Reading Transportation Company

National Labor Relations Board - Board Decisions

Dec 1, 1938

10 N.L.R.B. 15 (N.L.R.B. 1938)

In the Matter of READING TRANSPORTATION COMPANY and AMALGA-
MATED ASSOCIATION OF STREET, ELECTRIC RAILWAY, AND MOTOR
COACH EMPLOYES OF AMERICA
Case No. R-869.-Decided December 1, 1938
Motor Bus and Freight Transportation Industry-Investigation of Represen-
tatives: Contract no Bar: controversy concerning representation of employees:
not precluded by contract terminable on 30 days' notice and in some material
respects recognizing one union as representative of members only-Unit Ap-
propriate for Collective Bargaining: wage differentials ; skill ; interchangeable
job rights ; history of collective bargaining with employer ; where other consid-
erations determinative of appropriate unit are evenly balanced, decisive factor is
the desire of employees involved ; determination whether motor bus drivers
constitute a separate bargaining unit dependent upon results of ballot of
bus drivers for bus drivers' union or industrial union ; motor bus drivers to
include temporary motor bus drivers on "extra board" and "combination board" ;
no unit to be found appropriate if motor bus drivers choose industrial union-
Election Ordered
Mr. Jack Davis, for the Board.
Mr. H. Merle Mulloy, of Philadelphia, Pa., for the Company.
Mr. Robert C. Duffy, of Philadelphia, Pa., and Mr. James Powers,
of Port Carbon, Pa., for the B. R. T.
Mr. Charlton Ogburn, by Mr. Arthur E. Reyman, of New York
City, for the Amalgamated.
Mr. Ivar Peterson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On • April 4, 1938, Amalgamated Association of Street, Electric
Railway, and Motor Coach Employes of America, herein called the
Amalgamated, filed with the Regional Director for the Fourth Region
(Philadelphia, Pennsylvania) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Reading Transportation Company, Philadelphia, Pennsyl-
vania, herein called the Company, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
10 N. L. R. B., No. 2. 15
16 NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
May 24, 1938, the National Labor Relations Board, herein called the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice. i
On June 8, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the Amal-
gamated, and upon the Brotherhood of Railroad Trainmen, herein
called the B. R. T., a labor organization claiming to represent em-
ployees directly affected by the investigation. Pursuant to the no-
tice, a hearing was held on June 29 and 30, 1938, at Philadelphia,
Pennsylvania, before Herbert A. Lien, the Trial Examiner duly
designated by the Board. The Board, the Company,,the Amalga-
mated, and the B. R. T. were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing
the Trial Examiner made several rulings on motions and on objec-
tions to the admission of evidence. He also denied a motion of the
Company to dismiss the proceeding for want of jurisdiction of the
Board over the subject matter. The Board has reviewed these rulings
and hereby affirms the same. ,
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Reading Transportation Company, a Pennsylvania corporation,
with its principal place of business in Philadelphia, Pennsylvania, is
engaged in the business of transporting passengers and property.
The entire capital stock of the Company is owned by Reading Com-
pany, a carrier by railroad subject to the Interstate Commerce Act.
The Company is licensed to do interstate commerce business by the
Interstate Commerce Commission.
The Company maintains and operates regular interstate and intra-
state motor bus lines for the transportation for hire of passengers
and their baggage, newspapers, mail, and occasional emergency
express. It also operates a regular interstate and intrastate truck
service for the transport of miscellaneous freight and express. Under
joint tariff arrangements with Reading Company, the Company car-
ries passengers and the mentioned property by motor bus over regu-
lar motor bus routes between Harrisburg, Pennsylvania, and New
York City; between Philadelphia, Pennsylvania, and New York
DECISIONS AND ORDERS 17
City; as well as between cities and towns in Pennsylvania. Intra-
state motor bus service is maintained by the Company as a direct
train substitution service for Reading Company within Pennsylvania.
