Burlington Transportation Co.

In the Matter of TRAILWAYS UNION Bus DEPOT, OPERATED AS A JOINT ENTERPRISE BY TIIE BURLINGTON TRANSPORTATION COMPANY, THE SANTA FE TRAIL TRANSPORTATION COMPANY, AND THE MISSOURI PACIFIC TRANSPORTATION COMPANY,1 EMPLOYER and BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, ExPREss AND STATION EMPLOYEES, PETITIONER Case No. 17-R-1553.-Decided January 27, 1947 Mr. James E. Manning, of Kansas City, Mo., lift. Charles M. Justice, of Chicago, Ill., and Mr. C. F. O ffenstein, of Wichita, Kans., for the Employer. Mr. H. R. Lyons, of St. Louis, Mo., Mr. A. B. Youngberg, of Kansas City, Mo., and Mr. W. Ray Clark, of Topeka, Kans., for the Petitioner. Mr. Herbert C. Kane, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Kansas City, Missouri, on August 30, 1946, before Charlotte Anschuetz, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER By ineans of an operating committee, Burlington Transportation Company, The Santa Fe Trail Transportation Company, and Missouri Pacific Transportation Company jointly operate the Trailways Union Bus Depot, which is located in Kansas City, Missouri. The Depot, a bus terminal, is used exclusively for passenger busses owned and operated by these three companies. During the month of August 1946, about 101 of the approximately 106 busses arriving at, and departing front, the Depot were on interstate schedules. The Employer admits for the purposes of this proceeding, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. 1 Name as amended at the hearing. 72 N.L.R B., No 52 275 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jr. THE ORGANIZATION TN vOLV1.D The Petitioner is a labor organization, claiming to represent employees of the Employer. M. THE QUESTION CONCERNING REPI1?SE_NTATION Following a consent election, on February 29, 1944, the Employer and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Division 1313, AFL, herein called the Amalgamated, entered into a contract, effective as of March 1, 1944. This agreement provided that it was to continue in operation for 1 year from its effective date, and from year to year thereafter in the absence of written notice of a desire to terminate given by either party to the other at least 60 days before any anniversary date. The Financial Secretary of the Amalgamated testified at the hearing that the Amalgamated did not have any members among the em- ployees of the Employer at any time after November 1944, when the last member was dropped from the Amalgamated's rolls for non- payment of dues. He further testified that there was no attempt oil the part of the Anlalganlated to administer the contract or to present grievances between November 1944 and the date of the hearing. He also stated that, so far as the Amalgamated was concerned , it has no contract to continue in effect because it "cannot have a contract unless we have members." -! On July 29, 1946, the Petitioner asked the Employer for recognition as the exclusive bargaining representative of the Depot employees. The Employer refused such recognition on the ground that the con- tract with the Amalgamated was still in effect. On July 31, 1946, the Petitioner filed the petition in this proceeding. No contention is made that the contract constitutes a bar to a present determination of representatives.' The Employer requests, however, that the Board compel the Petitioner to assume the unexpired portion of the contract if it is eventually certified. But the issue thus raised by the Employer has become moot. For until an election can be con- ducted in this proceeding, a certification, if any, issued, and bargain- ing negotiations undertaken, the 1947 anniversary date of the contract with the Amalgamated will either not be far distant or have passed. 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. 2On July 27 , 1946, pursuant - to a request made b% euiploieeti of the Ihuployei, the Amalgamated wrote to the Employer formally iequesting that the contract be tetnunated 'Although the Employer took the position at the heating that the contract was a biir. it receded from this position in its bi iet TRAILWAYS UNION BUS DEPOT 277 Iv. ME APPROPRIATE UNIT The Employer and the Petitioner agree generally that a unit of all the employees of the Depot, excluding the terminal matiager, would be appropriate. They disagree, however, with respect to the assistant terminal manager, the head agent, and the auditor, the Petitioner desiring their inclusion, and the Employer desiring their exclusion.' On November 22, 1943, a consent election was conducted in an agreed unit of all employees of the Depot, excluding, among others, the assistant terminal manager, the head agent and the auditor. The Amalgamated won the election, and in 1944 entered into the contract with the Employer adverted to in Section III, above. This contract excluded from its coverage the -cssistaut terminal manager, the head agent and the auditor. In the light of these facts, we shall exclude the disputed categories from the unit. We find that all employees of the Employer's Depot, including the head baggage agent, but excluding the auditor, the terminal manager, the assistant terminal manager, the head agent, and all other super- visory employees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees, or ef- fectively recommend such action, constitute a unit appropriate for the purposes-of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Trailways Union Bus Depot, Kansas City, Missouri, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) clays from the date of tins Direction, miler the direction and supervision of the Regional Director for the Seventeenth 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 Rules and Regula- tions-Series 4, among the employees in the unit found appropriate ill Section IV, above, who were employed during the pay-roll period inn- mechately 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, to determine whether or not they desire to be represented by Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, for the purposes of collective bargaining. " In its brief the EmploN er withdrew its request made at the hearing that the head baggage agent be excluded , and now agrees with the Petitioner that he should he included