The Baltimore Transit Co.

National Labor Relations Board - Board Decisions

Dec 13, 1950

92 N.L.R.B. 688 (N.L.R.B. 1950)

In the Matter of THE BALTIMORE TRANSIT COMPANY AND THE BALTI-
MORE COACH COMPANY, EMPLOYERS and AMALGAMATED ASSOCIATION
OF STREET ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF
AMERICA, DIVISION No. 1300, AFL, PETITIONER
Case No. 5-RC-677.-Decided December 13, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before David C. Sachs,
hearing officer. 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 Employers are engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of, employees of the Employers within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.'
4. The Petitioner was certified by the Board in 1945 as representa-
tive of a unit consisting of all employees in the Employers' trans-
portation division, shops division, way and structures division,.and
power division with certain named exclusions.2 Among the em-
ployees excluded from that unit were those in the classifications of
dispatcher, full-time relief dispatcher, and starter, all of which, the
parties agreed at that time, were supervisory positions. In 1946 the
parties negotiated their first agreement for the unit certified by the
Board. In 1948 a second contract was signed in which, by agreement
of the parties, the unit was enlarged to include starters, lead watch-
men, watchmen, and storeroom chief clerks. Following the expira-
1 The Employers, at the hearing , moved to dismiss the petition on the grounds of con-
tract bar and alleged supervisory status of employees in the requested unit. The motion
to dismiss , referred to the Board by the hearing officer, is 'clenied for reasons - stated- here-
inafter and under paragraph numbered 4. The contracts between the Employers and the
Petitioner relied upon as a. bar by the Employers unequivocally excluded from coverage
the employees requested by the Petitioner. It is well settled that contracts specifically
excluding from coverage certain employees do not bar petitions seeking to represent such
employees . See Wells-Gardner & Co., 71 NLRB 176.
' The Baltimore Transit Company , and The Baltimore Coach Company, 59 NLRB 159.
92 NLRB No. 120..
688
THE BALTIMORE TRANSIT COMPANY 689
tion of this agreement on January 6, 1950, a supplemental contract
was signed further enlarging the scope of the unit by the inclusion of
base secretaries. At the same time, the Petitioner requested that em-
ployees in the classification of supervisory assistants be added to the
bargaining unit. After some negotiation, the Employers refused to
recognize Petitioner as representative of these employees and the
instant petition was filed.
The Petitioner seeks to represent all "supervisory assistants" em-
ployed in the Employers' transportation department, including all
relief supervisory assistants but excluding all administrative clerical
employees and supervisors as defined in the Act. The Petitioner fur-
ther requests that, if it is successful in an election conducted pursuant
to its petition in this case, it be allowed to merge the supervisory assist-
ants with the over-all bargaining unit it now represents. The Em-
ployers oppose the petition, contending that employees in the class-
ification of supervisory assistant are supervisors within the definition
of Section 2 (11) of the amended Act.
The Employers' transportation division includes approximately
3,000 employees, the great majority of whom are represented by the
Petitioner. Nine major bases, each. under the supervision of a base
manager, and 4 subordinate bases are used as the control points for
the division's operations. The base managers, who are vested with a
certain degree of autonomous authority, report to the general trans-
portation manager, who, in turn, is responsible to the operations
manager in charge of the entire division. The base managers are
assisted by service supervisors either stationed at, or reporting to,
each base. The service supervisors are classified, according to assign-
ment, as either street service or base service supervisors. Each major
base, with one exception, has a base service supervisor who spends
most of his time at the base and assumes the base manager's duties in
the absence of the manager. There are approximately 23 street super-
visors assigned to the city areas through which the bus and streetcar
routes operate. Of these, 14 are attached to the various bases and are
responsible to the base managers while the remainder report to the
superintendent of radio and mobile service. The superintendent of
radi03 also directs the mobile service supervisors who use radio-
equipped company service cars. These individual service supervisors
are all of comparable rank and have similar basic duties which consist,
in the main, of observation of the operation of the Employer's equip-
ment on the lines and making reports and recommendations as to such
operation. In addition, the mobile service corps is utilized as a
trouble-shooting unit for emergency situations. Equipment main-
3 The superintendent of radio and mobile service is under the direction of the trans-
portation manager and operates separately of, but in coordination with , the base managers.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance is supervised by the base manager through a maintenance
service supervisor and subordinate shop foreman.