The truck service operated by the Company is carried on by way
of motor transport between Philadelphia, Pennsylvania, and South
Bound Brook, New Jersey; as well as between points in Pennsylvania
and in New Jersey.
During the year 1937 motor busses of the Company traveled
1,869,009 miles and transported 958,864 passengers. Approximately
25 per cent of these passengers were transported beyond the borders
of the State of Pennsylvania into other States. The gross operating
revenues of Reading Transportation Company in 1937 were $559,009,
divided about equally between motor bus and truck service.
For the pay-roll period ending June 15, 1938. the Company em-
ployed 43 motor bus drivers, 46 truck drivers, 19 truck helpers, 13
platformmen , 2 callers , and 6 checkers.
We find that Reading Transportation Company is engaged in
traffic, commerce , and transportation among the several States and
that the employees of the Company are directly engaged in such
traffic, commerce, and transportation.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Street , Electric Railway, and Motor
Coach Employes of America , is a labor organization affiliated with
the American Federation of Labor, admitting to its membership
employees of motor bus companies. Amalgamated Association of
Street, Electric Railway, and Motor Coach Employes of America,
Local Division 1184, herein called Local Division 1184, is a branch
of the Amalgamated , admitting to membership motor bus drivers
employed by the Company.
Brotherhood of Railroad Trainmen is a labor organization , unaffil-
iated with any other labor organization , admitting to its membership
bus, truck and motor coach employees.
III. THE QUESTION CONCERNING REPRESENTATION
In June 1934, after negotiations begun in 1933, an agreement,
styled and denominated "Agreement between Reading Transporta-
tion Co. and Bus Drivers , Truck Drivers and Helpers, and Stationary
Truck Forces," was entered into by the Company and the B. R. T.
This agreement made provision for wages , hours, and other working
conditions of motor bus drivers, truck drivers, helpers , platform-
men, checkers , callers, and packers employed by the Company, and
further provided that, "All differences between this Company and
its employes as to rates of pay, working conditions , etc., if handled
by Committee will be handled by the duly authorized Committee
18 NATIONAL LABOR RELATIONS BOARD
of the B. of R. T." I With regard to seniority between persons
employed on the motor bus lines, that is, in passenger service as
it at times is called, and those employed in truck or freight service,
the agreement provided that, "Men in Passenger service cannot bid
or claim in Freight service as long as there is a junior man in Pas-
senger service. Men in Freight service cannot bid or claim in
Passenger service as long as there is a junior man in Freight service.
In the event there are no junior men in the service in which they
are engaged they can then claim or bid in the other service." By
its terms the agreement was effective for 1 year from June 1, 1934,
and thereafter until the giving of thirty (30) days' written notice
by either party to the other to change or terminate it in whole or
in part.
By a notice posted by the Company, dated March 11, 1937, the
following changes in the agreement, "agreed upon by the employes
and presented by their duly authorized Committee" with "the con-
currence of the Management," were made effective as of January 11,
1937. Both motor bus and truck employees were divided into groups
dependent upon in what territorial zone, fixed for such purpose,
they were assigned work. The seniority provision above was modi-
fied to provide that an employee in either passenger or freight serv-
ice could not bid or claim in the other service so long as there was
a junior man employed in the same service in the zone in which
such employee was himself assigned. It was further provided that,
"An employe in either Passenger or Freight Service displaced by
claim in the zone where he is assigned, may claim a junior man
in the same class of service in any other zone, or, upon becoming
the junior man in his home zone in the class of service to which he
is assigned, may exercise his full seniority in his home zone for
either Passenger or Freight position held by a junior employe."
Effective as of November 15, 1937, a supplemental agreement was
entered into by the same parties providing, among other things,
that, "An employe to be governed by all of the rules must be a mem-
ber of the Brotherhood of Railroad Trainmen in good standing.
