Pittsburgh Railways Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 670 (N.L.R.B. 1946)

In the Matter of W. D. GEORGE AND THOMAS FITZGERALD, TRUSTEES FOR
PITTSBURGH RAILWAYS COMPANY, DEBTOR, EMPLOYER, and DIVISION
1327, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND
MOTOR COACH EMPLOYEES OF AMERICA, A. F. L., PETITIONER
Case No. 6-R-1310.-Decided August 26,1946
Mr. William Anderson, of Pittsburgh, Pa., for the Employer. -
llfr. 21. Herbert b'yme, of Philadelphia. Pa., for the Petitioner.
Mr. James Zett, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Pitts-
burgh, Pennsylvania, on June - 12, 1946, before Henry Shore, Trial
Examiner. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. The Employer
moved to dismiss the_petition, asserting, inter alia, that the matter is
res judicata,l• and that Sections 9 (c) and 2 (3) of the Act are un-
constitutional. We find no merit in these contentions, and the motion
is denied.2
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Pittsburgh Railways System, a common carrier, provides the
major mass transportation in the Pittsburgh district, and operates
interurban service between Pittsburgh and Charleroi and between
Pittsburgh'and Washington, Pennsylvania. Included in the. urban
I The Employer 's contention of res judicata is predicated upon the Pennsylvania Labor
Relations Board 's dismissal , in February 1944, of a petition for certification of a unit of
supervisors of the Employer filed by the Petitioner herein, which dismissal was later
sustained by the Supreme Court of Pennsylvania.
a See N. L. R. B. v Jones & Laughlin Steel Corporation, 301 U . S. 1, 46-47 ; American
Federation of Labor v . N. L. R. B., 308 U . S. 401, 411 ; Pittsburgh Plate Glass Company
v. N. L. R B, 313 U. S. 146, 165; N. L. R. B. v. Hearst Publications , Incorporated, 322
U. S. 111, 129-131.
70 N L. R. B., No. 49
670
PITTSBURGH ' RAILWAYS COMPANY 671
system are 74 routes using 474 miles of track and reaching a total
population of approximately 1,700,000 people; the interurban system,
consisting of 69 miles of track, operates through various municipalities
having a total population of 140,000. All streetcars are operated by
electricity purchased from the Duquesne Light Company, a Pennsyl-
vania public utility corporation. The Employer operates 11 manual
and 4 automatic substations, 14 car houses, 1 shop plant consisting
of several buildings, several material yards, and a number of small
terminal buildings. During the first 4 months of 1946, the more than
1,000 passenger streetcars carried approximately 87,000,000 revenue
passengers, and traveled about 12,500,000 car miles. The gross income
of the Employer for the first 4 months of 1946 exceeded $7,400,000..
The Employer transports to and from work a major portion of the
employees in the Pittsburgh area who are engaged in the production
of goods that flow in interstate commerce, although the cars of the
Employer do not cross any State lines. The principal industries in the
Pittsburgh district are iron and steel and allied products, bituminous
coal mining, stone, clay, glass, food products, electrical apparatus,
production and refining of oil, and rail and river transportation. In
addition, the Employer services the Greyhound Bus Terminal and each
of the five main passenger stations and many of the freight stations
of the three railroads engaged in the interstate movement of passen-
gers, mail, and freight to and from the city of Pittsburgh.
In connection with its operations, the Employer utilizes large quan-
tities of materials and supplies brought from points outside the State
of Pennsylvania. During the month of March 1946 these extra-State
purchases exceeded $52,000. The Employer has also purchased 365
new street cars since June 14, 1938, at an approximate cost of
$7,900,000. All these cars were manufactured by the St. Louis Car
Company at St. Louis, Missouri.
We find that the Employer is engaged in commerce within the mean-,
ing of the National Labor Relations Act.3
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Em-
ployer.4
3 See N. L. R. B V. Baltimore Transit Company, 140 F. (2d) 51 (C C. A 4), cert. denied
321 U. S 795; Matter of Louisville Railway Company, 69 N. L. R B. 691, cf Matter
of Chicago Motor Coach Company, 62 N. L. R. B 890.
4 The Employer contends that the Petitioner is not a labor organization within the mean-
ing of the Act The Petitioner seeks to bargain collectively in behalf of supervisory
employees of the Employer in respect to wages, hours, and working conditions. It is,
therefore, clearly a labor organization within the meaning of Section 2 (5) of the Act.
See Matter of Jones & Laughlin Steel Corporation, 66 N L R B 386 Division 85 of the
Amalgamated Association of Street, Electric Railway and Motor Coach Employees of
America, AFL, a coaffiliate of Division 1327, the Petitioner herein, represents the non-
supervisory employees of the Employer , and functions independently of the Petitioner.
