New England Transportation Co.

National Labor Relations Board - Board Decisions

Jan 14, 1936

1 N.L.R.B. 130 (N.L.R.B. 1936)

In the Matter of NEW ENGLAND TRANSPORTATION COMPANY and IN-
TERNATIONAL ASSOCIATION OF MACHINISTS
Case No. R-10
DIRECTION OF ELECTION
January 1i, 1936
The Board having found that a question affecting commerce has
arisen concerning the representation of the employees in the mechan-
ical department of the New England Transportation Company, New
Haven, Connecticut, within the meaning of Section 9, subdivision
(c), and Section 2, subdivisions (6) and (7) of the National Labor
Relations Act, and that an election by secret ballot should be con-
ducted, it is hereby
DIRECTED that, as part of the investigation authorized by the Na-
tional Labor Relations Board in this case to ascertain representatives
for collective bargaining between the mechanical department em-
ployees of the New England Transportation Company and the Com-
pany, an election by secret ballot shall be conducted within a period
of ten days from the date of this direction of election under the
direction and supervision of Edmund J. Blake, Examiner of the
National Labor Relations Board, acting in this matter as the agent
of the National Labor Relations Board and subject to Article III,
Section 9 of its Rules and Regulations-Series 1, among the em-
ployees in the mechanical department of the New England Transpor-
tation Company on the payroll of the Company on the date of this
direction, except the supervisory employees who have authority to
hire or discharge, to determine whether they desire to be represented
by the International Association of Machinists or the Mechanical
Department Association.
MR. CARMODY took no part in the consideration of the above Direc-
tion of Election.
[SAME TITLE]
Decision, January 21, 1936
Motor Bus Industry-Motor Truck Transportation Industry-Umt Appro-
priate for Collective Baz gaining : eligibility for membership in both rival or-
ganizations ; organization of business-Employee Representation Plan: effect
of participation in election under-Representatives : employees free to change-
130
DECISIONS AND ORDERS 131
Election Ordered: question affecting commerce : confusion and unrest among
employees-controversy concerning representation of employees : request by
substantial number in appropriate unit ; rival organizations : substantial doubt
as to a majority status-Notice and Hearing: eligibility to participate in
election-Certification of Representatives.
Mr. Ralph H. Cahouet and Mr. Edmund J. Blake for the Board.
Mr. Eugene J. McElroy and Mr. C. E. Smith, of Providence, R. I.,
for the Company.
Mr. George J. Bowen and Mr. David Clydesdale, of Washington,
D. C., and Mr. C. B. Camp/field, of Boston, Mass., for International
Association of Machinists.
Mr. Thomas Sullivan, of Boston, Mass., for Mechanical Depart-
ment Association.
Mr. Stanley S. Surrey, of counsel to the Board.
DECISION
STATEMENT OF CASE
On- November 2, 1935, the International Association of Machinists,
hereinafter sometimes called the Union, petitioned the National
Labor Relations Board for an investigation and certification of
representatives pursuant to Section 9, subdivision (c) of the Na-
tional Labor Relations Act. The petition stated that the Union
represented 98 mechanical employees and helpers out of a bargaining
unit of 165 employees of that character employed by the New Eng-
land Transportation Company, hereinafter sometimes called the re-
spondent, that an organization known as the Mechanical Department
Association also claimed to represent the employees in such unit, that
the respondent had refused to deal with the Union as the exclusive
representative of the employees in such unit and that such failure
and the conflicting claims of the two organizations gave rise to a
question affecting commerce concerning the representation of such
employees. On November 4, 1935, the National Labor Relations
Board, pursuant to Section 9, subdivision (c) of the Act and Article
II, Section 3 of the National Labor Relations Board Rules and Regu-
lations-Series 1, ordered the Regional Director for the First Region
to conduct an investigation and to provide for an appropriate hear-
ing upon due notice. Pursuant to such order notice of hearing was
issued by the Regional Director on November 14, 1935 and duly
served upon the parties.
On November 26, 1935 a hearing was held at Providence, Rhode
Island by Richard C. Evarts, the Trial Examiner designated by the
Board, and testimony was taken. Full opportunity to be heard, to
examine and to cross-examine witnesses and to introduce evidence
132 NATIONAL LABOR RELATIONS BOARD
bearing upon the issues was afforded to the parties. The respondent
objected to the hearing on several constitutional grounds and on the
further ground that the Act did not apply to the employees involved
in this case. The objections were overruled by the Trial Examiner
and the respondent, reserving its rights, then participated in the
hearing.