Those employes not members in good standing of the Brotherhood
of Railroad Trainmen will not be subject to or benefited by [the
seniority provisions of the 1934 agreement, as revised], but will
remain junior to those employes who are members in good standing
of the Brotherhood of Railroad Trainmen." 2 It further provided
that employees who were not members in good standing of the)
1 The agreement defines the term "employe" to include "all bus drivers, truck drivers,
helpers, platformmen, checkers , callers and packers "
2 We do not here pass upon the validity of such a provision under the Act, even assum-
ing the B R T. then represented a majority of the employees Cf Matter of National
Electric Products Corporation and United Electrical and Radio Workers of America,
Local No. 609, 3 N. L R. B . 475, 486 , footnote 10
DECISIONS AND ORDERS 19
B. R. T . were not entitled to representation by or appeal through
the B . R. T. in connection with any action or decision affecting• them
taken by the Company, involving discipline , furloughs , lay-offs, and
certain other conditions of employment . On January 6, 1938, the
Company issued the following interpretation of the seniority pro-
visions of the supplemental agreement of 1937 : "A Senior man in
either class of service cannot be displaced by a Junior man under
any conditions , except that in the event that his job is abolished
or he is claimed off his job by a Senior man he cannot then claim
a job held by a Junior man who is a ' member of the Brotherhood of
Railroad Trainmen ; nor can he be the successful bidder when a job
is posted , regardless of his seniority , if a Junior employee who is
a member of the Brotherhood of Railroad Trainmen also bids on
the job."
Immediately after the supplemental agreement above referred to
became operative , 38 employees , 34 of whom were motor bus opera-
tors, presented to the Company their signed, written objections to its
terms and requested that the supplemental agreement be canceled.
These employees asserted that at the time the supplemental agree-
ment was executed , the B . R. T. did not represent a majority of the
employees of the Company. The request was denied on the ground
that the 38 employees did not represent a majority of the total
number of employees in motor bus and truck service. In February
1938, 25 motor bus drivers formed Local Division 1184 of the Amal-
gamated and were granted a charter . On or about March 21, 1938,
the Amalgamated presented to the Company cards signed by a
majority of the motor bus drivers , authorizing the Amalgamated to
act as their bargaining representative , and requested that the Amal-
gamated be recognized as the exclusive representative of all motor
bus drivers for the purposes of collective bargaining . The Com-
pany refused to recognize the Amalgamated on the ground that
it was bound by its contract with the B. R. T., for the term thereof,
to recognize that organization , and its Committee, as the exclusive
bargaining agent of all employees , including motor bus .drivers.
While the agreement of 1934 does not expressly provide that the
Company undertakes to recognize the B. R. T. as the sole bargain-
ing representative of all employees therein referred to, the Com-
pany contends , nevertheless , that such is the intent and true mean-
ing thereof , and that, accordingly , the contract precludes there here
arising any question concerning the representation of its motor bus
drivers. However, the supplemental agreement hereinbefore men-
tioned, which is a part of the 1934 agreement , effectively limits the
representation of employees by the B. R. T., in so far as disciplinary
matters, furloughs, lay-offs, and certain other conditions of employ-
ment are concerned to employees who are members in good stand-
20 NATIONAL LABOR RELATIONS BOARD
ing of the B. R. T. Thus, employees who are not members of the
B. R. T. are not represented by it in regard to disciplinary' matters,
furloughs, lay-offs, and certain other conditions of employment.
