Denver-Colorado Springs-Pueblo Motor Way

National Labor Relations Board - Board Decisions

Jan 5, 1961

129 N.L.R.B. 1184 (N.L.R.B. 1961)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become , remain , or refrain from becoming or re-
maining, members of any union , except to the extent that this right may be affected
by an agreement in conformity with Section 8(a)(3) of the National Labor Rela-
tions Act , as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
RELIANCE FUEL OIL CORP.,
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.
Denver-Colorado Springs-Pueblo Motor Way and Brotherhood
of Railroad Trainmen Local No. 852, AFL-CIO, Petitioner.
Case No. 27-RC-1841 (formerly 30-RC-1841). January 5, 1961
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before John S.
Healey, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent the em-
ployees of the Employer.
3. No 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, for the following
reasons:
The Petitioner seeks to represent a unit of hostesses employed on
the Employer's busses. The Employer moved to dismiss the petition
on the ground that the unit is inappropriate because it is composed
of only one employee.
The Employer is engaged in the business of transporting passengers
by bus. It operates from a number of terminals in the State of Col-
orado. Since 1957, the Employer has provided hostess service for its
passengers, on some of its bus routes, the so-called "Five Star" service.
At the time of the hearing such service was maintained only on one
route between the cities of Pueblo and Denver, Colorado. The service
consists of serving light snacks and refreshments, and furnishing
newspapers, magazines, and other courtesies to the passengers. There
is one full-time regular hostess who works 5 days a week on the route.
In addition one Ruth Robinson works 2 days a week as a relief hostess.
She is primarily a clerical employee, and works regularly 3 days a
week at the Pueblo terminal. There, she is covered by a collective-
bargaining contract which the Employer maintains with it labor or-
ganization other than the Petitioner. In the exercise of her dual
129 NLRB No. 135.
DENVER-COLORADO SPRINGS-PUEBLO MOTOR WAY 1185
functions in the Employer's operations she works a full 5-day week,
with the major portion of her working time devoted to her duties as
a clerical employee.
The Board used to hold that an employee who performs dual func-
tions for an Employer is entitled to be represented by a collective-
bargaining representative for that portion of his duties to which he
is regularly assigned and in which he spends "a sufficient period" of
time so as to have "a substantial interest" in the terms and conditions
of employment within the unit covering employees performing similar
functions.' Employees who spent less than 50 percent of their work-
ing time in performing duties of the type covered by the requested
unit were thus included in the unit. They were, however, not per-
mitted to vote in the election selecting the collective-bargaining
representative for such unit.
In 1951, in Ocala Star Banner,' the Board eliminated this limitation
on the voting rights of employees performing dual functions and per-
mitted them, like part-time employees performing functions for two
or more employers, to exercise voting rights in any unit in which they
were included.
Following the Board's decision in American Potash' in 1954, which
provided inter alia that only craftsmen primarily engaged in the per-
formance of tasks requiring the exercise of their craft skills may, for
severance purposes, be included in craft units, the Board has applied
this stricter standard in a number of cases not involving craft sever-
ance.' In this line of cases, the Board has included employees in pro-
posed units only if they spent a "major portion of their time" in tasks
alike or similar to the ones of the other employees in the unit. In
effect the Board has required that an employee spend more than 50
percent of his working time in such tasks or duties.
We believe that this development in the law of unit inclusion is
proper. It seems reasonable to conclude that the preponderant in-
terests of an employee lie with those of his fellow workers who per-
form similar tasks as the ones in which he spends the majority of his
time. The bargaining representative selected to represent the unit of
such employees is therefore the one to represent an employee perform-
ing dual functions.
Accordingly, we shall henceforth apply for purposes of unit place-
ment and voting eligibility only one test, namely whether an employee
sought to be included in a proposed unit is primarily engaged in, and
1 See Tower Cleaners , 97 NLRB 376, 379; Coca - Cola Bottling Company , 94 NLRB 208,
210, Florida Broadcasting Company, 93 NLRB 1568; Dispatch Printing Company, Inc.,
93 NLRB 1282; WCAU, Inc, 93 NLRB 1003.
97 NLRB 384.
' American Potash & Chemical Corporation , 107 NLRB 1418, 1423.
Apex Linen Service, 119 NLRB 500; Douglas H. McDonald, 126 NLRB 680; Corn-
husker Television Corporation , 117 NLRB 1065 at 1067.
586439-61-vol. 129-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spends the major portion of his time, i.e., more than 50 percent of his
time, performing tasks or duties alike or similar to the ones performed
by the other employees in the requested unit. Ocala Star Banner and
the other cited cases permitting unit inclusion of employees spending
less than a major portion of their time in performing such tasks, are
hereby overruled.
As the record is clear that employee Ruth Robinson does not spend
