Continental Bus System, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1949

84 N.L.R.B. 670 (N.L.R.B. 1949)

In the Matter of CONTINENTAL Bus SYSTEM, INC., EMPLOYER AND PETI-
TIONER and AMALGAMATED ASSOCIATION OF STREET , ELECTRIC RAIL-
WAY AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION No. 1142,
UNION and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT
125, UNION
In the Matter of CONTINENTAL Bus SYSTEM, INC., EMPLOYER AND
PETITIONER and AMALGAMATED ASSOCIATION OF STREET , ELECTRIC
RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION NO.
1142, UNION and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCALS No.
6, 17, 146 AND 222, UNION
Cases Nos. 16-RM-14 and 16-RM-15, respectively.Decided June
28, 1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed by the Employer, a consolidated
hearing Was held in these cases at Dallas, Texas, on March 29 and
30, 1949, before Joseph Alton Jenkins, hearing officer. The hearing
officer referred to the Board a motion by the Amalgamated to dismiss
both petitions on the ground that its bargaining contracts with the
Employer barred these proceedings. He also referred to the Board a
motion by the Teamsters to dismiss, the petition in Case No. 16-RM-15
on grounds of contract bar and the alleged inappropriateness of the
proposed unit. For the reasons hereinafter stated, the motions are
denied.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog, and Members
Houston and Gray].
84 N. L. R. B., No. 80.
670
CONTINENTAL BUS SYSTEM, INC. 671
Upon the entire record in the case, the National Labor Relations
Board makes the following findings of fact :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The following labor organizations claim to represent employees
of the Employer :
Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, Division No. 1142, AFL, herein called
the Amalgamated.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Locals No. 6, 17, 146, and 222, AFL,
herein collectively called the Teamsters.
International Association of Machinists, and International Associa-
tion of Machinists, District 125, herein collectively called the IAM.
3. The questions concerning representation :
The Employer is engaged in the business of transporting passengers
by motor bus. In February 1948, the Employer entered into an agree-
ment with Denver and Rio Grande Motor Way, Inc., hereinafter
referred to as Motor Way, and With The Denver and Rio Grande
Western Railroad Company, to purchase Motor Way's passenger bus
operating rights and the physical properties utilized in Motor Way's
bus operations. These rights and properties concerned, for the most
part, routes in Colorado and Utah.' By its terms, consummation of
the purchase agreement was made subject to approval thereof by the
Interstate Commerce Commission and by other regulatory bodies con-
,cerned with the operations involved. On September 3, 1948, the pro-
posed purchase was approved by the Interstate Commerce Commis-
sion.2 On October 1, 1948, the Employer took over as operator of
Motor Way's Colorado rights. On October 15, 1948, the merger was
completed when the Employer took over Motor Way's Utah rights.
When the Employer commenced operating Motor Way's bus routes,
a number of Motccr Way's bus operators and maintenance employees
voluntarily transferred to the employ of the Employer.3 Thereafter,
1 Motor Way also operated a short bus route across the Colorado -New Mexico border to
Farmington , New Mexico , which passed to the Employer under the terms of the purchase
agreement.
2 Continental Bus System , Inc.-Pur.-Rio Cn•ande Motor Way, 55 M . C. C. 31.
3 Prior to the sale of its passenger operating rights and properties, Motor Way operated
complementary motor freight lines. Motor Way's freight operations were not affected
by its dealings with the Employer , and a majority of its drivers and maintenance em-
ployees remained in its employ . The Teamsters and the IAM, who had been representing,
in separate units, all Motor Way ' s operators and maintenance employees , have continued
-as the bargaining representative of Motor Way ' s nontransferring employees
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Amalgamated claimed recognition from the Employer as the bar-
gaining representative of these employees. Similar claims were lodged
by the Teamsters regarding the transferred bus operators, and by the
IAM regarding the transferred maintenance employees 4 On Decem-
ber 20, 1948, the Employer filed the instant petitions.
Each of the Unions had raised contract bar issues with respect to
the proceeding, or proceedings, in which it is involved.
The Amalgamated's contentions: Prior to the Employer's acquisi-
tion of Motor Way's bus operating rights and properties, the Amal-
gamated represented the Employer's Motor Coach operators and
maintenance employees for collective bargaining purposes. These
employees were grouped in separate units, and were covered by sepa-
rate contracts. The two most recent of such contracts each became
effective on May 16, 1948, for a term of 1 year, and continued from year
to year thereafter unless notice of modification or termination was
given by either party at least 60 days prior to the annual expiration
dates. The Amalgamated contends that its 1948 contracts bar these
proceedings. As the petitions were filed before the operative dates
of the automatic renewal provisions of these contracts, we find that
the 1948 contracts do not constitute valid bars.
