Continental Bus System, Inc.

In the Matter of CONTINENTAL Bus SYSTEM, INC., EMPLOYER AND PETI- TIONER and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAIL- WAY AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION No. 1142, UNION and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT 125, UNION In the Matter of CONTINENTAL Bus SYSTEM, INC., EMPLOYER AND PETITIONER and AMALGAMATED ASSOCIATION OF STREET , ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION NO. 1142, UNION and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCALS No. 6, 17, 146 AND 222, UNION Cases Nos. 16-RM-14 and 16-RM-15, respectively.Decided June 28, 1949 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed by the Employer, a consolidated hearing Was held in these cases at Dallas, Texas, on March 29 and 30, 1949, before Joseph Alton Jenkins, hearing officer. The hearing officer referred to the Board a motion by the Amalgamated to dismiss both petitions on the ground that its bargaining contracts with the Employer barred these proceedings. He also referred to the Board a motion by the Teamsters to dismiss, the petition in Case No. 16-RM-15 on grounds of contract bar and the alleged inappropriateness of the proposed unit. For the reasons hereinafter stated, the motions are denied. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog, and Members Houston and Gray]. 84 N. L. R. B., No. 80. 670 CONTINENTAL BUS SYSTEM, INC. 671 Upon the entire record in the case, the National Labor Relations Board makes the following findings of fact : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The following labor organizations claim to represent employees of the Employer : Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division No. 1142, AFL, herein called the Amalgamated. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Locals No. 6, 17, 146, and 222, AFL, herein collectively called the Teamsters. International Association of Machinists, and International Associa- tion of Machinists, District 125, herein collectively called the IAM. 3. The questions concerning representation : The Employer is engaged in the business of transporting passengers by motor bus. In February 1948, the Employer entered into an agree- ment with Denver and Rio Grande Motor Way, Inc., hereinafter referred to as Motor Way, and With The Denver and Rio Grande Western Railroad Company, to purchase Motor Way's passenger bus operating rights and the physical properties utilized in Motor Way's bus operations. These rights and properties concerned, for the most part, routes in Colorado and Utah.' By its terms, consummation of the purchase agreement was made subject to approval thereof by the Interstate Commerce Commission and by other regulatory bodies con- ,cerned with the operations involved. On September 3, 1948, the pro- posed purchase was approved by the Interstate Commerce Commis- sion.2 On October 1, 1948, the Employer took over as operator of Motor Way's Colorado rights. On October 15, 1948, the merger was completed when the Employer took over Motor Way's Utah rights. When the Employer commenced operating Motor Way's bus routes, a number of Motccr Way's bus operators and maintenance employees voluntarily transferred to the employ of the Employer.3 Thereafter, 1 Motor Way also operated a short bus route across the Colorado -New Mexico border to Farmington , New Mexico , which passed to the Employer under the terms of the purchase agreement. 2 Continental Bus System, Inc.-Pur.-Rio Cn•ande Motor Way, 55 M. C. C. 31. 3 Prior to the sale of its passenger operating rights and properties, Motor Way operated complementary motor freight lines. Motor Way's freight operations were not affected by its dealings with the Employer , and a majority of its drivers and maintenance em- ployees remained in its employ . The Teamsters and the IAM, who had been representing, in separate units, all Motor Way 's operators and maintenance employees , have continued -as the bargaining representative of Motor Way ' s nontransferring employees 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Amalgamated claimed recognition from the Employer as the bar- gaining representative of these employees. Similar claims were lodged by the Teamsters regarding the transferred bus operators, and by the IAM regarding the transferred maintenance employees 4 On Decem- ber 20, 1948, the Employer filed the instant petitions. Each of the Unions had raised contract bar issues with respect to the proceeding, or proceedings, in which it is involved. The Amalgamated's contentions: Prior to the Employer's acquisi- tion of Motor Way's bus operating rights and properties, the Amal- gamated represented the Employer's Motor Coach operators and maintenance employees for collective bargaining purposes. These employees were grouped in separate units, and were covered by sepa- rate contracts. The two most recent of such contracts each became effective on May 16, 1948, for a term of 1 year, and continued from year to year thereafter unless notice of modification or termination was given by either party at least 60 days prior to the annual expiration dates. The Amalgamated contends that its 1948 contracts bar these proceedings. As the petitions were filed before the operative dates of the automatic renewal provisions of these contracts, we find that the 1948 contracts do not constitute valid bars. The Teamsters' contentions: The