Transcontinental Bus System, Inc.

712 DECISIONS OF N 1TiONAL LABOR RELATIONS BOARD Transcontinental Bus System, Inc. and Amalgamated Transit Union, AFL-CIO, and Brotherhood of Railroad Trainmen, AFL-CIO, Joint Petitioners. Case 16-RC-4604 September 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, ZAGORIA, AND BROWN Upon a joint petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer John F. White. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 16, this case was transferred to the National Labor Relations Board for decision. Briefs have been filed by the Employer and the Joint Petitioners. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed.' Upon the entire record in this case, including the briefs of the parties, the Board finds. 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. 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 Employer is engaged in the business of intrastate and interstate transportation of passengers, packages. and freight by motor bus. Its operations are nationwide. Its main office is in Dallas. Texas. It was created in basically its present corporate form and organizational structure in 1948, following acquisition by its promoters of four existing transportation systems.2 Since then it has purchased the stock of many other bus systems until today it consists of 22 wholly owned operating 'During the hearing, the Joint Petitioners requested that the Board take official notice of the entire transcript in Transcontinental Bus System. inc 119 NLRB 1840, an earlier case concerning part of the operations herein, and discussed hereinafter The Employer objected to this request , and the Hearing Officer referred the matter to the Board for resolution Part of this transcript, covering testimony of certain witnesses who testified in the earlier hearing as well as in the instant one, is already in evidence, as are certain legal documents in the earlier proceeding , including the briefs of the parties thereto The Board has, of course, taken judicial notice of its earlier decision and the facts and conclusions contained therein However, the further request to take official notice of the entire transcript of said proceeding is hereby denied, as the record and briefs (augmented as set forth above ), in our opinion, adequately set forth the testimony and issues relevant to this case 'The Employer should not be confused with the National Trailways Bus System, which was established in 1935 by various companies independent of Greyhound Lines, Inc , to provide effective competition against Greyhound The Employer's properties are all members of this system, but subsidiaries and three operating divisions. The distinction between subsidiary and division arose in the manner of acquisition, and is of no practical significance herein.' The Joint Petitioners . Amalgamated Transit Union and Brotherhood of Railroad Trainmen, hereinafter referred to respectively as the ATU and BRT, seek to consolidate into a single bargaining unit all bus operators in all of the Employer's subsidiaries and divisions . Historically, the bargaining units have been confined to the scope of each operating division and subsidiary ° The ATU represents both bus operators and other employees in 11 units, the BRT represents bus operators only in 9 units, and there is no representation in 7 units.` there are many other independent companies in the system For purposes of advertising and good will , all members present themselves to the public under the name of 'Trailways," They often share terminal space , and they maintain integrated schedules 'Tranvcontinental Bus System . Inc, supra at 1842 'With two exceptions , each bargaining unit has encompassed a division or subsidiary In the Employer 's Denver-Colorado Springs-Pueblo Motor Way, Inc , subsidiary , the Northern Division is represented by the ATU, and the Southern Division is represented by the BRT See Denver-Colorado Springs-Pueblo Motor Wav . Inc, 141 NLRB 701 In the Employer's Virginia Stage Lines, inc, subsidiary, the Western Division is represented by the ATU, and the Eastern Division is unrepresented Thus. although there are 25 divisions and subsidiaries , there are 27 units 'The respective divisions and subsidiaries, the bargaining agent (where applicable), and the bargaining unit's present composition are as follows. Central Lines Division Dixie Lines Division Western Lines Division American Buslines, Inc Arkansas Motor Coaches Ltd Carolina Scenic Stages, Inc Coastal Stages, Inc Continental Bus System Inc Continental Crescent I ines, Inc Continental Pacific Lines, inc Continental Southern Lines, Inc Continental Tennessee Lines, inc Denver-C olorado `Wring'. Pueblo Motor Way. Inc Northern Dnis„ri Southern Division Denver-Salt Lake-Pacific Stages Inc Fort Bragg Coach Co Georgia-Florida Coach Co Inc Midwest Buslmes, Inc Queen City Coach Company Rocky Mountain Division of Continental Bus System, Inc Safeway Trails, Inc Smokey Mountain Stages, Inc Tennessee I railways. Inc Trailways of New England, Inc Union Buslines, Inc Virginia Stage Lines, Inc Western Division Eastern Division BRT- Operators BRT- Operators BRT- Operators ATL-- All motor coach operators, station employees . hostesses and maintenance employees throughout the employer's bus transportation system BRT - Operators