New York City Omnibus Corp.

NEW YORK CITY OMNIBUS CORPORATION 579 The Intervenor, although it conducted but one meeting in 1952,6 has nevertheless continued to function as the recognized bargaining representative of these employees. Its officers, who comprise the executive board, still hold office; stewards' meetings are regularly held and well attended; grievances have continued to be duly processed; and a clear majority of the employees remain as dues-paying members. The Board, in recent decisions, has indicated that the schism doctrine is not to become an unqualified exception to the contract-bar rule.' Without deciding the validity of the various actions above that relate to the alleged affiliation with the Petitioner, we note that the Intervenor remains the effective and identifiable bargaining representative of these employees. We are persuaded that an exception to the contract-bar rule in this case would serve only to permit a dissident group of employees to express their dissatisfaction with the 'current contract and current contractual representative at a time the Board generally considers inappropriate. We find, under all the circumstances, that the schism doctrine is inapplicable here and that the Intervenor's current contract operates to bar a present determination of representatives." We shall there- fore dismiss the petition, but without prejudice to the timely filing of a new petition. ORDER Upon the basis of the entire record in this case, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed. 5 The Intervenor's constitution and bylaws provide for monthly membership meetings. 6See, e.g.. Canfield Oil Company, 99 NLRB 688. 'Allied Container Corporation, 98 NLRB 580; West Steel Casting Company, 98 NLRB 153. Although the current contract covers both production and maintenance employees and office clerical employees, such circumstance does not remove the contract as a bar. Cf. Sonotone Corporation, 100 NLRB 1127; Socony Vaccuum Oil Company, Incorporated, 99 NLRB 268. NEW YORK CITY OMNIBUS CORPORATION' and IN- DEPENDENT LEAGUE OF BUS SUPERVISORS, IN- SPECTION FOREMEN AND RECEIVERS OF NEW YORK CITY OMNIBUS CORPORATION, Petitioner . Case No. 2- RC-5242. April 30, 1'953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin and Louis I. Siegel, hearing officers.' The hearing officers' I Because of the illness of I. L. Broadwin, Louis L Siegel was substituted for him pursuant to Section 102.56 of the Rules and Regulations of the Board. 104 NLRB No. 83. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Houston, Styles , and Peter- son]. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act' 2. No question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act , for the following reasons: The Petitioner , whose membership consists , as its title indicates , of the Employer ' s inspection foremen , bus super- visors, and receivers , seeks to represent them in a single unit . The Employer opposes the unit on the ground that the inspection foremen and bus supervisors are supervisors as defined in Section 2 ( 11) of the Act . The parties are agreed that receivers are employees within the meaning of the Act. Inspection Foremen The Employer' s maintenance department is composed of a vice president and his assistant, a general superintendent of garages and his assistant , a chief equipment inspector, 4 garage superintendents and 4 night foremen ( 1 for each of Employer ' s 4 garages), a floating garage superintendent, 16 inspection foremen, and 383 maintenance employees. This department is responsible for the repair , maintenance, and storage of the approximately 924 buses housed at the Em- ployer's 4 garages. The inspection foremen are primarily responsible for determining whether buses are in proper condition for service. To this end, they test brakes, check wheels, and examine repair and maintenance work to see that it has been properly executed. A bus is inspected after every 3,000 miles in a man- ner prescribed by detailed employer directives prepared by the engineering department . Although this maintenance work is repetitive and routine and although the maintenance force is specialized so that each man knows his assignment, the inspection foreman decides whether to replace or repair a part, instructs where necessary , and in some instances deter- mines which bus should be checked. The supply room is authorized to issue parts only upon a requisition signed by 2 The Petitioner, in its brief, moved that the Board receive in evidence rejected Union's Exhibit No. 4 which was offered to impeach the credibility of a witness for the Employer, testifying on the status of inspection foremen. As the witness denied knowledge of the inci- dent of which the exhibit is evidence, and as the Petitioner did not contend that in the nor- mal course of his employment the witness would receive such knowledge , or that he had, in fact , been the recipient of such knowledge , the Board affirms the ruling of the hearing officer and denies the motion. $ Federal Dairy Co., Inc., 91 NLRB 638. NEW YORK CITY OMNIBUS CORPORATION 581 an inspection foreman or someone of higher authority.4 The assignment of men, even in repair work, is limited by an understanding between the Employer and the Union which represents the maintenance workers. That understanding provides for the rotation for certain periods of those mechanics who can do more than one type of work, and prohibits their transfer unless there is no more work of that type to be done. The inspection foreman has the authority to assign overtime work; but does not have the power to hire, transfer, lay off, recall, discharge, reward, discipline, or adjust the grievances of the maintenance employees, or effectively recommend such action. However, he has the power