FINDINGS OF FACT
I. NEW ENGLAND TRANSPORTATION COMPANY
The New England Transportation Company owns, maintains and
operates a system for the transportation by motor vehicles of passen-
gers, baggage, freight, mail, express and other commodities in the
states of New York, Rhode Island, Connecticut and Massachusetts.
The Company is incorporated in both Rhode Island and Massa-
chusetts, but operates under its Massachusetts charter. It is
wholly owned by the New York, New Haven and Hartford Railroad.
The company operates regular interstate routes for the transporta-
tion of passengers by motor buses. The principal routes are New
York to New Haven, Providence, and Boston; New York to Spring-
field and Northampton and New York to Pittsfield. There are other
shorter interstate and intrastate routes in the New England area.
The company also operates in conjunction with the New York, New
Haven and Hartford Railroad combined rail and motor routes for
which single tickets are issued. In addition, at many places the
bus schedules are operated in harmony with the schedules of that
railroad and of certain steamship companies for the convenience of
passengers desiring to continue their travel by rail or steamer. In
all, the respondent operates about fifty passenger routes. The re-
spondent conducts this passenger service as an integrated system,
many of its routes converging upon terminals located in larger cities
so that passengers on one bus may transfer there to another bus of
this or another system and thus continue their journey. Besides this
passenger service, the respondent also operates about seventy regular
trucking routes in the New England area and New York for the
transportation of freight. Practically all of these truck routes con-
nect with railroad lines. In addition to the regular passenger and
truck service, the respondent provides special charter services which
involve both interstate and intrastate trips. The company's equip-
ment consists of about 220 buses with an average capacity of thirty
passengers, 150 trucks and several passenger sedans. The respondent
'employs about a thousand persons, all of whom are paid directly by
it. The respondent makes the advertising claim that it is "New
England's Largest and Most Dependable Bus System" (Board Ex-
hibit 5).
DECISIONS AND ORDERS 133
The mechanical department of the respondent consists of 'thirteen
garages and the employees engaged in mechanical and maintenance
work. These garages are located at Providence (two), Boston, New
York City, Worcester, Brockton, Springfield, Fall River, New Bed-
ford, Danbury, New London, Winsted and Putnam. In addition,
while no garages are maintained by the respondent in New Haven
and Hartford, it employs three gasoline attendants and cleaners in
the former city and one inspector in the latter. The number of
mechanical department employees and foremen in each place, as of
November 1, 1935, is as follows :
Mechani- Mechani-
Garage
cal de -
partment Fore-men Garage
cal de-
partment Foremenemploy- employ-
ees ees
Providence-Kinsley Avenue___ 77 4 Winsted___________________ _____ 3 1
Providence-Oregon Street______ 15 2 New London___________________ 3 1
Boston__________________________ 24 2 New Bedford__________ _ ______ 1 1
New York City---------------- 19 2 Putnam ------------------------ 1 1
Springfield______________________ 9 1 New Haven --------------------- 3 0
Fall River ______________________ 6
5
2
1
Hartford ________________________ 1 0
Worcester_______________________
Brockton_______________________ 4 1 Total_____________________ 174 20
Danbury_______________________ 3 1
In addition to its own garages, the respondent uses the facilities of
the Connecticut Company at Bridgeport, Hartford and Waterbury
and of the County Transportation Company at Port Chester. Both
of these companies are wholly owned by the New York, New Haven
and Hartford Railroad. At Middletown, the respondent uses the
garage of the Middletown Company. The mechanical department
employees are divided into first and second class mechanics, body
men, greasers , cleaners and mechanic helpers.
The headquarters of the maintenance or mechanical department
is in Providence, whereas that of the operations department is in
Boston. The major repair work is performed at Providence, the
Kinsley Avenue garage being used for- buses and the Oregon Street
garage for trucks. This work consists of major or heavy repairs,
scheduled inspection and reconditioning, painting, body work, over-
haul of motors, etc. on the buses and trucks operating in the eastern
end of the system, which includes Providence, New York and Boston.
