Baltimore Transit Co.

In the Matter of BALTIMORE TRANSIT COMPANY, THE BALTIMORE COACH Co. and THE BROTHERHOOD & UNION OF TRANSIT EMPLOYEES OF BALTO., C. U. A. In the Matter of THE BALTIMORE TRANSIT COMPANY AND THE BALTI- MORE COACH COMPANY and AnIALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, DI- vISION 1300-A. F. of L. Cases Nos. 5-R1669 and 5-R-1635 respectively.Decided November 9, 1944. Messrs. Earle K.,Shawe and Sidney J. Barb an, for the Board. Messrs. Phillip B. Perlman and Charles A. Tragesor, of Baltimore, Md., for the Companies. Mr. Jacob Blum, of Baltimore, Md., for the Brotherhood. Mr. Philip G. Phillips, of Chicago, Ill., for the Amalgamated. Mr. Robert E. Tillman, of counsel to the Board. DECISION DIRECTION OF ELECTION AND , ORDER STATEMENT OF THE CASE Upon separate petitions duly filed by The Brotherhood & Union of Transit Employees of Baltimore, C. U. A., herein called the Brotherhood, and by Amalgamated Association of Street, Electric Railway- and Motor Coach Employees of America, Division 1300-A. F. of L., herein called the Amalgamated, each alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of The Baltimore Transit Company and The Baltimore Coach Company, Baltimore, Maryland, herein jointly, called the Companies, the National Labor Relations Board consolidated the cases and provided for an appropriate hearing upon due notice before Horace A. Ruckel, Trial Examiner. The notice of consolidated hear- ing, dated July 3, 1944, provided that, in addition to an investigation of the questions of representation, evidence was to be received on the 59 N. L. R. B., No. 35. 159 618683-45-vol. 59-12 160 ' DECISIONS OF, NATIONAL LABOR RELATIONS BOARD issue of whether the Brotherhood is a successor to or continuation of The Independent Union of the Transit Employees of Baltimore City, heretofore disestablished by the Board, and herein called the Inde- pendent. The hearing was held at Baltimore, Maryland, between July 25 and August 7, 1944. The Board, the Companies, the Brother- hood, and the Amalgamated appeared, participated, and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial .error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. On September 19, 1944, pursuant to notice served upon all the parties, a hearing for the purpose of oral ^irgument was held before the Board at Washington, D. C. The Com- panies, the Brotherhood, and the Amalgamated appeared and par- iicipated. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES The Baltimore Transit Company and*The Baltimore Coach Com- pany are Maryland corporations having their principal office and place of business in Baltimore, Maryland, where the former is engaged in the business of operating a street railway system and the latter a bus transportation system, as a single, completely unified and inte- grated transportation enterprise. The directing force of the enter- prise is The Baltimore Transit Company, which wholly owns and .controls The Baltimore Coach Company. The Companies operate 22 bus lines and some 30 streetcar lines, including 3 trackless trolley lines, which serve practically every district of Baltimore. Approximately 1,473 vehicles are used. During the First 6 months of 1944;, these vehicles carried in excess of 132,000,000 revenue passengers, and traveled in excess of 20,000,000 vehicle miles. The Companies carry substantial numbers of passengers to outlying industrial areas and to the heart of Baltimore where wholesale and -manufacturing districts are located. In connection with the foregoing operations, the Companies annually bring into the State of Maryland large quantities of materials, supplies, and equipment. The Companies admit that they are engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1300, is a labor organization BALTIMORE TRANSIT COMPANY 161 affiliated with the American Federation of Labor, admitting to mem- bership employees of the Companies. The Brotherhood & Union of Transit Employees of Baltimore is a labor organization affiliated with the Confederated Unions of Amer- ica, admitting to membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION; TIIE ALLEGED QUESTION CONCERNING REPRESENTATION In a letter dated February 5, 1943, the Amalgamated requested rec- ognition of the Companies as the collective bargaining representative of their employees. In a reply, the Companies asked the Amalga- mated to prove its majority claim. The Brotherhood made a similar request of the Companies in a letter dated March 1, 1944. At that time, the Companies declined to extend recognition to the Brotherhood. As stated above, the Board, in the Notice of Hearing in this pro- ceeding, provided that, in addition to the usual investigation of the question of representation, evidence be received at the hearing on the issue of whether the petitioning Brotherhood is a successor to or a -continuation of the Independent which has heretofore been ordered disestablished by the Board as a company-dominated union.' Inas- much as we must determine whether the Brotherhood's petition raises a question affecting commerce concerning the representation of the 'Companies' employees, and since it has been the Board's practice to dismiss petitions filed by unions found in representation proceedings to be successors to unions previously found to be company dominated, we now turn to the issue of successorship raised in the present pro- -ceedings. The Brotherhood challenges the right of the Board to take succes- Isorship evidence in a Section 9, or representation, proceeding, con- tending that such evidence may only be taken in a Section 10, or com- plaint, proceeding alleging violation of Section 8 (2) of the Act, or in a contempt proceeding based upon an outstanding decree of dises- tablishment. The basis for the Brotherhood's position is that action by the Board in representation proceedings is not subject to review by the courts, whereas it is subject to review in complaint 'proceedings, -and, accordingly, if the Board should make a finding of successorship in a representation proceeding instead of in a complaint proceeding, the Brotherhood will have no right of appeal, and the Board will have usurped "unto itself a `C' case power in an `R' case." An announced purpose of the Act is the protection of "the exer- cise by workers of full freedom of association, self-organization, and IMatter of The Baltimore Transit Company and its afil:ated companies, The Baltimore Coach Company, The United Realty Company of Baltimore City, Respondents, 47 N. L. R. B. 109, enforced as modified , 140 F. (2d) 51 (C. C. A. 4), cert denied , 321 U. S.,795. 