Union Street Railway Co.

National Labor Relations Board - Board Decisions

Mar 13, 1951

93 N.L.R.B. 782 (N.L.R.B. 1951)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All district agents, excluding clerical employees, district managers,
assistant district managers, and other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBERS HOUSTON and MURDOCK, concurring :
While we join our colleagues in directing an election here, we do
so without adopting their reasoning and conclusions with respect to
the expulsion from the CIO, the alleged schism and merger as remov-
ing the incumbent union's contract as a bar. We believe this case is
in such a posture as to make unnecessary any ruling at all on these
issues. It has been our practice to proceed with elections when there
is left only a short time before an existing contract expires. We have
proceeded to direct elections within 30 days of the commencement of
the renewal period. In this case, the contract involved will expire on
June 15, 1951, and contains a 60-day automatic renewal clause. Con-
sequently, an election is now timely, and we see no need to do more than
apply this rule and proceed to determine the representation question.
UNION STREET RAILWAY COMPANY and AMALGAMATED ASSOCIATION OF
STREET, ELECTRIC AND MOTOR COACH EMPLOYEES OF AMERICA, AFL,
PETITIONER. Case No. 1-RC-1843. March 18, 1951
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 Joseph Lepie, 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-mem-
ber panel [Members Houston, Reynolds, 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 was certified by the Board in 1945 as the repre-
sentative of the. production and maintenance employees of the„ Em-
ployer. Inspectors were not included in this certification. During
93 NLRB No. 119.
UNION STREET RAILWAY COMPANY 783
the same year, Petitioner filed a certification petition with respect to
employees covered in the present petition. This petition was subse-
quently withdrawn, before a hearing, without prejudice. In 1948, a
petition was filed for authority to bargain relative to union security
and inspectors were not included in the unit described therein? The
Petitioner now requests the-Board to add to the established unit this
group of inspectors 2 The Employer opposes this request on the
ground that the employees involved herein are supervisors within
the meaning of the amended Act.
The Employer is engaged in the operation of bus lines in the city
of New Bedford, Massachusetts, and maintains interconnecting bus
lines with the neighboring cities of Taunton, Fall River, Massa-
chusetts, and Providence, Rhode Island. It employs approximately
294 persons classified in various categories. The bulk of its employees
are bus operators. Included among these employees are 8 inspectors.
These inspectors work regular daily and weekly scheduled hours
and are paid on a weekly basis of $83.52, which is arrived at by paying
inspectors 5 cents more per hour than operators, who are hourly paid
employees. This differential exists as a result of an understanding
reached between the Employer and the bus operators in their own
negotiations. Inspectors, usually, are paid despite absences for sick-
ness and other legitimate reasons, while bus operators are not.
The primary duties of the inspectors consist of the enforcement
of regulations and rules relating to the safe operation of busses, and
maintaining service for the traveling public in accordance with es-
tablished schedules of the Employer, and in the light of unusual or
emergency situations that may arise. Six inspectors travel in mobile
units over the area serviced by the Employer's busses, keeping in
radio contact with the superintendent of transportation and other
operating personnel throughout the system. Two of the inspectors
are regularly assigned to the bus terminal where their duty is to dis-
patch busses on schedule, prevent unauthorized persons from parking
in the area, and see to it that passengers in the waiting room and on
the loading platform conduct themselves in an orderly manner.
In the enforcement of safety rules and regulations of the Employer,
in the course of inspection, it is one of the duties of the inspectors,
when they observe that these rules and regulations or the requirements
of safety have been or are being ignored by a particular bus operator,
to investigate the matter, speak to the operator involved, bringing
to his attention the fact that he is in violation of the rules and regula-
' The history of exclusion of the inspectors is not dispositive of the present matter of
representation. See Philadelphia Company and Associated Companies, 84 NLRB 115.
2 In its petition the Petitioner requested a unit of all inspectors employed by the Em,
ployer, but the record establishes that the Petitioner does not seek to represent these
employees separately, and, if successful in an election , desires that the inspectors be
merged into the unit it now represents.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, and admonish him not to do it again. He may, if he deems the
occasion justifies such direction, temporarily suspend the operator
until he is willing to comply with prescribed safety regulations.3 The
