The McMahon Transportation Co., Inc.

National Labor Relations Board - Board Decisions

May 26, 1950

89 N.L.R.B. 1652 (N.L.R.B. 1950)

In the Matter of TIIE MCMAHON TRANSPORTATION COMPANY, INC. AND
MAXWELL SERVICE STATIONS, INC., EI[PLOYER and AMALGAMATED
ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH ElI-
PLOYEES OF AMERICA, DIVISION 1300, A. F. OF L., PETITIONER
Case No. 5-110583.-Decided May 26, 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 Harold G. Biermann, hearing
officer.' The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.2
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 [Chairman Herzog and Members Houston and Styles].
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.
4. The Petitioner seeks to represent a unit consisting of all employees
of The McMahon Transportation Company, Inc., herein called McMa-
hon, and of the Maxwell Service Center, Inc., herein called Maxwell,
excluding office and clerical employees and supervisors. The Em-
ployer contends that Maxwell's employees should not be included in a
unit with employees of McMahon, because Maxwell is a separate and
distinct corporation and has no relation with McMahon which would
3 At the hearing the petition and other formal papers were amended to show the correct
name of the Employer.
2 The hearing officer granted the Petitioner's motion to name the Maxwell Service Station,
Inc., as an Employer together with The McMahon Transportation Company , Inc. This
ruling is hereby affirmed.
89 NLRB No. 211.
1652
THE McMAHON TRANSPORTATION COMPANY, INC. 1653
warrant the inclusion _ of employees of both companies in a single unit.
It further contends that part -time school bus drivers should not be in-
cluded in a unit with regular full -time employees . The parties are
also in disagreement as to the supervisory status of H. Leroy Sykes,
a dispatcher . The Petitioner contends that he is a supervisor and
should therefore be excluded from the unit.
McMahon is engaged in the operation of regular passenger bus serv-
ice and charter bus service in interstate and intrastate commerce.
Maxwell operates a local retail service station , located about three-
quarters of a mile from McMahon's main office , and across the street
from a McMahon garage where some of its busses are housed.
Edward L. Maxwell, the president , treasurer , and general manager
of Maxwell , is also treasurer and general manager of McMahon. E. S.
Maxwell, his father , is president of McMahon . Edward L. Maxwell
owns 98 percent of the Maxwell stock and 48 percent of the McMahon
stock. E. S. Maxwell owns the remainder of the McMahon stock.
Both companies are managed by Edward L. Maxwell , who has com-
plete authority and supervision of both companies , and determines,
the wages , hours, and working conditions of both companies.
During the year 1949 , about 50 percent of Maxwell 's gross sales
was made to McMahon .3 Maxwell also rents property to McMahon
for the storage of school busses and bus equipment . Both companies
share a single office, but keep separate books and have different book-
keepers.
McMahon employs approximately 46 persons , consisting of regular
full-time drivers , part-time school drivers, and maintenance men_
Maxwell employs 2 service station attendants who service the Mc-
Mahon busses4 The employees of both companies come into close
contact with one another and there is some interchange of employees
between the 2 companies . Occasionally , McMahon employees are
assigned to work for Maxwell. In such cases Maxwell reimburses
McMahon for their services . One of the Maxwell employees some-
times drives a bus for McMahon . When this work is done outside of
his regular working hours , he is paid his usual salary by Maxwell',
which i s reimbursed for his services by McMahon.
In view of the common over-all management and control of labor
relations policies of both companies, and the occasional interchange
of employees we find that McMahon and Maxwell constitute a single
3 The total bill to McMahon for gas, oil, and services was approximately $38,640.77.
Maxwell's gross sales , including those to McMahon , amounted to approximately $72,572.62:
Prior to the formation of the Maxwell corporation in July 1947, McMahon. had. twos gas
pumps on its own property where its busses were serviced.
4 McMahon's bus drivers usually pump the gas into the busses.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer within the meaning of Section 2 (2) of the Act, and that the
employees of the two companies may appropriately be joined in a
single unit for purposes of collective bargaining.5
Part-time school drivers: These employees work on a part-time
basis driving busses to and from schools Nine of the eleven part-
time drivers are assigned to specific school runs. The other two take
any runs that happen to be open. They all work regularly 5 days a
week throughout the school year, under the same supervision as the
regular full-time bus drivers. Some of the part-time drivers do Sun-
day charter work, and during the summer they also do other charter
-work. They are paid on a trip-to-trip basis, whereas the full-time
'drivers receive a guaranteed salary. Their hourly rate of pay is some-
nvhat higher than that of the full-time bus drivers. There is little
or no difference between the working conditions of the two groups,
other than the method of payment. The part-time drivers are gen-
erally employed by other companies, and drive busses to supplement
their income.
We find that the part-time school drivers should be included in the
bargaining unit. The Board has previously held that part-time em-
ployees, who are regularly employed, may properly be included with
full-time employees in an appropriate unit'
The dispatcher: H. Leroy Sykes is in charge of McMahon's Hamp-
stead garage, which is about 30 miles from Baltimore. There are
six bus drivers who work out of that garage. The record shows that
Sykes has signed his name as "superintendent" on bulletins posted at
the Hampstead garage.?
Sykes' principal duties are to see that the busses are dispatched out
of the garage,' to note the arrival and departure of the busses at the
Hampstead terminal, to collect money which the drivers bring in and
deposit it in the Hampstead bank, and to forward a record of the de-
posit to Baltimore. He will soon resume his former duties as an extra
driver and bus repairman.'
Sykes has no authority to hire, discharge, or discipline employees or
effectively to recommend such action. He has no authority to change,
or effectively to recommend the change of status of any employees.
He does not direct the work of other employees except upon specific
instructions from Edward L. Maxwell, and has no authority to change
runs or schedules. His only authority is to report any infraction of
3 Cf. L. J. Williams Lumber Company , 87 NLRB 610 ; South Georgia Pecan Shelling
Company, 85 NLRB 591 ; Manhattan Shirt Company , 84 NLRB 100.
6E. C. Williams, 88 NLRB 620; Rosedale Passenger Lines, Inc ., 85 NLRB 527.
The record does not indicate the nature of these bulletins.
e When necessary , Sykes helps the drivers get their busses started.
Sykes had to temporarily discontinue these duties because of an illness in 1949.
THE McMAHON TRANSPORTATION COMPANY, INC. 1655
rules.1° Edward L. Maxwell makes an independent investigation of
such reports before any action is taken on them. Sykes makes about
$25 a month more than the regular full-time drivers.
We agree with the Employers that Sykes is not a supervisor within
the meaning of the Act, and shall include him in the unit 11
We find that all employees of the McMahon Transportation Com-
pany, Inc., and the Maxwell Service Station, Inc., Baltimore, Mary-
land, including part-time school drivers 12 and dispatchers, but exclud-
ing office and clerical employees and supervisors, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since,
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees:
on strike who are not entitled to reinstatement, to determine whether-
or not they desire to be represented, for purposes of collective bargain-
ing, by Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, Division 1300, A. F. of L.
10 All employees are asked to report infraction of rules.
u The parties are in agreement that 0. Y. Dunty, the bus dispatcher and extra driver
in Baltimore , should be included in the unit.
72 Coppage and Certano, who work as regular extra-drivers , are property included in the
unit, and are entitled to participate in the election.