As has been stated above, the agreement is one terminable by
either party upon thirty (30) days' notice. In previous cases we
have held that where such fact appears the contract is no bar to a
determination of the question concerning representation.:, Moreover,
it is evident that the 1934 agreement, which, as interpreted by the
Company, accorded recognition to the B. R. T. as the sole bargain-
ing representative of all the employees therein enumerated, including
motor bus drivers, has been altered in material respects by the sup-
plemental agreement of 1937 in that only B. R. T. members, under
the last-mentioned agreement, are entitled to that full representation
in collective bargaining which the Act contemplates. In substance,
the' agreement of 1934 has become one in which the B. R. T. is
recognized as bargaining representative for its members only.4 In
these circumstances, we are, unable to conclude that the agreement
of 1934, as supplemented by the supplemental agreement of 1937,
has resolved or determined any question concerning representation
of motor bus drivers. We conclude that the contract is not a bar
to an investigation and determination of the question concerning rep-
resentation of motor bus drivers which here has arisen.
We find that a question has arisen concerning representation of
employees of the Company. We further find that this question, oc-
curring in connection with the operations of the Company described
in Section I above, tends to lead to labor disputes burdening and
obstructing interstate traffic, commerce, and transportation and the
free flow of such traffic, commerce, and transportation.
IV. THE APPROPRIATE UNIT
For present purposes employees of the Company may be divided
into two main classifications : motor bus drivers and other employees,
namely, truck drivers, helpers, and stationary truck forces.
The Amalgamated contends that motor bus drivers form an ap-
propriate unit by themselves, that their interests as employees differ
from those in truck service. In support of this contention, witnesses
for the Amalgamated stated, and the evidence tends to establish, that
the qualifications, duties, and method of payment of motor bus
drivers differ materially from those of truck drivers, the largest sin-
gle class of employees among those outside motor bus drivers, and
8 Matter of Pressed Steel Car Company , Inc. and Steel Workers Organizing Committee,
7 N. L. R. B 1099; Matter of Utica Knitting Conipany and American Federation of Labor,
Local 81500, 8 N L R B. 783
4Cf Matter of D,aniond Iron Woiks and United Electrical Radio Maclaine Workers of
America, Local 1140, 6 N L. R. B. 94; Matter of Unit Cast Cotporation and Steel Workers
Organizing Committee, 7 N L R B 129.
DECISIONS AND ORDERS 21
the ones whose work most closely approximates that of the motor bus
drivers. The qualifications for employment as motor bus drivers
are higher, and it was admitted by Moyer, superintendent of the Com-
pany, and the record shows, that whereas some truck drivers would
not be allowed to operate motor busses, no motor bus driver would be
deemed unqualified to operate a motor truck. Motor bus drivers,
unlike truck drivers, operate on definite schedules ; they also have
greater responsibility since they carry passengers rathar than freight.
Motor bus drivers are paid on an hourly or mileage basis, whichever
is the greater; truck drivers are paid on an hourly basis.
The B. R. T. and the Company contend that motor bus drivers do
not constitute a separate bargaining unit but are appropriately a
part of the larger unit as provided for in the contract of June 1934,
and consisting of motor bus drivers, truck drivers, helpers, and sta-
tionary truck forces. While conceding that the qualifications for the
two types of service are somewhat different, these parties urged that
in the main the qualifications and duties, especially as they concern
motor bus drivers and truck drivers, are similar, and that this has
led to a mutuality of interest among all the employees as to working
conditions. Under the existing arrangements motor bus drivers and
truck drivers enjoy interchangeable job rights which, the Company
and the B. R. T. contend, would be jeopardized if motor bus drivers
became a separate unit.
In view of the conflicting claims and evidence concerning the ap-
propriate bargaining unit, it appears that motor bus.drivers can be
considered either as a separate unit as claimed by the Amalgamated,
or as part of a larger unit composed of motor bus drivers, truck driv-
ers and, helpers, and stationary truck forces, as claimed by the B. R. T.
and the Company. The differentiation in qualifications, duties, and
pay of motor bus drivers from other employees supports the conten-
tion-of the Amalgamated. On the other hand, the similarity in gen-
eral qualifications between motor bus drivers and truck drivers, the
interchangeable job rights enjoyed by each group, and the history of
collective bargaining with the Company, point to the feasibility of the
latter approach. Under somewhat similar circumstances we held in
?flatter of Pennsylvania Greyhound Lines et al.,5 that the decisive fac-
tor in determining the appropriate bargaining unit was the desire of
the men themselves.
