The Cincinnati Transit Co.

National Labor Relations Board - Board Decisions

Sep 4, 1958

121 N.L.R.B. 765 (N.L.R.B. 1958)

THE CINCINNATI TRANSIT COMPANY 765
All our employees are free to become, remain , or refrain from becoming members
of the above-named Union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with Section 8 (a) (3) of
the Act
PIrrSBURGH PLATE GLASS COMPANY,
Employer
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material
The Cincinnati Transit Company, Petitioner and Amalgamated
Association of Street and Electric Railway Employees of
America, Division 627, AFL-CIO. Case No 9-RM 161 Sep-
tember 4, 1958
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 William C Humphrey,
hearing officer The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins]
Upon the entire record in this case, the Board finds:
1 The Employer is 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 Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act 1
4 The Union seeks to add, to its existing unit of operating and
maintenance employees in the Employer's public passenger transpor-
tation system in metropolitan Cincinnati, Ohio, a group of 32 hitherto
1 The Union 's bylaws forbid participation in meetings and bargaining negotiations to
certain employees The Employer contends that the Union is not a labor organization as
defined in Section 2 (5) of the Act because the division clerks herein are covered by such
provisions We find the contention without merit Employees do participate in the
Union Further, the degree of participation of some employees is immaterial as to its
status as a labor organization , because the authority of a bargaining agent to represent
amptoyees must be sought in the consent of the employees and not in the bylaws
Capital Transit Company, 98 NLRB 141
121 NLRB No 95
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unrepresented division clerks. The Employer, opposing their inclu-
sion, contends that the division clerks are not employees but super-
visors within the meaning of the Act.
The transportation department of the Employer's system, headed
by a superintendent and his assistant, comprises three geographical
divisions? For supervisory purposes, this department is functionally
divided into equipment operations and equipment control. Thus,
equipment operation is under the direction of 2 chief supervisors and
23 street supervisors who alone supervise the daily operating activi-
ties of the approximately 900 regular and extra motor coach and
trolley bus operators.3 Equipment control, on the other hand, is under
the five division superintendents, who supervise the division clerks
here in issue.
The division clerks work exclusively at the three operating divi-
sions, performing the clerical work relating to equipment control. In
accord with established company procedures, the clerks distribute to
operators "stock," i. e., change, tokens, and transfers, and collect,
record, and report operators' receipts, overages, and shortages on com-
pany forms. They check operators' delay and accident reports and
on prescribed fo s report lost articles found by operators. Division
clerks handle t lephone calls, including public and business calls,
calls from operators as to their schedule assignments, and trouble calls
from the dispatchers which are recorded and relayed to the garage
foremen. Division clerks instruct operators only in the performance
of routine clerical functions such as filling out report forms and
correctly reading schedules.
A division clerk at each operating division daily performs "board"
work, which entails the preparation of assignment schedules for extra
work to the extra operators. However, the number and choice of extra
operators are predetermined and require the exercise of no inde-
pendent judgment by the division clerks. Division clerks have no
authority to hire, and if they deem that more operators are needed
to meet schedule requirements, they merely report such need to the
division superintendents. Nor do the division clerks have authority
to discharge operators, although in case of flagrant violations of com-
pany regulations, such as intoxication, a division clerk on the "board"
may suspend an operator for his run. He must then report him,
however, to the division superintendent for further action. Division
clerks have no authority to settle grievances, although they may adjust
routine errors arising from the assignment of operators to individual
runs. Except for emergency situations, division clerks do not grant
leave for more than a day or two, and when other leave is requested,
they merely advise the operators whether leave is available under
s Brighton , Winton , and Walnut Hills.
There are 650 regular and 250 extra operators operating out of the 3 divisions.
THE CINCINNATI TRANSIT COMPANY 767
"board" schedules, and if so, the operators must secure permission
from the division superintendents. Although division clerks may
substitute for division superintendents at night, at such times they
continue to perform their routine clerical work, and in the event of
unusual occurrences, they contact the division superintendents. They
do not attend supervisors' meetings. 4
Under these circumstances, we find that the work of the division
clerks, essentially involving the control of the Employer's equipment
rather than its operators, is routine in nature, and does not require the