The Teamsters' contentions: The Teamsters assert that further ac-
tion in Case No. 16-RM-15, relating to bus operators, is barred by two,
collective bargaining contracts executed, respectively, on June 28,
1947,5 and May 15, 1948, by the Teamsters and Motor Way. These
contracts cover bus operators in Colorado and Utah .r- The Teamsters
contend that the contracts in question were assumed by the Employer.
Each contract includes the following provision :
Section 1. The Employer agrees that all present employees of
the Employer coming under the jurisdiction of the Union shall
* At the hearing, the JAM asserted a claim to represent maintenance employees in the
Employer's North and South Texas Divisions. The IAM supported this claim with an ade-
quate showing of interest with respect to such employees As indicated in Section 4 of the
text, antra, the Employer's North and South Texas Division's were established before the
Employer took over the operation of Motor way's bus rights, and employees in these divi-
sions were not affected by the merger In view of the fact that the Employer's petition in
Case No 16-RM-14 places in issue not only the unit status of maintenance employees who
transferred from Motor way but also the balance of the Employer's maintenance per-
sonnel, and in the interest of avoiding another proceeding in which the issues would dupli-
cate those involved here, we regard the IAM's claim as timely, and we shall treat it as we
would a cross-petition
5 This contract provides for automatic renewal at the end of the first year in the absence
of notice to terminate or modify
The May 15, 1948, contract was executed by the Teamsters' Local 222 on behalf of bus
operators stationed in Utah. Prior to its execution, a consent election was conducted on
April 22, 1948, in Case No 20-UA-406, and Local 222 was thereby authorized to nego-
tiate a union-security provision No valid union-security authorization has been issued
insofar as Colorado bus operators are concerned, an election conducted in 1948, in Case
No 30-UA-423, having been declared void.
CONTINENTAL BUS SYSTEM, INC. 673
be members in good standing with the Union during the life of
this contract. Preference will be given in the filling of vacancies
to men who are members of the Union. All new employees of the
Employer not members of the Union, coming under the jurisdic-
tion of the Union shall make application for membership and
shall become members in good standing of the Union within
thirty (30) days after their employment.
This provision clearly requires that the Employer give preferen-
tial treatment in the hiring of employees to individuals who are
members of the Teamsters, and thus goes beyond the limited form
of union-security agreement permitted by Section 8 (a) (3) of the
.amended Act. Each contract is therefore invalid, whether or not
an election has been conducted under Section 9 (e) of the Act. Ac-
cordingly, without regard to any other considerations, the contracts
of the Teamsters cannot operate to bar a present determination of
representatives.'
The IAM's contentions: On May 24, 1948, following a consent elec-
,tion,s the Board certified the IAM as the bargaining representative
of Motor Way's maintenance employees. Thereafter, the IAM and
Motor Way entered into collective bargaining negotiations with re-
spect to such employees. On September 24, 1948, Motor Way in-
formed the IAM that Motor Way would withdraw previously made
contract proposals unless notified of the IAM's acceptance by October
1, 1948. On September 30, 1948, by letter and by telegram, the IAM
informed Motor Way that it accepted Motor Way's proposals. How-
,ever, a collective bargaining agreement, effective as of June 21, 1948,
for a term of 3 years, was not signed until October 25, 1948.
The IAM, relying upon a provision in the February 1948 purchase
agreement between the Employer and Motor Way stating that the
Employer "shall adopt and take over all contracts, agreements and
arrangements of Motor Way now in effect pertaining to its passenger
carrying operations," and upon the fact that the Interstate Com-
merce Commission, in approving the transfer, reserved jurisdiction
over Motor Way's employees for a 2-year period in order to take such
action as it might deem appropriate and necessary with respect to
such employees,° contends that the Employer thereby voluntarily, and
as a matter of law necessarily, assumed the October 25 contract be-
tween the IAM and Motor Way. The IAM also contends that further
' Matter of Morley Manufacturing Company, 83 N. L R B. 404; Matter of Hawley &
Hoops, Inc., 83 N. L. R. B. 371.
Case No. 30-RC-78.
9 The IAM admits that the reservation of' jurisdiction by the Interstate Commerce
Commission in no way affects the jurisdiction of this Board over employees of the Employer.'
674 DECISCONS OF NATIONAL LABOR RELATIONS BOARD
action in Case No. 16-RM-14, relating to maintenance and mechanical
employees, is, under the circumstances, barred both by the Board cer-
tification of May 24, 1948, and by the October 25 bargaining agree-
ment.
Without regard to whether the principle is here applicable that a
successor-employer may be bound by a Board certification affecting
employees of a predecessor-employer,10 we find that because a year
has elapsed since May 24, 1948, the IAM's certification of that date,
by itself, is no longer a bar.
