De Camp Bus Lines and De Camp Interstate Transit Co.

In the Matter of DE CAMP Bus LINES AND DE CAMP INTERSTATE TRANSIT Co. and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, LOCAL #1156, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-1649.-Decided February 6, 1940 Motor Bits Indestry-Employer : companies functioning as single enterprise- Investigation of Representatives: controversy concerning representation of em- ployees: rival organizations; closed-shop contract executed with rival unions during negotiations with petitioner no bar where not asserted as such and both unions present evidence of majority at time of its execution -Unit Appropriate for Collective Bargaining : whether unit limited to bus drivers or one including them with maintenance employees is appropriate should be resolved by desires of employees themselves ; dissenting opinion as to: industrial unit appropriate in view of absence of a history of craft bargaining-Elections Ordered: order of election as to maintenance employees to be withdrawn if intervenor notifies Board within 10 days from date of Direction that it does not desire to participate in said election ; record not clear whether intervenor desired certification or dismissal of petition. Mr. D. R. Dimick, for the Board. Osborne, Cornish c6 Scheck, by Mr. Harry V. Osborne, of Newark, N. J., for the Company. Mr. Samuel L. Rothbard, of Newark, N. J., for the Union. Mr. William O. 'G. Aeschbach, of East Orange, N. J., for the Association. Mr. William T. Little, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On August 3, 1939, and September 26, 1939, Amalgamated Associ- ation of Street Electric Railway & Motor Coach Employees of Amer- ica, Local #1156, affiliated with the American Federation of Labor, herein called the Amalgamated, filed a petition and an amended peti- tion with the Regional Director for the Second Region (New York City). The amended petition alleged that a question affecting com- merce had arisen concerning the representation of employees of De 20 N. L. R. B.. No. 21. 250 DE CAMP BUS LINES 251 Camp Bus Lines and De Camp Interstate Transit Co.,' herein called the Bus Lines and Transit Company respectively, and jointly referred to as the Companies, and requested an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, '49 Stat. 449, herein called the Act. On November 17, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an.appropriate hearing upon due notice. On November 21, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Bus Lines, the Transit Company, the Amalgamated, and Amalgamated De Camp Employees Association, Inc., herein called the Association, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on December 4, 1939, at Newark, New Jersey, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Association moved to intervene and the motion was granted by.the Trial Examiner. The Board, the Companies, the Amalgamated, and the Association were represented by counsel and all participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course. of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the beginning of the hearing, counsel for the Companies moved to dismiss the petition on the ground that it failed to state the names and approximate number of employees who had designated the Amalgamated as their representative. The Trial Examiner re- served ruling on the motion. The motion is hereby denied. IJpoh the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES A. The Transit Company De Camp Interstate Transit Company, a New Jersey corporation having its principal office and place of business at Livingston, New Jersey, is engaged in the operation of motorbusses and the transporta- ' Incorrectly designated as De Camp Bus Lines , Inc. and De Camp Interstate Trans. portation Co., Inc ., in the formal papers. This was corrected by motion at the hearing. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of passengers along regularly defined routes between Orange, Caldwell, and Upper Montclair, New Jersey and New York City, and in the operation of motorbusses on interstate charter runs through the States of New York, Pennsylvania , Maryland, .the New England States, and the District of Columbia. During the year"1938 the total revenues of the Transit Company from cash fares on the New York-New Jersey interstate runs amounted to approximately $370,000, and the revenue from interstate charter runs amounted to $12,500. The Transit Company is licensed by the Interstate Com- merce Commission and all its operations are subject to the Commis- sion's rulings. B. The Bus Lines De Camp Bus Lines , a New Jersey corporation having its principal office and place of business at Livingston , New Jersey, is engaged in the operation of motorbusses and the transportation of passengers along regularly defined routes between Morristown and Caldwell and Newark, New Jersey, and in the operation of busses on intrastate charter runs within the State of New Jersey. In its timetables it advertises, and presumably it maintains , "Connections at Orange for New York" and "Direct connections at