162 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD designation of representatives of their own choosing ..." 2 Provi- sion for employees'-freedom to designate representatives of their own choosing is made by Section 9 of the Act, in which the Board is em- powered first to determine the appropriate bargaining unit and then to "take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." A clear and well-defined distinction has been established between representation proceedings brought under Section 9 of the Act and complaint proceedings initiated under Section 10. Proceedings under Section 10 are designed to pre- vent the commission of unfair labor practices by employers and to provide appropriate remedies for such practices. It is a prerequisite to such proceedings that a charge be filed, containing allegations that an employer has committed unfair labor practices. If, after a hear- ing, the allegations are supported, the Board issues a final order di- rected to the employer. Congress has specifically provided that such orders are reviewable and enforceable in the courts. Proceedings under Section 9 of the Act, on the other hand, are concerned solely with the ascertainment of the exclusive collective bargaining repre- sentative of the employees in an appropriate unit.. They do not re- sult in a final order directed to the employer but, if a question con- cerning representation has arisen, generally lead to a finding that a requested unit is or is not appropriate for collective bargaining pur- poses. A finding that a unit is appropriate is customarily followed by a direction of an election; if it majority of the eligible employees cast- ing ballots in the election vote for a labor organization, that organi- zation is ordinarily certified as the exclusive collective bargaining representative of the employees in the appropriate unit. No judicial review of the determinations made in a representation proceeding is provided for by the Act.' - That Section 9 and Section 10 serve distinct and separate functions in effectuating the policies of the Act is conceded by the Brotherhood. The issue raised by the Brotherhood, however, is the extent to which the Board, in a representation proceeding under Section 9 may inquire into successorship, a matter which may properly be litigated under Section 10. In the ordinary representation proceeding, the issues are normally limited to those concerning jurisdiction, whether a question of repre- sentation has arisen, and the appropriate bargaining unit or units., The Board certainly is under no statutory duty under Section 9 to consider other issues. Accordingly, in administering the Act, the Board has found it to be convenient and practicable, for the most part, a Section 1 of the Act. a A merican Federation of Labor, et at. v. N. L R. B., 308 U. S 401 . Compare with Switchmen's Union of North America, et at. v. National Mediation Board, et at., 319 U. S. 736. BALTIMORE TRANSIT COMPANY 163 rigidly to exclude any proffered evidence of unfair labor practices in a, representation proceeding , thereby leaving to the aggrieved parties the right to file charges under Section 10. This division of the Board's functions has proved invaluable in expediting the handling of representation cases. This recognition of the dual functions bestowed upon the Board by the Act does not mean, however, that the respective subject matter of proceedings under Section 10 and proceedings under Section 9 must be segregated into mutually exclusive compartments for administering the Act. The essential difference between the two procedings is delineated by the Act and results from the degree of finality attaching to the Board's determinations , but the Act does not go further and require that the Board, in a representation proceeding, divorce itself from all matters which might appropriately be raised in a complaint proceeding. Upon this premise the Board has frequently investigated objections to an election directed under Section 9 of the Act which were based upon employer interference precluding the full freedom of choice which the Act guarantees . Interference of that type often constitutes a violation of Section 8 (1) of the Act arid, if so, would afford grounds for a compl aint proceeding . Nonetheless, this fact does not prevent the Board's consideration of -such misconduct in post- election proceedings under Section 9 , nor preclude the Board from setting aside any election contaminated by such interference. The full freedom to choose bargaining representatives which the procedure set forth in Section 9 of the Act is intended to insure would be limited drastically were the Board powerless to determine which unions shall appear on the ballot in elections directed thereunder and thus be available for choice by employees. The absence of such power might well result in the defeat of one of the prime objectives of the Act, the promotion of peaceful relations between employees and employers to the end that interferences with the free flow of commerce may be lessened thereby.4 Accordingly, the Board has found, on many occa- sions, that the purposes of the Act would best be effectuated by enlarg- ing the usual scope of its inquiry in a representation proceeding, and considering matters pertaining to unfair labor practices. In all instances, the object has been to guarantee that full freedom of choice, which must prevail if the provisions of Section 9 are to have any sub- stantial meaning, by denying places 'on the ballot to tainted unions. Thus, where the articles , or constitution, of a labor organization par- ticipating in a representation proceeding indicated on their face sub- servience to the employer, such organization has been denied a place 6 The Board's experience in administering the Act has long since demonstrated that pro- ceedings under Section 9 of the Act have, in and of themselves, markedly stabilized labor relations and thereby reduced the amount of industrial strife which might result in inter- ference with commerce. