The Baltimore Transit Co.

National Labor Relations Board - Board Decisions

Jan 11, 1951

92 N.L.R.B. 1260 (N.L.R.B. 1951)

In the Matter of THE BALTIMORE TRANSIT COMPANY AND THE BALTI-
MORE COACH COMPANY,1 EMPLOYERS and BROTHERHOOD OF RAILROAD
TRAINMEN , SAM MCMURRAY LODGE 1016, PETITIONER
Cases Nos. 5-RC-672 and 5-RC-673.-Decided January 11, 1951
,DECISION, ORDER, AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held in these cases before
Harold G. Biermann and John A. Reynolds, Jr., hearing officers. The
hearing officers' 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 these cases to a three-
member panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in these cases, 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 Employers.
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.3
4. The Petitioner was certified by the Board in 1946 as the repre-
sentative of a unit consisting substantially of all office and clerical
1 The names of the Employers appear as amended at the hearing.
2 At the hearing , the Employers moved to dismiss the petitions filed in these cases on the
ground that both petitions concerned employees whose representation was allegedly waived
.by the Petitioner and who are excluded from the coverage of the existing collective bar-
gaining contract between the parties . In Case No . 5-RC-673 , the Employers assert the
further ground that the petition was not filed in conformance with Section 203:53 . subsec-
tions 4 and 5, Series 5, National Labor Relations Board Rules and Regulations and does
not present an issue cognizable under Section 9 (a) or Section 9 (h) of the Act. For
reasons hereinafter stated under paragraphs numbered 3 and 4 , the motion to dismiss
in Case No. 5-RC-672 is denied and the motion to dismiss in Case No. 5-RC-673 is granted.
3 The Employers contend that the representation of the employees affected by the instant
petition was considered by the parties during negotiations preceding the signing of the
existing contract and that the Petitioner "waived" representation rights as to these
employees . We do not agree . The Board has never recognized such an oral waiver and;
in any event , no evidence appears in the record that such a waiver was made by the
Petitioner . Furthermore , the exclusion of these employees from the existing contract,
under the Board's established policy, does not bar this petition . See Philadelphia Com-
pany and Associated Companies, 84 NLRB 115.
92 NLRB No. 183. -
1260
THE BALTIMORE TRANSIT COMPANY 1261
employees of the Employers, excluding confidential, professional, and
technical employees, and all supervisors .4 Since the certification of
the Petitioner, the parties have executed several bargaining contracts
and during the course of these contractual relationships have added
certain fringe groups to the established bargaining unit by mutual
agreement. The Petitioner, in Case No. 5-RC-672, now requests the
Board to add to the established unit a group of employees in the
classification of radio dispatchers.' In Case No. 5-RC-673, the Pe-
titioner seeks representation of certain employees now classi-
fied as college trainees.6 The Employers oppose both these requests
on the ground that the employees involved are within the definition of
supervisory personnel found in Section 2 (11) of the amended Act.
The Employers have five employees in the classification of radio
dispatcher. One other employee works as a relief radio dispatcher
but spends a portion of his time as a traffic checker and is included in
the present bargaining unit represented by the Petitioner. The radio
dispatchers work three shifts daily with a 6-day workweek, and are
paid a. weekly salary as are the remainder of the clerical personnel of
the Employers.7 The radio room, in which the dispatchers are lo-
cated, is situated in a portion of the Employer's main office building,
and is under the general supervision of the superintendent of radio
and mobile supervision who, in turn, reports to the general transpor-
tation manager. The dispatchers, accordingly, operate as a func-
tional part of the Employers' transportation division.
In general the duties of the radio dispatcher consist of providing
effective liaison between the operators of the Employers' vehicles and
supervisory personnel in order that a continuous and efficient flow of
The Baltimore Transit Company and the Baltimore Coach Company , 67 NLRB 117.
The Board found appropriate a unit consisting of all office and clerical employees includ-
ing trouble clerks at the power division , receiving clerk at the shop division, auditing
department ( detail -department ) clerk , and auditing department (payroll group) clerk,
but excluding confidential , professional , and technical employees , all pensioned employees,.
the part-time telephone operator in the telephone exchange, the secretary -stenographer
to the head of information and service department , the transit man and chainman in the
engineers department , and all supervisors . The radio dispatcher and college trainee
classifications were not in existence at the time of the Board decision and certification.