Those on the western end, Hartford, Middletown, Danbury, Water-
bury and New Haven, are repaired at Hartford. Parts in need of
repair are shipped to Providence from the other garages and there
repaired. Buses which are undergoing such major repairs may
remain out of service for a short period up to thirty days depending
on the extent of the work. In addition to the heavy repair work,
" running repairs " are also made at the Providence garages. These
consist of brief inspections, greasings , cleanings , adjustment of
134 NATIONAL LABOR RELATIONS BOARD
brakes and minor repairs. The work is performed between scheduled
runs while the vehicle is in a garage and does not generally require
the withdrawing of the vehicle from the daily run. Most of the
work at the other garages is of this nature. Besides the work at the
garages, mechanics are often sent out to repair buses or trucks which
have broken down on the road and to tow them to a garage if such
action is required. Mechanics from Providence have been sent to
Connecticut and Massachusetts. The employees work interchange-
ably on vehicles used on interstate and intrastate routes.
IT. THE RIVAL LABOR ORGANIZATIONS
A. International Association of Machinists
The International Association of Machinists is a labor organiza-
tion affiliated with the American Federation of Labor. In the fall
of 1933 a local of the organization was formed among the employees
in the mechanical department of the respondent engaged in work at
its garages in Rhode Island, mainly in Providence, known as Local
1017. At the time of the hearing this Local had about 68 members
on its books and 18 to 20 applications for membership. There are
locals in some of the other cities where the respondent has garages,
which number employees of the respondent among their members.
For the system of the respondent as a whole, the International As-
sociation of Machinists claims about 99 authorizations for the pur-
pose of representing respondent's employees -in collective bargaining
with the company. Membership in the Union is open to employees in
the mechanical department, exclusive of foremen or supervisors who
have the authority to hire or discharge employees. The International
Association and not the various locals represents the members in
bargaining with the respondent.
B. The Mechanical Department Association
The Mechanical Department Association was organized in the
middle of October, 1934. Its membership is confined to employees
of the mechanical department of the New England Transportation
Company, exclusive of foremen or supervisors who have the authority
to hire or discharge employees. It exists in part for the purpose of
dealing with the respondent concerning wages, hours and similar
matters and is thus a labor organization within the meaning of
Section 2, subdivision (5) of the Act. There is evidence indicating
that the management played a, leading role in the formation and
organization of this Association and that it still participates to some
extent in its affairs. However, there is no charge involving Section
8, subdivision (2) of the Act, so that we do not find it necessary
DECISIONS AND ORDERS 135
at this time to consider such evidence. The Association claims to
have about 90 members. In the recent election of officers held in
November, 1935 ballots were sent to about 85 or 90 employees con-
sidered as enrolled members by the Secretary of the Association and
were voted by 72 employees.
C. The rivalry between the two -labor organizations
Both of the two organizations claim to represent the employees
in the mechanical department of the respondent. An election held
by the Boston Regional Board of the former National Labor Rela-
tions Board in December, 1934, which the Union apparently won
by a very close vote, failed to settle the rival claims. Both organi-
zations claim to represent a majority and have attempted to deal
with the respondent on such a basis. The respondent refuses to
recognize either as the exclusive representative of the mechanical
employees. There is evidence that the rivalry is engendering fear
and unrest among the employees. It is obvious from the above that
a question concerning the representation of the employees in the
mechanical department of the respondent has arisen.
III. APPLICABILITY OF THE ACT
A. The question concerning representation as " affecting commnerce "
In view of the nature of the respondent's business the question
concerning the representation of the employees in its mechanical
department is one affecting commerce within the meaning of the Act.
The respondent is engaged in the operation of an extensive interstate
bus and truck transportation system. The operations conducted at
its various garages are an integral part of the system for the work
performed on the buses and trucks is essential to the safe and reg-
ular functioning of the system. In In the Matter of Pennsylvania
Greyhound Lines, Inc., decided December 7, 1935, we had occasion
to consider a situation practically identical with that in this case
in respect to the interstate commerce aspect. As here, that case
concerned the maintenance employees of an interstate bus trans-
portation system and we held that the acts of the respondents in
question "occurred in the course and conduct of the operations of
instrumentalities of interstate transportation and affected employees
engaged in operations in the course and conduct of interstate trans-
portation and on instrumentalities of interstate transportation, and
hence occurred `in commerce' within the meaning of Section 2, sub-
division (8)." Similarly, the question concerning representation in
this case affects commerce and is within the jurisdiction of the
Board as defined in Section 9, subdivision (c).