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, on the ballot.5 Likewise, where the evidence in a representation pro- ceeding fortuitously disclosed that supervisory employees played some part in the formation or organizing activities of a union party'thereto, that union has been denied a place on the ballot, and its petition, if any, has been dismissed.' A further example of this nature is the Board's practice to deny in a representation proceeding, a place on the ballot to a union previously found to be company-dominated in a com` plaint proceeding. In such cases the Board is clearly right in taking cognizance of the true character of a labor organization.' An analog, ous situation is presented when a previously disestablished organiza- tion appears in a representation proceeding under a different name. Plainly again, the Board is amply warranted in inquiring' into the true character of the organization. We believe it follows logically that, in a case such as the instant one, where a union seeking a place on the ballot allegedly is a successor to or a,continuation of a union previously ordered disestablished, this Board may inquire into the formation of such union to determine whether it is subject to the same taint of employer control and influence, and thus, not to be foisted upon employees in a Board conducted election. As previously stated, this has indeed been the Board's practice, and where a finding of sue- cessorship has been made; the tainted union has been denied a place on the ballot, and its petition, if any, has been dismissed." It would appear to be, the position of the Brotherhood that the Board is powerless in a representation proceeding to deny any union, a place on the ballot on the ground that it is a' successor to an organ- i°ation previously ordered disestablished unless a finding of such sue- cessorship is first made in a complaint proceeding. Solely from the standpoint of effectuating the purposes of the Act, we consider such a concept of the dual functions bestowed upon the Board to be clearly erroneous.' If such an interpretation of the Act were valid, it is entirely conceivable that, in a given situation, a representation pro- ceeding would be postponed indefinitely. Thus, for example, a com- plaint proceeding might result in the disestablishment of one union, only to have its successor spring up and intervene in the representa- tion proceeding. To keep the successor off the ballot, another com- " Matter of Phelps Dodge, Corporation, United Verde Branch, 6 N. L. R B. 624. O Matter of Douglas Aircraft Company, Inc., 53 N. L. R. B. 486 ; and Matter of The Toledo Stamping & Manufacturing Company, 55 N. L. R. B. 865 See also Matter of Rochester and Pittsburg Coal Company, 56 N. L. R. B 1760. 7 The Board's power so to act was upheld in N. L it. B. v. Falk Corporation, 308 U. S. 453; see N. L it. B. v. Southern Bell Telephone & Telegraph Co., 319 U. S. 50, 60 8 Matter of The Dow Chemical Company , 32 N. L. R. B 660 ; Matter of it. G. LeTourneau, Inc., 36 N L. R B. 774; Matter of The Western Union Telegraph Company, 36 N. L. R. B. 812; Matter of H. E. Fletcher Co., 41 N. L R. B . 420; Matter of Swift and Company, 41 N. L R. B 1251; Matter of 'Wilson & Co., Inc., 45 N. L. R. B. 831; Matter of J. Greenbaum Tanning Company, Plant #3, 49 N. L. R. B 787 ; Matter of New York Merchandsse Com- pany, Inc., 50 N. L R. B. 41; and Matter of Phillips Petroleum Company, 52 N. ]:. R. B. 632. BALTIMORE TRANSIT COMPANY 165- plaint proceeding would have to be instituted to disestablish it. Thereafter, a'second successor might spring up and intervene in the representation proceeding, and so on ad infinitum. Meanwhile, the employees concerned would be denied the opportunity to choose * a collective bargaining representative which the Act guarantees, with- -resultant friction between management and employees, and among groups of employees. The very purposes of the Act would be thwarted thereby. To avert such a vicious cycle, the Brotherhood suggests that the Board should institute contempt proceedings, and there try the issue of successorship. It is true that contempt proceed- ings may be lodged against an employer where the Board's order of disestablishment has been enforced by court decree, and a successor organization has come into existence .1 But there may be situations in which the employer has engaged in no overt acts of a contemptuous character and yet the successor organization may clearly appear to the employees to be tainted as was its predecessor. However, the exist- ence of facts which may arguably be said to be such as to warrant contempt proceedings does not mean that all activity with respect, to a representation proceeding must be stayed, pending the determi- nation by the courts that an employer is or is not in contempt.' No- where in the Act is there any indication that the Board is compelled to resort first to action under Section 10, or proceedings ancillary thereto, in order effectively to perform its functions under Section 9 of the