Louisville Transit Co.

P 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1k with the Board's practice, permit them to vote in the election directed herein .3 We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and main- tenance employees, including shipping, receiving, stock handling employees and janitors, but excluding office clerical, professional employees, watchmen, guards, and supervisors as defined in the Act. 5. The Employer contends -that an election should not be directed at this time because after May 31, 1951, it will be unable to secure raw materials required to manufacture its present product. How- ever, the record discloses that the Employer plans to continue oper- ating the business for at least 60 to 90 days after May 31, 1951, with a decreased complement of workers. The record further indicates the possibility that operations may be continued indefinitely if the Employer is able to switch to another product. Under these circuin- stances, as the Employer is still operating its business, as a substan- tial working force will be employed for an indefinite time after May 31, 1951, and as the date when operations may cease is indefinite and unpredictable, we believe that the Act will best be effectuated by the direction of an election.' [Text of Direction of Election omitted from publication in this volume.] 3 H E. Butt Grocery Co., 93 NLRB No. 88. 4 Charroin Manufacturing Co., 91 NLRB No. 49; Choctaw Cotton Oil Company, 84 NLRB 660; Blue Star Airlanes, Inc., 73 NLRB 663. LOUISVILLE TRANSIT Co. and LOUISVILLE TRANSIT EMPLOYEES UNION, DIVISION 1447, AMALGAMATED ASSOCIATION OF STREET, ELECTRIO RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, AFL, PETI- TIONER. Case No. 9-RC-1007. April 25, 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 Lloyd R. Fraker, bearing officer. The hearing officer's ruling 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 had delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. Upon the entire record in this case, the Board finds : 'The Employer's motion to dismiss the petition on various grounds was referred to the Board The motion is hereby denied for the reasons given in paragraphs 1, 3, .and 4 below . 94 NLRB No. 12. LOUISVILLE TRANSIT CO. 21 1. Despite the Board's assertion of jurisdiction over this Employer in two earlier cases,2 the, Employer now moves to dismiss the peti- tion herein on the ground that the effect of its operations on com- merce is insubstantial. The nature of the Employer's business is essentially the same as at the time of these earlier decisions, and to assert jurisdiction here would accord with the recent policy statement on assertion of jurisdiction over local transit systems set forth in 1V. C. King d/b/a Local Transit Lines, 91 NLRB 623. (1950) In support of its position the Employer introduced testimony to the effect that during a 2-week period in September 1950, when it discontinued operations because of a strike of its employees, there were only negligible increases in absenteeism at various industrial plants in Louisville. The Employer considers this act to be control- ling, on the theory that the only proper test of the Board's jurisdic- tion over a local transit system is whether a stoppage of its opera- tions by industrial strife would result in substantial interruption to, or interference with, the free flow of commerce. The Board does not agree that this is the sole test for the exercise of jurisdiction, even assuming in argument, that a stoppage of the only means of mass transportation in a city as large as Louisville has no substantial effect on the industrial plants and railroads located there. An equally im- portant factor in determining whether the operation of a local transit system has an effect on interstate commerce is the benefit which accrues to the flow of commerce from the uninterrupted operation of such a facility.3 Based on the facts set out in our decision in 90, NLRB 625, which were stipulated by the parties to this proceeding, and the additional information relative to 1950 operations, which do not vary substantially from the earlier figures, we find that the op- erations of the Employer affect commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer asserts that its contract with LATWU Lodge 588, Brotherhood of Railroad Trainmen, and Intervenor herein, is a bar to this proceeding. The Brotherhood does not assert this con- tract as a bar, and the other labor organizations involved contend that an immediate election should be directed despite the contract. 8 The Louisville Railway Company, 69 NLRB 691 and 90 NLRB 678. 3 N. L R B v Baltimore Transit Company, 140 F 2d 51 (C A 4), cert. den. 321 U. S. 795. "If Congress may regulate the labor relations of a clothing manufacturer (N L R B v Fainblatt), the wages of an elevator operator in a loft building ( Kirschbaum Co v Walling), or the grain acreage of a farmer (Wackard v Filburn), because of the effect these may have on interstate commerce , it would be absurd to say that its power does not extend to the labor relations of a street transportation company, upon whose operation the industrial life of a great city extensively engaged in interstate commerce is so largely dependent." 