97571-36-vol i- 10
136 NATIONAL LABOR RELATIONS BOARD
B. Suitability of an election to resolve controversy-appropriate unit
An election by secret ballot is a suitable method of resolving the
controversy between the two rivals. Under the facts of this case
the mechanical department is a unit appropriate for collective bar-
gaining. The company in its operations conducts that department
as a distinct and separate division. Both organizations limit their
membership to the mechanical employees. While the interests of
the mechanical employees are not so dissimilar from those of the
bus and truck operators as to prevent their being considered as one
unit under appropriate circumstances, they are sufficiently diverse
to permit the mechanical employees of the respondent properly to
consider themselves a separate unit for collective bargaining.
Neither of the organizations claims that the bargaining unit should
be more inclusive. The election will therefore be restricted to the
employees in the mechanical department. The employees who were
on the payroll of the mechanical department of the respondent as of
the date of the direction of election shall be eligible to vote in such
election, excepting supervisory employees.
C. Respondent's existing " contracts " with its employees
At the hearing the respondent contended that even if an election
were ordered it should be postponed because of the existence of
certain " contracts " between the respondent and some of its em-
ployees. The first group of these "contracts " was signed in October,
1934. The respondent at that time had decided to grant its mechan-
ical employees a five per cent increase in wages. A mimeographed
form, entitled an "Agreement ", was prepared for signature by in-
dividual employees. The "Agreement " was between the employee
and the respondent and provided that, effective October 20, 1934,
the rate of p7 ,y of the employee would be increased 5%, the increase
to continue until November 1, 1935 if the employee were still in
service and thereafter until changed following thirty days' notice
by either party (Respondent's Exhibit A). The forms were ap-
parently circulated among the men and only those who signed-a
total of 153-obtained the increase. Some employees did not sign
the agreement. While it is not necessary to this decision to examine
further the circumstances surrounding these agreements, it may be
noted that this method of granting an increase had not been used
before, that the Mechanical Department Association was being formed
at this time and that the Union was formulating plans" to negotiate
a wage increase with the respondent.
The second group was entered into in April, 1935. The Mechanical
Department Association officers at that time discussed certain em-
ployment matters with officials of the respondent. A series of rules
DECISIONS AND ORDERS 137
regarding working conditions, hours, overtime pay and similar mat-
ters were reduced to writing and entitled, "Agreegent between New
England Transportation Company and Employees of its Mechanical
Department." The "Agreement " was accepted on behalf of the
Company by its Vice-President and was circulated among the me-
chanical employees for signature by them. Ninety-six employees
signed under the statement, "Agreed to by Mechanical Department
Employees", there being about 153 to 156 mechanical employees
on the payroll at that time. The agreement took effect April 6,
1935 and is to remain in force until one year from said date and
thereafter until either party notifies the other in writing thirty days
in advance of desired change (Article 26). Article 15 and 16 of
the agreement, Respondent's Exhibit B, provides as follows :
"ARTICLE 15. Should an employee, subject to this Agreement
believe he has been unjustly dealt with, or any provision of
this Agreement violated, the case shall be taken to the foreman
or shop superintendent, in their respective order, by the duly
authorized local committee or their representative. Should the
result be unsatisfactory, the duly authorized Committee or their
representative shall have the right to appeal, preferably in
writing, to a higher official, designated to handle such matters,
in their respective order, and conference will be granted within
ten (10) days after application.
"All conferences between local officers and local committee to
be held during regular working hours, without loss of time to
committee. The committee not to exceed three (3) members.
"When agreed to from time to time the Company shall pay the
time and expenses of employees chosen as representatives of
other employees in matters relating to this Agreement.
"In event of appeal to Mechanical Superintendent, or any
higher official, the date and time shall be designated by him.
"Article 16. Should the duly authorized representative of the
Company and the duly authorized representative of the em-
ployees fail to agree, the case shall then be submitted to the
next higher company official."
The Association claims it has been operating under these agreements
and that it has appointed grievance committees at each garage.
Matters concerning the mechanical employees have been taken up
with the respondent by these committees.
The respondent contends that these agreements, which it states
establish a formula for the handling of controversies and provide
for wages, hours and working conditions, constitute legal obligations
now in force and effect and binding upon the employees who signed
them. These legal obligations, it asserts, are such as to prevent the
138 NATIONAL LABOR RELATIONS BOARD
Board from now ordering an election to be participated in by these
employees . This contention is without merit. Clearly the first
group of "agreements", even if they be considered as legal contracts
and not mere statements of a fact, does not in any manner affect
the question of representation or collective bargaining . The fact that
a definite wage has at one time been agreed upon in writing does
not prevent later collective bargaining in respect to wages or any
other matter.