Unrepresented Unrepresented U nrepresented ATU- Operators and maintenance employees BRT-- Operators ATU- Operators. terminal and maintenance employees, each classification in separate (sub) units ATU- Operators and maintenance employees ATU- Operators, station and maintenance employees BRT- Operators ATU- Operators Unrepresented Unrepresented BRT-Operators Unrepresented ATU- Operators BRT -Operators ATU- Operators ATU- Operators and maintenance employees ATU- Operators. Terminal and maintenance employees BR r- - Operators Al U Operators and maintenance employees Unrepresented 178 NLRB No. 110 TRANSCONTINENTAL BUS SYSTEM 713 The Employer, Transcontinental Bus System. Inc, contends that the above separate units, as established by the parties' bargaining history, constitute the only appropriate bargaining units. The bargaining history of Transcontinental's various properties generally antedates their acquisition by the Employer. Whatever union represented a company at the time of its acquisition became the representing union in the subsidiary or division, and the pattern of collective bargaining continued essentially as it existed before.6 In 13 of the 20 presently represented units, the representing union at the time of acquisition has continued its representation to the present. In four other units, one or the other union was certified as bargaining representative of the unit's employees after acquisition by Transcontinental. Thus. (1) Continental Tennessee Lines was acquired by Transcontinental in 1953. In 1957, the ATU was certified as the representative of the subsidiary's operators, and in 1966 it was certified as the representative of the subsidiary's garage employees (2) Tennessee Trailways was acquired in 1966. Shortly thereafter, the ATU was certified in separate units of operators and maintenance employees, and it has continued to_ the present to so represent these employees. (3) With respect to Smokey Mountain Stages, the ATU was certified as the bargaining agent for a unit of bus operators in 1966, shortly after acquisition, but the parties have not signed a collective-bargaining agreement. (4) In 1949, shortly after acquisition, an independent union, Southern Association for Transportation Employees, was certified for separate units (within the overall unit) of operators and terminal employees on Continental Southern Lines. In 1960 this union also became the certified representative of maintenance employees, and in 1966 these three units merged into the ATU, the certification was amended, and the ATU has continued to represent these employees separately In two subsidiaries there has been a change of certification since the time of acquisition. In 1948, at the time of acquisition, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America represented the bus operators on what became the Rocky Mountain Division of Continental Bus System. This representation continued until 1953, when the ATU became the bus operators' certified representative, which certification has 'continued to the present. The ATU represented Union Bus Lines' operators at the time of acquisition and continued to do so until 1961, when the BRT became the operators' certified representative, which certification has continued to the present. In addition, in Western Lines Division. the BRT has represented operators since before acquisition, except for the period from 1958 to 1960, when they were represented by the ATU. 'Transcontinental Bus System , Inc, supra at 1841. As noted above, 7 units are unrepresented. Five of these units are in the "Queen City complex." Acquired in 1966, these are: Queen City Coach Co., Carolina Scenic Stages, Coastal Stages, Inc., Fort Bragg Coach Co., Georgia-Florida Coach Co., and Smokcy Mountain Stages. Only Smokey Mountain Stages has ever been organized, although the ATU has made repeated attempts to organize Queen City Coach Co. With respect to Virginia Stage Lines, inc., Eastern Division, both Joint Petitioners have participated in elections, which neither union won. As to Continental Bus System, Inc., the ATU represented operators and certain terminal and maintenance employees from acquisition in 1948 until 1958, when, after a strike, it lost its certification. Neither of the Joint Petitioners has been able to win an election in this subsidiary since then, although both have tried. Thus, there has been a long and extensive history of collective bargaining on a separate unit basis. From the record it appears that since its formation in 1948, there have been three strikes on Transcontinental's wholly owned properties.' Except for the three strikes in these many units over a 20-year period, there is little objective evidence in the record that the separate bargaining units have produced strife and instability, as alleged by the Joint Petitioners. In 1957, the BRT filed a petition seeking to consolidate in a single bargaining unit the bus operators it already represented in three separately certified units of Transcontinental's three divisions, which petition the Board denied in Transcontinental Bus Svsteni, Inc., supra. There, after finding that the petitioned for unit was neither systemwide in scope, nor an appropriate subdivision thereof, the Board found at page 1844. that there was a "long and effective history of' collective