to suspend an employee for a serious infraction such as theft or being intoxicated while at work, reports on the performance of new employees during their 30-day probationary period, and submits appraisals of the work of employees who have applied for promotions. Although inspection foremen do not make the final decision to dismiss or retain probationary employees, or to promote, the decision itself is predicated on their inspection reports.5 No independent investigation is made by the Employer of the subject matter of these reports, and due to the size of the garages and the number of maintenance employees who work there, the garage superintendent does not have sufficient opportunity in all instances to observe these employees and appraise their work performance. Accordingly, we find that the inspection foremen have the power effectively to recommend the promotion of employees, and the dismissal or retention of probationary employees. The record further shows that the garages are open 24 hours each day, 7 days a week. The garage superintendents work 8 hours during the day, and the night foremen the same number of hours at night. Thus, for about 40 percent of the time the inspection foremen are in sole charge of the premises and of the employees. In addition, although both the employees and the inspection foremen are paid by the hour and receive time and a half for overtime, the regular employees are compensated for time lost as a result of illness through a plan which entitles them to a maximum of $ 30 a year, while the inspection foremen receive, within the discretion of management, 60 days' sick leave each year. The inspection foremen also are excused with pay for certain occasions such as sickness or death in the family. With respect to these benefits the inspection foremen and the garage superintendents are treated alike. All persons employed by the Employer participate in the same pension plan. In sum, the inspection foremen are limited in their super- visory powers by the contract between the Union which repre- sents the maintenance employees and the Employer, by the 4 This rule is not strictly followed. Parts are issued to the maintenance force on the understanding that an inspection foreman will subsequently approve the requisition slip. 5Examples of such reports indicate that in the space reserved for "comments regarding qualifications" the inspection foremen give their opinions as to the candidate's fitness for the position. 283230 0-54-38 5 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nature of the work which is repetitive and which has been routinized, and by Employer rules and standards which prescribe managerial and maintenance procedures. On the other hand, they have the power effectively to recommend, or disapprove, promotions and the retention or discharge of probationary employees, they have some assignment functions especially as to overtime, and for approximately 40 percent of the time they are in sole charge of the premises and personnel. In view of the foregoing and the entire record, the Board finds the inspection foremen to be supervisors within the meaning of the Act.6 Bus Supervisors The Employer's transportation department, that part of the organization responsible for operating the buses, has 15 admitted supervisors and executives. The routes of the entire system have been divided into 5 operating divisions with a superintendent in charge of each. In addition, 6 motor patrol supervisors, a chief motor coach instructor, a superintendent of transportation and his assistant, and the vice president in charge of transportation comprise the admitted supervisory staff. There are 1,633 bus operators, 77 bus supervisors,7 and 4 acting bus supervisors. There are 99.3 miles of routes, and at peak periods 816 buses are plying the streets. The maximum hourly rates of pay at the time of the hearing were $1 .731 per hour for the bus operators and $ 2.07 per hour for bus supervisors. Both receive time and a half for overtime. Compensation for time lost due to illness is limited to a maximum of $ 30 per year for bus drivers while supervisors receive, within the discretion of management, 60 days' sick leave each year. Pension benefits accrue for all personnel. The bus supervisors select their stations on the basis of seniority and choose to work in a depot, along a route, or at a terminal. There is little interchange from one position to another and the duties of terminal and line supervisors do not differ in any important respect. Bus supervisors at the depot dispatch buses according to schedule, draw up assignment sheets, sign operators' trip cards to indicate the time worked, and accept calls from operators who wish to be excused and excuse them. They have the power to suspend operators for serious infractions such as drunkenness, but in other cases are limited to reporting the infraction without recommendation. With respect to the assignment of the operators, the record establishes that it is merely a routine clerical task, for each year the operators choose their runs on the basis of seniority and the initial assignment lists originate in the division superintendents' 6 Gulf Oil Corporation, 90 NLRB 1607; Lloyd Corporation, Ltd., 79 NLRB 1477. 