Nor is the second group of "agreements" in any manner inconsist-
ent with the holding of an election and the certification of the labor
organization obtaining a, majority of the employees as the exclusive
representative of the unit involved . It may be pointed out that
while the Association claims to have negotiated the agreement with
the respondent , the Association is not a party to the agreement. On
the contrary the respondent was apparently careful to have at best
a series of individual agreements rather than a contract with a repre-
sentative organization . The Articles quoted above have little mean-
ing when incorporated into such a series of individual agreements,
each terminable at the will of the individual after a certain date, for
the agreements relate to matters which are of concern to the entire
group of employees and in the aspects under consideration have sig-
nificant content only in relation to such a group . While there is
thus ground for holding that the agreements are really nothing more
than a statement of regulations enforced by the respondent , as stated
below we do not find it necessary in the decision of this case to
consider at length the legal nature of the agreements or the effect
of the passage of the National Labor Relations Act upon them.
Even if we assume that the agreements are binding upon the
employees who signed them , such employees constituting a majority
of those now employed by the respondent,' and that they establish a
formula for the handling of controversial matters by employees and
management , the agreements in nowise prohibit the employees from
changing their representatives for bargaining in accordance with the
method prescribed. If the employees at the time of signing the
agreements preferred that the Association represent them under the
agreements but now desire to be represented by the Union , the em-
ployer cannot object to such a change of representatives . A logical
corollary of the opposite view, ;urged upon us by the respondent,
would permit the employees to object under Article 15 of the agree-
ment to any change of the foreman or shop superintendent by the
respondent during the life of the agreements . The whole process
of collective bargaining and unrestricted choice of representatives
assumes the freedom of the employees to change their representa-
1 we assume that those who signed are still employed by the respondent, although it
introduced no specific evidence on this point.
DECISIONS AND ORDERS 139
tives, while at the same time continuing the existing agreements un
der which the representatives must function. The National Media-
tion Board has clearly stated this principle in the following words:
"(e) Change of representatives under existing agreements.-
Where there is an agreement in effect between a carrier and its
employees signed by one set of representatives and the employees
choose new representatives who are certified by the Board, the
Board has taken the position that a change in representation
does not alter or cancel any existing agreement made in behalf
of the employees by these previous representatives. The only
effect of a certification by the. Board is that the employees have
chosen other agents to represent them in dealing with the man-
agement under the existing agreement. If a change in the
agreement is desired, the new representatives are required to
give due notice of such desired change as provided by the agree-
ment'or by the Railway Labor Act. Conferences must then be
held to agree in the changes exactly as if the original
representatives had been continued." 2
The existing arrangements. between the respondent and some of
its mechanical employees are thus no bar to an election and conse-
quent bargaining by the certified representatives of the employees.
These representatives are of course free to bargain concerning
changes in the existing arrangements, since parties may bargain with
respect to the termination of existing contracts.
CONCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW
In addition to the above findings of fact, upon the record in the
case, the stenographic transcript of the hearing, and all the evidence,
including oral testimony, documentary and other evidence offered
and received at the hearing, the following concluding findings of
fact are made :
1. The respondent, New England Transportation Company, incor-
porated in Massachusetts and Rhode Island, owns and operates an
integrated system for the interstate transportation for hire by bus
and truck of persons and property in the states of New York, Con-
liecticut, Rhode Island and Massachusetts. This system is operated
at many places in conjunction with the New York, New Haven and
Hartford Railroad, which owns the respondent, and other bus
transportation companies.
2. The New England Transportation Company operates a number
of garages located in cities in the area served by it, the main garages
being in Providence, Rhode Island; Boston, Massachusetts; New
' First Annual Report of the National Mediation Board (1935 ) at pages 23-24.
140 NATIONAL LABOR RELATIONS BOARD
York City, New York; and Springfield, Massachusetts. The buses
and trucks used on respondent's transportation system are serviced
at these garages and they are operated as an integral part of that
system. The servicing, repairs and mechanical maintenance work
performed at these garages on these buses and trucks are necessary
to continuous, safe and effective operation of the respondent's
transportation system.
3. As described in paragraph 2 above, the operations at the
garages occur in the course and current of transportation among the
states and are an integral part of the operations of instrumentalities
of such transportation. The employees of the mechanical depart-
ment, which is the department of the respondent engaged in the
maintenance operations, at the garages, are directly engaged in the
course and conduct of transportation among the states and because
of their services in connection with and upon instrumentalities of
such transportation are an integral part of the operations of instru-
mentalities of such transportation.