bargaining" in the separate divisions, "each of which on functional grounds appears to be an inherently appropriate bargaining group." We find nothing in the present record to disturb that finding, and we expand it to include bargaining in both subsidiaries and divisions. which were and still are the same for our purposes. Transcontinental is a much larger system today than it was then, (when it consisted of 8 subsidiaries and 3 divisions), but the record shows that its methods of operation and control over labor policies have not changed significantly. M. E. Moore is Chairman of Transcontinental's Board of Directors. He was Transcontinental's President from its formation until 1965. when T. S. Reece succeeded him. In 1966 Transcontinental acquired important new subsidiaries in the Eastern United States. At that time, C. A. Jessup became a separate president of Transcontinental's eastern 'In 1954, employees of the three divisions represented by the BRT went on strike In 1958, employees of American Bus Lines , Inc , Continental Bus System , Inc., and Western Lines Division went on strike under the ATU In 1967, the ATU struck Tennessee Trailways. Inc , Continental Tennessee Lines, In(. , Continental Southern Lines, Inc , and Central Lines Division 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD properties, and Recce became president of the Western properties. At least one of the above three men is on each of the various subsidiaries' Boards of Directors, where such is identifiable, usually as Chairman of the Board. The parent Board's members dominate the subsidiary boards. There are a number of corporate officials. headquartered in the home office in Dallas, who are responsible for coordinating certain activities with the subsidiaries and divisions. There is an official in each of the following areas rates and traffic, maintenance, tours, claims, advertising and sales. These men give advice and assistance to the divisions and subsidiaries, but from the record it does not appear thay they direct policy in these areas. In addition, the various general managers periodically have meetings to discuss common problems. Transcontinental has a separate corporate subsidiary through which all buses are purchased,' and through which supplies may, but need not be, purchased. Certain subsidiaries and divisions perform maintenance work for other properties and there are several centralized locations for performance of accounting functions for groups of properties. M. E. Moore testified that, at the time of Transcontinental's initial organization in 1948. its parent board of directors considered the matter of centralvation of control. After much discussion, the hoard adopted a policy, maintained to the present. of decentralization of control among the properties. Each of the divisions and subsidiaries operates within distinct geographical territories,' and each is organized along separate administrative lines under the direction of a general manager. Either the president or vice-president of each subsidiary is also the general manager of that subsidiary, and in those instances where one man is president of several subsidiaries, the same man is also general manager for the subsidiaries. Each general manager has broad discretion in the functioning of his division or subsidiary, subject only to the general direction of Transcontinental's president and board of directors. Although general managers have discussed labor relations with Transcontinental officers, the record shows that, in almost all instances,'" each general manager has conducted labor relations for his area of responsibility, without direction from or control by Transcontinental. There is an obvious similarity of working conditions among the bus operators in the various subsidiaries and divisions," but there are also 'Except in the Queen City Group . where buses have continued after acquisition to be purchased without consultation with Transcontinental 'in a few instances, and for short distances, the routes of two properties may substantially parallel each other The few exceptions have involved situations where ( 1) the general manager was incapacitated because of illness . (2) the general manager was inexperienced and requested help, or (3) one of the unions involved asked a Transcontinental official to join the bargaining sessions We do not find these exceptions significant "As we noted in Transcontinental Bus System , supra at 1843 "The bus operators in the divisions and operating subsidiaries perform identical substantial differences in terms and conditions of employment among them. Because of local conditions, what is important to operators in one section of the country may not he equally important to operators in another area. Wage rates, and their means of computation, vary considerably in different units.12 There is little interchange of operators between the separate units, and seniority is maintained on a strictly separate unit basis." Supervision is on a separate unit basis, except that when more than one company shares a terminal , there is limited supervision" by the terminal manager over employees of another company using the terminal. The terminal manager from one company may dispatch employees from other companies using the terminal. This is true whether the