In addition to the staff mentioned, 3 supervisory assistants working
consecutive 8-hour shifts and a relief assistant are assigned to each
major base. There are approximately 37 full-time supervisory assist-
ants as well as 20 "extra" men who fill in for the assistants on occasion
but spend the greatest portion of their time as operators.' The super-
visory assistant is under the direction of the base manager and the base
service supervisor and is stationed in an office at each base separated
from the operators by a screen or partition. Operators and super-
visory assistants average approximately the same pay and are paid
weekly unlike the supervisory staff. The supervisory assistant, how-
ever, is on a fixed salary and receives neither overtime compensation
nor pay reductions in.event of illness.
Prior to a reorganization of the Employers' organization in 1949,
the supervisory assistants were classified as dispatchers. In general,
despite the change in nomenclature, the duties of the supervisory
assistant and those of the old dispatcher remained essentially the same.
These duties, as described by the Employers ,5 are, "To dispatch sched-
uled service and any other service required to meet unanticipated
demands or conditions; to determine the number of employees and
vehicles necessary to effectively meet service requirements and to
arrange with the Maintenance Service Supervisor for the furnishing
of all necessary vehicles; to designate the time for operators to report
for work and to see that such operators report properly qualified for
work assignments; to require operators to make proper turn-in of
receipts, equipment and necessary reports respecting conditions of
vehicles, accidents, delays in service, unusual incidents, etc. ; to handle
complaints received directly at the base and to make every effort to
adjust such complaints satisfactorily; to supervise office personnel
and to be responsible directly and indirectly for the preparation,
development, compilation, recording or transacting of various reports,
tabulations, records and data. which are required relative to office
functions, procedures and routines ; and to take charge of the operating
base and its personnel in the absence of both the Base Manager and
4 These "extra" supervisory assistants are represented by the Petitioner at the present
time and included in the contract bargaining unit. °
6 The Employers, at the hearing, introduced a job classification sheet from which the
above quotations are taken, detailing the duties and authorities of the supervisory as-
sistants. It appears, however, that this material was formally prepared only a few days
prior to the bearing in this matter and was never distributed to the supervisory assistants
or, in that form, to the base managers. The Employers contend that the supervisory
assistants were orally instructed as to these duties and powers by the individual base
managers at various times since June 1949. The evidence is conflicting as to the actual
receipt of these instructions by the supervisory assistants. Neither the operators nor
the Petitioner was notified of the contents of the job description or the increased authority
of the supervisory assistants.
THE BALTIMORE TRANSIT COMPANY ' 691
the Base Service Supervisor." In the performance of these duties,
the Employers assert, the supervisory assistants have been delegated
power "to act at any time in the interest of the Company exercising
authority over the activity and conduct of all employees under their
jurisdiction, and in the absence of established procedure to use inde-
pendent judgment in the handling of situations which may arise. To
caution or suspend any employees for an improper discharge of their
assigned duties and to recommend dismissal of employees under their
jurisdiction for such improper discharge of duties."
The Petitioner maintains that the duties outlined by the Employers
in actuality consist of routine work demanding no exercise of discre-
tion or supervisory authority. Briefly, the Petitioner regards the
supervisory assistant's work as confined to issuing equipment, such
as tokens, transfers, etc., when operators leave on their runs, and
receiving the same equipment and receipts on their return, preparing
assignment sheets according to strict contract provisions for operators
who are to fill in for. absentees, noting complaints received by tele-
phone, and tabulating and maintaining a number of records including
the time reports of the operators.6 The Petitioner further denies
the existence or practical exercise of the supervisory authority al-
legedly vested in these employees. The issue joined here is therefore
whether the supervisory assistants, in fact, possess authority respon-
sibly to direct other employees, to adjust their grievances, to suspend-
and discipline or otherwise effectively to recommend discipline and
discharge,' as contended by the Employer.