4. The employees in the mechanical department of the respondent
under the facts of this case constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9,
subdivision (b) of the National Labor Relations Act.
5. The International Association of Machinists is a national labor
organization affiliated with the American Federation of Labor. The
employees in the mechanical department, exclusive of supervisory
employees who have the authority to hire or discharge, are eligible
for membership in said organization. . At least a substantial num-
ber of such employees have authorized the International Association
of Machinists to represent them in collective bargaining with the
respondent.
6. The Mechanical Department Association is a labor organization
whose membership is limited to the employees in the mechanical
department of the respondent, exclusive of supervisory officials who
have the authority to hire or discharge. At least a substantial num-
ber of such employees are members of this organization and have
authorized it to represent them in collective bargaining with the
respondent.
7. Both the Mechanical Department Association and the Inter-
national Association of Machinists claim to represent a majority of
the employees in the mechanical department and on the basis of
such claims both have attempted to bargain with the respondent as
the exclusive representative of such employees.
8. The rivalry described in paragraph 7 between the two organiza-
tions is conducive to discord and bitterness and tends to create a
condition of unrest and fear on the part of the employees in the
mechanical department which tends to impair their efficiency and
I
DECISIONS AND ORDERS 141
consequently, because of the nature of their work, the safety and
efficiency of instrumentalities of transportation among the states.
Upon the basis of the foregoing the Board finds and concludes as
a matter of law that a question affecting commerce has arisen con-
cerning the representation of the employees in the mechanical de-
partment of the respondent within the meaning of Section 9, sub-
division (c) and Section 2, subdivisions (6) and (7) of the National
Labor Relations Act.
[ SAME TITLE]
AMENDED DIRECTION OF ELECTION
January 21, 1936
The Board having found that a question affecting commerce has
arisen concerning the representation of the employees in the mechan-
ical department of the New England Transportation Company, New
Haven, Connecticut, within the meaning of Section 9, subdivision
(c), and Section 2, subdivisions (6) and (7) of the National Labor
Relations Act, and that an election by secret ballot should be con-
ducted, it is hereby
DIRECTED that, as part of the investigation authorized by the Na-
tional Labor Relations Board in this case to ascertain representatives
for collective bargaining between the mechanical department em-
ployees of the New England Transportation Company and the Com-
pany, an election by secret ballot shall be conducted within a period
of thirteen days from the date of this amended direction of election
under the direction and supervision of A. Howard Myers, Acting
Regional Director for the First Region, acting in this matter as the
agent of the National -Labor Relations Board and subject to Article
III, Section 9 of its Rules and Regulations-Series 1, among the em-
ployees in the mechanical department of the New England Trans-
portation Company on the payroll of the Company on the date of this
amended direction, except the supervisory employees who have au-
thority to hire or discharge, to determine whether they desire to be
represented by the International Association of Machinists or the
Mechanical Department Association.
[ SAME TITLE]
AMENDED DIRECTION OF ELECTION
February 1, 1936
The Board having directed on January 21, 1936 that an election
be conducted within a period of thirteen days from said date among
the employees in the mechanical department of the New England
142 NATIONAL LABOR RELATIONS BOARD
Transportation Company on the payroll of the Company on January
21, 1936, except the supervisory employees who have authority to
hire or discharge, to determine whether they desire to be represented
by the International Association of Machinists or the Mechanical
Department Association;
And it now appearing that an application has been made to the
United States District Court for the District of Massachusetts for
an order directing an official of said Company to produce certain
payroll records pursuant to a subpena issued by the Board, it is
hereby
DIRECTED that the holding of the aforesaid election shall be post-
poned until further direction of the Board.
MR. CARMODY took no part in the consideration of the above
Amended Direction of Election.
