Detroit & Canada Tunnel Corp.

National Labor Relations Board - Board Decisions

May 19, 1949

83 N.L.R.B. 727 (N.L.R.B. 1949)

In the Matter of DETROIT & CANADA TUNNEL CORPORATION, EMPLOYER
and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND
MOTOR COACH EMPLOYEES OF AMERICA, A. F. L. DIVISION 1303,
PETITIONER
Case No. 7-RC-334.Decided May 19, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Cecil Pearl,
hearing officer of the National Labor Relations Board. 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 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].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations named below in the Direction of Election
claim to represent employees of the Employer.
3. The question concerning representation :
The Employer and United Automobile, Aircraft & Agricultural
Implement Workers of America (UAW-CIO) and its Local 195,
herein jointly called Intervenor, contend that their current contract
is a bar to this proceeding. This contract is dated August 21, 1948,
and provides that it continue in effect until August 21, 1949, and there-
after until terminated, modified, or amended as provided by its terms.
However, it is conceded by the Employer and Intervenor that the con-
tract was not signed by the parties until November 22, 1948. The pe-
tition was filed on August 27, 1948. Under the well-established doc-
trine that a collective bargaining agreement which has not yet been
signed cannot constitute a bar to a determination of representatives,'
1 Matter of Continental Gin Company, 72 N. L . R. B. 1205; Matter of Public Service
Corporation of New Jersey, et at., 72 N. L. R. B. 225; Matter of Eagle-Picher Mining and
Smelting Company, 71 N. L. R. B. 333; Matter of Eicor, Inc., 46 N. L. R. B. 1035.
83 N, L. R. B., No. 110.
727
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find that the petition was seasonably filed, and that the contract in
question does not constitute a bar to this proceeding.2
A question affecting commerce exists concerning the representation
of employees of the Employer, within the meaning of Section 9 (c)
(1) andSection2 (6) and (7) of the Act.
4. The appropriate unit:
The contentions of the parties
In its petition, the Petitioner sought a unit comprising all hourly
paid employees of the Employer, excluding office and clerical employ-
ees, and supervisors. At the hearing, the Petitioner requested, in the
alternative, a unit limited to employees who work all or a substantial
part of their time within- the United States, excluding in addition to
those already excluded in its petition, employees who work exclusively
in Canada. The Employer and Intervenor ask that the petition should
be dismissed, contending that the appropriate unit is the unit described
in their current collective bargaining agreement, and comprises "all
employees of the Company on the United States pay roll who are paid
in United States funds, and all employees of the Company on the
Canadian pay roll who are paid in Canadian funds," excluding office
and clerical employees and supervisors.
The corporate structure of the Employer
The Employer, a Michigan corporation with offices at Detroit,
Michigan, operates and maintains a vehicular tunnel between Detroit,
Michigan, in the United States, and Windsor, Ontario, in the Dominion
of Canada; it also operates a fleet of buses between those two cities.
It reports annually to the United States Interstate Commerce Com-
mission as Class I motor carrier of passengers under Part II of the
Interstate Commerce Act.
The Employer 3 owns and controls Detroit Windsor Subway Com-
pany, a corporation organized by Special Act of the Dominion of
Canada, which exists for the purpose of owning property in Canada.
The Board of Directors of the American Company is composed of six
American citizens and one Canadian citizen and the Board of Direc-
9 Before the current contract , the Employer and Intervenor bargained under an agree-
ment effective from November 1, 1947 , to August 21, 1948, ands terminated by the
request of the Intervenor for changes and amendments in accordance with its terms before
the filing of the petition in this proceeding . There is no. contention that this earlier
contract constituted a bar to a current determination of representatives . See Matter of
Public Service Corporation of New Jersey , et al., supra.
O To distinguish the Employer from its Canadian subsidiary , we shall refer to the Em-
ployer as the "American Company" and to the Canadian subsidiary as the "Canadian
Company."
DETROIT & CANADA TUNNEL CORPORATION 729
tors of the Canadian Company is composed of three Canadian citizens
and two American citizens ; the two American citizens and one of the
Canadian citizens on the Board of Directors of the Canadian Company
are also Directors of the American Company.
The American Company is the operating company. It collects all
tolls and other income, and pays all expenses of the Canadian Com-
pany; it assumes all depreciation charges, and settlement is made
through an intercompany account,; the surpluses of the Canadian Com-
pany are transferred to the American Company in the form of dividend
declarations. The American Company pays all American employees
in United States funds and all Canadian employees in Canadian funds ;
it has a Canadian bank account in Canada out of which all pay roll
and other expenses incidental to the Canadian operations are paid.
The Canadian Company has no bank account. Title to the fleet of
buses, 15 in number, is vested in the Canadian Company, but the buses
are operated by the American Company; only 1 garage is maintained,
and that is located at Windsor. The American Company is the only
company connected with the ownership, maintenance, and operation of
the tunnel.
The operations of the Employer
There are three main divisions : The maintenance division super-
vised by the superintendent of maintenance, the bus division super-
vised by the bus superintendent, and the garage division supervised
by the garage foreman.
