Metropolitan Coach Lines

National Labor Relations Board - Board Decisions

Jun 28, 1955

112 N.L.R.B. 1429 (N.L.R.B. 1955)

METROPOLITAN COACH LINES 1429
Metropolitan Coach Lines and International Association of Ma-
chinists, District No. 94, Petitioner . Case No. 21-RC-3801.
June 28, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Norman H. Greer, 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 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 employees
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 Employer operates an intrastate public transit system of rail
and motor coaches in the Los Angeles, California, area. The Peti-
tioner requests a unit of all employees in the Employer's mechanical
department, which is the maintenance department for its vehicles.
The Intervenors, System Federation No. 159 and its constituent mem-
ber unions, contend that their current contract with the Employer
covering the employees in question constitutes a bar to this proceeding,
and request dismissal of the petition on this ground.
The Employer has operated the transit system here involved only
since October 1, 1953. Prior to that date, it was owned and operated
by the Pacific Electric Railway Company as part of an interstate
railway system, and the employees were subject to the Railway Labor
Act. Since 1935, Pacific Electric's mechanical department employees
have been represented in separate occupational groups of machinists,
electricians, sheet metal workers, carmen, and laborers. The Unions
representing these groups formed the Federation called System Fed-
eration 159, and all of the groups were represented under one con-
tract, signed by a representative of System Federation 159, an inter-
national representative of each of the intervening unions, and a rep-
resentative of the TAM, which represented the machinists' group under
the contract. The last such contract between Pacific Electric and the
Unions was executed in 1949, and specified that it was to remain in
effect thereafter, subject to 30 days' written notice by either party.
i System Federation No. 159 , Railway Employees ' Department , AFL, Mechanical Sec-
tion , Sheet Metal Workers International Association , AFL , International Brotherhood of
Electrical Workers , AFL ; and International Brotherhood of Firemen and Oilers, AFL,
were permitted to intervene at the hearing on the basis of their current contract with
the Employer covering the employees involved herein.
112 NLRB No. 184.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This contract was still in effect on September 30, 1953, when Pacific
Electric sold its California passenger facilities to the Employer herein.
Virtually all of Pacific Electric's mechanical department employees
employed in these facilities transferred to the employ of the Em-
ployer. On September 10, 1953, shortly before the final effective
date of the sale and transfer of employees, the Employer and the In-
tervenors executed an agreement in which the Employer recognized
the Intervenors as bargaining representatives of the employee groups,
and the parties agreed that the contract in effect between Pacific Elec-
tric and the Intervenors on the date the Employer took over the opera-
tions would become effective between the Employer and the Inter-
venors. However, in lieu of being terminable on 30 days' notice by
either party, as was Pacific Electric's contract, it was provided that
the contract should thereafter remain in effect until changed by new
agreements with any of the Unions. Thus, in effect, the Employer's
contract with the Intervenors was made one of indefinite duration,
rather than terminable at will on 30 clays' notice, as was Pacific Elec-
tric's contract. The instant petition was filed approximately 1 year
and 2 months later, on December 3, 1954.
The Board has long recognized contracts of indefinite duration as
bars to election proceedings for a period of 2 years from their incep-
tion .2 Here, when the Employer purchased the business of Pacific
Electric and chose to enter a collective-bargaining contract with the
Intervenors, new contractual obligations were created between a new
set of parties, and a new contract, of indefinite duration, was thereby
created. The Employer's contractual obligations are based on its own
agreement with the Intervenors, and did not arise out of the fact that
Pacific Electric had preexisting contractual relations with the Inter-
venors. That the terms of the Employer's contractual obligations are
identical with its predecessor's, except for the termination provisions,
does not alter the fact that they are new obligations, separately under-
taken. As there is a new Employer and a new contract of indefinite
duration which is the initial contract between the parties, we find
that the circumstances herein require the application of the Board's
established contract-bar rule, and therefore the existing contract is a
bar to representation proceedings for a period of 2 years from its
effective date of October 1, 1953.
Inasmuch as contracts terminable at will and contracts of indefi-
nite duration may stand as a bar for only 2 years, as pointed out by
our dissenting colleague, we do not, for contract-bar purposes, attach
any significance to the fact that both the former employer's contract
and the present contract were without specified termination dates. The
right of employees freely to select or change bargaining representa-
2 Filtrol Cot poi ation, 74 NLRB 1307, 1309.
METROPOLITAN COACH LINES 1431
tives at reasonably predictable intervals will not be sacrificed to any
