Public Service Corp. of New Jersey

In the Matter Of PIU13LIC SERVICE CORPORATION OF NEW JERSEY, PUBLIC SERVICE COORDINATED TRANSPORT, PUBLIC SERVICE INTERSTATE TRANS- PORTATION Co., EMPLOYERS and UNI'T'ED TRANSPORT WORKERS OF AMERICA, AFFILIATED WITH SILIPYARD WORKERS OF AMERICA, PETITIONER Case No. 0-R-6774.Decided January 21,1947 Mr. Raymond Schroeder, of Newark, N. J., for the Employers. Mr. Miles D. Kennedy, of New York City, for the Petitioner. Messrs. 0. David Zimring and M. Herbert Syme, both of Phila- delphia, Pa., for the Intervenor. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION Upon an amended petition duly filed, hearing in this case was held at Newark, New Jersey , on November 6 and 7, 1946 , before William T. Little, hearing officer . The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. The Em- ployers moved to dismiss the petition with respect to Public Service Corporation of New Jersey and Public Service Coordinated Transport, on the ground that these companies are not engaged in commerce within the meaning of the Act. For reasons given in Section I, below, the motion is granted as to Public Service Corporation of New Jersey, and denied as to Public Service Coordinated Transport . The Em- ployers and the Intervenor moved to dismiss the petition with respect to all of the Employers on the grounds that the Petitioner is not a labor organization , that the Petitioner has made an insufficient showing of representation , and that the contract constitutes a bar to a present election. For reasons given in Sections II and III, below , the motions are denied. The Employers ' and the Intervenor's requests for oral argument are denied inasmuch as the record , in our opinion, adequately presents the issues and positions of the parties. Upon the entire record in the case, the National Labor Relations Board makes the following : 72 N L. R. B., No. 43. 224 PUBLIC SERVICE CORPORATION OF NEW JERSEY FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS 225 Public Service Interstate Transportation Company, herein referred to as Interstate, is a New Jersey corporation engaged in operating bus lines within and without the State of New Jersey. During the calendar year 1945, Interstate purchased equipment and supplies valued at approximately $3,000,000. During the same period, Inter- state's revenue from the operation of its transportation lines amounted to approximately $16,000,000, of which over 40 percent was derived from transporting passengers across State lines. Interstate admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. Public Service Coordinated Transport, herein referred to as Co- ordinated, is a New Jersey corporation engaged in operating bus lines entirely within the State of New Jersey. During the calendar year 1945, Coordinated employed more than 5,000 employees, operated ap- proximately 2,670 vehicles over 163 routes in 11 counties in northern New Jersey, carried more than half a billion passengers and received revenue in excess of $30,000,000. Its routes serve the employees of numerous large industrial plants within the State. In addition to its passengers revenue, Coordinated received $400 for transporting United States mail and approximately $200,000 for displaying na- tional advertising in its busses. During 1945 Coordinated purchased supplies and equipment costing more than $7,500,000, and electric energy costing almost $700,000. Coordinated owns substantially all the capital stock of Interstate. The two companies operate as all integrated enterprise. Officers, directors, and top operating officials of Coordinated function in the same capacity for Interstate. The companies use many facilities in common, such as terminals and garages. Employees in these ter- minals and garages work on the busses of both companies. Costs of such services are allocated between the companies. Coordinated and Interstate have a common labor relations policy and for a great many' years have jointly negotiated collective bargaining agreements cover- ing the employees of both companies. We find, contrary to the con- tention of the Employers, that Coordinated is engaged in commerce within the meaning of the National Labor Relations Act.' Public Service Corporation of New Jersey, herein referred to as Public Service, is a New Jersey corporation owning substantially all a Matter of Pittsburgh Railways Company, 70 N L R B 670 , Matter of The Louisville Railwoaq Company, 69 N L R B 691, Matter of Turner Transportation Company & Shaw- nee City Lines, 60 N L R B 87, Matter of The Baltimore Tiansit Company, et at, 47 N L R B 109, enforced as modified, 140 F (2d) 51 (C C A 4), cert denied, 321 U S 795. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the capital stock of Coordinated as well as that of various other pub- lic utilities in the State of New Jersey. It is exclusively a holding company. None of its employees are involved in this proceeding. There is no evidence that Public Service in any way controls or dic- tates the labor relations policies of Coordinated and Interstate. Un- der these circumstances, we find that Public Service is not an employer of the employees involved in this proceeding and we shall dismiss the petition as to it.2 II. THE ORGANIZATIONS INVOLVED The Employers and the Intervenor maintain that the Petitioner is not a labor organization within the meaning of the Act. Section 2 (5) of the Act provides : The term "labor organization" means any organization of any kind, or agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. The record discloses that the Petitioner was incorporated on Feb- ruary 25, 1946, under the laws of the State of New Jersey, and that it has officers and a constitution. Both the certificate of incorpora- tion and the constitution indicate that the Petitioner was formed for the purpose of engaging in collective bargaining with employers with respect to wages, hours and working conditions. It has long been our policy not to examine into the internal organization of unions. Nothing in this case persuades us that we should noW depart from this well settled principle. We are satisfied that the Petitioner exists for the purposes described in Section 2 (5) of the Act, and we therefore find that the Petitioner is a labor organization within the meaning of the Act.3 Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, herein called the Intervenor, is a labor organization affiliated with the American Federation of Labor, claim- ing to represent employees of the Employers.4 8 But Cf Matter of St. Joseph Lead Company and Lead Belt Water Company, 66 N L It B 560, and Matter of C. cC A Airo,aft, Inc and The Foestone Tite d Rubber Co , 62' N L Ii B 1275 In view of our finding that Public Service is not an employer of the employees concerned herein , we find it unnecessary to determine whether or not Public Service is engaged in commerce within the meaning of the Act 3 Matter of The Regina Coiporation, 57 N L R B 4 , Matter of Honolulu Rapid Transit Company, Limited, 71 N L R B 172, Matter of Seneca Falls Machine Company, 71 N L It B 1106. 4 The Inleivenor's appearance was on behalf of its New Jersel State Conference Board and Divisions 819, 520, 821, 822, 823, 824, 825, 862, 880, and 897. PUBLIC SERVICE CORPORATION OF NEW JERSEY 227 III. THE QUESTION CONCERNING REPRESENTATION On June 25 , 1945, Coordinated and Interstate signed a collective bargaining contract with the Intervenor for a period of 1 year to July 1, 1946, and yearly thereafter , unless either party should notify the other of its desire for change at least sixty (60) days before July 1 of any year. On April 29 , 1946, the Intervenor notified the Employers of its desire to change the contract . On May 8, 1946, the Employers commenced a series of conferences with the Intervenor . These con- ferences continued , at frequent intervals , until June 27, 1946. On that day, the parties agreed on terms and reduced their agreement to writing, although they did not sign it. Thereafter, on July 2 and 3, 1946, the proposed contract was submitted to the members of the Intervenor for ratification . The contract was approved by the mem- bership of the Intervenor by a vote of 3,965 to 604 . On July 5, 1946, the Intervenor notified Coordinated and Interstate that the proposed contract had been ratified by its membership . On July 8, 1946, the contract between the Intervenor and Coordinated and Interstate was executed, but was made retroactive to July 1, 1946 , in accordance with the previous understanding of the parties . There is evidence that on July 1, 1946 , Coordinated and Interstate put into effect the wage rates agreed upon on June 27, 1946, and incorporated in the contract signed July 8, 1946. Meanwhile, on July 3, 1946, the Petitioner filed its petition herein. On the same day, the Petitioner wrote a letter to Coordinated demand- ing recognition as the bargaining representative of the employees here involved. This letter was received by Coordinated on July 5, 1946, 3 days before the contract was executed. The Employers and the Intervenor maintain that the contract signed July 8, 1946, constitutes a bar to a present determination of representaives . We do not agree . When the Intervenor notified the Employers of its desire to change the contract on April 29, 1946, this act had the effect of terminating the 1945 contract on its expiration date, July 1, 1946. When the 1945 contract expired on July 1, 1946, the parties had reduced to writing a proposed new contract but it had not been signed. The petition which was filed on July 3, 1946, was, therefore, filed during a period when there was no signed agree- ment in existence. It is not material that on July 8, 1946 , the Em- ployers and the Intervenor made their new contract retroactive to July 1, 1946, or that Interstate and Coordinated put the new wage rates into effect on July 1, 1946, or that the parties were in substantial agreement on June 27, 1946, and had reduced their agreement to writing at that time. The decisive fact is that the contracting parties did not sign the contract until July 8, 1946. Under the well known 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rule of the Eicor case,' a