6 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARP
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of certain supervisory employees of the
Employer, contending that supervisory employees are part of manage-
ment and are not "employees" within the meaning of the Act. This
contention has been advanced on numerous occasions and we have held
that a supervisor in relation to his employer concerning his own work-
ing conditions, is an employee within the meaning of the Act.' Ac-
,cordingly, we find that, for the purpose of this proceeding, the super-
visors herein considered are employees within the meaning of Section
2 (3) of the Act.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of supervisory employees in the trans-
portation and traffic department 6 generally on the first level of super-
vision above the rank and file employees. This unit consists of 34
-route foremen (inspectors), 5 district route foremen, 51 car house
,dispatchers, 13 instructors, and 7 traffic dispatchers. The Employer
contends that any unit of supervisory employees is inappropriate, and
that in any event its supervisors should not be represented by the
Petitioner for the reason that the Petitioner is affiliated with the
representative' of 'the Employer's rank and file employees. These
contentions are without merit." The Employer additionally contends
that the composition of the unit contended for is inappropriate in that
the 5 district-route foremen should be excluded.
The Employer's supervisory hierarchy above the level sought to be
included in the unit contended for is as follows :
Trustees and general manager
General Superintendent of traffic and transportation
Superintendents of car house operation, operating instruction,
and road operations
'Supervisors of car house operation, school and road construction,
and the chief traffic dispatcher
District superintendents
8 Matter of Packard Motor Car Company , 61 N. L It. B. 4 and 64 N. L. R. B. 1212, 1214,
find cases cited therein, enf'd August 12, 1946, 157 F. (2d) 80 (C C A. 6).
" In addition to the above department , Division 85 represents rank and file employees In
the maintenance department and miscellaneous categories , both of which were excluded
from the scope of the supervisory unit by express agreement of the parties.
7 See footnote 3, supra.
8 Matter of Midland Steel Products Company , 65 N. L. It. B. 997, and cases cited therein ;
Matter of Jones & Laughlin Steel Corporation , Vesta-Shannopin Coal Division , 66 N. L It. B.
386.
PITTSBURGH RAILWAYS COMPANY 673
Instructors: The instructors I supervise the training of student
trainees and the retraining of regular trainmen who have been absent
for certain periods of time or who have been involved in serious acci-
dents. The instructor makes progress reports of the trainees to the
superintendent of operating instruction, upon which reports the deci-
sion as to the hiring of the trainee is based. The instructors also
report to the superintendent of car house operation whether the train-
men placed under their supervision can operate in accordance with
satisfactory standards of performance. The decision, however, of
further appropriate action'as to such trainmen is made by the super-
intendent of car house operation.
Car House Dispatc/term : The car house dispatcher is in charge of
the car house office. ' He provides, the trainmen with all supplies
necessary to the conduct of business on the cars and receives from the
trainmen at the end of the day's work their receipts and accounts for all
money received. He supervises the assignment of runs from the
schedules and is responsible for the proper recording and operating
of the time for which trainmen are paid. It is his responsibility to
ensure that men reporting for duty are in proper physical condition
and are properly qualified to do the work. He can withhold a man
from duty if, in his judgment, it is necessary. He can apply certain
fixed disciplinary action as provided for by the rules, or make recom-
mendations to the district superintendents with respect to the train-
men. The dispatchers are recognized by the trainmen as their imme-
diate supervisors at all times except when the trainmen are operating
cars.
Route Foremen: The route foremen supervise the operation of the
service on a route or a group of routes and supervise the trainmen in
their operations along the route. The route foreman can remove a
trainman from a car if, in his judgment, such removal is necessary.
He makes all reports about the trainmen to the district route foreman
and written reports to the superintendent of road operations. The
route foremen are recognized by the trainmen as their immediate
supervisors from the time the trainmen take charge of their cars until
the time they are relieved. The route foremen also have a small
number of street aids under their supervision who assist them in their
work on the routes but who are not operating trainmen.
Traffic Dispatcher: A traffic dispatcher is equipped with a telephone
and a radio for receiving reports and information from all points
on the system, is kept advised of the adherence to the schedule on the
routes and conveys the official information to the route foremen so that
disrupted schedules can be corrected. He arranges, through emer-
9 Temporary- instructors were excluded from the proposed unit by agreement of the parties
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gency men, to supply assistance and services in eliminating blockades
caused by accidents or by inclement weather. He has the duty of
directing trainmen when the route foreman is unavailable and also
directing route foremen in deviations in the handling of major
interruptions.