Act. The argument that, because alternative courses of action are available the Board is precluded from the procedure followed herein, is particularly not persuasive where a legitimate organization is claiming to represent a majority of the Company's employees in an appropriate unit, and when the prompt resolution of its claim may serve to resolve the entire controversy and preclude the necessity for further protracted proceedings. We conclude, upon the basis of the above discussion, that the, position of the Brotherhood has no merit, and'we shall proceed to a considera- tion of the evidence of alleged successorship. On February 1, 1943, the Board issued a Decision and Order disestab- lishing the Independent.10 Thereafter, according to the testimony of George Russell Young, a pay-roll clerk of the Companies, two or more small groups of the Companies' employees discussed the formation of a new, union. In May 1943, eight employees, at least some of whom were members of the aforementioned small groups, met at the home of one of their number, an employee named Monroe. Monroe was a for- mer representative in the Independent. Young, who attended, was at that time a very active representative in the Independent. Early o N. L. R. B. v. Rath Packing Co., 130 F. (2d) 540 (C. C. A' 8). 10 See footnote 1, supra. 1 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 1943, he was the originator, publisher, and editor of an Independent paper or bulletin. A third employee, whose' past relations with the Companies and the Independent are disclosed by the record, was'Lee M. Reely, a clerk under whose leadership the groups decided to merge because he was so well known among the employees. Reely was not .shown to have held any office in'the Independent or its predecessors, although he was a member thereof. However, he was employed^in a supervisory status in the Companies' Welfare Department for a period of almost 20 years," during which time he was in constant contact with predecessors of the Independent'12 since, by his own testimony, the Companies' welfare work was performed largely in conjunction with predecessors of the Independent. Prior to attending the meeting at Monroe's house, Reely, accom- panied by Young, sought the advice of attorneys, who had no associa- tion with the Independent, as to the possibility of establishing a new union. The attorneys were of the opinion that an "independent union" free of company domination could be formed and agreed to prepare the constitution and bylaws. ' _A fee of $1,000 was demanded, which Reely supplied with the aid of Harold Airey, who furnished $200,13 . and Young, who contributed approximately $282.14 In all, Reely made several calls on- the attorneys. On at least one occasion, he took with him Clark, who was then president of the Independent, and Stockman, who was vice president. The proposed plan to form a new union was explained to them. Reely helped the lawyers in selecting the Brotherhood's name.15 11 Reely's status as an employee of the Companies , is rather unique. He was first em- ployed in 1912 and shortly became a clerk in the office, of the assistant general manager. In 1917, he was transferred to the newly formed Welfare Department . In April 1918, he was made head of that department and given the title of Superintendent of Coopera- tion and Employment During the period between August 1918 and January 1919, Reely served in the United States Navy. Upon his return to civilian life, he again was employed in the Welfare Department , but this time as Assistant Superintendent of Welfare, a posi- tion which he continued to hold until 1937 . In September 1937 , Reely was transferred to the Auditing Department as a chief clerk to handle Social Security records . In, 1939, he was transferred to the main office as a clerk doing detail auditing, the position he now holds . From 1927 to 1937, Reely was management representative in charge of the Com- panies' extensive athletic program. In 1936 , he was appointed secretary of the Companies' Pension and Insurance Plan , a position which lie held for about a year. The other officers of the Plan were officials and superintendents of the Companies . Reely's apparent demo- tions did not result in any loss of salary and, as a result , although he has received no merit increases since 1937 , nevertheless he is the Companies' highest paid clerk. Only three of the Companies ' eight chief clerks receive more pay. Reely's own supervisor earns only a small amount more than Reely, while his assistant supervisor earns considerably less. 12 The Company has carried on bargaining relations with unaffiliated unions since 1918. From 1918 to 1935 the union was United Railways Employees ' Association . In 1935 It changed its name to The Baltimore Transit Association . The latter became the Independent ,in 1937 13 Airey was a platform operator who had held no office in the Independent. 14 Reely, Young, and Airey all expect to be reimbursed by the Brotherhood, but have noth- ing more than a verbal commitment from the Brotherhood that they will be repaid. 