The Louisville Railway Co.

National Labor Relations Board - Board Decisions

Jun 30, 1950

90 N.L.R.B. 678 (N.L.R.B. 1950)

In the Matter of THE LOUISVILLE RAILWAY COMPANY, EMPLOYER and
LOUISVILLE TRANSIT EMPLOYEES UNION, DIVISION 1447, AMAL-
GAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR
COACH EMPLOYEES OF AMERICA, A. F. OF L.' PETITIONER
Case No. 9-RC-706.-Decided June 30,1950
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Allen Sinsheimer, Jr.,
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 Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds : 2
1. The Employer moves to dismiss the petition herein on the ground
that its business does not affect commerce in any degree, or that the of
feet upon commerce of any labor dispute between the Employer and its
employees would be too remote to justify the exercise of jurisdiction by
the Board. Heretofore, on July 19, 1946, in another case involving
this same Employer,3 the Board found that the Employer was engaged
in a business affecting commerce. Such changes as have occurred in the
business and operations of the Employer between the dates of the
hearings in the earlier case and the instant case are insufficient to cause
us to depart from our earlier finding.
The Employer, a Kentucky corporation, operates a public trans-
portation system in the city and suburbs of Louisville, Kentucky,
serving a community of approximately 385,000 persons. No other
common carrier, except taxicabs, is authorized to pick up and dis-
charge passengers within the corporate limits of Louisville. During
the year 1949 the Employer transported 74,327,431 passengers and its
gross revenue was $7,284,288. Part of the Employer's income was.
1 The parties ' names appear as amended at the hearing.
2 The requests which have been made for oral argument are hereby denied because the
record in this case and the briefs filed by all the parties , in our opinion , adequately present
the issues and the contentions of the parties.
3 The Louisville Railway Company , 69 NLRB 691.
90 NLRB No. 115.
678
THE LOUISVILLE ' RAILWAY COMPANY 6790
received from National Transitads, Inc., with whom the Employer
has an agreement covering the display of advertising matter in the
vehicles operated by the Employer. Such displays advertise many
products which are sold nationally. During the same period, the Em-
ployer purchased gasoline and oil from Standard Oil Company of
Kentucky at Louisville, Kentucky, for $570,373, and leased tires from
the General Tire Company at Louisville for $125,043. These products,
were produced or manufactured outside the State of Kentucky. The
Employer operates about 434 busses and electric trolley coaches, all of
which were manufactured outside the State of Kentucky. However,.
it made no purchases of such vehicles during the year 1949. The-
Employer's transportation routes pass close to plants of companies en-
gaged in interstate commerce,' terminals of interstate railways and
bus lines, and an airport. Also the Employer shares a small ter-
minal with an interstate bus company. From these facts, we find, con-
trary to the Employer's contention, that it is engaged in commerce
within the meaning of the Act.' The Employer's motion to dis-
miss the petition on the ground that the Board does not have jurisdic-
tion in this proceeding is hereby denied.
2. The labor organizations involved claim to represent employees of
the Employer.
3. No question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Section.
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer and Intervenor LATWU, Lodge 588, Brotherhood
of Railroad Trainmen, herein referred to as "Lodge 588," assert as a
bar to this proceeding a 2-year contract executed on July 14, 1949, by
the Employer and an assignor of Lodge 588. The Petitioner and In-
tervenor Local 176, Transport Workers Union of America, C. I. 0.,.
herein referred to as "Local 176," oppose application of the contract.
bar rule in this case.
The facts relating to the contract bar issue are somewhat unusual
and complicated. In April 1946, the Employer recognized Transport
Workers Union of America, C. I. 0., as the representative of its em-
ployees, after the Union obtained a majority of the votes cast in an
4 The Employer introduced testimony to show that during a 1 -week period when its
operations were temporarily discontinued because of a strike by its employees , there was
only a negligible increase in absenteeism among the employees who work in various in-
dustrial establishments in the city of Louisville. However, the fact that persons who
normally use the facilities of the Employer may have been able to find substitute means of
transportation during a period when the Employer 's transportation services were tem-
porarily discontinued , does not of itself establish that the normal business and operations
of the Employer do not affect commerce.