The maintenance division handles the maintenance of the tunnel,
other buildings and structures, and motor vehicles (other than the
Employer's buses) using the tunnel. The employees in this division
consist of maintenance mechanics who repair structures, machinery,
and other equipment, except buses ; ventilation operators, also known
as electrical operators, who work at the substations and handle the
equipment necessary for the operation of the ventilation fans, pumps,
and other electrical devices; an electrician who repairs electrical equip-
ment; a cement finisher who makes all structural repairs in the tunnel
and buildings; janitors; a night cleaning crew of laborers; and em-
ployees known as traffic directors and traffic guards who direct the
flow of vehicular traffic and, assist the immigration officers in the
United States and Canada.
The buses operate on a circular route from the Windsor terminal,
through the vehicular tunnel, through the city of Detroit, and after
stopping at the Detroit terminal, return to Windsor by way of the
tunnel. Bus passengers from Windsor may alight on Detroit streets
730 DECISIONS OF "NATIONAL LABOR `RELATIONS BOARD
and passengers to Windsor may board at designated loading points
in Detroit. There are 20 bus drivers. The bus superintendent who
is in charge of these operations also supervises token salesmen who
make change and check the payment of fares by bus passengers, and
toll collectors who collect charges from motorists using the tunnel.
The garage division handles the maintenance of the buses at the
garage in Windsor. The garage employees consist of mechanics, help-
-ers, and laborers; these employees spend all their working time at
Windsor.
There is a total of 94 employees. These are classified by the Em-
'ployer as United States employees, Canadian employees, and Inter-
national employees.
The United States employees, 24 in number, are those employed
exclusively in the United States, and are described as follows : traffic
directors, traffic captains, token sales employees, janitors, toll col-
lectors, ventilation operators.'
The Canadian employees, 32 in number, are those employed ex-
clusively at Windsor, and are described as follows : traffic directors,
traffic captains, token sales employees, janitors, toll collectors, venti-
lation operators, and also the garage employees comprising mechanics,
helpers, and laborers.
The International employees, 38 in number (16 American citizens
and 22 Canadian citizens),5 are described as follows: bus drivers,
maintenance mechanics, maintenance helpers, electrician, concrete me-
chanic, ventilation operator, and laborers. The bus drivers operate
the entire length of the route which is 1.8 miles in the United States
and 1.3 miles in Canada. The other employees perform their work
on both sides of the international boundary and on both plazas on the
respective exits. Bus drivers who are residents of the United States
must have a Michigan chauffeur's license and a Detroit Public Vehic-
ular license. The Canadian residents are required to carry a Cana-
dian chauffeur's license and also a Detroit Public Vehicular license.6
Social security taxes are deducted only for that portion of their time
that they work in the United States, but unemployment compensation
taxes payable to the State of Michigan are deducted without pro-rat-
ing. Of the 20 bus drivers, 10 are carried on the United States pay
roll and 10 on the Canadian pay roll; 2,maintenance mechanics are on
4 One employee , a ventilation operator , is a United States citizen but a resident of
Canada, who works in Detroit and is paid in United States funds. .
5 The immigration authorities of the United States and of Canada have required an even
balance in the number of employees working on both sides of the tunnel . However, at
the time of the hearing there were more Canadian citizens than American citizens.
6 The buses do not operate on the public streets of Windsor. .
' ' DETROIT &T CANADA TUNNEL CORPORATION 731
the United States pay roll and one on the Canadian pay 'roll; a mainte=
nance helper, a concrete mechanic, and a ventilation operator are on
the Canadian pay roll, and an electrician is on the United States pay
roll; and of 11 laborers, 2 are carried on the United States pay roll and
9 on the Canadian pay roll.
• Apart from a difference in working hours which exists between em-
ployees on each side of the international boundary because of the
applicability of the United States Fair Labor Standards Act to those
working in the United States,7 there are no differences in working
conditions, rates of pay, and employee benefits among the employees.
All are on an hourly rated basis. The maintenance and operation of
the vehicular tunnel between Detroit and Windsor is an integrated and
continuous operation. The bus service, too, constitutes an integrated
operation.
The bargaining history
In 1941, the Employer and the Intervenor entered into a cross-check
agreement, following which, on July 16,1941, the Intervenor was desig-
nated bargaining representative by a majority of the employees in the
unit. The unit in that case consisted of all employees of the Em-
ployer on the United States pay roll who are paid in United States
funds, excluding clerical employees and supervisors .s In 1942, the
Employer and the Intervenor entered into a collective bargaining
agreement covering•the employees on the United States pay roll only.
However, Canadian employees were included by a separate informal
agreement. In 1945, the parties executed another contract; this time,
however, it covered not only the employees on the United States pay
roll but also those on the Canadian pay roll. The 1947 and 1948
agreements between the parties, like the one executed in 1945, covered
the enlarged unit.