16 Reely himself suggested the inclusion of "Brotherhood" in the name because he thought "it would be a sociable thing and would get away from the cut and dried union thing," and did not "sound so hard-hearted" as the word "union." The lawyers , however, added "Union" to the name. BALTIMORE TRANSIT COMPANY 167 In the meantime, on April 26, 1943, the Independent held the first mass meetings in its history."' On May 25, 1943,17 it held its second mass meetings . The minutes of these latter meetings show that they, were devoted almost exclusively to discussing dissolution of the Inde- pendent and the formation of a new union to succeed the Independent and defeat the Amalgamated. Reely was the principal speaker at both meetings. He was introduced by Young at the morning meeting as an employee who had "k years of service," who needed no introduc- tion, and who "was associated with the old Welfare Department" of the Companies. Reely spoke of the need for a "legal" independent union, informed the audience that he had consulted attorneys for the reason that "in order to have a reorganization, we got to get somebody -else to go along with us." He then stated that there was some mistake in the "legal stature" of the Independent which must be corrected and asserted that he was correcting this mistake and keeping the same benefits. In response to questions, Reely advised the audience that the new organization could not "touch" the money of the Independent, but when the Independent distributed its funds to its members they could endorse their checks over to the "new" organization; and stated that the "new" organization would provide pensions, doctors' treat- ment, and welfare as had the Independent. The evening meeting was a repetition of the morning meeting. President Clark of the Independent opened the meeting with the remark that the purpose was to get "suggestions" to""help us to beat" the Amalgamated. Young then suggested that the Independent could "beat" the Amalgamated by changing its laws. Reely, who was again the principal. speaker, once more spoke of forming a "legal" inde- pendent organization , of a "reorganization" and the "correction of a legal error." In response to questions, Reely this time stated that money refunded by the Independent could not be endorsed over to the Brotherhood, but it could be used "to pay one year's dues in advance;" and that the "rewriting of the bylaws is going to correct what defects may possibly be in" the old bylaws. Joseph Acker, later to become first president of the Brotherhood, interrupted to speak of "reorgan- ization of the Independent," and suggested a model for the new by- laws. Others, including Young, also spoke of "reorganization." Evidently, in preparation for the mass meetings, Reely had had application-for-membership cards printed. These were distributed outside the meeting hall, after Reely announced at the meetings that they were available."' 16 One meeting was held in the morning and one in the evening "There is some confusion in the record as to whether the actual date was May 24 or May 25, 1943 18 Reely,testified that he did not know who distributed the cards. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within-5 days of these meetings, the Brotherhood had over 1,500- members of the approximately 3,775 employees of the Companies On June 1, 1943, the Brotherhood held its first meetings to approve the constitution and bylaws which had, been drafted by the at- torneys.19 Reely, who had prepared notices of the meetings, pre- sided. The constitution and bylaws, as prepared by the attorneys, were read and approved with a minimum of delay. No amendments were made. Reely was then chosen as a committee of one on organ- ization. Thereafter, he formed a nominating committee, some of the members of which were former representatives of the Independent. On June 16, 1943, officers of the Brotherhood were elected, and, at the second meeting of the Brotherhood on June 24, 1943, the officers were installed.20 The Independent held its last mass meetings on June 29, 1943, at which time those present voted to dissolve. On July 26, 1943, a vote taken among the members of the Independent likewise favored dissolu- tion. The Companies were formally advised of the Independent's dis- solution on July 28, 1943. They did not post a notice of dissolution until September 9, 1943.21 No action was taken to advise their em- ployees that they had no interest in the formation of the Brotherhood. On September 23, 1943, the Companies held their first meeting with the Brotherhood and, on November 19, 1943, entered into a grievance agreement with the Brotherhood: By the end of July 1943, ,the Brotherhood had 2,334 members. At least 27 of the last 32 representatives of the Independent joined the Brotherhood. Of the first 35 representatives in the Brotherhood, 7 had been representatives in the Independent or its predecessors. The foregoing facts clearly demonstrate that the Brotherhood is merely a continuation of the Independent and that it must have ap peared so to the employees. The employees could not have failed to identify the Brotherhood as the successor to the Independent and, to conclude that the Brotherhood enjoyed the Companies' favor. The first occasion on which the employees as a whole were made aware that a "new" union was in the process of formation was at the May 25, 1943, meetings of the Independent. What transpired at those meetings cannot fail to lead to the conclusion that the Independent was, in effect, to be reorganized as the Brotherhood by the substitution of a new name, constitution and bylaws, and officers, and that the em- ployees present at such meetings were so impressed.. That the Brotherhood was effectively launched at those meetings is evidenced 19 Approximately 200 attended the morning meeting and 800 the evening session. 