5 Harrisburg Railways Company, 84 NLRB 678; Gate City Transit Lines, Inc., 81
NLRB 79; City Transportation Company, 80 NLRB 270.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election conducted by a Commissioner of the Department of Indus-
trial Relations of the State of Kentucky. On June 1, 1946, and June 1,
1947, successive collective bargaining agreements were entered into
between the Employer and Transport Workers Union of America,
C. I. 0., and its Local 176. On July 8, 1948, the Employer entered
into a third collective bargaining agreement with Local 176, which
this time appeared in the agreement as the sole contracting union,
although the contract was approved by the International. Thereafter,
in June 1949, as the result of disputes between Local 176 and its In-
ternational, the membership of Local 176 passed a resolution directing
its executive board to take any steps necessary in order to protect the
defense fund, contract, and autonomy of Local 176. On July 14, 1949,
the agreement which is asserted as a bar to this proceeding was ex-
ecuted by the Employer and Local 176. The agreement, which is for
an initial term expiring on May 31, 1951, specifically provides that it
shall inure to the benefit of the said Local Union''s successors and as-
signs. Transport Workers Union of America, C. I. 0., was not a
party to this agreement, nor did it approve the same.
On September 2, 1949, at a special meeting of Local 1.76, more than
700 members of the Union (of a total membership of about 1,120)
signed cards entitled "Act of Association, Authorizations and Peti-
tion" by which the signers declared that they are associating to found
and establish an independent labor organization, Louisville Area
Transport Workers Union (LATWU), to cause Local 176 to assign
to LATWU the current collective bargaining agreement with the Em-
ployer, and to cause Local 176 to consent to LATWU replacing Local
176 in all pension plan matters, and to consent to the substitution of
LATWU for Local 176 in all check-off authorizations. Subsequent to
the meeting, additional employees signed similar cards, so that ulti-
mately a total of 885 members of Local 176 signed such cards. On
the same day, Louisville Area Transport Workers Union was duly
constituted and activated. Later, during the same day, Local 176 en-
tered into an agreement with LATWU which provided, inter alia, for
an assignment by Local 176 to LATWU of the contract with the Em-
ployer. Thereafter, on September 6, 1949, LATWU advised the
Employer of the assignment of the 1949 collective bargaining agree-
ment and requested the Employer to recognize LATWU instead of
Local 176 as the bargaining representative of the employees covered
by the said agreement. Pursuant to this request, the Employer recog-
nized LATWU as the representative of its employees, but refused to
pay to LATWU the union dues checked off under the contract until it
could obtain a judicial declaration with respect to the validity of the
assignment. Accordingly, on October 10, 1949, the Employer com-
THE LOUISVILLE' RAILWAY COMPANY 681
menced action in the Jefferson Circuit Court of the State of Kentucky
against LATWTJ and Local 176 for a declaration of rights of the
parties in respect to the proper party to receive payment of union
dues checked off by the Employer pursuant to the terms of the 1949
collective bargaining agreement. Transport Workers Union of Amer-
ica, C. I. 0., filed a cross petition in the said action requesting that it
be made a party to the action and for other relief. On November 9,
1949, a judgment was entered in the aforesaid action, finding among
other things, that: (1) The assignment of September 2, 1949, was
valid; and (2) LATWU is the proper party to receive payment of
anion dues checked off by the Employer under the terms of the 1949
contract. An appeal was taken from said judgment and, on February
10, 1.950, the Court of Appeals of Kentucky affirmed the decision of
the lower court. Thereafter, the Employer paid to LATWU the
union dues that it had withheld and in all respects recognized
LATWU as the representative of its employees.
About February 15, 1950, LATWU affiliated with Brotherhood of
Railroad Trainmen, and assumed the name, "LATWU, Lodge 588,
Brotherhood of Railroad Trainmen."