7 The Employer classifies all the men whose status is in question here as "bus super- visors." Before motorization these men, with like duties , were called "starters" and "inspectors." Although all are officially titled "bus supervisors," because of their stations they are informally known as depot , line, and terminal supervisors . A terminal is the point at which the route ends and the bus begins its return to the depot. NEW YORK CITY OMNIBUS CORPORATION 583 offices. In addition, operators on the "extra list" (drivers who substitute for operators from the regular listwho do not report for work) are placed on the extra list on the basis of seniority, and men who report to the depot on the chance that the regular and extra list will be exhausted, select their runs on a first- come-first-served basis. If there is a shortage of operators on another route or in another division, the bus supervisor has the authority to send a man to fill the vacancy, if he can find a driver who will accept the run. The assignment of additional buses is made by division superintendents or by bus supervisors according to a routine established by the Employer for recurring situations such as athletic contests and Christmas shopping crowds. However, in following the Employer's directives in these situations, the bus supervisors exercise some independent judgment. In emergency situations when the division superintendent is not available, the bus supervisor usually follows established employer methods for handling accidents or snowstorms or other emergencies, but when he believes it advantageous, the supervisor may disregard the prescribed procedure and take whatever steps he finds necessary.8 Along the route, the supervisors attempt to keep the buses running on a schedule listed in a rotation book which they call "the bible." To do this they may detour a bus, instruct it to pass another bus and skip a few stops, cause it to turn around, or have it pass its expected terminal and continue to a further one. Some discretion is involved in this phase of the work. When an accident has occurred the supervisor, following an Employer check list, will interview witnesses, speak with the police and the bus driver, arrange for a detour where neces- sary, submit a' factual report of the accident to the Employer, and when necessary, accompany an operator to the police station and intercede for him. He is the representative of management at the scene of the accident. When a bus driver refuses to detour, fails to maintain his schedule, or in some other manner fails to meet required standards or obey directions, the supervisor may warn the operator that such action will result in the filing of a violation report, or he may file such a report. On the basis of this report, and in some cases on the basis of additional evidence or reports of past occurrences, the division superintendent, or in a flagrant case the superintendent of transportation, recommends disciplinary action, and the superintendent of transportation or the vice president in charge of transportation acts upon such recom- mendation. None of the exhibits introduced by the Employer shows that these violation reports contain recommendations as such, but the supervisors are called into conferences concerning these violation reports and, considering the number of operators involved and the length of the routes, very often these supervisors are the only link between top management 8For example, when one snow truck was not running a supervisor used another which was assigned to a different route. It appears that the Employer did not consider this a wise use of discretion , but it was within the supervisor' s scope of authority. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the drivers. Reports are also made to the Employer on the proficiency of new operators. In addition to the foregoing instances pointing to the super- visory status of the bus supervisors, for example their use of discretion and their responsible direction of the bus drivers, there is the further fact that to find the bus supervisors to be employees within the meaning of the Act would create a ratio of 15 supervisors over approximately 1,714 employees in the transportation department, or 1 supervisor for 114 men.' The Board will not overlook the impracticability and unreasonable- ness of a ratio of 1 supervisor to 114 employees, especially where the operation is spread over approximately 100 miles of bus routes.10 We are mindful that large ratios do not appear to be unusual in the bus transportation industry." but we do not believe this sufficient cause for eliminating the ratio of supervisors to nonsupervisory employees as a factor to be considered , and we note that it is higher in this matter than in other cases heretofore considered. Accordingly, the Board finds that the bus supervisors responsibly direct the bus operators in their work, and that they are, therefore, super- visors within the meaning of Section 2 (11) of the Act. In the light of our findings above, of the approximately 113 individuals in the unit sought by the Petitioner, 93 are super- visors as defined in the Act. Moreover, the president of the Union is a bus supervisor . Accordingly, as the Petitioner is predominantly controlled by supervisors and as such control renders it incapable of serving as the bargaining representative of the nonsupervisory receivers," we shall dismiss the petition. IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 9 When the "bus supervisors" are considered "supervisors" as defined in the Act (the acting bus supervisors are admitted employees), the ratio is 1 to 18. 10 Warren Petroleum Corporation, 97 NLRB 1458; J. P. Stevens & Co., Inc., Republic Cotton Mills Division, 93 NLRB 1513. 11 See Capital Transit Company , 98 NLRB 141 ; and The Baltimore Transit Company and The Baltimore Coach Company . 92 NLRB 688. it Columbia Pictures Corporation , et al. , 94 NLRB 466. JOAN DAVIS ENTERPRISES and TELEVISION WRITERS OF AMERICA, Petitioner FILMCRAFT PRODUCTIONS and TELEVISION WRITERS OF AMERICA, Petitioner DON W. SHARPE d/b/a DON SHARPE ENTERPRISES and TELEVISION WRITERS OF AMERICA, Petitioner. Cases Nos. 21-RC-2846, 21-RC-2850, and 21-RC-2851. April 30, 1953 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was 104 NLRB No. 69.