20 Reely did not become an officer, having I informed the members of the Brotherhood that be would not accept any office 21 The Companies did not post a notice of compliance with the Board's Order, disestablish- ing the Independent, until April 15, 1944. BALTIMORE TRANSIT COMPANY 169 by the distribution of application cards after the meetings, and the signing up of over 1,500 members within 5 days of the meeting. Not until the Brotherhood was well established did the Independent vote to dissolve. The Companies, meanwhile, had taken no steps to dis- establish the Independent or to inform their employees that they were in no way supporting or sponsoring the formation of the Brother- hood or that they were wholly indifferent whether or not their em- ployees joined the Brotherhood.22 As a result, no break between the Independent and the Brotherhood was made clear to the employees. Under these circumstances, we are satisfied, and find, that the Brother- hood appeared to the employees to be a successor to the Independent, a dominated' organization, and to have the favor of the Companies. We further find that the Brotherhood is a continuation of and a suc- cessor to the Independent. Accordingly, we shall dismiss its peti- tion for certification of representatives, disregard its position on the appropriate unit with respect to the Amalgamated's petition, and deny to it a place on the ballot in the election hereinafter directed. A statement of the Regional Director, introduced into evidence at the hearing, indicates that the Amalgamated represents a substantial number of employees in the unit it alleges to be appropriate.23 We find, with respect to the petition of the Amalgamated filed in Case No. 5-R-1635, that a question affecting commerce had arisen con- cerning the representation of employees of the Companies, within the meaning of Section 9 (c) and Section 9. (6) and (7) of the Act. We find, with respect to the petition of the Brotherhood filed in Case No. 5-R-1629, that no question has arisen concerning the representation of employees of the Companies within the meaning of Section 9 (c) of the Act. IV. THE APPROPRIATE UNIT The Amalgamated petitions for a unit of all employees in the Trans- portation Department, Rolling Stock and Shops Department, Power Department (Electrical Construction Division, Underground Cable Division, Overhead Lines Division, Way and Structure Department, and Stores Department, excepting all starters and acting starters, dispatchers and acting dispatchers, all utility men, street inspectors, instructors, foremen, superintendents, roadmasters, and all other super- visory employees, shop and transportation clerks,watchmen and police- 22 Westinghouse Electric & Manufacturing Company v. N L. R B., 112 F. ( 2d) 657 (C. C A. 2), enforcing, as modified, 18 N. L. R. B. 300 ; affirmed (per curiam ) 312 U. S. 660; N. L. R. B. v. Link-Belt Company, et al., 311 U. S. 584 , 598; and N. L. R. B. v. Con- denser Corporation of America, et al., 128 F. ( 2d) 67 (C. C A 3). 23 The Regional Director stated that the Amalgamated submitted 1,995 membership cards, all bearing apparently genuine signatures , of which 1 ,257 were names of persons whose names appeared on the Companys' pay roll of July 5, 1944, which listed 2,867 employees in the unit alleged to be appropriate. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, and all administrative, professional, technical, and clerical employees. The Companies disagree with the Amalgamated only to the extent that they contend that various other classifications of their employees should be included in the unit. Since the Companies' employees are conveniently divided among six divisions, each with a separate pay roll, we shall consider each division separately together with the disputes between the Companies and the Amalgamated as to employee classifi- cations to be found therein. 1. Executive and Administrative Division This division consists of 51 employees. The Amalgamated would exclude all these employees, and the Companies would exclude all save the visiting nurse. Visiting nurse: This employee is a registered nurse who visits sick employees. In view of the specialized -character of her service, we shall not include the visiting nurse in the unit, which consists of oper- ating and maintenance elnployees,24 but shall exclude her with all other employees, in the Executive and Administrative Division. 2. Office Division This division consists of 523 weekly paid employees from all depart- ments of the Companies. On the whole, they comprise clerical and general supervisory employees. The Amalgamated would exclude all employees in the Office Division. The Companies would include all the clerical employees and non-supervisory employees in the division. Inasmuch as, we customarily exclude clerical employees from units of operating employees when the petitioning union does not seek to represent them, and since we exclude supervisory employees generally, we shall exclude all employees in the Office Division from the unit.25 3. Transportation Division This is the operating division of the Companies. It includes 2,008 employees who will constitute the bulk of the appropriate unit. The Companies and the Amalgamated agreed specifically to include the relief lost and found custodian, the pre-pay collectors of fares, the rail- road switchmen, and the' car coupler. We shall include them. They agreed specifically to exclude supervisors of the rank of starter and above, and full-time relief dispatchers '26 We shall exclude them. 24 Matter of Belden Manufacturing Company, 55 N L. R. B. 413 28 The Office Division also has special officers who are Company police. Since they are deputized by the State of Maryland, they are properly excluded from a unit of operating employees. 26 They also agreed to exclude pensioned employees , who in any event would not be eligible to vote since they are not present employees , and also part-time 'employees, who are considered in Section V, infra. BALTIMORE TRANSIT COMPANY 171 The Companies and the Amalgamated are in dispute solely with respect to the disposition of the categories discussed below, all of which the Companies would include and the Amalgamated would exclude. Guards: There are four guards, three of whom are platform men on guard duty purely as a war measure, and the other is a pensioned em- ployee who has been called back to work. All have been commissioned by the State of Maryland as special officers, and report to the head of the police department. Since the only bona fide union seeking to represent the Companies' employees desires to exclude guards and watchmen, we shall exclude the guards. , Watchman at Park Terminal: This employee is in the cashier's de- partment