In the meantime, between September 2 and October 19, 1949, Local
176 was completely inactive. On the latter day, a membership meet-
ing of Local 176 was held, under the leadership of an international
representative of Transport Workers Union of America, C. I. 0., and
attended by about-250 employees. At the meeting temporary officers
were elected and the recall of the former officers of Local 176, who
had transferred their allegiance to LATWU, was demanded. About
this time some employees signed cards repudiating LATWU as their
representative and redesignating Local 176. Local 176 does not claim
that any more than 245 employees signed such cards. Later, Local
176 demanded that the Employer recognize it as the bargaining repre-
sentative of its employees.
In this proceeding, Local 176 has abandoned all claims to be the
representative of the employees involved herein by virtue of the 1949
agreement. The position of Local 176, at this time, is that a "schism"
occurred among its membership and therefore the 1949 agreement
between the Employer and itself is not a bar to this proceeding. The
Petitioner, who is a stranger to any "schism" which may have occurred
among the membership of Local 176, joins Local 176 in its contention
that because of the alleged "schism" the contract is no'bar to a current
determination of representatives.
The Petitioner and Local 176 also argue that because the 1949 con-
tract specifically provides that it may inure to the benefit of the con-
tracting union's successors and assigns, it cannot serve as a bar to a
c682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation proceeding. In support of this position, they cite
early Board cases which hold that a contract is no bar to a representa-
tion proceeding where the Employer agrees to recognize the contract-
ing union only so long as the latter shall represent a majority of the
employees 6 or where the contract specifically contemplates the selec-
tion of a new representative by a Board-conducted election ° How-
-ever, the contracts in the cited cases were tantamount to agreements
terminable at will which are subject to defeasance at an uncertain time
.and do not establish that stability in bargaining relations which the
contract bar doctrine is designed to promote. But in this case, the
contract is for a definite period of time and may not be unilaterally
terminated before its expiration date. Therefore, unlike the cases
cited by the Petitioner and Local 176, the contract herein does es-
tablish a stable bargaining relationship for a definite period of time.
Furthermore, there is no rule that prevents a new union from suc-
ceeding to the bargaining rights of its predecessor.8 We, therefore,
find no merit to the argument that the 1949 agreement between the
Employer and Local 176 may not be a bar to this proceeding solely
because the contracting union is designated therein as Local 176 "and
said Local Union's successors and assigns."
We likewise find no merit in the contention that the 1949 agreement
is no bar to this proceeding because a "schism" developed among the
membership of Local 176 after the agreement was executed. The
13oard has created an exception to the normal application of its contract
bar rule where, because of the occurrence of a "schism" among the
membership of the contracting union, the normal bargaining rela-
tionship between the Employer and the theretofore exclusive bargain-
ing representative of its employees has become a matter of such con-
-fusion that the relationship between them no longer promotes stability
-in industrial relations. Under such circumstances, we have said, to
-treat the contract as a bar to a current redetermination of representa-
'tives would seriously impede rather than encourage the practice of
collective bargaining which the Act was designed to foster and protect.°
In this case, we do not believe that a "schism" occurred among the
'membership of Local 176 within our definition of the term. This case
is analogous to those cases where we have held that a mere change of
:affiliation of the contracting union does not disturb the continuing
E Farr Alpaca Co., Inc., 9 NLRB 1208; Consolidated Aircraft Corp ., 7 NLRB 1061.
7 Libby, McNeill & Libby, 64 NLRB 30; Wickwire Spencer Steel Co., 18 NLRB 372.
8 Chesapeake & Potomac Telephone Company , 89 NLRB No . 25; Michigan Bell Telephone
Company, 85 NLRB 303; Harris-Woodson Co., Inc., 85 NLRB 1215, enforced, 179 F. 2d 720
(C. A. 4, 1950) ; American Woolen Company , 61 NLRB 1045; Walgreen Company, 44 NLRB
1200, 1212.