contract cannot be considered-as a bar pre- vious to its signing. We perceive no reason why that rule should not be followed in the instant case. Accordingly, we find that the contract of July 8, 1946, which was executed after the filing of the petition, does not constitute a bar to these proceedings.' The Employers and the Intervenor contend that no question con- cerning representation has arisen because of the invalidity of the signatures on the authorization cards secured by the Petitioner, and because of the inadequate number of such designations. The hearing officer refused to permit the question of the validity of the signatures to be litigated. His ruling was proper. It has long been our policy to refuse to permit adverse parties to attack the validity of signatures submitted on behalf of a union seeking to appear on the ballot.' As to the Petitioner's showing of interest which was submitted to the Board for administration reasons, we are. satisfied that it was adequate. We find that a question affecting commerce has arisen concerning the representation of employees of Coordinated and Interstate, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. TV. THE APPROPRIATE UNIT The parties are in substantial agreement that the appropriate unit should consist of all employees of Coordinated and Interstate engaged in the operation and maintenance of the Employers' equipment and property, including employees of the Operating, Maintenance, Store- room and Parts, Track and Line Departments, watchmen, firemen, janitors, store clerks, operators, garage men, utility men, repairmen, mechanics, floormen, electricians, bodymen, painters, storeroom driv- ers, chief linemen, linemen, groundmen, truck drivers, trackmen, switchmen, and register mechanics, but excluding office employees, road supervisors, starters, inspectors, supervisors, depot masters, as- sistant depot masters, receivers, foremen, assistant foremen, track fore- men, line foremen, superintendent of track, superintendent of line, and all other supervisory employees. The only difference of opinion among the parties as to the appropriate unit concerns employees of the Claims Department. The Petitioner desires the inclusion in the unit of all employees of the Claims Department, while the Employers want these employees excluded from the appropriate unit. The Intervenor takes no position with respect to these employees. The duties of employees of the Claims Department are to investigate accidents, interview witnesses, determine the Employers' liability 5 Matter of Lscor, Inc, 46 N L R B 1035 We are convinced that this case is con- trolling here, despite attempts of counsel to distinguish it on its facts 6 Matter of Ste Genevieve Lime & Quarry Company, 70 N L R B 1259 7 See Matter of 0 D Jennings & Company, 68 N L R, B 516, and cases cited therein PUBLIC SERVICE CORPORATION OF NEW JERSEY 229 and either settle the claims or prepare the cases for court. They are not included within the unit covered by the present contract between the Intervenor and the Employers. The functions of employees of the Claims Department differ substantially from the functions of other employees included in the unit; the two groups of employees have no community of interest. Under all the facts, we are of the opinion that the employees of the Claims Department should not be included within the appropriate uit. We find that all employees of Coordinated and Interstate engaged in the operation and maintenance of Employers' equipment and prop- erty, including employees of the Operating, Maintenance, Storeroom and Parts, Track and Line Departments, watchmen, firemen, janitors, stores clerks, operators, garage men, utility men, repairmen, mechanics, floormen, electricians, bodymen, painters, storeroom drivers, chief line- men, linemen, groumdmen, truck drivers, trackmen, 'switchmen, and register mechanics, but excluding employees of the Claims Depart- ment, office employees, road supervisors, starters, inspectors, super- visors, depot masters, assistant depot masters, receivers, foremen, assistant foremen, track foremen, line foremen, superintendent of track, and superintendent of line, 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. IT. TIIE DETERMINATION OF RL'PRESENTATiVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot, subject to the limitations and additions set forth in the Direction. The Employers and the Intervenor maintain that pensioners should be permitted to vote. There are between 300 and 350 former em- ployees of the Employers who are now receiving pensions in accord- ance with the Employers' pension plan.8 Such pensioners have no duties or obligations with respect to the Employers. They are eligible for membership in the Intervenor, and the Intervenor has bargained on their behalf and obtained concessions for them.' We have consid- 8Emplovees become eligible for optional retirement under the following circumstances: (1) Male employees at age of 65 upon completion of 25 years of service, (2) female em- plotiees at age of 60, upon completion of 20 years of service, (3) any employee who becomes disabled so as to he incapable of performing further work after not less than 12'/2 years of service The amount of the pension is computed upon the average wage or salary for the 5 years preceding retirement, I percent of which is allowed for each year of service Pensions are paid monthly The minimum penaion payable is $41 67 per month BThese concessions were not included in any wiitten contract , but consisted of oral undeistandngs outside the contract. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erable doubt as to whether or not pensioners are employees within the meaning of Section 2 (3) of the Act, since they no longer perform any work for the Employers, and have little expectancy of resuming their former employment. In any event, even if pensioners were to be considered as employees, we believe that they lack a substantial community of interest with the employees who are presently in the active service of the Employers. Accordingly, we find that pensioners are ineligible to vote in the election.1e The Intervenor contends that certain of its officers and committee members who are presently on leave of absence front the Employers' service should be eligible to vote. The record reveals that 14 present officers of the Intervenor were formerly employed by the Employers either as operators or as mechanics.11 The agreement between the Intervenor and Coordinated and Interstate provides that: The Corinpanies agree that all officers or committee members of the Association shall have preference over all other employees in getting leave of absence when doing business for the Associa- tion. Any member of the Association elected or appointed to any office in the Association which requires his absence from work shall, upon retirement from such office, be reinstated to his for- mer position and his cumulative seniority rights in the Com- panies' service. One former employee of the Employer s, now an official of the In- teryenor, has been on continuous leave of absence since 1918. There is no evidence as to how long the other officials in question have been on leave. Neither is there any evidence as to the prospects or prob- ability of any of these officials returning to work for the Employers. On the present state of the record, we are unable to determine whether all or any of the Intervenor's officials on leave have sufficient in- terest to be permitted to vote. Accordingly, we shall make no determination as to their eligibility at this trine. Instead, we hereby direct the Yegional Director to permit these officials to vote, but to challenge and impound their ballots pending the outcome of the elec- tion. If the challenged ballots of these individuals are sufficient in number to affect the election results, we shall direct a further investi- gation as to their eligibility. The Employers requested that pay rolls for a period of 3 weeks preceding the date of the election be used in determining eligibility to vote, on the ground that some of the employees may be on vacation "Hatter of W. D Byron it Sons of Maryland, Inc, 55 N L R B 172 We are not persuaded that the Byron case is distinguishable from the case now before us n Otto Rauser, Harry Jones, Charles Cicchmo, Vaughn Rehn, Finest Hawkins, Michael Cant-, Andiew Pecoia, Harold Clyde, Albert Nelson, Aither Seward, Arthur Appleton, Ellwyn McGirr, Peter Reilly, and Joseph Reed PUBLIC SERVICE CORPORATION OF NEW JERSEY 231 for as much as 3 weeks. Such a departure from our usual eligibility rule is unnecessary, however, in view of the fact that we shall direct that employees on vacation shall be eligible to vote. In accordance with our usual practice, we shall direct that the pay-roll period im- mediately preceding the date of this Direction shall be used in deter- mining eligibility to vote. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Public Service Coordinated Transport, Newark, New Jersey, and Public Service Interstate Trans- portation Co., Newark, New Jersey, 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 Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, 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 em- ployees in the armed forces of the United States who present them- selves in person at the polls, but excluding pensioners and those employees who have since quit or have been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by United Trans- port Workers of America, affiliated with Shipyard Workers of America, or by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, for the purposes of collective bargaining, or by neither. ORDER IT 1S HEREBY ORDERED that the petition for investigation and certi- fication of representatives of employees of Public Service Corporation of New Jersey, Newark, New Jersey, Public Service Coordinated Transport, Newark, New Jersey, and Public Service Interstate Trans- portation Co., Newark, New Jersey, filed by United Transport Work- ers of America, affiliated with Shipyard Workers of America, be, and it hereby is, dismissed, insofar only as it relates to employees of Public Service Corporation of New Jersey.