where he watches over the counting of money, under the supervisor of receivers. The Company "assumes" that he is armed. We shall exclude him for the same reason we are excluding guards. Police : The Company has three platform men who are commissioned as policemen. However, they act as policemen only on special oc- casions, such as football games. We find that these employees are primarily operating employees, and we shall include them in the unit. Watchmaen: The record indicates that this category has reference to .one of the guards previously discussed and to one of the watchmen- bridge discussed below. If there be any other watchmen, we shall ex- clude them for the same reason as we are excluding guards. Watchmen-bridge: There are six employees in this category, sta- tioned at Bear Creek Bridge as a war measure. All of them are re- turned pensioned employees who have been commissioned as special officers by the State of Maryland and come under the supervision of the police department. We shall exclude them for the same reason we are excluding guards. Statement taker,: This employee takes readings of fare boxes and registers, makes a record thereof, and turns the record over to a dis- patcher. ' We find that the statement taker is a clerical employee and .shall exclude him from the unit. Relief dispatchers: The Companies have 51 regular dispatchers whom they and the Amalgamated agree to exclude as supervisory em- ployees. In addition to the regular dispatchers, the Companies have .36 relief dispatchers who devote varying amounts of time to relieving regular dispatchers. Thus, some work full time at relief, whereas others also operate street cars or-act as utility men. When relieving dispatchers, they have the same authority and receive the same'pay as dispatchers.21 Most relief dispatchers are promoted from platform men, are trained iri dispatching, and, when openings occur, become regular dispatchers. The Companies would exclude only those relief dispatchers who relieve more than 50 percent of the time. We are 21 Dispatchers are paid a weekly rate. 172 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD not persuaded that the test proposed by the Companies should be adopted, inasmuch as relief dispatchers who relieve less than 50 per- cent of the time also have power to affect the status of employees and since all relief dispatchers are being groomed for positions as regu- lar dispatchers and thus have interests.in common apart from the interests of regular operating employees. Accordingly, we shall ex- clude all relief dispatchers. Belief starters: The record indicates that relief starters stand in the same relation to regular starters, whom the parties agree to ex. elude as supervisory employees, as relief dispatchers stand in relation to regular dispatchers. We shall, therefore, exclude all relief starters for the same reason we are excluding all relief dispatchers. Utility men dad relief utility men: These employees are used by the Companies to fill in on various jobs, including clerical work, opera- tion of cars, and rendering assistance to starters and dispatchers. The record does not indicate that they are supervisory employees within our customary definition. However, both the Companies and the 'Amalgamated agree to exclude full-time utility men. The Amalgam- ated, in fact, would exclude all employees who spend a substantial portion of their time as utility men, and the Companies all who relieve. more than 50 percent of the time. Since the Companies' test is more definite than the Amalgamated's, we shall adopt it and exclude all utility men and all relief utility men who relieve more than 50 percent of their working time. 4. Shops Division This division includes 778 employees, most of whom are engaged in maintenance operations. Of these employees, the Companies and the Amalgamated agree to exclude the night car house inspector, the head watchmen, garage foremen, foremen, and supervisor of store- room, helpers. They are not agreed as to the categories discussed below, all of which the Companies would include and the Amalgamated would exclude. Forelady: This employee is an elderly lady in the armature shop who primarily cares for the personal wants of five girl employees. She is not shown to have supervisory powers within our customary definition. We shall include her in the unit. Leading cleaners: There are eight'of these employees, one for each operating base. Their title is no longer descriptive of their status since the shop foremen now actually supervise and direct cleaning. They work all their time, earn 2 cents more per hour than other cleaners, and have no authority over other employees. We shall in- clude them in the unit. Leadmen: There are 18 leadmen, who are the highest paid hourly men in the shops. They are skilled mechanics who act in the absence BALTIMORE TRANSIT COMPANY 173 of foremen, which amounts to about 64 days out of the work-year. During such times they receive foremen's pay. They exercise super- visory authority when acting as foremen. There are approximately 140 employees under the 18 leadmen. We are of the opinion that the leadmen act in a supervisory capacity a sufficient amount of the time to warrant their exclusion from the unit. We shall exclude them. Receiving clerk : This employee is in the storeroom where he records the receipt of all incoming goods. We find that he is employed in a clerical capacity and shall exclude him from the unit. Watchmen: There are 11 watchmen all told, 6 in the shops, 1 in the storeroom, and 4 at the gates. In addition, there is 1 relief watchman who is a shopman, but watches about 1 day a week. Two of the regular watchmen and the relief man are commissioned as special officers. We shall exclude the watchmen for the reason we excluded guards, above. We shall include the relief watchman because we find that his interests are primarily the same as those of regular shop men. 5. Way and Structure Division This division includes 248 employees who are engaged in the main- tenance of tracks, bridges, and buildings. Of these employees, the Companies and the Amalgamated agree to include all excepting gang foremen, work car dispatchers, assistant shop foreman, division fore- man, and special foreman. We shall exclude the above-enumerated classifications which-the parties agree to exclude. 