1 Boston Machine Works Company, 89 NLRB 59.
THE LOUISVILLE! RAILWAY COMPANY 683
identity of the contractual bargaining representative.10 On Septem-
ber 2,1949, when LATWU was constituted and activated, a substantial
majority of the membership of Local 176 transferred their allegiance
to LATWU. On the same day, Local 176 assigned its collective bar-
gaining agreement with the Employer to LATWU.11 By this assign-
ment Local 176 abandoned its position as the bargaining representative
of the employees covered by the aforesaid agreement. Thereafter, the
Employer recognized LATWU as the representative of its employees
instead of Local 176. Thus, the continuity of the bargaining rela-
tionship between the Employer and its employees' representative re-
mained unbroken. We do not believe that, as the result of the sub-
stitution of LATWU for Local 176 as the bargaining representative
of the employees covered by the 1949 contract, any confusion developed
in the normal bargaining relationship between the Employer and the
representative of its employees, nor any doubt arose as to which union
was the administrator of the collective bargaining agreement covering
the Employer's employees. Accordingly, we do not find a "schism"
present in this case.
The fact that at a later date a faction of Local 176 sought to repu-
diate its assignment of the contract and reestablish Local 176 as the
representative of the employees of the Employer, does not disturb the
stability of the bargaining relationship between the Employer and
LATWU, nor create a "schism." At the hearing in this proceeding,
Local 176 contended that it now represents approximately 245 employ-
ees who had previously joined LATWU. The position of Local 176,
therefore, is substantially the same as that of any rival union which
seeks designation as representative of an Employer's employees at an
inappropriate time.
The recent assignment of the 1949 agreement by LATWU to Lodge
588 is no different in effect than a transfer of affiliation such as occurred
in the Chesapeake cC Potomac Telephone Company case 12 Accord-
ingly, we find that the 1949 agreement constitutes a bar to the present
proceeding. We shall, therefore, dismiss the petition.
ORDER
Upon the basis of the entire record in this case, the National Labor
Relations Board orders that the petition herein be, and it hereby is,
dismissed.
10 Footnote 8, Supra.
11 Although the judgment of the Kentucky court in the above-mentioned action does not
and cannot dispose of the issue presently before us, 1. e., whether the 1949 agreement is a
bar to this proceeding, it does determine that the assignment of the 1949 agreement was
valid.
12 89 NLRB 231.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER STYLES , dissenting:
I cannot agree with my colleagues that no election among the em--
ployees petitioned for herein should be directed at this time. Thin
case is significantly different from the cases cited by the majority in
support of their conclusion that no confusion exists in the bargaining
relationship between the Employer and Lodge 588. In all the cases
cited by my colleagues,',' although a change of affiliation of the con-
tracting union had occurred, the identity of the bargaining agent was
at all tunes preserved . This fact was clearly evident because , in those
cases, after the change of affiliation , the original contracting union dis-
appeared. In such cases , therefore , no "schism" existed because there
was no division or separation. The very definition of the word
"schism" implies a formal division of separation which must result in
the creation of two bodies where one existed. before. That was not
the situation in any of the cases cited by my colleagues; whereas,
that is exactly the situation present here. After organization of
LATWU on September 2, 1949, two unions existed claiming to be
the representative of the employees covered by the 1949 agreement,
namely, LATWU and Local 176. Local 176 at no time affirmatively
disclaimed its position as such representative . Moreover , Local 176
appeared'in the Kentucky court action and sought to establish therein
its bargaining status under the 1949 agreement . Although it was
unsuccessful in the Kentucky action, it did not abandon its position
as bargaining representative of the employees involved. For in-
stance, although on November 9, 1949, the judgment of the Jefferson
Circuit Court of Kentucky was entered finding that the assignment
of September 2, 1949, was valid, Local 176, nevertheless , on November
15, 1949, wrote the Employer advising that it was still the bargaining
representative of its employees . Furthermore , it appears from the
record that until recently Local 176 has processed grievances with the
Employer on behalf of some of its members.
Rarely in a case where the Board has found a "schism" to have
occurred have more than two unions appeared at the hearing claim-
ing to represent employees of the Employer, and in such circum-
stances, the Board has found confusion in the bargaining relationship
between the Employer and the employees ' representative . In this
case there are not two, but four unions involved, i. e., the Petitioner,
Local 176, LATWU, and Lodge 588. It seems to me that the very
complexity of the rival claims being made by the various unions is
clearly indicative that confusion in the bargaining relationship ex-
ists. Accordingly, I would find that .a "schism" occurred and. direct
an election in this case.
33 Footnote 8, supra.