inspector is required to make a factual written report to the Employer
of any incident where he finds cause to reprimand or admonish a bus
operator. In no case, however, does the report contain a recommenda-
tion of any kind. Inspectors keep alert to any opportunities to better
the service of the Employer and recommend changes in service to
meet changing conditions.
The responsibility of maintaining service includes seeing to it that
busses run according to the established schedules and routes. In
normal operations, the inspectors may instruct operators to slow down
or speed up busses to maintain schedules, reroute busses over other
streets under repairs, call for equipment when a bus breaks down,
and other like action that will maintain regular service to the public.
In the event of emergency or other unusual circumstances, this func-
tion includes the authority to direct bus operators to deviate from
schedules and routes, and to order out additional equipment and oper-
ators for the purpose of coping with these situations. Inspectors may,
under such circumstances, direct the exchange of bus operators to
other busses, and otherwise exercise his discretion in an effort properly
to maintain the service of the Employer. Such action, however, is
only taken when extraordinary conditions prevail, such as special
gatherings of people, storms, icy street conditions, etc. In the course
of carrying out these duties in special and emergency conditions,
inspectors issue instructions to bus operators, as well as other operat-
ing personnel charged with maintaining the transportation service.
These instructions, generally, are not subject to question in such cases.
When the conditions clear, the service is restored to its usual sched-
ule of operations. Some schedules are operated "under orders of
the inspectors," in which instance he acts as a dispatcher and instructs
the operator as to where, for how long, and what route the bus will go.
The evidence is undisputed that inspectors have no authority to
hire, lay off, recall, promote, reward, or adjust grievances. The
Employer takes the position that inspectors have authority to dis-
cipline, suspend, transfer, assign, and responsibly direct other em-
ployees, as well as effectively recommend discipline, suspension, and
discharge.
The Petitioner contends that the inspectors do not have this au-
thority, but that such direction and control as they may exercise is
' There is only one incident of this type in the record when a terminal inspector ordered
an operator , who had been habitually running behind schedule , to stay at the terminal
until he felt he could operate the bus in accordance with the established schedule
i1 1
UNION iSTREET RAILWAY COMPANY 785 ,
merely routine procedure inherent in the operation of a public trans-
portation system in order to enable the Employer effectively to con-
tinue its function.
We are of the opinion, from the facts related above and from the
record as a whole, that the inspectors do not have such authority as
the Employer imputes to them. The direction and control exercised
by the inspectors in directing other employees is concerned primarily
with equipment rather than personnel, and any direction or control
of personnel is incidental thereto. The Board has held that where
the direction or control of personnel is incidental to the direction
and control of equipment, such direction and control is not "responsi-
ble direction" within the meaning of the Act 4 Nor do the admoni-
tions given to an operator to conform to prescribed operating safety
rules and regulations constitute the disciplining of other employees
within the contemplation of the Act .-5 The reporting of such an
admonition is an established procedure for the information of the
Employer in making its own evaluation as to present or future per-
sonnel action against the operator. Under no circumstances do the
inspectors have authority to impose sanctions or effectively recom-
mend the imposition of penalties. This action is clearly within the
jurisdiction of the superintendent of transportation. Furthermore,
suspensions, discharges, transfers, assignments, and other like actions
affecting the bus operators are governed by the collective bargaining
contract between the operators and the Employer. The inspectors
have no authority relating thereto and there is no evidence in the
record of an effort by the inspectors to exercise such authority.
Accordingly, we find that the Employer's inspectors are not super-
visors as defined in Section 2 (11) of the amended Act, and, upon the
entire record, we find that the inspectors have a sufficient community
of interest with other operating employees to be included in the exist-
ing bargaining unit, if they so desire.
We shall therefore direct an election among the Employer's inspec-
tors, excluding all other 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 Peti-
tioner may bargain for the inspectors as a part of that unit.
[Text of Direction of Election omitted from publication in this
volume.]
4 The Baltimore Transit Company and The Baltimore Coach Company , 92 NLRB 1260.
6 New England 'Transportatson Company, 90 NLRB 539
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