6. Power Division There are 167 employees in this division, engaged in providing elec- tric power, maintaining overhead lines, and operating substations. Of these employees, it appears that the Companies and the Amalgamated agree to exclude the foreman overhead construction, foreman electric switch crew, foreman underground cable, foreman emergency division, assistant foreman electrical construction, assistant in charge of emer- gency crews, and assistant in charge of construction. We shall exclude all such employees. The Companies and the Amalgamated are in dispute over the categories discussed below, all of which the Companies would include and the Amalgamated would exclude. Watchmen: There are 10 watchmen in this group, who are assigned as a war measure to watch the substations. We shall exclude them for the reason we are excluding guards and other watchmen. Night supervisor (substation) : There are 2 men in this category. From the central station they direct the 35 substation operators. The latter telephone in for advice, and, occasionally, the supervisors go out to the substations to help the operators correct some difficulty. The supervisors work in the event of serious trouble. Approximately four- fifths of the time they are "waiting for trouble" to develop. The 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record indicates that they have no supervisory authority within our customary definition, and that the Companies regard them merely as trouble shooters. We shall include them in the unit. Trouble clerks: There are three trouble. clerks. They sit at desks where they answer telephone requests for trouble crews, and send out the crews. They keep a record of the calls. We find that trouble clerks are clerical employees, and we shall exclude them from the unit. Chief automatic maintainer: This employee is the head of a sub- station maintenance crew of six men. He works with his men and is paid daily as they are. The record does not indicate that he has super- visory authority within our customary definition. The Companies re- gard him as a trouble shooter. We shall include him in the unit. We find that all employees'of the Companies in the Transportation Division (including among others, the relief lost and found custodian, the pre-pay collectors of fares, the railroad watchmen, the car coupler, and police , but excluding supervisors of the rank of starter and above, guards, watchman at Park Terminal , watchmen, watchmen-bridge, statement taker, relief dispatchers , relief starters , utility men, and relief utility men who relieve more than 50 percent of their working time), in the Shops Division (including, among others, forelady in the armature shop , leading cleaners, and relief watchman, but excluding the night car house inspector , the head watchman, garage foremen, foremen, supervisor of storeroom helpers, leadmen, receiving clerk, and watchmen), in the Way and S,ructure Division (excluding gang foremen, work car dispatchers , assistant shop foreman , and di- vision foreman ), and in the Power Division (including, among others, night supervisors [substation], and chief automatic maintainer, but excluding the foreman overhead construction , foreman electric switch crew, foreman underground cable, foreman emergency division, as- sistant foremen electrical construction , assistant in charge of emer- gency crews, assistant in charge of construction , watchmen, and trouble clerks), but excluding all employees in the Executive and Ad- ministrative Division and in the O face Division, and all supervisory employees with authority to hire, promote , discharge, discipline, or Otherwise- effect changes in the status of employees, or effectively rec- ommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. BALTIMORE TRANSIT COMPANY 175 The Companies and the Amalgamated agreed to exclude part-time employees from the unit. Such employees average 4 hours work a day and usually have full-time employment elsewhere . In view of the agreement of the parties and the above facts , we find that part- time employees do not have a sufficient interest in the determination of a bargaining representative to entitle them to vote. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Baltimore 't'ransit Company and The Baltimore Coach Company, Baltimore, Maryland, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Di- rector for the Fifth Region, acting in this matter as agent for the Na- tional Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations , among the employees in the unit found appropriate in Section IV above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay- roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and part-time employees mentioned in Section V, supra, to determine whether or not they desire to be represented by Amalgamated Asso- ciation of Street, Electric Railway and Motor Coach Employees of America, Division 1300-A. F. of L ., for the purpose of collective bargaining. ORDER Upon the basis of the foregoing findings of fact and the entire record in the case, the National Labor Relations Board hereby orders that the petition for investigation and certification of representa- tives of employees of The Baltimore Transit Company and The Balti- more Coach Company, Baltimore, Maryland, filed by The Brother- hood and Union of Transit Employees of Baltimore , C. U. A., in Case No. 5-R-1629, be, and it hereby is, dismissed. 618683-45-vol. 59-13