Norfolk Southern Bus Corp.

In the Matter of NORFOLK SOUTHERN Bus CORPORATION, EMPLOYER and INTERNATIONAT, ASSOCIATION OF MACHINISTS, LODGE No. 11, PETI- TIONER Case No. 5-R-3026.-Decided March 2, 1948 Messrs. S. Burnell Bragg and A . J. Winder, both of Norfolk, Va., for the Employer. Mr. Jerome Y. Sturm, by Mr. Alan F. Perl, of New York City, Mr. Claude W. Fairfield, of Baltimore, Md., and Mr. 0. H. Dye, of Norfolk, Va., for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Norfolk, Virginia, on November 18, 1947, before Joseph Lepie, hearing officer. The hearing officer's rulings made at the hearing are free from prejudi- cial error and are hereby affirmed. At the hearing, the Employer moved to dismiss the petition on several grounds. The hearing officer referred this motion to the Board. For the reasons hereinafter set forth, the motion is denied. Upon the entire record in the case, the National Labor Relations Board 1 makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Norfolk Southern Bus Corporation,' a subsidiary of the Norfolk Southern Railway Company, is engaged in the motor transportation of freight and passengers between the States of Virginia and North Carolina. We are concerned in this proceeding only with the Em- ployer's vehicle maintenance shop at Norfolk, Virginia. During the year 1946, the Employer transported 4 million passengers, about 800,- 000 of whom were carried across State lines. 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this ease to a three -man panel consisting of the undersigned Board Members [ Houston , Murdock, and Gray] 2 The name of the Employei appears as amended at the hearing. 76 N. L. R. B., No. 76. 488 NORFOLK SOUTHERN BUS CORPORATION 489 The Employer admits and we find that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer.3 III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of certain of its employees until the Peti- tioner has been certified by the Board in an appropriate unit. At the hearing the Employer questioned the adequacy of the Peti- tioner's showing of interest. In this connection, the Employer sought to introduce testimony to show that the Petitioner's designation cards were procured by misrepresentation and by conduct in the nature of unfair labor practices. The hearing officer refused to admit such evidence and the Employer made an offer of proof. The hearing offi- cer's ruling was proper. We have repeatedly held that the matter of showing is one of administrative expediency only and, as such, is not subject to collateral attack.' As to the other proffered testimony, we have frequently pointed out in analogous situations, that the Board has found it to be convenient and practicable for the most part rigidly to exclude evidence as to unfair labor practices in a representation proceedings The Employer sought to attack the adequacy of the Petitioner's showing in another respect. It l •ged the dismissal of the petition on the ground that the authorization cards designate as bargaining representative, not the Petitioner, but its international. We reject ' The Employer challenged the competency of the Petitioner to represent the employees herein and urged the dismissal of the petition on the following grounds • (1) the Petitioner is not a labor organization within the meaning of the Act; (2) the Petitioner has not com- plied with the filing requiiements of the amended Act; and (3) the Petitioner does not admit to membership certain of its employees with respect to the latter contention, the Employer sought to adduce testimony in support thereof, but the hearing officer refused to admit such evidence, whereupon the Employer made an otter of proof We find no merit in the Employer's position As to the first ground urged, we find that the Petitioner is a labor organization within the meaning of the Act inasmuch as it exists for the purpose of engaging in collective bargaining with employers with respect to wages, hours and other conditions of employment As to the contention that the Petitioner has not complied with the filing requirements of the amended Act, we are administratively advised to the contrary. With respect to the Employer's last ground, we have uniformly rejected such contentions where, as in the instant case, there is no showing that the Petitioner will not accord adequate repiesentation to all the employees whom it seeks to represent Matter of Frying Paper Mills, 64 N. L R. B 1509, and cases cited therein ; see also Matter of Wichita Falls Foundry <C Machine Co., 69 N. L. R B. 458. 4Matter of 0 D Jennings cC Company, 68 N L. R B 516; Matter of Falcon Manufac- turing Company, 73 N. L. R. B. 467 See, for example, Matter of Flint Manufacturing Company, 62 N. L. R B 1003, and Matter of Grinnell Company of the Pacific, 71 N. L. R. B 1370. D 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this contention since the above-mentioned principles enunciated in the Jennings and Falcon cases 6 are equally applicable here. Moreover, we are satisfied that the Petitioner has a substantial interest in this proceeding inasmuch as a designation of a parent organization is a valid designation of its affiliate.? Accordingly, we find 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 Act. IV. THE APPROPRIATE UNIT The parties agree generally that a unit of all garage and shop employees at the maintenance shop of the Employer at Norfolk, Vir- ginia, would be appropriate.8 They are in dispute, however, with respect to two working foremen, Calvin Harding and Henry Wilson, whom the Employer would exclude from the unit on the ground that they are supervisors. It appears that Harding and Wilson are in sole charge of the employee complement on the second and third shifts, respectively. In this capacity, they assign and direct the work of their subordinates and may make recommendations which carry weight as to promotions, lay-offs, discharges, and disciplinary action. It further appears that they are paid a monthly salary, whereas the rank and file employees are paid on an hourly basis. In addition, they are accorded sick leave and vacation privileges which are available only to supervisory per- sonnel. Moreover, the record discloses that these individuals have virtually identical duties to those of two working foremen 9 on the first shift'whom the parties have agreed to exclude. In the light of the foregoing, and on the basis of the entire record, we are of the opinion that Harding and Wilson are supervisors within the meaning of the amended Act and we shall therefore exclude them from the bargaining unit hereinafter found appropriate. We find, in substantial accord with the parties and with our above determination, that all garage and shop employees at the maintenance shop of the Employer in Norfolk, Virginia, including mechanics first Matter of 0 D . Jennings & Company and- Matter of Falcon Manufacturing Company, footnote 4, supra 7 Matter of The Nubone Company, Inc , 62 N L R B 322 , 326, of Matter of Louis Pizrtz Dip Goods Company, 71 N L. R B 579. tl Although the Employer took the position that the unit be restricted solely to its white employees because of the alleged membership policy ( see footnote 3) of the Petitioner, «e could not, even were we to assume the validity of the Employer's allegation , concur in this request We hale consistently refused to consider the race of employees as a sated deter- minant of the appropriateness of any unit Matter of F S Rogster Guano Company, 71 N, L. R B 1465 , and cases cited therein C. H. Clark and P. T Bradshaw. NORFOLK SOUTHERN BUS CORPORATION 491 class, mechanics second class, mechanics' helpers, greasers, washers, gas attendants, and cleaners, but excluding bus operators, clerical em- ployees, the working foremen and all supervisors,10 constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9 (b) of the amended Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Norfolk Southern Bus Corpora- tion, Norfolk, Virginia, 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 Fifth Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations- Series 5, among the employees in the unit found appropriate in Sec- tion 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, 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, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by International Associa- tion of Machinists, Lodge No. 11, for the purposes of collective bargaining. 30 The Employer's motion to dismiss the petition on the ground that the-unit sought would include supervisors as defined by the Wagner Act is without merit. The Board defines supervisors in accordance with the provisions of the Act, as amended.