Teamsters assert that further ac- tion in Case No. 16-RM-15, relating to bus operators, is barred by two, collective bargaining contracts executed, respectively, on June 28, 1947,5 and May 15, 1948, by the Teamsters and Motor Way. These contracts cover bus operators in Colorado and Utah .r- The Teamsters contend that the contracts in question were assumed by the Employer. Each contract includes the following provision : Section 1. The Employer agrees that all present employees of the Employer coming under the jurisdiction of the Union shall * At the hearing, the JAM asserted a claim to represent maintenance employees in the Employer's North and South Texas Divisions. The IAM supported this claim with an ade- quate showing of interest with respect to such employees As indicated in Section 4 of the text, antra, the Employer's North and South Texas Division's were established before the Employer took over the operation of Motor way's bus rights, and employees in these divi- sions were not affected by the merger In view of the fact that the Employer's petition in Case No 16-RM-14 places in issue not only the unit status of maintenance employees who transferred from Motor way but also the balance of the Employer's maintenance per- sonnel, and in the interest of avoiding another proceeding in which the issues would dupli- cate those involved here, we regard the IAM's claim as timely, and we shall treat it as we would a cross-petition 5 This contract provides for automatic renewal at the end of the first year in the absence of notice to terminate or modify The May 15, 1948, contract was executed by the Teamsters' Local 222 on behalf of bus operators stationed in Utah. Prior to its execution, a consent election was conducted on April 22, 1948, in Case No 20-UA-406, and Local 222 was thereby authorized to nego- tiate a union-security provision No valid union-security authorization has been issued insofar as Colorado bus operators are concerned, an election conducted in 1948, in Case No 30-UA-423, having been declared void. CONTINENTAL BUS SYSTEM, INC. 673 be members in good standing with the Union during the life of this contract. Preference will be given in the filling of vacancies to men who are members of the Union. All new employees of the Employer not members of the Union, coming under the jurisdic- tion of the Union shall make application for membership and shall become members in good standing of the Union within thirty (30) days after their employment. This provision clearly requires that the Employer give preferen- tial treatment in the hiring of employees to individuals who are members of the Teamsters, and thus goes beyond the limited form of union-security agreement permitted by Section 8 (a) (3) of the .amended Act. Each contract is therefore invalid, whether or not an election has been conducted under Section 9 (e) of the Act. Ac- cordingly, without regard to any other considerations, the contracts of the Teamsters cannot operate to bar a present determination of representatives.' The IAM's contentions: On May 24, 1948, following a consent elec- ,tion,s the Board certified the IAM as the bargaining representative of Motor Way's maintenance employees. Thereafter, the IAM and Motor Way entered into collective bargaining negotiations with re- spect to such employees. On September 24, 1948, Motor Way in- formed the IAM that Motor Way would withdraw previously made contract proposals unless notified of the IAM's acceptance by October 1, 1948. On September 30, 1948, by letter and by telegram, the IAM informed Motor Way that it accepted Motor Way's proposals. How- ,ever, a collective bargaining agreement, effective as of June 21, 1948, for a term of 3 years, was not signed until October 25, 1948. The IAM, relying upon a provision in the February 1948 purchase agreement between the Employer and Motor Way stating that the Employer "shall adopt and take over all contracts, agreements and arrangements of Motor Way now in effect pertaining to its passenger carrying operations," and upon the fact that the Interstate Com- merce Commission, in approving the transfer, reserved jurisdiction over Motor Way's employees for a 2-year period in order to take such action as it might deem appropriate and necessary with respect to such employees,° contends that the Employer thereby voluntarily, and as a matter of law necessarily, assumed the October 25 contract be- tween the IAM and Motor Way. The IAM also contends that further ' Matter of Morley Manufacturing Company, 83 N. L R B. 404; Matter of Hawley & Hoops, Inc., 83 N. L. R. B. 371. Case No. 30-RC-78. 9 The IAM admits that the reservation of' jurisdiction by the Interstate Commerce Commission in no way affects the jurisdiction of this Board over employees of the Employer.' 