It is also clear that even if the language in the purchase agreement
between the Employer and Motor Way pertaining to the adoption of
contracts be construed as enabling Motor Way, by its subsequent acts,
to bind the Employer after the purchase agreement had been exe-
cuted,n the power of Motor Way so to bind the Employer could not
extend beyond the date upon which the agreement was consummated.
Accordingly, as the contract in question was not executed until after
the transaction between the Employer and Motor Way had been fully
consummated on October 15, 1948,12 we find that the IAM's October 25
contract imposed no liability on the Employer. Moreover, there is
nothing in the reservation of jurisdiction by the Interstate Commerce
Commission which requires a different result. We conclude, there-
fore, that the IAM's contract with Motor Way is not a bar to these
proceedings.
We find that questions affecting commerce exist concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit:
Prior to the acquisition of Motor Way's bus operating rights and
properties, the Employer operated in Texas, Oklahoma, and New Mex-
ico. Its operations in these States were carried on in two operating
divisions, known as the North and South Texas Divisions. The bus
routes and properties in Colorado and Utah acquired from Motor Way
have been incorporated into the Employer's operations as a third
operating division, known as the Rocky Mountain Division. The Em-
ployer seeks separate system-wide units for bus operators and mainte-
10 See Matter of Stonewall Cotton Mills , Decision on Motion and Order Amending Certifi-
cation, 80 N. L It. B 325.
11The purchase agreement further states that "Motor way will not, pilor to consum-
mation date , enter into any contracts , agreements or arrangements , and will not incur
any expenses or liabilities except in the ordinary course of business "
12 In the absence of a written document, notification of the acceptance of contract
proposals can not , under any circumstances, create a bargaining contract valid as it bar.
Accordingly, the IAM' s letter and telegram of September 30, 1948, are inoperative for such
purpose See Matter of E2cor, Inc, 46 N. L. R B 1035 , Matter of Public Service Cor-
poratson of New Jersey, 72 N L. It. B. 224; Matter of National Chair Company, Inc.,
74 N. L. It. B. 1014.
CONTINENTAL BUS SYSTEM, INC. 675'
nance, employees, or, in the alternative, a single system-wide unit
embracing both bus operators and maintenance employees. The
Amalgamated, which since 1938 has represented employees in the-
North, and South Texas Divisions in separate units for bus operators
and maintenance employees, agrees that system-wide units are ap-
priate. The Teamsters and the IAM, who respectively repre-
sented all Motor Way's truck and bus drivers and maintenance em-
ployees, contend that the bus operators and maintenance employees
in the Rocky Mountain Division constitute separate appropriate units.
The Employer operates as an integrated transportation system. It
advertises its operations on a system-wide basis, and provides through
traffic to and from various points in the several States in which it
maintains routes. A general manager, who controls the Employer's
labor policies, is in charge of all its operations, and a general purchas-
ing agent, purchases, all, its busses , and equipment. The Employer
files with the Interstate Commerce Commission a single accounting
report for the entire system. Its busses are maintained and overhauled
at various shops located throughout its system, but the rebuilding of
all busses is accomplished only at its Dallas, Texas, plant.
Bus operators and maintenance employees are attached to one of the
three operating divisions. There is no interchange of personnel be-
tween the divisions. Subject to the over-all control of the general
manager, divisional superintendents handle labor negotiations in con-
nection with their respective areas. In the past, employees have
accumulated both company-wide and divisional seniority.
The Employer's Rocky Mountain Division is headed by an assistant
general manager.13 Traffic within the division is controlled by a traffic
manager located in Denver. 14 The Employer has continued employee
work methods followed by Motor Way when that company controlled
the Colorado and Utah territories.15 Although the skills and duties
of bus drivers throughout the Employer's system are substantially the
same, bus drivers operating in the Rocky Mountain Division, where
driving conditions are such as to curtail the average number of miles
driven, are paid a slightly higher rate than are bus drivers operating
elsewhere. The skills and duties of all maintenance employees are
similar, and their rates are uniform throughout the Employer's system.
19 The present incumbent previously was the general manager of Motor Way' s Bus and
Truck Division.
11 A second traffic manager , located in Dallas, controls all traffic in the North and South
Texas Divisions.
'5 At the time of the hearing there were approximately 65 bus operators and 33 mainte-
nance employees in the Rocky Mountain Division, as contrasted with approximately 300
bus operators and 156 maintenance employees in the North and South Texas Division.
Substantially all the employees in the Rocky Mountain Division had previously been
employed by Motor Way.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seniority possessed by employees who transferred to the Employer
from the employ of Motor Way has been recognized and continued by
the Employer in the Rocky Mountain Division. The Employer has
plans to integrate Rocky Mountain Division employees into a com-
pany-wide seniority system, but is holding the plans in abeyance pend-
ing the outcome of these proceedings.
