Northland Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1948

80 N.L.R.B. 288 (N.L.R.B. 1948)

In the Matter Of NORTHLAND GREYHOUND LINES, INC., EMPLOYER and
AMALGAMATED ASSOCIATION OF STREELT , ELECTRIC' RAILWAY AND,
MOTOR COACH EMPLOYEES OF AMERICA , LOCAL DIVIS7iaN 1150, AFL,
PETITIONER
Case No. 18-UA-227.Decided Nouember 12,. 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a 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.
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 Petitioner represents employees of the Employer.
3. The petition herein alleges that more than 30 percent of the em-
ployees in the unit represented by the Petitioner desire to authorize
the Petitioner to make an agreement with the Employer requiring
membership in the Petitioner as a condition of employment in such
unit, which allegation was supported by documentary evidence sub-
mitted by the Petitioner.
The Employer currently recognizes the Petitioner as the collective
bargaining representative of its employees. Therefore, no question
affecting commerce exists concerning the representation of employees
of the Employer in the unit hereinafter found appropriate. Ac-
cordingly, we find that the Petitioner has satisfied the preliminary
requirements for a union-shop authorization election as set forth in
Section 9 (e) (1) of the amended Act.
4. The appropriate unit:
The Petitioner maintains that the election should be conducted in
a single unit of all office, station, and maintenance employees and bus
drivers of the Employer, excluding office secretaries (not stenogra-
phers), filing clerks in the general office, technical and professional
employees and supervisors as defined in the Act. The Employer con-
80 N. L. R. B., No. 60.
288
NORTHLAND GREYHOUND LINES, INC. 280
tends that because its existing contract 1 with the Petitioner sets up
specific wage rates and working conditions for the four departments
sought, the contract is to be construed as though it embraced four
separate bargaining units. The Petitioner, on the other hand, main-
tains that bargaining agreements in general customarily set forth
wage rates and working conditions applicable to classifications in the
departments herein concerned and, furthermore, that the language of
the present agreement expressly covers in one over-all unit the
employees in all four departments.
Section 1 of the existing agreement contains a recognition clause 2
which reads as follows :
The Company recognizes the Amalgamated [Petitioner] as the
duly designated and sole collective bargaining representative for
all employees in the groups and departments covered herein for
the purpose of collective bargaining with respect to wages, hours
and working conditions, except for supervisory employees with
the power to hire or fire, and agrees to deal with it as hereinafter
provided. [Italics supplied.]
Section 3 of the same agreement contains the following union-shop
provision : 3
All employees in the groups and departments hereinafter cov-
ered shall become and remain members of the Amalgamated in
good standing as a condition precedent to continued employment
with the Company. New employees who are eligible to member-
ship in the Amalgamated shall within sixty (60) days of their
date of employment become members and remain members in
good standing as a condition precedent to continued employment
with the Company. [Italics supplied.]
It is clear from a reading of the foregoing sections that the Em-
ployer agrees to recognize the Petitioner as the exclusive bargaining
agency in a single unit' of all the Employer's employees in the fol-
lowing named groups and departments: (1) maintenance employees,
(2) office employees, (3) station employees, and (4) bus drivers.
1 A contract between the Employer and the Petitioner effective from October 1, 1946, to
September 30, 1947, was extended by agreement of the parties up to and including
December 31, 1948.
2 This clause is similar to the ones found in agreements between the Employer, the Peti-
tioner, and the Petitioner 's predecessor from 1937 to the present.
8 A union-security clause first appeared in the 1938 contract and has been included in
each contract executed thereafter . Like the recognition clause, the union -security clause
is single and general , covering in an over -all unit all four departments.
This conclusion receives further confirmation from the facts that : ( 1) bargaining
agreements between the parties are signed on behalf of the Petitioner by officers of the
Petitioner and not by any department representative ; ( 2) the present contract contains
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the clear and unambiguous language of the contract,
the circumstances surounding the execution thereof, and the history
of bargaining between the parties, we believe, and find, that at the
time the contract was executed, the Employer intended to recognize
the Petitioner as the authorized bargaining representative, in a single
over-all unit, of all employees covered by the agreement .-5
The Employer, a Delaware corporation with its principal office at
Minneapolis, Minnesota, is engaged in public bus transportation. It
operates busses and bus stations in eight States of the United States
and the Province of Manitoba, Canada. Some of these States have
neither prohibitory nor regulatory legislation with respect to union-
security agreements; 6 others have prohibitory legislation;' and one
has regulatory legislation s
In view of the fact that some of the drivers and station and main-
tenance employees involved herein perform all or part of their duties
in States having regulatory or prohibitory legislation," the question
arises as to what effect shall be given Section 14 (b) of the Act 'o
in determining which of these employees should be included in or
excluded from the unit hereinafter found appropriate for the pur-
poses set forth in Section 9 (e) (1) of the Act. It is clear from a
reading of Section 14 (b) that the Act does not authorize the applica-
tion or execution of a union-shop agreement in a State which prohibits
such an agreement, and, in this respect, the State law prevails over
the national law. Thus, in a recent case where part of a unit was in
a State prohibiting the union shop and part was in territory not
subject to such a law, we upheld a Regional Director's refusal to con-
duct the requested union-security election '
26 sections , 22 of which are general in character applying equally to all employees and 4
special in character covering the wages and working conditions of the employees in the 4
separate departments ; ( 3) at no time in the history of collective bargaining between the
parties has union security or representation been upon a departmental basis ; and (4)
contracts are submitted to the entire membership of the Petitioner in toto for approval or
rejection through a referendum conducted by mail.