However, as stated in Section V below, the desire of the men can-
not be conclusively established from the record. Therefore, we shall
direct an election to be held among the motor bus drivers employed
by the Company, to determine whether they wish to be represented by
the Amalgamated or the B. R. T. Upon the results of this election
E Matter of Pennsylvania Greyhound Lines et al . and , The Brotherhood of Railroad
Trainmen , 3 N. L. R B 622.
147841-39-vol 10-3
22 NATIONAL,LABOR RELATIONS BOARD
will depend in part the determination of the appropriate unit for
purposes of collective bargaining. If a majority 6 of the motor 'bus
drivers choose the Amalgamated, then motor bus drivers will con-
stitute a single appropriate bargaining unit ; if they choose the B.
R. T. they will have indicated that they do not prefer such a unit.
However, in view of the absence of a petition by the B. R. T. re-
questing a certification of representatives of employees in the unit
it here claims to be appropriate, and the want of a question concern-
ing the representation of employees other than motor bus drivers, it
will not be necessary, if a majority of the motor bus drivers choose
the B. R. T., to determine that any unit is appropriate or whether
the B. R. T. has been designated by a majority of the employees in
a unit.?
The Company, in addition to its employment of full-time motor
bus drivers, maintains two reserve "boards" available for temporary
service as drivers of motor busses. The so-called "extra board" con-
sists of three men regularly employed as truck drivers who act as
temporary motor bus drivers during emergency periods. These three
are employed in such work for an average of about 6 days per
month. During periods of increase in the Company's motor bus
business, such as in May and June, they operate motor busses as much
as 14 days per month. The second reserve "board," termed the
"combination board," consists of six or seven truck drivers. They
are used as temporary motor bus drivers after the roster of the "extra
board" has been exhausted. It does not appear how frequently em-
ployees on the "combination board" operate motor busses as tem-
porary drivers. The Amalgamated contends that since the rights
of combination men to motor bus jobs arise out of the contract of
June 1934 as revised, which is not recognized by the petitioner, coln-
bination men should not be included in the unit composed of motor
-bus drivers which the Amalgamated proposes. The Amalgamated
did not clarify its position with regard to the three truck drivers
on the "extra board."
It is clear that the exigencies of operation require that the Com-
pany regularly maintain additional personnel for service as tem-
- porary motor bus drivers. It follows, therefore, that the employees
who are employed as temporary motor bus drivers have an interest
in the terms and conditions of employment applicable to motor bus
drivers. For this reason we shall consider employees on the "extra
board" and the "combination board" as motor bus drivers for the
purposes of the election which we shall order.
U By "majority" is meant majority under the principles laid down by the Board in its
previous decisions.
7 See Matter of Pacific Greyhound Lines and Bhotherhood of Locomotive Firemen and
Enginemen , 4 N. L R B. 520.
DECISIONS AND ORDERS 23
V. THE DETERMINATION OF RErRESENTATIVES
At the hearing, the Amalgamated introduced in evidence cards
,signed by 32 motor bus drivers authorizing the Amalgamated to act
as their representative for purposes of collective bargaining. These
cards were signed between March 19 and 21, 1938. However, there
were also introduced in evidence statements signed between May 6
and June 28, 1938, by 24 motor bus drivers and 7 truck employees
which authorized the B. R. T. to act as their representative. The
seven truck employees appear to be those on the combination board.
From the Company's pay roll for the period ending April 15,
1938, it appears that 43 employees are classified as motor bus drivers.
Of these, 32 signed Amalgamated cards in March, and 24 signed
B. R. T. authorizations in May and June. Comparison of the names
on the Amalgamated cards and the B. R. T. authorizations with the
pay-roll sheets for the period ending April 15, 1938, reveals the fol-
lowing results : Of the 43 motor bus drivers, 18 signed Amalgamated
cards only, 10 signed B. R. T. authorizations only. 14 signed both,
and 1 signed neither.