Conclusions
In view of the integration of the Employer's total operations and
the bargaining history covering all employees as discussed above, we
would ordinarily find that all of the employees constitute a single
appropriate unit ° In the present case, however, we are of the opinion
that it would not be appropriate to include in the unit employees who
? Forty hours per week on the American side and 44 hours per week on the Canadian
side. -
8 Matter of Detroit d Canada Tunnel Corporation , Case No. 7-R-696 , petition filed July
15, 1941 ( unpublished ). - -. , , I ,
9 Matter of St. Louis Public Service Company, 77R L. R. B. 749; Matter of Wentworth
Bus Lines, Inc., 51 N . L. R. B. 1345 ; Matter of Lincoln Transit Co., Inc., ,43 N. L. R. B.
381. See also Matter of Northland Greyhound Lines, Inc., 80 N . L. R. B. 288.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do not work in the United States,l0 and shall therefore exclude the
employees who work exclusively in Canada.u
We do not agree with the Employer and Intervenor when they urge
the dismissal of the petition because the unit does not comprise all
the employees. We do not believe that because 32 employees work
exclusively in Canada, the remaining 62 employees who work all or
part of their time in the United States should be denied the exercise of
rights under the National Labor Relations Act, as amended.12
Accordingly, we find that all hourly rated employees of the Em-
ployer, excluding employees who work exclusively in Canada, office
and clerical employees, professional employees, plant protection em-
ployees, and supervisors,- constitute an appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.*
5. The determination of representatives :
Local 195, a Canadian local,- of the UAW-CIO is a party to the
contract discussed hereinbefore and it intervened in this proceeding
with the UAW-CIO. The UAW-CIO is in compliance with the
filing and registration requirements of section 9 (f), (g), and (h) of
the Act, Local 195 is not. Under the rules ordinarily applicable to
this situation, neither union, singly or together, would be entitled to
appear on the ballot, it having been established that the Board will
*The Board , by Order dated November 10, 1949 , amends the unit previously found ap-
propriate , so as to exclude therefrom those employees in international service of the
Detroit & Canada Tunnel Corporation who are on the Canadian pay roll of the Corporation
and who are residents of Canada.
10 See Matter of Pennsylvania Greyhound Lines, 13 N. L . R. B. 28. A generally ac-
cepted principle in international law is that one government will not exercise official,
including administrative , functions within the territory of another government. "* * *
within the national domain the will of the territorial sovereign is supreme . That will
must, therefore , be exclusive, opposing the assertion of any other , and excluding the law-
fulness of obedience to the commands of such other . There can be no conflict of right in
this matter." 1 Hyde, International Law, p. 640 (2nd rev . ed. 1945 ). See also Wilson
and Tucker , International Law,'p. 110 (9th ed. 1935 ) ; Joseph H . Beale, Selections from a
Treatise on the Conflict of Laws, p. 5 (1935).
n The exclusion of the employees working exclusively in Canada avoids any possible con-
flict with the administration of the Industrial Relations and Disputes Investigations Act
of the Dominion of Canada and the corresponding labor legislation of the Province of
Ontario.
12 Similar situations have been presented to the United States National Mediation Board
in elections held under the Railway Labor Act. In deciding cases involving railroad
employees , the National Mediation Board has excluded from the eligible list of employees
entitled to vote, those working exclusively in Canada . In re New York Central Railroad
Company, Case No. R-1151, April 15, 1945; In re Canadian Pacific Railway - Company in
U. S., Case No. R-1989 , March 25, 1948.
Is The parties agreed and, on the basis of the record , we find that the traffic captains,
electricians, and labor foremen are not supervisors , and should be included within the
unit.
14 According to the record , Local 195 Is a resident of Windsor , in the Dominion of
Canada, subject to the laws of the Dominion of Canada , Including the Labor Relations
Act of 1948 , Dominion of Canada Regulations, and the Labor Act of the Province of
Ontario.
DETROIT & CANADA TUNNEL CORPORATION 733
not place on the ballot , a complying union whose parent international
union or whose interested local union is not also in compliance."
In view , however , of the unusual circumstance that Local 195 is a
Canadian labor organization we shall not , for the limited purposes
of this proceeding , regard Local 195 as an interested labor organiza-
tion. Accordingly we shall permit UAW-CIO, but not Local 195,
to appear on the ballot.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision 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 Doard Rules and Regulations-Series 5, as amended,
among the employees in the unit found appropriate in paragraph
numbered 4, above, who were employed during the pay-roll period
immediately preceding the date.of this Direction of Election, includ-
ing 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 elec-
tion, and also excluding employees on strike who are not entitled to
reinstatement, to determine whether they desire to be represented,
for purposes of collective bargaining, by Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America,
A. F. L. Division 1303, or by United Automobile, Aircraft & Agri-
cultural Implement Workers of America (UAW-CIO), or by neither.16
38 Matter of Southland Paper Mills, Inc., 81 N. L. R. B. 330 ; Matter of National Automo..
tive Fibres, Inc., Findlay Division, 81 N. L . R. B. 1232.
16 Any participant in the election herein directed may, upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from the ballot.