5 The Employer also contends that the collective bargaining units established by the
Board in various decisions involving the Greyhound and other bus lines demonstrate a
practice of recognizing in this industry departments of employees as separate bargaining
units. A reference to the cases cited by the Employer reveals that in each instance the
particular unions concerned petitioned or intervened requesting separate representation.
In the instant case, however , there is no intervening union seeking to represent any group
of employees on a narrower basis
6 Minnesota , Montana, Michigan , Illinois.
Iowa ( Acts of 1947 , S. 109 Sec 1 ), South Dakota ( Acts of 1947 , S. 224 , Sec. 2), North
Dakota ( See. 1 of H . B. 151, L1947).
8 Wisconsin . ( Sec. 111.06 , Ch. 111 L1945).
0 None of the office employees work or have headquarters in States having either pro-
hibitory or regulatory legislation.
10 Section 14 (b) provides : (b) Nothing In this Act shall be construed as authorizing
the execution or application of agreements requiring membership in a labor organization
as a condition of employment in any State or Territory in which such execution or appli-
cation is prohibited by State or Territorial law
11 Matter of Giant Food Shopping Center, Inc., 77 N. L. R. B. 791.
NORTHLAND GREYHOUND LINES, INC. 291
However, we are here faced with a further problem. The Em-
ployer in the instant case is directly engaged in the field of transpor-
tation, and the nature of its operations is such that some of its em-
ployees, particularly its drivers, continually travel between States
which either permit without restriction, regulate , or prohibit union-
shop agreements. It therefore becomes necessary to determine ini-
tially which State law is applicable and then, in view of the language
of Section 14 (b), whether the particular State law or the national
law is paramount. In resolving the question as to the applicable
State law, such factors as the residences of the employees, the places
where they were hired, their headquarters, the proportions of working
time spent in the various States, and (with regard to the drivers),
their routes, have been given consideration. In view of all the cir-
cumstances involved, we are persuaded that the headquarters of the
employees provide the best criteria because they represent the focal
points of the employment relationship.12 The headquarters are where
the employees report to work, receive their instructions, and are paid
their salaries. It is, therefore, in the States in which they have their
headquarters that the provisions of any agreement between a union
and an employer regarding the employees involved will be effectuated.
In view of the fact that most of the essential matters with respect to
the employment relationship will be dealt with in the States where
the employees have their headquarters, we believe that application of
this test to determine which State law shall control will result in the
least amount of extra-territorial effect being given to the laws of one
State as against those of another.
Applying the laws of the States in which the employees have their
headquarters and considering the provisions of Section 14 (b), we
find that all employees whose headquarters are located in States having
legislation prohibiting union-shop agreements should be excluded
from the unit hereinafter found appropriate.
We turn now to the status of employees who have their headquarters
in a State such as Wisconsin, which has regulatory as distinguished
from prohibitory legislation. In this connection, it should be noted
that Section 14 (b) negates authority to execute certain types of
1' A similar test as to the applicability of State laws is to be found with respect to State
unemployment compensation statutes. Pursuant to a suggestion by the Social Security
Board, all States and the District of Columbia have included in such statutes uniform
definitions of "employment" for determining the State to which employment contribu-
tions are to be paid where services are regularly performed in two or more States. Such
definitions provide that the State where the employee 's base of operations ( or head-
quarters ) is located is the State entitled to receive contributions computed on the indi-
vidual's entire employment. For examples of the statutory application of this test, see
the following: In re Burke, 267 App. Div. 127, 45 N. Y. Supp. 2d 461 (1943) ; N. Y App
Bd. Dec. No. 13, 124-46 (1946) ; Mich. App. Bd. Dec. Dkt. 1834-248; N J. App Trib.
Dec. No. AT-1800-12-440; Pa. Bd. of Rev. App. No. B-44 12-A-112 ( 1939).
817319-49-vol. 80-20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-security agreements in States where they are /imoliibit8d, but
does not make any reference to States in which such agreements are
permitted subject to restrictions. The question then arises whether
Congress also intended by this Section that, where State law plan-08
more drastic restrictions upon union-shop agreements than national
law, the former shall be paramount.