[SAME TITLE ]
AMENDED DIRECTION OF ELECTION
May 26, 1936
The Board having found on January 21, 1936 that a question affect-
ing commerce had arisen concerning the representation of the em-
ployees in the mechanical department of the New England Transpor-
tation Company, New Haven, Connecticut , within the meaning of
Section 9 ( c), and Section 2, subdivisions ( 6) and (7) of the National
Labor Relations Act, and that an election by secret ballot should be
conducted,
And on February 1, 1936 the holding of the aforesaid election hav-
ing been postponed until further direction of the Board, it is hereby
DIRECTED that, as part of the investigation authorized by the Na-
tional Labor Relations Board in this case to ascertain representatives
for collective bargaining between the mechanical department em-
ployees of the New England Transportation Company and the Com-
pany, an election by secret ballot shall be conducted within a period
of twenty days from the date of this amended direction of election
under the direction and supervision of A. Howard Myers, Acting
Regional Director for the First Region, acting in this matter as the
agent of the National Labor Relations Board and subject to Article
III, Section 9 of its Rules and Regulations-Series I, as amended,
among the employees in the mechanical department of the New Eng-
land Transportation Company on the payroll of the Company for the
week ending January 24, 1936, except the supervisory employees who
have authority to hire or discharge , to determine whether they desire
DECISIONS AND ORDERS 143
to be represented by the International Association of Machinists or
the Mechanical Department Association.
SAME TITLE
DECISION AND CERTIFICATION OF REPRESENTATIVES
July 24, 1936
On November 2, 1935, the International Association of Machin-
ists, hereinafter called the Union, petitioned the National Labor
Relations Board for an investigation and certification of representa-
tives of the employees of the mechanical department of the New
England Transportation Company, New Haven, Connecticut, here-
inafter called the Company, pursuant to Section 9, subdivision (c) of
the National Labor Relations Act, approved July 5, 1935. After
a hearing before a Trial Examiner, and a consideration of the record,
the Board, having found that a. question affecting commerce had
arisen concerning the representatives of the employees in the me-
chanical department of the New England Transportation Company,
within the meaning of Section 9, subdivision (c) and Section 2,
subdivisions (6) and (7) of the Act, on January 14, 1936 directed
that an election by secret ballot should be conducted. The decision
containing the findings of the Board was issued on January 21, 1936,
together with an amended direction of election. On February 1,
1936, the Board ordered that the holding of the election be post-
poned until further direction-of the Board.
On May 26, 1936, the Board issued an amended direction of elec-
tion directing that an election by secret ballot be conducted within
twenty days from that date under the direction and supervision of
the Acting Regional Director for the First Region, among the em-
ployees in the mechanical department of the Company on the pay-
roll of the Company for the week ending January 24, 1936, except
the supervisory employees who have authority to hire or discharge,
to determine whether they desire to be represented by the Union, or
by the Mechanical Department Association, hereinafter called the
Association.
Pursuant to the amended direction of election an election was held
on June 10, 1936 at New York City, New York; New Haven, Dan-
bury, Winsted, New London, Hartford, and Putnam, Connecticut;
Providence, Rhode Island; and Boston, Springfield, Worcester, Fall
River, and Brockton, Massachusetts. Notices of the election had
been sent by registered mail on June 5, 1936 to each of the Com-
pany's garages where balloting was held, to the Company's prin-
cipal officers, to the Union, and to the Association.
144 NATIONAL LABOR RELATIONS BOARD
The notice of election, pursuant to the amended direction of elec-
tion, contained the following statement :
"ELIGIBILITY.-Those eligible to vote are the mechanical em-
ployees of the New England Transportation Company who were
actually employed and on the active payroll of said company on
the 24th day of January, 1936, except that the following em-
ployees are not eligible to vote :
(1) Those who are now regularly employed elsewhere.
(2) Executive and those in supervisory capacities.
(3) Office employees."
By a stipulation between the Union and the Association, 184 em-
ployees were declared eligible to vote, subject to the proviso that the
ballots of 12 certain employees included among the 184 should be
sealed in a manner prescribed by the notice of election and not opened
or counted until the eligibility of these voters should be determined by
the Board. The names of these, voters, referred to as "challenged"
voters, were indicated on the list of 184 voters which was printed on
the notice of election. All of the challenged voters cast ballots at the
election in the manner prescribed.
After the election, the observers and tellers appointed by the Union
and the Association certified in writing that the election was fairly
held. The ballots were counted by and in the presence of observers
and tellers representing the Union and the Association, and of the
Acting Regional Director for the First Region and the Regional
Attorney for the First Region, all of whom certified that the vote
was as follows :
For the Association----------------------------------------- 91
For the Union---------------------------------------------- 75
Challenged Ballots ( Sealed ) --------------------------------- 12
The result of the election was duly reported to the Board, and upon
consideration thereof, the Board found that neither party had re-
ceived a clear majority of those listed as eligible to vote. The Board
therefore ordered a hearing before a duly designated Trial Examiner
to take evidence concerning the eligibility of the 12 challenged voters.