Pennsylvania Station for Hudson-Manhattan Tubes." In the course and conduct of its busi- ness it leases approximately 26 of its 40 busses to the Transit Com- pany. Such busses are licensed to and do operate in interstate com- merce, are serviced by Bus Lines' maintenance employees , and supplied with gas, oil , and tires by the Bus Lines under the leasing agreement. C. The relationship between the Companies Prior to January 15, 1936, the Bus Lines was engaged hr both inter- state and intrastate transportation. On January 15, 1936, the Transit Company was organized to engage in interstate commerce and it took over all the interstate operations of the Bus Lines. The Bus Lines owns all the stock of the Transit Company and the Companies have the same .ofyicers and directors. The Bus Lines owns all the real property, including the garage, as well as the office equipment used by the Companies at Livingston and the busses which it leases to the Transit Company under an ar- rangement described in Section B above. The Bus Lines pays the bus drivers employed by both companies, and maintains all the bank accounts, adjustments being made between the two on the Companies' books. It is practically a daily occurrence for the Transit Company to permit the Bus Lines to use the busses that have been leased from it and there is also a daily interchange of employees . Of the 55 bus drivers in the Companies' employ, 12 work for the Bus Lines and DE CAMP BUTS LINES 253 the balance are employed by both companies . Of the 89 employees of all classifications, 33 work for the Bus Lines and 56 for both com- paTiies. The Companies use the same garage, have the same plant manager, and use the same physical office space at Livingston. In a joint contract entered into between the Companies and the Association, there is no attempt to separate the employees of the two companies ; the Association is recognized as the exclusive bargaining agent for the employees of both companies ; seniority is based on length of service with the Companies ; and a bonus is computed on the basis of the earnings of the Companies . In the present proceeding, the Companies do not claim that the employees of the Bus Lines and Transit Company constitute separate units. We find that the operations of the Companies constitute a single business enterprise under the same ownership, management, and con- trol.2 We further find that the Companies are engaged in traffic, conunerce, and transportation among the several States and that the employees of the Companies are directly engaged in such traffic, commerce,, and transportation. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local #1156, is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership motorbus drivers employed by the Companies. Amalgamated De Camp Employees Association, Inc., is an un- affiliated labor organization. It admits to membership all except the clerical employees of the Companies. ITI. THE QUESTION CONCERNING REPRESENTATION In November 1938 the Amalgamated started organizing among the bus drivers employed by the Companies. At the time of the hearing the Companies employed 55 bus drivers. William J. McGuinnes, president'and business- agent of the Amalgamated, testified that by mid-February 1939 a majority consisting of about 34 of the bus driv- ers employed by the Companies had signed application cards for membership in the Amalgamated, but had not been initiated pending the start of negotiations. In support of this statement the Amal- gamated introduced in evidence 29 application cards dated November 1938. On December 1, 1938, the Association was incorporated and started to organize the bus drivers and maintenance men. According to Jesse Vincent, its secretary, the Association originally had 71 members 2 CP. Matter of Waggoner Refining Company , Inc., at al . and International Association of Oil Field, Gas Well and Refinery Workers of America, 6 N. L. R . B. 731. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the Companies' employees, including 50 drivers. In support of this statement, the Association introduced in evidence 47 application cards signed by bus drivers, most of which were dated December 1938. Some time in March 1939, McGuinnes and one Anthony Caruso met with Ralph De Camp, the president of the Companies, told him that the Amalgamated represented a majority of the bus drivers, presented a proposed contract, and proposed that the Companies negotiate with the Amalgamated. De Camp stated that he did not know with whom to bargain, but that if the Amalgamated represented a majority there was nothing to do but to accede to their proposal. An 'appointment was made for a meeting during the following week. However, on the following Monday when. McGuinnes telephoned De Camp, the latter told him that the Association had requested a contract and that the Companies had made an agreement with it. During the second week of January 1939, the Association met with the management and discussed wages and working conditions. No further meetings between the Companies and the Association occurred until March when the