'The Petitioner , while requesting an election among the group of radio dispatchers
does not seek to represent these employees separately and requests that, if successful in
such an election , the dispatchers be merged into the unit it now represents.
'The Petitioner does not request an election for the employees in the classification of
college trainees but, in the event the Board finds these employees to be nonsupervisory
personnel , desires only a determination that the college trainees are within the scope of
the present bargaining uiat. The Employers , in their motion to dismiss , contend the
petition is therefore not in conformance with the Board 's Rules and Regulations or the
terms of the Act. We do not pass upon this question in view of our determination .that
the college trainees are not eligible for inclusion in the existing unit. Cf., however,
Continental Oil Company, 85 NLRB 827 , 88 NLRB 19.
7 The dispatchers ' shifts run from 7 : 30 a. in. to 3: 30 p. in. ; 3 : 30 p . in. to 11 : 30 p. in. ;
and 11 : 30 p. in. to 7: 30 a. in . Two dispatchers are assigned to each of the daytime
shifts while one dispatcher works the evening shift.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service be maintained. Each of the radio dispatchers holds' a radio
telephone communication license issued by the Federal Communica-
tions Commission, and the radio room is equipped with a microphone
and a number of telephones. According to the Employers it is the
responsibility of the radio dispatcher "to receive telephone and radio
messages relating to various Company operations in which.departure
from normal operating procedures occur and to take all necessary steps
to restore normal operating procedure or to substitute other procedures
to accomplish as closely as possible adherence to normal conditions.
Incidental to the restoration of operations, they further take steps to
-clear up conditions which may have resulted from the departure
-from normal operations. Included are the handling of accidents, in-
cidents, delays, blockades, fires, vehicle failures, fare box failures,
vehicle diversions, power failures, rail and wire breaks." 8 When a
-disruption of service occurs on one of the operating lines, the radio
dispatcher is notified of the incident by the vehicle operator by tele-
phone. The dispatcher then notifies 'a mobile or radio supervisor by
two-way radio and the supervisor proceeds to the location of the in-
cident and assumes control of the situation and the personnel involved.
If substitute service is necessary, the dispatcher telephones the oper-
ating base to which the vehicle is assigned, and if an emergency truck
is necessary, the dispatcher notifies that unit by radio or telephone .9
The dispatcher is required by Federal regulations to "log" each radio
-communication he sends, and also keeps and maihtains records as to
the time, type, and location of the trouble calls. Approximately 40
percent of the dispatcher's time is spent in the performance of clerical
duties of this nature. -
The control and direction of the Employers' operations, by the
unique nature of the transportation industry, requires supervision not
alone at the operating bases from which vehicles are dispatched, but
along the transit lines stretching throughout the city. To provide this
control and direction of vehicles on the lines and the employees ' who
operate them, the Employers maintain a staff of street supervisors
who are stationed throughout the areas in which the streetcar and bus
8 The Employers , at the hearing , introduced a job description from which the above
quotation is taken. It was stipulated by the parties that this job description was prepared
after the hearing in this proceeding had commenced.
The dispatchers have a number of other duties of the same general type. In the event
of an accident involving property or personal injury, they notify the head of the claim
-department and on his instructions may contact a claim. Investigator to proceed to the
scene of the accident . They also notify the mobile supervisors of any fire alarms reported
in the area of the Employers ' operating lines and keep a record of position of the money
truck used to make collections from the operating bases. Their duties further . include
taking readings from weather instruments and checking the clocks at the operating bases
by telephone for deviations from the master clock. The duties of the dispatchers vary
somewhat according to the shift on which they work and the nightshift dispatcher performs
a larger portion of the clerical work.
THE BALTIMORE TRANSIT COMPANY 1263
routes are ]ocated.la In the interests of speed and greater mobility
in meeting emergencies, a group of 17 "radio" or "mobile" supervisors
is utilized. These radio supervisors work in company cars equipped
with. two-way radio sets and are assigned among 7 city zones. As
noted heretofore, the radio supervisors are contacted by the radio dis-
patchers when a trouble call from an operator has been received and
proceed to the location of the breakdown where they take charge.
The Employers contend that the radio dispatchers are supervisors as
defined in the amended Act, because they responsibly direct the work
of other employees. The Petitioner, on the other hand, asserts that
the radio dispatchers perform primarily clerical work which involves
only the application of established procedures, and may therefore
appropriately be included in the existing unit of clerical personnel.
