit:
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 farebox pullers, farebox pullers,
assistant supervisor of farebox maintenance, farebox in-
spector, dispatcher, auxiliary assistant dispatchers, and rev-
enue guards.
(b) In any manner interfering with the efforts of Division
689, Amalgamated Association of Street, Electric Railway
and Motor Coach Employes of America, AFL, to negotiate
for or represent the employees specified in paragraph (a)
as part of the appropriate bargaining unit.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Division 689,
Amalgamated Association of Street, Electric Railway and
Motor Coach Employes of America, AFL, as the exclusive
representative of the employees specified in 1 (a) above as
part of the appropriate bargaining unit and embody any
understanding reached in a signed agreement.
(b) Post at its Washington, D. C., main office, copies of
the notice attached hereto and marked "Appendix A."2 Copies
of such notice, to be furnished by the Regional Director for
2 In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Fifth Region, shall, after being duly signed by the Re-
spondent's authorized representative, be posted by the Re-
spondent immediately upon receipt thereof, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for the Fifth Region, in
writing, within ten (10) days from the date of this Decision
and Order what steps the Respondent has taken to comply
herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of
the National Labor Relations Act, we hereby notify our
employees that:
WE WILL bargain collectively upon request with Di-
vision 689, Amalgamated Association of Street, Electric
Railway and Motor Coach Employes of America, AFL,
as the exclusive representative for the following em-
ployees as part of the appropriate bargaining unit, with
respect to wages, rates of pay, hours of employment,
and other conditions of employment, and if an under-
standing is reached, embody such understanding in a
signed agreement:
All depot clerks, acting depot clerks , assistant depot
clerks, senior division receivers , assistant or auxil-
iary division receivers , inspectors , stock clerks, as-
sistant stock clerks, junior stock clerks , garage clerks,
shop clerks, terminal guards, senior farebox pullers,
farebox pullers, assistant supervisor of farebox main-
tenance, farebox inspector , dispatchers, auxiliary as-
sistant dispatchers, and revenue guards.
WE WILL NOT in any manner interfere with the efforts
of Division 689, Amalgamated Association of Street,
Electric Railway and Motor Coach Employes of America,
AFL, to negotiate for or represent such employees as
part of the appropriate bargaining unit.
CAPITAL TRANSIT COMPANY,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the
date hereof, and must not be altered , defaced , or covered
by any other material.