It is a well-established rule of statutory construction that in the
determination of legislative intent the words in a statute should be
given their ordinary meaning.13 According to their dictionary defini-
tions,14 the word "prohibited" means forbidden or interdicted, whereas
the word "regulated" means controlled by rule or subjected to restric-
tions. It would therefore be unduly straining the import of clear
and unambiguous language to say that Section 14 (b) applies to
States which permit union-shop agreements under certain conditions,
as well as to prohibitory States. In the absence of explicit words to
the contrary, we construe this Section to mean that State prohibition
of union-shop agreements shall be given effect, but not that State
regulation of such agreements shall be given precedence over national
regulation. The highest State court to pass on the question has
itself reached the same conclusion."' This interpretation is con-
sistent with the general rule that when a statutory restriction is couched
in negative terms it must be given strict construction 16 Moreover,
the legislative history supports such construction.17 We conclude,
therefore, that where employees have their headquarters in a State
33 2 Sutherland , Statutes and Statutory Construction , pp. 431 , 432 (3rd ed . 1943).
14 Webster 's International Dictionary , Second Ed. 1947.
11 In International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 633, AFL et at. v. Riley at al., 59 A. 2d 476, the New Hampshire
Supreme Court, in holding that the New Hampshire union shop regulatory Act (which,
like Wisconsin , has a two -thirds requirement ) was superseded by the Labor-Management
Relations Act, stated with regard tb Section 14 (b) : "To say that Congress, having under-
taken to legislate elaborately in the field of `union security clauses' nevertheless proceeded
to say, in Section 14 (b), that the regulations which it had just laid down should be abro-
gated by the statutes of any State which might see fit to legislate upon the same subject,
would seem to involve the conclusion that Congress thus produced a legislative nugacity
which , if possible , is not to be presumed."
1e 3 Sutherland , op. cit. supra, footnote 13, at p. 96.
14 See House Conference Report No . 510, 80th Cong ., 1st Sess., p. 60 wherein inter alia,
it is stated that : "Under the House bill there was included a new Section 13 of the
National Labor Relations Act to assure that nothing in the Act was to be construed as
authorizing any closed shop, union shop, maintenance of membership, or other form of
compulsory unionism agreement in any State where the execution of such agreement would
be contrary to State law . Many States have enacted laws or adopted constitutional provi-
sions to make all forms of compulsory unionism in those States illegal. It was never the
intention of the National Labor Relations Act, as is disclosed by the legislative history
of that Act, to preempt the field in this regard so as to deprive the States of their powers
to prevent compulsory unionism . Neither the so-called "closed shop" proviso in Section
8 (3) of the existing Act nor the union shop in Section 8 (a) (3) of the conference
agreement could be said to authorize arrangements of this sort in States where such
arrangements were contrary to State policy. To make certain that there should be no
question about , this, Section 13 was included in the House bill . The conference agree-
ment in Section 14 (b), contains a provision having the same effect . [ Emphasis supplied.]
NORTHLAND GREYHOUND LINES, INC. 293
having regulatory legislation, the national law prevails. Accordingly,
the employees whose headquarters are located in Wisconsin will be
included in the unit hereinafter found appropriate.
We find that all office employees, station employees, maintenance
employees, and bus drivers of the Employer, excluding such station
employees, maintenance employees, and bus drivers whose headquar-
ters are located in States which prohibit union-shop agreements," and
also excluding office secretaries (not stenographers), filing clerks in
the general office, technical and professional employees, and super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of Section 9 (e) (1) of the Act.
DIRECTION OF ELECTION
Pursuant to Section 9 (e) (1) of the National Labor Relations Act,
as amended, an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Eighteenth Region, and subject to Section 203.61 of Na-
tional Labor Relations Board Rules and Regulations-Series 5, as
amended, among the employees of Northland Greyhound Lines, Inc.,
Minneapolis, Minnesota, 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, 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 election, and also ex-
cluding employees on strike who are not entitled to reinstatement, to
determine whether or not they desire to authorize Amalgamated
Association of Street, Electric Railway and Motor Coach Employees
of America, Local Division 1150, AFL, to make an agreement with
Northland Greyhound Lines, Inc., Minneapolis, Minnesota, requiring
membership in the aforesaid labor organization as a condition of
employment in such unit.
CHAIRMAN HERZOG, concurring :
Being bound by the views of the majority in Matter of Giant Food,19
I join without hesitation in the formula proposed by my colleagues to
determine who may and who may not vote in the union-shop election
directed in the present multi-State unit. The formula provides the
1s Employees headquartered in Iowa, South Dakota, and North Dakota.
19 77 N. L. R. B. 791, in which Mr Houston joined in the dissent.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
best possible solution of an almost insoluble legal and practical
problem.
My only regret is that the Board contributed to the creation of that
problem by holding, in the Giant Food case, that we lacked power to
conduct union-shop elections under Section 9 (e) even among those
employees in prohibiting States who are included, for all other bar-
gaining purposes, in the same multi-State unit with employees in
States that permit union-security agreements. In the dissenting
opinion in that case I expressed the fear that this legal conclusion
might "create more problems than it will solve. In shunning Scylla,
we may fall into Charybdis." Charybdis is taking its toll today.