We are not satisfied upon the record that the motor bus drivers
who signed B. R. T. authorizations thereby withdrew their desig-
nation of the Amalgamated. In order to insure to the employees the
full benefit of their right to self-organization and collective bargain-
ing and otherwise to effectuate the policies of the Act, we conclude
that the question concerning the representation of the employees of
the Company which has arisen can best be resolved by an election by
secret ballot, to be held on the terms set out in Section IV above.
At the hearing, the Amalgamated suggested that eligibility to vote
be determined by the pay-roll period including April 4, 1938, the
date of the filing of the petition. Since no serious objection was
,raised to this proposed date by any of the parties, and since an
inspection of the pay-roll sheets for the periods ending November 15,
1937, and June 15, 1938, reveals that there occurs little fluctuation
in the number and turn-over of employees employed as motor bus
drivers, we will direct that employees of the Company employed as
motor bus drivers, and those on the "extra board" and the "com-
bination board," during the pay-roll period including April 4, 1938,
excepting those who have since quit or been discharged for cause,
shall be eligible to participate in the election.
We further will direct the election to be held under the direc-
tion and supervision of the Regional Director for the Fourth Region,
who shall determine in his discretion the exact times, places, and
procedure for giving notice of the election and for balloting. We
hereby expressly authorize the use of the United States mail for
such purposes and, the use of agents, if feasible, to journey through
24 NATIONAL LABOR RELATIONS BOARD
the Company's various territorial divisions to conduct balloting at
appropriate places; collecting the votes in sealed envelopes for deliv-
ery to the Regional Director.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the repre-
sentation of employees of Reading Transportation Company, Phila-
delphia, Pennsylvania, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and. Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Reading Transportation Company, Philadelphia, Pennsylvania,
an election by secret ballot shall be conducted within thirty (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Fourth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations,
among employees of said Company employed as motor bus drivers,
including those persons employed on the "extra board" and the -
"combination board," during the pay-roll period including April 4,
1938, who have not since quit or been discharged for cause, to deter-
mine whether they desire to be represented by Amalgamated Asso-
ciation of Street, Electric Railway, and Motor Coach Employes of
America or Brotherhood of Railroad Trainmen, for the purposes
of collective bargaining.
MR. EDWIN S. SMITH, dissenting :
The history of collective bargaining between the Company and
the B. R. T., extending over a period of more than 4 years, for
motor bus drivers, truck drivers and helpers, and stationary truck
forces, as a single unit, points to the propriety of a determination
that motor bus drivers should not be severed from the group of
employees covered by the 1934 contract, as revised., For more than
3 years, motor bus drivers, for all that appears' in the record, were
satisfied with the representation of the B. R. T. In fact, there is
DECISIONS AND ORDERS 25
evidence that a committee of motor bus drivers actively sought rep-
resentation by the B. R. T. It was not until after the supplemental
agreement of 1937 was executed, that the Amalgamated appeared
upon the scene and began organizing motor bus drivers. I do not
believe that a disinclination on the part'of a substantial number
of motor bus drivers to become members of the B. R. T., in the light
of the past bargaining history, justifies a decision separating motor
bus drivers from the other employees:
In a number of dissents I have pointed to the superiority of a
broad unit, from the point of view of the generality of employees,
to achieve the purposes of collective bargaining contemplated by the
Act. When such a unit has constituted the framework and basis of
collective bargaining for a number of years, I should be more than
usually opposed to splitting off from it a particular group in the
absence of any showing that the interests of this group have been
persistently disregarded in collective bargaining. The record in this
case shows no such abuse of the interests of the bus drivers.
I would,•therefore, dismiss the petition of the Amalgamated on
the ground that the unit claimed is inappropriate. '