parties met twice. On March 31, 1939, the Companies and the Association entered into a contract which granted the latter exclusive recognition as the representative of the Companies' New Jersey employees.' The contract contained a provision for a closed shop, except as to current employees who were not members of the Association, together with other provisions concerning wages and working conditions. In view of the fact that many of the bus drivers signed applications for both organizations, there is no clear showing that the Association represented a majority of the bus drivers at the time of the execution of the contract. At the hearing neither the Companies nor the Association urged the contract as a bar to the present proceedings. On the basis of the foregoing facts we find that a question has arisen concerning the representation of bus drivers employed by the Com- panies.4 We further find that this question occurring in connection with the operations of the Company described in Section I above, tends to lead to labor disputes burdening and obstructing interstate traffic, commerce, and transportation and the free flow of such traffic, com- merce, and transportation. IV. THE APPROPRIATE UNIT The Amalgamated in its petition alleges that the bus drivers con- stitute an appropriate bargaining unit.-' The Association claims that 3 The Companies or an affiliate apparently operate busses in Staten Island , New York, as well as in New Jersey. 4 See Matter of American-West A frican Line and National Marine Engineers' Bone"iciat Association, 4 N. L. R. B. 1056. 5 Although under its charter, maintenance men are eligible for membership in the Amal- gamated , its membership has voted to exclude them from the local. DE CAMP BU',? LINES' 255 the bus drivers, together with the maintenance employees excepting supervisors constitute the appropriate unit. The Companies.- would include clerical employees within the unit'urged by the Association. We shall follow our usual procedure and we shall exclude- clerical employees from the unit.' The Association and the Amalgamated differ as to the inclusion of maintenance employees in the same unit with the bus drivers. We have frequently held that bus drivers can be considered either as a separate unit _as claimed by the Amalgamated, or as part of a larger unit composed of bus drivers and maintenance men as claimed by the Association. Under circumstances similar to those present in the instant case, we have held that the decisive factor in determining the appropriate bargaining unit was the desire of the bus drivers themselves.? We shall therefore direct an election to be held among the, bus drivers employed by the Companies to determine whether they desire to be represented by the Amalgamated, by the Association, or by neither. We cannot determine from the record whether the Associa- tion desires certification as the representative of the bus drivers and the maintenance employees in a single bargaining unit or whether it desires merely that the petition of the Amalgamated be dismissed. We shall, nevertheless, direct an election among .the maintenance em- ployees to determine whether or not they desire to be represented by the Association. If, however, within ten (10) days from the date of this Decision and Direction of Elections the Association notifies us in writing that it does not desire to participate in an election among the maintenance employees, we shall withdraw such part of the Di- rection of Elections as directs an election among such employees." Upon the results of the election or the elections will depend in part our determination of the appropriate unit or units for the purposes of collective bargaining. If a majority of the bus drivers vote for the Amalgamated then the bus drivers will constitute a single appro- priate bargaining unit and we shall certify the Amalgamated as the collective bargaining representative thereof. In the event that an election is held among maintenance employees under the circumstances described above, and if a majority of the bus drivers and a majority 6 Although the contract, between the Association and the Companies apparently includes clerical employees within its scope, the Association does not, in fact , admit such employees to membership. Moreover, under the circumstances involved herein , the contract cannot be considered as having established a pattern of collective bargaining chosen by the employees and, therefore , cannot guide us in the determination of the appropriate unit. 7Matter of Pacific GGreyhound Lines and Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, et at., 9 N. L. R. B. 557 ; Matter of Pacific G-reyhound. Lines and The Brotherhood of Locomotive Firemen and Engincmen, 4 N. L. It. B. 520 ; Matter of Penn.sylvunia Greyhound Lines, et al. and The Brotherhood of Railroad Trainmen, 3 N. L. R. B. 622. 8 Cf. Matter of II'eyerhaeaser Timber Company et al . and International lVoodioorkers of Americo, Local No. 107, Boommeu and Rafters . et al., 16 N. L. R. B: 902. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the maintenance employees vote for the Association , then both the bus drivers and the maintenance employees shall constitute a single appropriate unit and we shall certify the Association as the exclusive bargaining representative of such employees . If the Association receives a majority vote in one, but not in both , of the two groups (the bus drivers and the maintenance employees ), then the group so voting for the Association , shall constitute a separate appropriate unit and we shall certify the Association as the exclusive bargaining repre- sentative thereof unless within ten (10) days from the date of this Decision and Direction of Elections the Association shall have notified us in writing that it did not desire to be certified as the representative of such unit, in which case we shall dismiss the petition. V. THE DETERMINATION OF REPRESENTATIVES At the time of the hearing the Companies had 55 bus drivers in their employ. The Amalgamated introduced in evidence 36 membership applications and authorization cards, most of which were signed in November 1938 and several of which were signed thereafter. There was o66 duplication and t-hree' of the signers had left the Companies' employ. The Association introduced in evidence 47 application cards, most of which were signed in December 1938. It also introduced a statement signed by 46 bus drivers shortly before the hearing, to the effect that they were members of the Association and intended to re- main members. The contract between the Association and the Com- panies provides that the Companies will hire only members of the Association . Although the contract contains an exception covering employees who are not members of the Association , in view of the cir- cumstances under which the contract was executed and the number of employees who signed application cards for both unions , we believe thatahe. question' concerning -representation which has arisen can best be resolved by elections by secret ballot. The Union and the Association requested that the pay roll for the week of September 26 be used as ,a basis for eligibility to participate in the elections . We see no reason , however, for not determining eligi- bility as of a current date. We shall , therefore, direct that the em- ployees of the Companies eligible to vote in the elections shall be those who were employed by the Companies during the pay-roll period immediately preceding the date of this Direction , including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been tempo- rarily laid off, but... excluding those who have since quit or been dis- charged for cause. DE CAMP BUS LIVES `257 On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW A question affecting commerce has arisen concerning the representa- tion of employees of De Camp Bus Lines and De Camp Interstate Transit Company, Livingston, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Rela- tions Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act., and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with De Camp Bus Lines and De Camp Interstate Transit Company, Livingston, New Jersey, elections 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:.Article III, Sedtioxi 9, of said Rules and Regulations, among the employees within the groups described below who were employed by the Companies during the pay- roll period immediately preceding the date of this Direction of Elec- tions, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding supervisory and clerical employees and such employees who have since quit or been discharged for cause : (a) The bus drivers to determine whether they desire to be repre- sented by Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, Local #1156, affiliated with the American Federation of Labor, or by Amalgamated De' Camp' Em- ployees Association, Inc., for the purposes of collective bargaining, or by neither; (b) The maintenance employees to determine whether or not they desire to be represented for purposes of collective bargaining by Amalgamated De Camp Employees Association, Inc. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. EDWIN S. SMITH , dissenting: For reasons set forth in a number of similar cases ° in which I dis- sented, I believe that the purposes of the Act as regards collective bargaining will be best promoted by not permitting the bus drivers as a craft to disassociate themselves from the general body of employees. There is no history of collective bargaining in behalf of the bus drivers, nor are there any other circumstances such as existed in Matter of Pacific Greyhound Lines 10 to justify setting the bus drivers apart in a unit by themselves. I would dismiss the Amalgamated's petition. 0See, for example , Matter of Alli..'-Chalmers Manufacturing Company. and International Union, United Automobile Workers of America, Local No. 248, 4 N. L. R. B. 159: Matter of Armour d- Company and International Association of Machinists, Local a'. 5 N. L. R. B. 535. "Matter of Pacific Greyhound Lines and Amalgamated Association of Street , Electric Railway and Motor Coach Employes of America et at., 9 N. L. N. B. 557.