Oklahoma Transportation Co.

National Labor Relations Board - Board Decisions

Jun 27, 1944

56 N.L.R.B. 1717 (N.L.R.B. 1944)

In the Matter of OKLAHOMA TRANSPORTATION COMPANY and BROTHER-
HOOD OF RAILROAD TRAINMEN
Case No. 16-R-911.-Decided June 27, 1944
Mr. Harold E. Mueller, of Fort Worth, Tex., for the Company.
Mr. Harlan Bell, of Oklahoma City, Okla., for the Union.
Mr. Joseph C. Wells, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE'
Upon a petition duly filed by Brotherhood of Railroad Trainmen,
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of Oklahoma
Transportation Company, Oklahoma City, Oklahoma, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Milton A. Nixon, Trial
Examiner. Said hearing was held at Oklahoma City, Oklahoma, on
May 19, 1944. The Company and the Union appeared and partici-
pated. All parties were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, an&to introduce evidence bearing
on the issues. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. All parties were
afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF TAE COMPANY
Oklahoma Transportation Company, an Oklahoma corporation,
is engaged as a common carrier in the transportation of passengers,
property, and United States mail by motorbus.' It operates as an in-
terstate carrier under Interstate Commerce Commission Docket No.
460, pursuant to the Motor Carrier,Act of 1935. It has its own in-
terstate' schedules and makes connection with other motor carriers'
56 N. L . R. B., No. - 304..
1717
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which do interstate business. During the period from June 1941 to
June 1942 the Company transported 1,386,438 passengers and oper-
ated a total of 4,255,903 miles; and during the period from January to
April 1944 it transported 943,435 passengers and operated a total of
2,033,384 miles. , The Company operates 83 busses and employs, 263
employees of whom 91 are drivers.
The Company admits that it is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATION INVOLVED '
Brotherhood of Railroad Trainmen is a labor organization. admit-
ting to membership employees of the Company.
III. THE .QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the. Union as the
exclusive bargaining representative of its employees until the Union
has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of 'em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union alleges to be appropriate a unit of all bus drivers em-
ployed by the Company, excluding supervisory employees with' au-
thority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action? The parties are in agreement as to the appropriateness of the
proposed unit. The sole dispute between the parties concerns the
classifications of the master operator and the dispatcher. The Union'
contends that both should•be excluded from the unit on the ground that
they exercise supervisory functions; the Company, on the other hand,
maintains that they should be included on the grounds that both po-
ritions are occupied and have always been occupied,by regulars bus
drivers on a temporary assignment and that the incumbents of these,.
positions do not possess or exercise any supervisory duties.
1 The Field Examiner reported that the Union had submitted 66 designations which bore
the names of employees within the claimed appropriate unit containing approximately 93
employees , and that, of these designations , 64 were dated April 1944 and 2 were dated
March 1944.
2 The petition describes the unit as "all bus operators ." At.the' hearing, the petition was
amended so as to state the exclusion of all supervisory employees, etc.
OKLAHOMA TRANSPORTATION COMPANY 1719,
The positions of master operator and dispatcher were created by
the Company in August 1943, for the dual purpose of (1) alleviating a
condition occasioned by an increase in the turn-over of personnel, and
another condition occasioned by a substantial increase in the Com-
pany's business which necessitated the employment of a dispatcher at
the Oklahoma City depot; and (2) affording some of the regular bus
drivers an opportunity to enjoy an' intermission in their duties as
bus drivers. The master operator instructs new drivers in their duties,
accompanying them on their first schedules, and offers suggestions to
them as to their methods of operation. The dispatcher works at the
Oklahoma City depot and is responsible for seeing to it that busses
are loaded, unloaded, and leave on schedule. The record indicates
that the only requisite for either position is experience as a bus driver
for 4 or 5 years. The bus drivers assigned to the -positions of master
operator and dispatcher receive a salary based upon 'their average
earnings as bus drivers.
The master operator and dispatcher are entered on the Company's
pay roll as bus drivers during their incumbency of these positions, and
heretofore have returned to their former duties as bus drivers after
performing the duties of master operator or 'dispatcher for periods of
from approximately 1 to 5 months.3 Upon returning to their duties
as bus drivers they resume their former place on the seniority list and
their former schedules. Acceptance of the assignment to the position
of master operator or dispatcher by a bus driver is optional, and the
assignments have been offered to some bus drivers who have declined
to accept:
It is clear from the foregoing that positions as master operator and
dispatcher are held by ordinary employees as rotating assignments.
It is undisputed that" the incumbents of these positions for the time
being do not hire, promote, discharge,, or discipline; and there is, no
convincing evidence that they are vested with or exercise the power
effectively to recommend such action.4 Although such positions in
this industry have been regarded, in other circumstances,5 as involving
the exercise of supervisory authority, we find, in the circumstances
here present, that the master operator and the dispatcher are not super-
9 The position of master operator was held by different drivers from August 18 to October
2, 1943; from October 5 to November 5, 1943, and from November 16, 1943, to April 1,
1944. The present incumbent was assigned on April 1 , 1944. The position of dispatcher
was held by different drivers from , August 26 to September 30, 1943 ; from October 1, to
November 1, 1943 ; and from November 1, 1943 to April 7, 1944. The present incumbent
was assigned on April 7, 1944.
4 The only evidence detracting from the conclusion that these positions are not supervisory
is the testimony of a company official to the effect that the master operator in isolated
instances has reported to the Company irregularities on the part of bus drivers who, as a
result of the reports , were admonished by the Company to discontinue the irregularities.
There is no showing that be recommended appropriate disciplinary action.
5 See Matter of Santa Fe Transportation Company, 52 N. L. R. B. 895. 1 '
1720 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
visory employees within. the meaning of our usual definition.11 We
shall therefore, include them in the unit.
We find that all bus drivers of the Company, including the master
operator and dispatcher, butexcluding all supervisory employees with
authority.to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action,, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION' OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec'
tion herein, subject to the limitations and additions set forth in the
Direction.
Due to the difficulties which may occur in balloting various drivers
,on duty at distant points at the time the election is held, and in order
to avoid delay in a successful conclusion of the balloting, the Regional
Director is hereby authorized to use the mail for balloting purposes.
whenever, in his discretion, expediency will be served thereby.
The Company requests that employees who, are members' of the
armed services be permitted to vote by mail if the performance of their
present duties precludes their being present at the polls. The Union
does not object to this request. In accordance with our established
policy, recently affirmed after a full review of the reasons for the
policy,' we shall deny the Company's request and permit only those
employees on military leave to vote who present themselves in person
at the polls.
DIRECTION OF ELECTION
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 9, of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Oklahoma Trans-
portation Company, Oklahoma City, Oklahoma, 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 su-
pervision of the Regional Director for the Sixteenth Region, acting
° See Matter of Dixie Greyhound Lines, Inc., 52 N. L. R. B.'424; Matter of Reid Murdoch
and Co., 56 N . L. R. B. 284
7 See Matter of Mine Safety Appliances Co., 55 N. L. R B. 1190.
OKLAHOMA TRANSPORTATION COMPANY 172k
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section 'IV,
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, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding any who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the.elec-
tion, to determine whether or not they desire to be represented by
Brotherhood of Railroad Trainmen, for the purposes of collective
bargaining.