District Route Foremen: The Employer's operations in the traffic
and transportation department are divided into five districts, each
supervised by a district route foreman whom the Petitioner would
include, and the Employer exclude, from the proposed unit. This
classification is on a slightly higher level of supervision than the other
supervisors in question and are promoted from the ranks of route
foremen. District route foremen supervise, and assign routes to, the
route foremen and receive oral reports from the latter. The district
route foremen in turn make recommendations concerning route fore-
men to the superintendent of road operations who gives effective weight
to such recommendations.
The supervisors in question are all in the traffic and transportation
department, the Employer's operating division, and are all salaried
and subject to the same personnel policies relating to vacations, sick
benefits, and the like. None of them has the power to hire or discharge,
although they can effectively recommend changes in the status of
employees. All, with the exception of the traffic dispatchers, handle
grievances in the initial stage, but the ultimate disposition of these
grievances is made by higher management. Matters of general policy
are determined by the trustees and by the upper reaches of the manage-
ment hierarchy, although the supervisors in question are consulted
directly and indirectly in the formulation of general policy. We con-
clude, in the light of all these facts and the entire record, that the
supervisory employees whom the Petitioner seeks to represent con-
stitute a homogeneous group, appropriate for collective bargaining.
The Employer, however, contends that the district route foremen
are on a higher level of supervision than the other supervisors con-
sidered herein, and should, therefore, be excluded from the unit. A
majority of the Board 10-is of the opinion, on the basis of its reasoning
in the Midland Steel case and others,11 that the district route foremen
constitute a higher level of supervision and should, therefore, be given
an opportunity by separate voting, to determine whether or not they
wish to be included in the same unit as those on the lower level.
Accordingly, we shall make no final unit determination at this time,
but will be guided in part by the desires of the employees involved
10 Chairman Herzog and Member Reilly
11 Matter of The White Motor Company, 67 N. L . R. B. 828; Matter of Kelsey-Hayes
Wheel Company, 66 N L R B. 570 ; Matter of The Midland Steel Products Company, Paris?
t Bingham Division, 65 N. L. R B. 997.
PITTSBURGH RAILWAYS COMPANY 675
as expressed in the elections ordered hereinafter. In the event that
the employees in the voting groups described below, voting separately,
select the Union they shall together constitute a single appropriate
unit.
We shall direct that separate elections be held among the Employer's
employees in the voting groups described below who were employed
during the pay-roll period immediately preceding the date of the
Direction of Elections'12 subject to the limitations and additions set
forth in the Direction :
1. Instructors, car house dispatchers, .route foremen and traffic dis-
patchers, excluding executives, general superintendent, superintend-
ents, supervisors, chief traffic dispatcher, and district superintendents;
2. District route foremen.
As stated above, there will be no final determination of the appro-
priate unit pending the results of the election.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with W. D. George and Thomas
Fitzgerald, trustees for Pittsburgh Railways Company, 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 Director for the Sixth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, among the voting
groups described 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 includ-
ing employees in the armed forces of the United States who present
themselves in person at the polls, 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, to determine whether or
not they desire to be represented by Division 1327, Amalgamated
Association of Street, Electric Railway and Motor Coach Employees
of America, A. F. L., for the purposes of collective bargaining.
MR. GERARD D. REILLY, concurring separately :
My position in this case is similar to that expressed in my concurring
opinion in Matte' of Midland Steel Products Conapany.13 As in that
12 The Union requested an eligibility date of June 1, 1946 , inasmuch as the Employer
contemplates an increase of 20 percent in the unit contended for we see no valid reason
for varying our usual eligibility date
13 65 N. L. R. B. 997.
712344-47-vol 70-44
,676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, I would direct no election in the present matter for the reasons
stated in my dissenting opinion in Matter of Packard Motor Car Com-
pany ,14 and further , in this case , for the reasons set forth in my dis-
senting opinion in Matter of Jones rt Laughlin Steel Corporation,
Vesta-Shannopin Coal Division15 Since the majority of the. Board
entertain a contrary view, however , I wish to concur in the conclusion
that the district route foremen should be balloted separately so as to
ascertain whether or not they desire to be in the same bargaining unit
which includes the other supervisors of the Employer . There is
sufficient evidence in the record to indicate that the duties and re-
sponsibilities of the first group are distinguishable from those of the
second.
MR. JOHN M. HOUSTON, concurring, separately :
For the reasons stated in my concurring opinion in the Midland
Steel case '16 which I find equally applicable here, I would provide for
only one voting group of the supervisors of the Employer.
14 64 N. L R. B 1212 , and 61 N. L. R. B. 4.
ss 66 N. L. R. B. 386.
16 65 N. L . R. B. 997.