use of independent judgment within the meaning of Section 2 (11)
of the Act.' Nor does the record establish that the division clerks
have the authority to hire, discharge, or discipline employees or effec-
tively to recommend such action.
On April 21, 1958, 2 days before the instant hearing, the Employer
sent to the 32 division clerks identical letters advising that their
supervisory status had recently been placed in question and that the
purpose of the letters was to clarify those supervisory powers. The
letters described the alleged supervisory authority, including the as-
signment, direction, discipline, and instruction of vehicle operators;
the making of recommendations "as to the action to be taken" as to
operators, which recommendations "will usually be followed"; and
the responsibility for the transportation division in the absence of
division superintendents. We have found hereinabove that no super-
visory authority had existed. Nor do we find the letters to have
altered either the division clerks' carefully circumscribed routine
clerical functions or the scope or character of the routine clerical
contacts between them and the operators they are alleged to super-
vise.6 Under these circumstances, we conclude, contrary to the
Employer, that the letters merely restate the limited scope of the
division clerks' authority, restricted to matters of routine clerical con-
'In contrast to the division clerks, whose contacts with the operators are brief and of
a routine clerical nature , the 25 chief and street supervisors are the sole immediate
supervisors of the operators during their 8-hour operating day, instructing and directing
them in vehicle operation , assuring the maintenance of their schedules , and taking charge
in case of accidents . We find without merit the Employer 's contention that to hold divi-
sion clerks not supervisors would result in an excessive ratio of 1 supervisor to 186 em-
ployees in the transportation department , in view of the Employer's omission of the chief
and street supervisors from its calculation . Based on our findings herein that the division
clerks are not supervisors , we calculate the correct ratio at 1 supervisor to approximately
35 employees , not an unreasonable ratio for the transportation Industry 11ew York City
Omnibus Corporation, 104 NLRB 579 , at page 584 , and cases cited in footnote 11 therein.
6 Carey Transportation , Inc., 119 NLRB 332: Capital Transit Company , 98 NLRB 141,
at page 143 (depot clerks ) ; The Baltimore Transit Company , 92 NLRB 688; New England
Transportation Company, 90 NLRB 539. Cf . New York City Omnibus Corporation , supra,
relied on by the Employer , where in contrast to the division clerks herein the bus super-
visors, in addition to performing clerical duties, responsibly directed bus operators
In its brief, the Employer concedes that the "testimony revealed that the duties of
Division Clerks have since 1923 been substantially the same as that set forth, in Company
Exhibit 1," the aforementioned letter, "and, that those duties and authorities are substan-
tially unchanged in the last 30 years."
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tern alone.' Accordingly, we find that the division clerks are not
supervisors as defined in the Act.
Upon the entire record in this case, we are of the opinion that the
division clerks have a sufficient community of interests with the other
employees in the operating and maintenance unit currently repre-
sented by the Union to warrant their inclusion therein. However, as
they have not been represented in the past in the broader bargaining
unit, they are now entitled to a self-determination election for the
purpose of deciding, as a separate group, whether they wish to be rep-
resented by the Union and added to the existing bargaining unit .8
Accordingly, we shall direct an election in the following group of
employees employed in the Employer's Cincinnati, Ohio, public
transportation system :
All division clerks,9 excluding all other employees and supervisors
as defined in the Act.
If a majority of the employees in this voting group cast their ballots
for the Union, they will be taken to have indicated their desire to
be represented by the Union in the "existing unit, and the Union may
bargain for such employees as part of that unit. If, however, a
majority of the employees in this voting group vote against the Union,
they will be taken to have indicated their desire to remain outside
the existing unit, and the Regional Director is instructed to issue a
certification of results of election to that effect.
[Text of Direction of Election omitted from publication.]
7 The Baltimore Transit Company , supra; Santee Print Works, 111 NLRB 1362, at
page 1365.
The Zia Company , 108 NLRB 1134, as amended , 109 NLRB 312, 862.
e The parties agree that subclerks who perform some division clerk work, but who
spend a majority of their time driving and who are presently represented by the Union
in the operating and maintenance unit, are not included herein.
The Connecticut Light and Power Company and International
Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case
No. 1-RC-5208. September 4, 1958
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 William I. Shooer, hearing
officer . The hearing officer's rulings made at the hearing are free from
prejudicial error and arehereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, 'Beah, and Jenkins].'
121 NLRB No. 94.