There seems no question that the supervisory status of these employees
rests upon the authority concerned in that portion of the dispatcher's
duties involving the issuance of directions to operating employees and
the supervisory staff, and no contention is made herein that the dis-
patchers have the power to hire, discharge, lay off, or discipline other
employees 11 In fact, inasmuch as the dispatchers are isolated in the
radio room, there is no opportunity for these employees to observe the
performance of operators on the routes .12
The transmission of messages by the dispatchers to the mobile super-
visors informing the supervisors of the existence of an emergency
situation at a certain location, it seems patent, does not constitute
"responsible direction" within the meaning of the Act. The Employ-
ers, however, assert that the dispatcher does not merely receive and
transmit radio and telephone messages but determines the proper steps
to be taken in an emergency and directs employees to take appropriate
action. Thus, on calls from a bus operator who is stalled by a street
obstruction, the dispatcher may tell the operator to detour around the
roadblock and proceed upon his route. In the case of vehicles disabled
while operating on a route, the dispatcher, according to the Employers,
way order out additional- equipment from the operating base to sub-
stitute for the inoperative car. When an operator reports ice on the
tracks or street in a particular locality and a general storm condition
'()For a detailed discussion of the supervisory staff of the Employers particularly as
regards the operating bases , see The Baltimore Transit Company and The Baltimore Coach
Company , 92 NLRB ( Case No. 5-RC-677).
n The Employers , at the hearing , also argued that the radio dispatchers have authority
effectively to recommend discipline . The record does not support this contention which
was based upon the statement that if an operator refused . to follow the suggestions of a
dispatcher , the operator's supervisor could be notified by the dispatcher and discipline
would then be determined by the base supervisor. This situation , it is admitted , has never
arisen. In any event we do not consider it to involve effective recommendation under the
terms of the Act.
18 While the mobile supervisors report in to the radio room at the beginning of their
shifts, there was no contention that this constituted supervision of these supervisors.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not present, the dispatcher may contact the nearest base to send out
a sand spreader.' In all these instances, it is the contention of the
Employers, the radio dispatchers direct the activities of other person-
nel by the use of discretionary action. We do not agree. The record
shows that the great majority of the calls received by the radio dis-
patchers involve incidents for which there is a settled and specified
procedure to be followed.'
The dispatcher, in most instances, merely relays information to a
mobile supervisor who proceeds to the location of the trouble and as-
sumes charge. In instances where immediate advice is required by the
operator, the dispatcher follows the routine procedure indicated by
his instructions. The evidence is conflicting on the question as to
whether the dispatcher, on his own initiative, may send equipment out
to replace or supplement vehicles in regular operation. In any event,
the type of direction here supplied by the radio dispatcher is concerned
primarily with equipment rather than personnel. We have previously
held that where the direction and control exerted by the individual is
over the movement of equipment and the direction of personnel occurs
only as an incidental result, the statutory definition of "supervisor"
does not apply 15 Accordingly, we find that the Employers' radio
dispatchers are not supervisors as defined -in Section 2 (11) of the
amended Act, and, upon the entire record, we find that the dispatchers
have a sufficient community of interest with other clerical employees
to be included in. the existing bargaining unit.
As no question of representation exists at the present time in the
basic unit, we shall direct an election among the. Employers' radio
dispatchers, excluding supervisors as defined in the Act and all other
employees. 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 Peti-
tioner may bargain for radio 'dispatchers as a part of that unit.
The Petitioner in Case No. 5-RC-673 requests our determination
that it may bargain for employees classified as "College Trainees" as
part of the existing clerical unit. In June and July of 1949, the
Employers inaugurated a program for training personnel for posi-
tions in a managerial or supervisory capacity with the organization.
At that time 17 college graduates were selected after interviews and
18 When general storm conditions prevail over the city, a set, procedure is followed by
the dispatchers in dealing with the situation.
14 The evidence is conflicting as to whether these instructions are to be found in written
and complete form. The record seems clear , however, that these instructions exist in one
form or another and are used by the dispatchers as general guides for procedure.
15 See The Baltimore Transit Company and The Baltimore Coach Company , footnote 10,
supra ; New England Transportation Company, 90 NLRB 539 ; and Gate City Transit Linea;
Inc., 81 NLRB 79.
