Honolulu Rapid Transit Co., Ltd.

In the Matter of HONOLULU RAPID TRANSIT COMPANY, LIMITED, EMPLOYER and TRANSIT WORKERS UNION (IND.), PETITIONER Case No. O-R 20.. Decided October 1, 1946 Mr. Thomas M. Waddoups, of Honolulu, T. H., for the Employer. Mr. Arthur A. Rutledge, of Honolulu T. H., for the Petitioner. Mr. 0. A. Rowan, of Honolulu, T. H., for the Amalgamated. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, hearing in-this case was held at Honolulu, Territory of Hawaii, on August 27, 1946, before Howard Myers, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Amalgamated moved to dismiss the petition on the gounds that the Petitioner was not a bona fide labor organization and that no question concerning the representation of the employees herein involved had arisen. For reasons stated in Sections II and III, below, the motion to dismiss the petition is hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer is a public utility corporation existing under the laws of the Territory of Hawaii. Its principal office and place of business is located at Honolulu, Territory of Hawaii. It is engaged in mass transportation by means of trolley and motor busses within the city of Honolulu. It operates under the supervision of the Public Utilities Commission of the Territory of Hawaii. It owns and oper- ates shops and car houses, stations and substations, and miscellaneous buildings and structures. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. 71 N. L. R. B., No. 21. 172 HONOLULU RAPID TRANSIT COMPANY, LIMITED 173 II. THE ORGANIZATIONS INVOLVED The Amalgamated seeks to dismiss the petition on the ground that the Petitioner is not a bona fide labor organization. The testimony reveals that, while the Petitioner does not as yet have a constitution or bylaws, it does have officers 1 and was organized for the purpose of bargaining collectively with the Employer with regard to wages, hours, and working conditions. In view of all of the facts, we find that the Petitioner is a labor organization claiming to represent employees of the Employer. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local 1173, herein referred to as the Amalgamated, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer has refused to recognize the Petitioner as the exclu- sive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. On or about February 15, 1938, the Amalgamated and the Employer entered into. a collective bargaining agreement which provided, inter alia, that it should continue in force and effect until June 30, 1946, and from year to year thereafter, "provided that either party desiring to change the terms . . . of this Agreement shall, not later than sixty (60) days prior to June 30th of any year (beginning with the year 1946) give written notice to the other party hereto of said party's desire to secure such change...." Beginning in May 1946, and continuing through June 1946, the Employer and the Amalgamated engaged in bargaining negotiations looking toward a change in their existing contractual relations. These negotiations broke down in July 1946, due to confusion as to the con- stituency of the Amalgamated's official bargaining committee. The Petitioner filed its petition herein on July 22, 1946. The Amalgamated contends that the contract is a bar to a present representation proceeding and that the petition should therefore be dismissed. We find no merit in this contention. Where, as here, the Employer and the contracting union voluntarily enter into nego- tiations for modification of- a contract subsequent to its automatic ' It appears that the president and secretary of the Petitioner also claim to be , respec- tively, the president and secretary of the Amalgamated. Moreover, the Petitioner was repre- sented at the hearing by an individual who is secretary -treasurer of the General Teamsters, Chauffeurs , Warehousemen and Helpers, Local 996 , and executive secretary of the Hotel, Restaurant Employees and Bartenders Union, Local 5, both of which are affiliated with the Amalgamated 's parent union , the American Federation of Labor These facts, however, do not, in themselves , detract from the bona fide nature of the Petitioner as a labor organization. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewal date, the Board has held that the parties thereby evince an intent to terminate such contract as of its termination date, thus ren- dering the renewal clause inoperative 2 Inasmuch as the contract was not automatically renewed, we find that it is no bar to a current deter- mination of representatives. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS The Petitioner seeks a unit composed of all of the operating and maintenance employees of the Employer, except the manager, the assistant manager, superintendents or department heads and their assistants, inspectors, school loaders and dispatchers, secretaries, stat- isticians, working foremen, and employees of the personnel depart- ment. The Employer and the Amalgamated agree that such a unit would he appropriate. In addition, the Petitioner would set up a separate unit composed of the office clerical employees. The Company is agreeable to such a unit, and the Amalgamated, while maintaining that these employees should be excluded from the unit of operating and maintenance employees, takes no position with respect to their inclusion in a separate unit, apparently evincing no interest in these employees.3 In accordance with the agreement of the parties, we find that all operating and maintenance employees of the Employer, but excluding inspectors, school loaders and dispatchers, statisticians, office clerical employees, employees of the personnel department, the manager, assistant manager, superintendents or department heads and their assistants, working foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. We further find that all office clerical employees of the Employer, but excluding employees of the personnel department, confidential em- ployees, and all supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect, changes in the status of employees, or effectively recommend such action, constitute a sepa- rate unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 0' Matter of Atlas Felt Products Company, 68 N. L. R B. 1 8 Office clerical employees were not covered by the contract between the Amalgamated and the Employer. HONOLULU RAPID TRANSIT COMPANY, LIMITED DIRECTION OF ELECTIONS 175 As part of the investigation to ascertain representatives for the purpose of collective bargaining with Honolulu Rapid Transit Com- pany, Limited, Honolulu, Territory of Hawaii, elections 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 Director for the Twenty-third Region, acting in this matter as agent for the National Labor Relations Boara, and subject to Sections 203.55 and 203.56 , of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the bargaining units 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 elections, to determine, within the operating and niainteiance unit, whether they desire to be represented by Transit Workers Union (Ind.), or by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local 1173 (AFL), for the purposes of collective bargaining, or by neither; and within the office clerical unit, whether or not they desire to be represented by Transit Workers Union (Ind.), for the purposes of collective bargaining. 717734-47-vol 71-13