degree in holding this contract a bar, for, regardless of its indefinite
termination provisions, it will serve as a bar only for the reasonable
period of 2 years from its effective date. Nor does the result of this
case have the effect of accruing a contract-bar period of 6 years, as
suggested by our dissenting colleague, for it is clear that the former
elnployer's contract, being terminable at will, and having run for
approximately 4 years from 1949 to 1953, did not itself constitute a
bar at the time the instant contract was executed.3 The effect will be
merely to afford this new Employer and the Intervenors the same
rights of contract bar as are afforded all parties under this type
contract.
In view of the above findings, and the fact that the initial 2-year
period of the contract still had approximately 10 months to run when
the petition was filed, we shall dismiss the petition.
[The Board dismissed the petition.]
MEMBER RODGERS. dissenting:
I disagree with the majority's conclusion that the contract in this
proceeding is a bar.
The foruler employer and the Intervenors executed the contract
in 19-19, specifying that it was to remain in effect thereafter subject
to 30 days' written notice by either party. On September 30, 1953,
when the former employer sold its California passenger facilities to
llie present Employer, the latter agreed to assume the contract and
further agreed that it should remain in effect until changed by new
agreements with any of the unions. The contract as executed in
1949 was terminable at will. In Rohm c6 Haas Company,' the Board
held that a contract terminable at will was, for purposes of contract
bar, to be given the same effect as a contract of indefinite duration,
i. e., bar-election proceedings for a reasonable time, which the Board
defined as 2 years. When the present Employer assumed the con-
tract, and agreed that it should remain in effect until changed by
new agreements with any of the unions, the parties merely substituted
a provision of indefinite duration for one terminable at will but did
nothing to alter the basically indeterminate expiration date of the
contract. As contracts terminable at will as well as contracts of
3 The Petitioner herein was not foreclosed from asserting claims to representation during
this period, for prior to entering the employ of the Employer, the employees were subject
to the provisions of the Railway Labor Act as employees of Pacific Electric Railway Com-
pany Petitioner, whose subordinate local union represented the machinists' group under
the iout,30, could have piesented any clann to iepresentation to the National Mediation
Board as authorised by the Railway Labor Act at 45 U S. C A § 152 Mocover, as the
contract leinunable at will would not have constituted a bar, it could have petitioned this
Boa id for an election prior to the participation of its subordinate local in the execution
of the cur i cut contract which is herein found to be a bar
4108 NLRB 1285
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indefinite duration, insofar as contract bar is concerned, now have
precisely the same legal effect, we have here nothing more than the
piling of one indeterminate term on top of another.
I see no basis whatever for the majority's conclusion that the as-
sumption of the contract by the purchaser created a new contractual
term. Where a plant is transferred during midterm of a contract of
fixed duration and the new Employer assumes the contract, the
Board has not in the past regarded the transfer as creating a new
contractual term. Instead, it has deemed the contract to be in effect
for the remainder of the initial fixed term.5 If the assumption of a
contract of fixed duration does not create a new terns, is there any
sound reason why assumption of a contract of indeterminate dura-
tion should accord the initial contract 2 additional years? Isere, at
the time of the transfer of the former employer's passenger facilities
in 1953, the 1949 contract had already been in effect for more than 4
years on a terminable-at-will basis and the new Employer merely as-
sumed it on the basis of continued indefinite duration. It seems to
me that if the 2-year rule is to retain any vitality, it should serve in
all instances to restrict contracts, whether terminable at will or of in-
definite duration, to a 2-year period. Under the majority's interpre-
tation of the rule, we have an indeterminate contract term beginning
in 1949 and still continuing in effect despite the fact that time and
again the Board in discussions of contract-bar policy has emphasized
the significant basic policy of the Act which accords to employees
the right freely to select or change bargaining representatives at
reasonably predictable Intervals.
If the 2-year rule is sound-and I have not heard my colleagues
say that it is not-it should not be emasculated by permitting indeter-
minate terms to pile up for a period of more than 6 years in the way
the majority has chosen to do here. As I have pointed out, the Board
has consistently defined "a reasonable time" to be 2 years. Sound
administrative policy dictates that the Board adhere to this defini-
tion and not extend it to 6 years as in the present proceeding.
r See, for example, Inte,national Paper Company, 80 NLRB 751, 752
Parrot Packing Company and United Packinghouse Workers of
America, CIO, Petitioner . Case No. 13-RC-4329. June 28, 1955
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 Raymond A. Jacobson, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
112 NLRB No. 185.