a major portion of her time in working as a hostess, we find that she
is not qualified to be included in the proposed unit of hostesses. There-
fore, it appears that only one employee may properly be part of the
unit requested by the Petitioner. The Board does not direct elections
in units composed of one employee only, as it is settled policy not to
certify a representative for bargaining purposes for such unit.' Ac-
cordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
MEMBER FANNING, dissenting :
I do not believe that it will effectuate the policies of the Act for the
Board to overrule the policy set forth in The Ocala Star Banner, 97
NLRB 384.
In this connection I am particularly concerned with the mandate of
Section 9 (b) that the Board shall decide the unit appropriate for col-
lective bargaining ". . . in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act. . .."
Prior to Ocala Star Banner the Board included in the unit employees
who regularly worked part time in the voting unit and part time else-
where for the same employer. As stated, for example, in Coca-Cola
Bottling Company of St. Louis, 94 NLRB 208, at 210, the Board was
"reluctant to deprive them of representation for that portion of their
duties." However, these employees were not permitted to have a voice
in the selection or rejection of a bargaining representative, unless they
spent 50 percent or more of their time doing work which qualified them
to be in the unit. Otherwise, they were included in the unit but were
not eligible to vote.
Nevertheless, the Board allowed part-time employees to vote in the
unit even though they spent less than 50 percent of the working time
at work for the employer provided that they worked for another em-
ployer or were idle for the rest of the time, on the ground that they had
a substantial interest in the wages, hours, and working conditions of
the employees in the appropriate unit.
In setting forth its policy in Ocala Star Banner the Board modified
its eligibility rule and permitted employees to vote who work part time
in the voting unit and part time elsewhere for the same employer.
Thus, the Board in that decision, pursuant to the policies of the Act,
6 Cutter Laboratories, 116 NLRB 260; Sharon Wire Company, Inc., 115 NLRB 372.
DENVER-COLORADO SPRINGS-PUEBLO MOTOR WAY 1187
continued to accord to such employees the benefits of collective repre-
sentation for a substantial part of their work, but it also permitted
them to participate in the selection or rejection of such bargaining
representative, and made its eligibility requirements consistent as be-
tween employees performing more than one function for the same em-
ployer and those working also for another employer or merely part
time for one employer.
Thus, the policies of the Act were served, and at the same time the
Board removed what was clearly an arbitrary and inconsistent appli-
cation of its eligibility rules.
Nor do I believe that the Board's redefinition of its policy in sever-
ance cases, as set forth in American Potash & Chemical Corp., 107
NLRB 1418, requires that the Board abandon the salutary, policy
effectuating, and reasonable approach of Ocala Star Banner. In
American Potash the Board stated that it would permit the severance
of craft groups (or departments under certain conditions) in the face
of established bargaining history for those employees under restricted
conditions. One of these was that the group be a true craft (in the
case of crafts) and that such craftsmen be primarily engaged in the
performance of tasks requiring the exercise of craft skills. No indi-
cation was given in the decision in American Potash that the policy
of Ocala Star Banner was being abrogated. American Potash in this
respect dealt only with the severance of craft groups from an existing
bargaining relationship.6
I would find, in accord with precedent (Transcontinental Bus Sys-
tem, Inc.) 119 NLRB 1840, 1845) that a unit of hostesses is an ap-
propriate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. As the relief hostess spends 40
percent of her time regularly as a hostess, she has a substantial interest
in the wages, hours, and working conditions of the hostess included in
the unit. Accordingly, pursuant to Section 9 (b) of the Act and Ocala
Star Banner, I would include her in the unit and direct an election.
MEMBER KIMBALL took no part in the consideration of the above
Decision and Order.
a The majority states that the Board since American Potash has required that an em-
ployee spend more than 50 percent of his working time in the unit before it will include
him The reliance of the majority on C,ornhusker Television Corporation, 117 NLRB 1065
at 1067, and Douglas H McDonald, 126 NLRB 680, to support this Statement seems to
be misplaced
In Cornhusker a panel of the Board (Chairman Leedom and Members Murdock and
Rodgers), although noting that one employee spent apparently less than 50 percent of his
time in the administrative division, included him in the unit of programing department
employees in which lie spent 40 percent plus of his time. In the same case the Board
excluded other employees from the unit as'they did "not spend a substantial part of their
time in programing." The Board used the "substantial part of their time" as the stand-
ard: it did not use the "majority of time" standard now proposed by the majority
In like manner in Douglas 11 McDonald it panel of the Board (Chairman Leedom and
Members Rodgers and Jenkins) excluded certain employees because it is clear that these
employees do not spend a substantial part of their time" in work Hithin the unit