In view of the administrative integration of the Employer' s opera-
tions and the similarity of the work performed by employees through-
out its system-factors which point toward the common interests of
all bus drivers and the like common interests of all maintenance em-
ployees-we are of the opinion that employees in these categories may
be represented, respectively, for collective bargaining purposes in
system-wide units.16 However, as the present Rocky Mountain Divi-
sion is in essence the continuation of an operation in which employees
have in the past been represented separately, and in view of the fact
that employees within that division are not interchanged with em-
ployees in the Employer's other divisions, we are of the further
opinion that bus drivers and maintenance employees within the Em-
ployer's Rocky Mountain Division may also constitute separate appro-
priate units 1 Accordingly, we shall make no final unit determination
at this time, but shall first ascertain the desires of the employees as
expressed in the separate elections hereinafter directed among em-
ployees of the Employer in the following voting groups : Is
1. All maintenance and mechanical employees employed within
the Rocky Mountain Division, including working foremen, service
and helper employees, washers, cleaners, janitors, and partsmen, but
excluding the general shop foreman, shift foremen, and other super-
visors as defined in the Act.
2. All maintenance and mechanical employees within the North
and South Texas Divisions, including working foremen, service and
helper employees, washers, cleaners, janitors, and partsmen, but ex-
cluding general shop foremen, shift foremen, and other supervisors
as defined in the Act.
18 Matter of Wentworth Bus Lines , Inc., 51 N. L. R. B. 1345 ; see Matter of American
Bus Lines, Inc., 79 N L. R. B. 329. Evidence was also introduced at the hearing herein
tending to show that bargaining in the bus industry has in the past been conducted in
system-wide units.
The amalgamation of the two units into a single unit of both bus drivers and mechanical
employees is also feasible and in accord with prior Board practice . See Matter of Maine
Central Transportation Go, 80 N. L. R. B. 281 ; Matter of Richmond Greyhound Lines,
Inc, 51 N. L R. B. 1532, 65 N. L R. B . 234; Matter of Central Greyhound Lines, Inc.,
55 N. L. R. B. 504.
1' See Matter of Taxicabs of Cincinnati , Inc, 82 N L R B. 664 ; Matter of Central
Swallow Coach Lines , 82 N. L. R. B. 487; Matter of Norfolk Southern Bus Corporation,
60 N L R B. 630, 66 N L . R B 1165, unit finding approved , N. L. R. B. v. Norfolk
Southern Bus Corporation, 159 F ( 2d) 517, 518 (C. A. 4).
18 As indicated above, the Amalgamated is the current bargaining representative of bus
operators in the North and South Texas Divisions . The status of the Amalgamated as
such representative is not questioned in these proceedings.
CONTINENTAL BUS SYSTEM, INC. 677
3. All bus operators employed within the Rocky Mountain Division,
excluding dispatchers and supervisors as defined in the Act.
If the employees in voting groups Nos. 1 and 2 both select the same
labor organization, they will be taken to have indicated their desire
to be represented in a system-wide unit. If the employees in voting
group No. 3 select the Amalgamated, they will be taken to have indi-
cated their desire to be represented in a system-wide unit of bus
operators.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with the Employer, three separate
elections by secret ballot shall be conducted as early as possible, but
not later than 30 days from the date of this Direction, under the di-
rection and supervision of the Regional Director for the Region in
which this -case was heard, and subject to Sections 203.61 and 203.62
of National Labor Relations Board Rules and Regulations-Series 5,
as amended, among the employees in the three voting groups described
in paragraph numbered 4, above, who were employed during the pay-
roll period immediately preceding the date of this Direction of Elec-
tions, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the elections, and also excluding employees on strike who are not en-
titled to reinstatement, to determine, whether, for the purposes of
collective bargaining :
(1) The employees-in Group 1 desire to be represented by Amal-
gamated Association of Street, Electric Railway and Motor Coach
Employees of America, Division No. 1142, or by International Asso-
ciation of Machinists, District 125, or by neither.
(2) The employees in Group 2 desire to be represented by Amal-
gamated Association of Street, Electric Railway and Motor Coach
Employees of America, Division No. 1142, or by International Asso-
ciation of Machinists, or by neither.
(3) The employees in Group 3 desire to be represented by Amalga-
mated Association of Street, Electric Railway and Motor Coach Em-
ployees of America, Division No. 1142, or by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica,19 or by neither.
30 Pursuant"to the Teamsters' request, and in the absence of objection by any party, the
name of the Teamsters' international union will appear on the ballot in the election to be
held among employees in this voting group.