After due notice to the Union, the Association, and the Company,
the hearing was conducted on June 29, 1936, at Boston, Massachu-
setts. The Union, the Association, and the Company, were repre-
sented and took part in the hearing. Full opportunity was granted
to all interested parties to be heard, to present evidence, to call, ex-
amine, and cross-examine witnesses and to argue orally before the
Trial Examiner.
Upon the record made at the hearing, including the various ex-
hibits introduced, the Board makes the following:
DECISIONS AND ORDERS 145
FINDINGS OF FACT
1. At the hearing, all parties agreed that one Arthur H. Bussiere,
whose name appeared on the list of eligible voters, was not eligible
on the day of the election, so that the number of eligible voters, in-
elusive of the 12 challenged voters, was 183.1
2. Arnold H. Reichelt is known as a Master body builder and is the
direct supervisory head of 17 workmen. Raymond G. Cook is a
Master painter and has six to eight men under his supervision.
Rupert A. Dickey is a Master engine builder, and is the responsible
head of the engine building division with supervisory control of five
workmen.
Each of those three men has the power to recommend the hiring
or discharge of men in his department, and his recommendations
in that respect are usually adopted, and would only be rejected when
clearly wrong. Dickey was not in a supervisory position on January
24, 1936, but was in that capacity at the date of the election. We
hold that under the terms of the amended order of election, in con-
junction with the statement of eligibility on the notice of election,
Dickey's eligibility must be determined by the character of his posi-
tion on the day of the election. His case therefore is the same as
those of Reichelt and Cook.
3. Eugene B. Hayes, Alfred L. Morton, Arthur A. Robinson, and
Lawrence A. White are working foremen in charge of the Winsted,
Worcester, Danbury, and New London garages, respectively. John
E. Bailey is night supervisor at the Fall River garage. These five
men have the right to hire and fire men at the gagages under their
supervision.
4. All eight of these men were challenged by the Union, and we
find that they were, on the date of the election, supervisory eni-
ployees having authority to hire or discharge, within the meaning
of the amended direction of election dated May 26, 1936, and there-
fore not eligible to vote at the election. Their ballots are not to be
counted.
5. It follows that the number of those eligible to vote at the elec-
tion was 175, and the Association having received 91 votes, has a
clear majority of those eligible to vote.
It therefore becomes unnecessary to consider the eligibility of the
remaining four challenged - voters, as their votes, even if counted,
could not change the result, and the only effect of counting their
votes, even should we find them eligible, would be practically to
^ Since Bussiere was not one of the challenged voters , the record does not show whether
he cast a vote , and if so, whether it was for the Union or the Association . However, in
view of our further findings of fact, his action could not affect the final conclusion and
consequently need not be investigated further.
146 NATIONAL LABOR RELATIONS BOARD
disclose the way they, or some of them, voted, thus destroying the
secrecy of their ballots.
6. Since the issuance of the order for the hearing before the Trial
Examiner, the Circuit Court of Appeals for the Fourth Circuit in
Virginia Railway Co. v. System Federation No. 40, decided June
18, 1936, and the Circuit Court of Appeals for the Seventh Circuit
in Association of Clerical Employees v. Brotherhood of Railway etc.
Clerics, decided July 8, 1936, have held that where a majority of the
eligibles voted, a majority of those voting, though less than a majority
of those eligible, determined the representative. We followed this
rule in our certification in In the Matter of The Associated Press
and American Newspaper Guild, dated July 3, 1936.
Under this rule, the result of the election, regardless of any of
the challenged votes, would determine the Association to be the
representative.
CERTIFICATION OF REPRESENTATIVES
Now THEREFORE, by virtue of and.pursuant to the power vested in
the National Labor Relations Board by Section 9 (c) of the National
Labor Relations Act, and pursuant to Article III, Section 8 of
National Labor Relations Board Rules and Regulations-Series 1,
as amended,
IT IS HEREBY CERTIFIED that the Mechanical Department Associa-
tion of the New England Transportation Company, New Haven,
Connecticut, has been selected by a majority of the employees in the
mechanical department of the New England Transportation Coin-
pany, excepting those in a supervisory capacity having authority to
hire and discharge, and excepting office employees, as their repre-
sentative for the purpose of collective bargaining with the New
England Transportation Company, and that, pursuant to Section
9 (a) of the National Labor Relations Act, the Mechanical Depart-
ment Association is the exclusive representative of all such mechani-
cal employees for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment and other conditions of
employment.
MR. CARMODY took no part in the consideration of the above
Decision and Certification of Representatives.