THE BALTIMORE TRANSIT COMPANY 1265
screening conducted at various colleges by representatives of the Em-
ployers. Of this group, 9 men are admittedly ineligible for inclusion
in the clerical unit now represented by the Petitioner and are not con-
cerned herein.16 The remaining 8 employees in this classification in-
elude 5 individuals who are at present assigned to clearly nonsuper-
visory positions, and 3 employees who are assigned to jobs which the
Employers 'contend are supervisory.
Each of the men selected for the college training program was in-
formed, at the time he was first employed, that on the completion of
his training period he would be assigned a position in the supervisory
staff of the Employers' organization. The trainees were first assigned
to the personnel section where, for a short period, they were given
instruction in selection and training procedures and the operation of
the various types of equipment in use by the Company. Following
this period, the men were stationed at the Employers' operating bases
for it week for observation of the operation and maintenance work
done at those locations. The men were then assigned to the traffic sec-
tion where they were instructed in the extent and type of service
rendered by the Employers. The training period also included a
series of lectures and classes conducted by the department heads on the
operation and functions of the different sections and groups within the
Employers' operations.
Upon completion of this preliminary training, the college trainees
were assigned to temporary positions which were principally with the
traffic section of the operating department. In the course of their
training, they have been shifted to other temporary jobs in other sec-
tions and departments, which, in many instances, involve the making
of studies and surveys on different aspects of the Employers' business.
At the present time, five of the trainees are still occupying temporary
positions of this type while three men have received permanent ap-
pointments to positions which are allegedly of a supervisory nature.
The Employers contend that all trainees will be assigned to permanent
supervisory positions within the next year.
The three permanently assigned college trainees are all classified as
supervisory assistants and are assigned to the treasury department,
transportation section, and the safety and training group of the per-
sonnel section, respectively. The supervisory assistant in the treas-
ury department directs certain activities of the teller's section and the
assistant treasurer's office and the personnel of those sections. He also
10 Of the original group of trainees, eight men were graduate engineers who were assigned
to the engineering section and are, as a result, clearly ineligible for inclusion in the unit.
An additional trainee is assigned to the labor relations group of the personnel section as a
supervisory assistant, where his work is- concerned with labor relations work of a
curddential, riature'regiiiring his exclusion from the present bargaining unit.
1266 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintains a number of records, designates the banks to which daily
deposits are to be made, is responsible for the preparation of certain
tax data and proxy materials necessary for annual stockholders' meet-
ings. The supervisory assistant in the transportation section assists
in the preparation of the section's budget, makes studies- and analyses
of problems in that section, and participates in meetings of the base
managers at which operational policies are discussed and determined.
The supervisory assistant in the safety and training group super-
vises several intermediate clerks in the preparation and analysis of
accident statistics, reviews and analyzes reports pertinent to the group,
assists the superintendent of safety and training in conducting safety
meetings and planning fire-prevention programs, and participates in
accident investigations and the study and planning of accident-pre-
ventive measures.
Those college trainees who are now temporarily assigned to admit-
tedly nonsupervisory positions are attached to the legal department,
the general traffic engineering section of the operating department, and
the statistical section of the accounting department, respectively.17
In general they are engaged in extra work and special studies supple-
mental to that performed by permanent employees in those depart-
ments.
Upon consideration of the entire record, we are of the opinion that
employees in the classification of college trainees do not share working
conditions and interests common to the clerical personnel now repre-
sented by the Petitioner. In this respect, we note that they constitute
a limited group with special qualifications, who are participating in a
course of training which is not available to the remainder of the cleri-
cal staff of the Employers. Although these employees, at the present
time, do not appear in all cases to possess supervisory authority, we
are of the opinion that their interests have been, and are now greatly
divergent from clerical personnel now represented by the Petitioner.-
We shall therefore deny the request of the Petitioner to include the col-
lege trainees in the bargaining unit it represents and we shall dismiss
the petition in Case No. 5-RC-673.
ORDER
IT IS HEREBY ORDERED that the petition filed in Case No. 5-RC-673
be, and it hereby is, dismissed.
[Text of Direction of Election omitted from publication in this
volume.]
17 The college trainee assigned to the legal department has been on indefinite leave by
reason of illness, since a date shortly following his appointment to that position . Accord-
ingly , a full description of his duties is not available.
18 Compare The Peal Manufacturing Company, 80 NLRB 827.