674 DECISCONS OF NATIONAL LABOR RELATIONS BOARD action in Case No. 16-RM-14, relating to maintenance and mechanical employees, is, under the circumstances, barred both by the Board cer- tification of May 24, 1948, and by the October 25 bargaining agree- ment. Without regard to whether the principle is here applicable that a successor-employer may be bound by a Board certification affecting employees of a predecessor-employer,10 we find that because a year has elapsed since May 24, 1948, the IAM's certification of that date, by itself, is no longer a bar. It is also clear that even if the language in the purchase agreement between the Employer and Motor Way pertaining to the adoption of contracts be construed as enabling Motor Way, by its subsequent acts, to bind the Employer after the purchase agreement had been exe- cuted,n the power of Motor Way so to bind the Employer could not extend beyond the date upon which the agreement was consummated. Accordingly, as the contract in question was not executed until after the transaction between the Employer and Motor Way had been fully consummated on October 15, 1948,12 we find that the IAM's October 25 contract imposed no liability on the Employer. Moreover, there is nothing in the reservation of jurisdiction by the Interstate Commerce Commission which requires a different result. We conclude, there- fore, that the IAM's contract with Motor Way is not a bar to these proceedings. We find that questions affecting commerce exist concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit: Prior to the acquisition of Motor Way's bus operating rights and properties, the Employer operated in Texas, Oklahoma, and New Mex- ico. Its operations in these States were carried on in two operating divisions, known as the North and South Texas Divisions. The bus routes and properties in Colorado and Utah acquired from Motor Way have been incorporated into the Employer's operations as a third operating division, known as the Rocky Mountain Division. The Em- ployer seeks separate system-wide units for bus operators and mainte- 10 See Matter of Stonewall Cotton Mills, Decision on Motion and Order Amending Certifi- cation, 80 N. L It. B 325. 11The purchase agreement further states that "Motor way will not, pilor to consum- mation date , enter into any contracts , agreements or arrangements , and will not incur any expenses or liabilities except in the ordinary course of business " 12 In the absence of a written document, notification of the acceptance of contract proposals can not , under any circumstances, create a bargaining contract valid as it bar. Accordingly, the IAM's letter and telegram of September 30, 1948, are inoperative for such purpose See Matter of E2cor, Inc, 46 N. L. R B 1035 , Matter of Public Service Cor- poratson of New Jersey, 72 N L. It. B. 224; Matter of National Chair Company, Inc., 74 N. L. It. B. 1014. CONTINENTAL BUS SYSTEM, INC. 675' nance, employees, or, in the alternative, a single system-wide unit embracing both bus operators and maintenance employees. The Amalgamated, which since 1938 has represented employees in the- North, and South Texas Divisions in separate units for bus operators and maintenance employees, agrees that system-wide units are ap- priate. The Teamsters and the IAM, who respectively repre- sented all Motor Way's truck and bus drivers and maintenance em- ployees, contend that the bus operators and maintenance employees in the Rocky Mountain Division constitute separate appropriate units. The Employer operates as an integrated transportation system. It advertises its operations on a system-wide basis, and provides through traffic to and from various points in the several States in which it maintains routes. A general manager, who controls the Employer's labor policies, is in charge of all its operations, and a general purchas- ing agent, purchases, all, its busses , and equipment. The Employer files with the Interstate Commerce Commission a single accounting report for the entire system. Its busses are maintained and overhauled at various shops located throughout its system, but the rebuilding of all busses is accomplished only at its Dallas, Texas, plant. Bus operators and maintenance employees are attached to one of the three operating divisions. There is no interchange of personnel be- tween the divisions. Subject to the over-all control of the general manager, divisional superintendents handle labor negotiations in con- nection with their respective areas. In the past, employees have accumulated both company-wide and divisional seniority. The Employer's Rocky Mountain Division is headed by an assistant general manager.13 Traffic within the division is controlled by a traffic manager located in Denver. 14 The Employer has continued employee work methods followed by Motor Way when that company controlled the Colorado and Utah territories.15 Although the skills and duties of bus drivers throughout the Employer's system are substantially the same, bus drivers operating in the Rocky Mountain Division, where driving conditions are such as to curtail the average number of miles driven, are paid a slightly higher rate than are bus drivers operating elsewhere. The skills and duties of all maintenance employees are similar, and their rates are uniform throughout the Employer's system. 19 The present incumbent previously was the general manager of Motor Way' s Bus and Truck Division. 11 A second traffic manager , located in Dallas, controls all traffic in the North and South Texas Divisions. '5 At the time of the hearing there were approximately 65 bus operators and 33 mainte- nance employees in the Rocky Mountain Division, as contrasted with approximately 300 bus operators and 156 maintenance employees in the North and South Texas Division. Substantially all the employees in the Rocky Mountain Division had previously been employed by Motor Way. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seniority possessed by employees who transferred to the Employer from the employ of Motor Way has been recognized and continued by the Employer in the Rocky Mountain Division. The Employer has plans to integrate Rocky Mountain Division employees into a com- pany-wide seniority system, but is holding the plans in abeyance pend- ing the outcome of these proceedings. In view of the administrative integration of the Employer' s opera- tions and the similarity of the work performed by employees through- out its system-factors which point toward the common interests of all bus drivers and the like common interests of all maintenance em- ployees-we are of the opinion that employees in these categories may be represented, respectively, for collective bargaining purposes in system-wide units.16 However, as the present Rocky Mountain Divi- sion is in essence the continuation of an operation in which employees have in the past been represented separately, and in view of the fact that employees within that division are not interchanged with em- ployees in the Employer's other divisions, we are of the further opinion that bus drivers and maintenance employees within the Em- ployer's Rocky Mountain Division may also constitute separate appro- priate units 1 Accordingly, we shall make no final unit determination at this time, but shall first ascertain the desires of the employees as expressed in the separate elections hereinafter directed among em- ployees of the Employer in the following voting groups : Is 1. All maintenance and mechanical employees employed within the Rocky Mountain Division, including working foremen, service and helper employees, washers, cleaners, janitors, and partsmen, but excluding the general shop foreman, shift foremen, and other super- visors as defined in the Act. 2. All maintenance and mechanical employees within the North and South Texas Divisions, including working foremen, service and helper employees, washers, cleaners, janitors, and partsmen, but ex- cluding general shop foremen, shift foremen, and other supervisors as defined in the Act. 18 Matter of Wentworth Bus Lines, Inc., 51 N. L. R. B. 1345 ; see Matter of American Bus Lines, Inc., 79 N L. R. B. 329. Evidence was also introduced at the hearing herein tending to show that bargaining in the bus industry has in the past been conducted in system-wide units. The amalgamation of the two units into a single unit of both bus drivers and mechanical employees is also feasible and in accord with prior Board practice . See Matter of Maine Central Transportation Go, 80 N. L. R. B. 281 ; Matter of Richmond Greyhound Lines, Inc, 51 N. L R. B. 1532, 65 N. L R. B . 234; Matter of Central Greyhound Lines, Inc., 55 N. L. R. B. 504. 1' See Matter of Taxicabs of Cincinnati, Inc, 82 N L R B. 664 ; Matter of Central Swallow Coach Lines, 82 N. L. R. B. 487; Matter of Norfolk Southern Bus Corporation, 60 N L R B. 630, 66 N L. R B 1165, unit finding approved , N. L. R. B. v. Norfolk Southern Bus Corporation, 159 F ( 2d) 517, 518 (C. A. 4). 18 As indicated above, the Amalgamated is the current bargaining representative of bus operators in the North and South Texas Divisions . The status of the Amalgamated as such representative is not questioned in these proceedings. CONTINENTAL BUS SYSTEM, INC. 677 3. All bus operators employed within the Rocky Mountain Division, excluding dispatchers and supervisors as defined in the Act. If the employees in voting groups Nos. 1 and 2 both select the same labor organization, they will be taken to have indicated their desire to be represented in a system-wide unit. If the employees in voting group No. 3 select the Amalgamated, they will be taken to have indi- cated their desire to be represented in a system-wide unit of bus operators. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purpose of collective bargaining with the Employer, three separate elections by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the di- rection and supervision 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-Series 5, as amended, among the employees in the three voting groups described in paragraph numbered 4, above, who were employed during the pay- roll period immediately preceding the date of this Direction of Elec- tions, including employees who did not work during said pay-roll 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 reinstated prior to the date of the elections, and also excluding employees on strike who are not en- titled to reinstatement, to determine, whether, for the purposes of collective bargaining : (1) The employees-in Group 1 desire to be represented by Amal- gamated Association of Street, Electric Railway and Motor Coach Employees of America, Division No. 1142, or by International Asso- ciation of Machinists, District 125, or by neither. (2) The employees in Group 2 desire to be represented by Amal- gamated Association of Street, Electric Railway and Motor Coach Employees of America, Division No. 1142, or by International Asso- ciation of Machinists, or by neither. (3) The employees in Group 3 desire to be represented by Amalga- mated Association of Street, Electric Railway and Motor Coach Em- ployees of America, Division No. 1142, or by International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica,19 or by neither. 30 Pursuant"to the Teamsters' request, and in the absence of objection by any party, the name of the Teamsters' international union will appear on the ballot in the election to be held among employees in this voting group.