Although one of the duties of the supervisory assistant involves
the preparation of an assignment sheet and determining what opera-
tors are to be given opportunity for extra work, the actual mechanics
of selection of operators for runs on the various routes are rigidly
controlled by -contract and custom, leaving little or no discretion to
be exercised by the supervisory assistant. The same appears true as
to the supervisory assistant's control of the "short list." 8 The spac-
ing of vehicles on the runs, the dispatch of scheduled runs, and changes
of schedules, relied upon by the Employers as instances of- the re-
sponsible direction of work, all essentially involve control of equip-
9 These duties vary somewhat according to the shift to which the supervisory assistant
is assigned.
4 Section 2 (11) of the Act , as amended , states , "The term `supervisor ' means any indi-
vidual having authority, in the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to
direct them , or to adjust their grievances , or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely routine
or clerical nature , but requires the use of independent judgment."
8 The "short list" is the record of discrepancies in receipts of operators sent to the
supervisory assistant by the fiscal office of the Employers . In this instance the action
of the supervisory assistant appears largely controlled by rules laid down by the individual
bases.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment rather than employees. In other cases involving dispatchers
performing duties similar to these of the supervisory assistants in
this case, we have held that the direction and control of equipment
as contrasted to personnel, does not necessarily involve exercise of
independent judgment or responsible direction sufficient to bring
an individual within the orbit of the statutory definition of a super-
visor.' We further note that the major portion of such work, par-
ticularly that of an emergency nature, is controlled by street super-
visors and mobile radio crews or is referred to the judgment of the
base manager. Employees in the classification of starters and starter
clerks also perform work of this nature and they, although originally
excluded from the bargaining unit as supervisors, have since been
included by agreement of the parties.
Accordingly, upon full consideration of the complete record we do
not believe the evidence shows that the supervisory assistants of the
Employers have authority responsibly to direct other employees within
the meaning of the Act.10 Contrary to the contention of the Employ-
ers, the record herein also affords no basis for a finding that the super-
visory assistants have authority to adjust grievances or that they have,
in fact, done so in the past" Written grievances of employees are
handled by the base manager, the evidence shows, without recourse to
the supervisory assistant and pursuant to the contract between the
Employers and the Petitioner.
The issue as to the status of the supervisory assistants, in the last
analysis therefore turns upon the Employers' assertion that the super-
visory assistants have authority to suspend and discipline operators
and may effectively recommend other discipline including discharge.
In this connection, the Employers introduced exhibits at the hearing
demonstrating that supervisory assistants had written "briefs" 12 on
operators' misconduct, had interviewed operators on briefs, and, on
three. occasions, had recommended discipline or discharge. We do not
believe that the evidence substantiates the position of the Employers as
to these matters. Although the operators come into contact with the
supervisory assistants on checking in or out of runs, the location of
the supervisory assistants at the base itself for the most part prevents
• e See New England Transportation Company, 90 NLRB 539 ; Gate City Transit Lines,
Inc., 81 NLRB 79.
10 In this connection, the Employers ' contention that supervisory assistants supervise
employees at the base other than operators is also negated by the facts. There was no
evidence adduced which indicated any control over the duties and functions of other base
employees.
11 The contract between the Employers and the Petitioner allows the adjustment of "minor
errors and mistakes of fact" by the supervisory assistant . The only instances of "adjust-
ment of grievances" by the supervisory assistant offered by the Employers at the hearing
were in this category.
12 The term "brief" refers to a report, on a prihted form, of a violation of the Company's
rules and regulations by an employee.
THE BALTIMORE' TRANSIT COMPANY 693
them from observing the service rendered by the operators.13 It is
true that a number of supervisory assistants testified that they had,
on specific occasions by instruction of the base manager, interviewed
operators on briefs. In the great majority of these instances, however,
the assistant merely notified the operator that he had been observed,
generally 'by street supervisors, in a minor rule infraction such as
smoking or operating off schedule.14 Such routine transmission of
relatively unimportant reprimands does not constitute the disciplinary
power envisaged by the statute. It also appears from the record that
on three occasions, supervisory assistants, by request of superiors,
made written statements pertaining to the discharge of operators. We
do not believe, upon careful examination, that these communications
constituted effective recommendations of personnel action 15 .