terminal is exclusively used by Transcontinental properties, or whether an independent company uses the terminal or controls it. This situation predated Transcontinental's formation, and is common to all members of the National Trailways Bus System. In certain transportation cases, where there was a high degree of integration of services. centralized control of labor relations, and similarity of working conditions of affected employees. we have held that a systemwide unit of these employees was the most appropriate unit." However, these standards have not been met in this case, except as they apply to the divisions and subsidiaries which individually appear to be appropriate"systemwide" units. Furthermore, it should be noted that nonoperators would be excluded from the proposed unit, although the ATU has effectively represented nonoperators in the separate appropriate historic units throughout its bargaining history with many of Transcontinental's subsidiaries and their independent predecessors, The Joint Petitioners have only given the vaguest of assurances as to how the rights of the nonoperators would be protected in the event of their disenfranchisement by our approval of the proposed `init. We find that this unit limited to operators is an effort to pick one class of employees out of a functions, wear the same uniforms , use similar reporting and procedural forms, and are governed by the same operating manual of the Employer' This is true today, with some minor exceptions in the Queen City group of companies "There art many variables For instance , drivers are paid in large part on a mileage basis In areas where distances are great between terminals. operators will earn more than where the distances between terminals are shorter On some properties operators drive only one way in a work day, and then return on the following work day "This is true even in the two subsidiaries which have two appropriate units apiece as set forth in in 4 Sex ; Denver-Colorado Springs-Pueblo Motor Way. supra "However, if the General Manager also manages other properties, as set forth above, then the terminal manager may fully supervise cinployees of these other properties "St Louis Public Service Company. 77 NLRB 749, American Buslines. Inc. 79 NLRB 329, Eastern Massachusetts Street Railway Company. 1111 NLRB 1963 "Transcontinental Bus System . Inc . supra Yellow Transit Co . 92 NLRB 538 "Central Greyhound Lines, etc , 88 NLRB 13, American Buslinec, Inc . supra TRANSCONTINENTAL BUS SYSTEM larger class which the ATU has effectively represented for years. In the present case. the parties have bargained effectively for 20 years on the basis of numerous separate units, and we find no compelling reason to disturb this pattern of bargaining previously agreed upon and fashioned by the parties. In view of the separate bargaining history, the high degree of autonomy in all matters within each division and subsidiary, the lack of interchange and separate seniority among affected employees, the exclusion of nonoperators from the proposed unit, and the geographic separation of the separate units. we find that the proposed single nationwide unit of operators is not appropriate.'" In view of the foregoing considerations, we shall dismiss the petition. MEMBER BROWN , dissenting I cannot agree with my colleagues that this petition for an employerwide unit should be dismissed. The joint petitioners seek a unit which, in the absence of any bargaining history on a lesser basis, the Members of this Board would in all probability find at least presumptively appropriatc19 for purposes of conducting a representation election. I would reach the same result in a situation such as the instant one, where the incumbent unions are 715 seeking an election among all the bus operators employed throughout the entire system ,20 thus placing in jeopardy their current representative status and facing the possibility of rejection as the employees' representative . In my view, there is no reasonable predicate for saying that the units as they now exist must for all time be the only appropriate basis for bargaining . This is particularly so where the pattern of bargaining has developed by chance and without Board determination . 21 But the result of the majority decision herein is to "freeze" the bargaining units and to establish them as the only appropriate units in which these employees may bargain. I see no justification in this record for such action. "As we conclude that the proposed unit is not appropriate, we find It unnecessary to consider the Employer' s further contention that the many contracts outstanding between the parties at the time of the filing of the petition are a bar to the granting of the petition it he "employer unit" is the first mentioned in Section 9 (b) of the Act "'1 see no reason to assume that the incumbent labor orgamLations intend to abandon rcpresentatwn of non-operating employees, and hence find no basis for requiring assurances as to how the rights of such employees would be protected "I do not construe the prior decision involving the Western, Central, and Dixie divisions of the Employer ( 119 NLRB 1840) as finding that the emploverwide unit may not be appropriate but only as holding that a unit limited to the three named divisions was inappropitate