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contract was entered into as of June 1, 1949, and was originally -effective for a 2-year term, subject to automatic renewal from year to year thereafter, unless notice was given at least 60 days prior to any termination date. It provided for one reopening as to wage rates ,luring its term. In accordance therewith, the parties to the contract .agreed in September 1950 to a wage increase, plus certain additional payments contingent on improvement of the Employer's safety rec- 'ord. The parties also agreed at that time to extend the term of the contract an additional 4 months from June 1, 1951, to October 1, 1951. As the contract was extended well before the automatic renewal date .of April 1, 1951, and as the petition was timely filed with respect to the automatic renewal date of the contract, we find that neither the original nor the extended contract is a bar to this proceeding .4 We find accordingly, that a question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Acts 4. The appropriate unit : The Employer and the Intervenors agree that the present con- tract unit of all employees, excluding executives, certain managerial and confidential employees, and supervisors is appropriate. The only departure from the contract unit which the Petitioner seeks is the 'exclusion of the clerical employees in the Employer's general offices. The Petitioner and the Intervenors are nonetheless willing to act as representative for any unit which the Board finds to be appropriate, while the Employer seeks dismissal of the petition becaues of the inappropriateness of Petitioner's primary choice of a unit. Approximately 50 clerical employees are presently included in the bargaining unit. Thirty-five or so work in the Employer's general offices; 6 the remaining clerical employees are assigned to different maintenance and operating departments of the transit system. They are supervised by individuals who also supervise operations or main- tenance personnel, with whom they work in close contact. The office 4 International Harvester Co. (McCormick Works), 85 NLRB 1260; Consolidated Western Steel Corp , 93 NLRB 1199. The Employer, however, urges that ratification of ,the extension agreement by a majority of the employees in the bargaining unit, as part of a strike settlement, reestablishes the authority of the Brotherhood as agent for its principals, the employees in the bargaining unit, to negotiate on any bargainable issue including that of a new termination date for the contract. The petition, however, raises a question of representation which can better be resolved by a Board election than by resort to so equivocal an indication of the majority status of the bargaining agent as the ratification of a strike settlement- agreement, which may well have been otherwise motivated Gimbel Bros, Inc, 87 NLRB 449. 5 For the reasons given in Boston Machine Works Company, 89 NLRB 59, we find it unnecessary to rule on whether the bargaining agent which may be selected in the election, to be directed herein, is obliged to accept the contract presently in force. 6 Of the four bargaining contracts the Employer has entered into since June 1946 with various labor organizations, two, the 1946 and 1949 contracts, included office clerical employees, while the 1947 and 1948 contracts excluded them. MILK AND ICE. CREAM DEALERS OF GREATER CINCINNATI AREA 23 clerical employees, on the other hand, have little or no contact with either the operations, maintenance, or clerical employees assigned to those departments. The Board sees no cogent reason in this case for departing from its usual rule to include plant clericals in, and to exclude office clerical employees from, units of operating and maintenance employees.7 We find, therefore, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All employees of the Employer employed in the carrying on of its business and operations in and about Louisville, Kentucky, ex- cluding officers, executives, professional employees, the chief clerk, and the stenographer of the shop department, the schedule engineer, and the schedule maker, traffic checkers, assistant purchasing agent, cashier, chief supervisor, secretaries of the president, vice president, and general manager, transportation manager, employees in the claims and industrial relations departments, office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] ' General Petroleum Corporation, 83 NLRB 514 ; The Baltimore Transit Company, B9 NLRB 159 ; Cincinnati, Newport and Covington Railway Company, 56 NLRB 820. THE MILK AND ICE CREAM DEALERS OF THE GREATER CINCINNATI, OHIO, AREA AND CAMPBELL AND KENTON COUNTIES KENTUCKY, AND HAMILTON, OHIO1 and MILK AND ICE CREAM DRIVERS AND DAIRY EMPLOYEES LOCAL UNION NO. 98, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHALFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONER. Case No. 9-17A-1 7'V. April 05, 1951 Decision and Direction of Elections Upon a petition duly filed a hearing was held before Seymour Goldstein, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1 The following Employers are named as members of this group : The Coors Bros. Co.; The Hyde Park Dairy Company ; Emmert J. Marschman , a sole proprietorship d/b/a Clover Leaf Dairy ; G. H. Berling , Inc.; Joseph Hollmann and Fred Hollmann , a partner- ship , d/b/a Hollman Bros. Dairy ; Harry S . Mandery , a sole proprietorship , d/b/a John C. Mandery & Sons; The Kaesenmeyer & Sons Co.; William Hinnenkamp and Joseph Hinnenkamp , a partnership , d/b/a Hinnenkamp Dairy ; Feldman Dairy Company, Inc. ; Leo Ruther and Alfred Ruther , a partnership , d/b/a Meyer & Ruther Dairy ; George Rehkamp and Joseph Kahmann , Jr., a partnership , d/b/a Kahmann & Rehkamp Company ; Harry Manse , a sole proprietorship , d/b/a H. Manse Dairy ; Cleo . T. Niehoff, a sole proprietorship , d/b/a Geo . T. Niehoff Dairy ; The H. Meyer & Sons Dairy Co. ; Optkagit, Inc. ; The J. Weber Dairy Co. ; Louis J. Trauth , Sr., Louis J. Trauth , Jr., and Albert E. Trauth , a partnership, d/b/a Louis J. Trauth Dairy ; H. Miller Dairy Co., Inc. ; Dale 94 NLRB No. it