As has been noted, supervisory assistants, as dispatchers,. were ex-
cluded by the Board from the bargaining unit established in 1945, in
view of the agreement of the parties that they were supervisory per-
sonnel . They have also been excluded from the unit established in
the contracts between the parties. The Petitioner urges us to recon-
sider the decision made in 1945 as to the status of these employees in
the light of the extensive survey of the duties and powers of the super-
visory assistants contained in the instant record, and on the further
ground the circumstances surrounding the original determination of
representatives prevented a full examination of that issue." As a
matter of policy, the Board is ordinarily reluctant to disturb a prior
unit determination or a contract unit established as a result of col-
lective bargaining, in the absence of compelling circumstances.17 A
is On most of the Employers' streetcar and bus routes, the operating base is so located as
to make impossible any observation of service on the runs except for the limited portion
of the route immediately adjacent to the base.
14 Testimony of the Employers' base managers showed clearly that the percentage of briefs
handled by the supervisory assistants is extremely small. Several of the supervisory
assistants denied that they had ever interviewed operators on briefs of any type.
15 In all three of these incidents, the memorandum was requested by either the base
manager or the base service supervisor from the supervisory assistant. In two of the cases,
the memorandum was either written or worded by the supervisory assistant's superior.
In the third example, the operator under consideration had been discharged by the base
manager before the written statement had been submitted. Innone of these instances was
the essential element of an effective recommendation present, in that there was no clear
showing of reliance upon the supervisory assistant's advice by his superior. In this connec-
tion we note that the pertinent information relied upon by the supervisory assistant in
malting the "recommendation" was equally accessible to the base manager or the base
service supervisor. The infrequency of such recommendations and the dates on which they
were made are also factors for consideration. Although the power to recommend discipline
and discharge was allegedly given the supervisory assistants in the June 1949 reorganiza-
tion, two of the memoranda offered were written in March after the Petitioner had com-
menced organizing these employees and the third but a few days before the hearing in this
matter.
16 The Petitioner observes that the attention of the parties and the Board at the 1945
representation hearing was primarily concerned with the alleged domination of another
participating union.
AT See =Oastoiiia Combed. Yarn Corporation, et, al ., 73 NLRB 169,. and. e4ses„cited therein.
Cf. Consolidated Vultee Aircraft Corporation, Fort, Worth Division, 55 'NLRl3 577; where
the Board, on a new record, reversed a prior finding as to the supervisory status of certain
employees.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining history or a prior Board determination, however, does not
preclude correction of errors or alteration of units to adjust to changed
circumstances. Accordingly, the real issue here is whether or not per-
sonnel, assumed to be supervisory employees 18, in 1945,.are now ex-
eluded, as a matter of law, from the coverage of the Act. If they are
not so excluded, there is patently no cogent reason to exclude them
from the unit containing virtually all the nonsupervisory operating
personnel of the Employers.
In summary, an attempt was made by these Employers to confer
supervisory status upon certain employees. The question before us
is whether this attempt was successful. A full survey of the actual
duties and authority of the Employers' supervisory assistants, we
believe, shows conclusively that their work is of a; routine , clerical
nature not involving the exercise of supervisory authority over sub-
ordinates 19 Accordingly, we find that these employees are not super-
visors as defined in Section 2 (11) of the National Labor Relations
Act, and are not, as such excluded from the processes of the Act .20
Upon the entire record herein, we are of the further opinion that the
supervisory assistants have a sufficient community of interest with
other employees to be included in the existing broad bargaining unit.
As no question of representation exists at the present time in the
basic unit, we shall direct an election among the supervisory assistants
including all relief supervisory assistants but excluding all adminis-
trative clerical employees and supervisors as defined in the Act. If a
majority of the employees voting in the election cast their ballots for
the Petitioner, they will be taken to have indicated their desire to be
a part of the present bargaining unit and the Petitioner may bargain
for supervisory assistants as a part of that unit.
[Text of Direction of Election omitted from 'publication in this
volume.]
18 Before the 1947 amendments to the Act, supervisors were considered by the Board
to be "employees" and were not, per se, excluded from the protection of the Act. See
Packard Motor Car Company v. N. L. R. B., 330 U. S. 485 ; and Jones & Laughlin Steel
Corporation, Vesta -Shannopin Coal Division , 71 NLRB 1261.
19 In making this finding, we have carefully considered the entire body of evidence
offered by the Employers including instances of the alleged exercise of supervisory . authority
not specifically mentioned herein.
20 See New England Transportation Company, 90 NLRB 539 ; and Gate City Transit
Lines, Inc., 81 NLRB 79.