Boulevard Transit Lines, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1946

71 N.L.R.B. 719 (N.L.R.B. 1946)

In the Matter of BOULEVARD TRANSIT LINES, INC., EMPLOYER and
TRANSPORT WORKERS UNION OF AMERICA, CIO, LOCAL 225,
PETITIONER
Cases Nos. 0-R-7002 and 2-R-70.34.-Decided November 21, 1916
George M. Eichler, by Mr. Irving Bookstaber, of Newark, N. J., for
the Employer.
Harry Sacker, by Mr. Bernard Davis, of New York City, for the
Petitioner.
Mr. Morris F. Pearlman, of Jersey City, N. J., for the Intervenor.
Mr. Melvin J. Welles, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon petitions duly filed, a consolidated hearing in this case was
held at Newark, New Jersey, on September 25, 1946, before Richard
J. Hickey, hearing officer. The hearing officer's rulings made ft 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
I. THE BUSINESS OF THE EMPLOYER
Boulevard Transit Lines, Inc., a New Jersey corporation, has its
principal offices and garage in Bayonne, New Jersey. It is engaged
in the transportation of passengers between New York and New Jer-
sey, and it operates 27 busses, and transports approximately 7,000
passengers daily between its terminals in New York and,New Jersey.
During the past year, the Employer purchased 18 busses, valued at
approximately $16,000 each. Six of these busses were delivered to
the Employer from points outside the State of New Jersey.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations act.
71 N L R. B., No. 119.,
717734-47-vol. 71-47 719
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
Boulevard Transit Drivers Association, Inc., herein called the In-
tervenor, is an unaffiliated labor organization, claiming to -represent
employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On September 2, 1941, the Employer and the Intervenor executed a
3-year contract, covering the Employer's bus drivers. On June 2,
1944, the parties executed another 3-year contract, also covering bus
drivers. This contract specifically provides for termination on June
2, 1947, and does not cojitain an automatic renewal clause. On August
27, 1946, the Petitioner informed the Employer that it represented a
majority of the Employer's employees. The Employer refused to
recognize the Petitioner because of its existing contract with the
Intervenor. On August 29, 1946, the Petitioner filed a petition re-
questing a unit of bus drivers, and on September 9, 1946, it filed a
second petition requesting a unit of shop employees.2 On September
13, 1946, the Employer and the Intervenor executed an agreement
modifying the 1944 agreement by enlarging the contract unit to in-
clude shop employees.
The Employer and the Intervenor contend that the 1944 contract is
a bar to a current determination of representatives. We do not agree.
We have held that a contract of unreasonable duration is not a bar
to a representation proceeding initiated at the end of, or subsequent
to. the first contract year.3 An agreement of 3 years' duration will
not bar an election unless the party urging the contract as a bar proves
that a 3-year contract term is reasonable; and the burden is thus on
the Employer and the Intervenor in this case to prove that the ab-
normally long term of the 1944 contract is customary in the industry
ill which the Employer is engaged.4 These parties introduced evidence
at the hearing concerning approximately 6 contracts in the bus trans-
portation industry in the New Jersey area which were made for a
3-year term. The Petitioner, on the other hand, showed that about
20 contracts for a 1-year term have been made in the bus transporta-
tion industry in the same area. Furthermore, the contracts upon
which the Intervenor and the Employer rely were for the most part
with intrastate bus lines, while those to which the Petitioner points
Case No. 2-R-7002.
s Case No 2-R-7034.
8Matter of The United States Fm sh:ng Company, 63 N 1, R ii 37j
• Ibid.
BOULEVARD TRANSIT LINES, I\ C. 721
were generally with interstate lines such as that operated by the
Employer in this case. We are convinced that the Employer and the
Intervenor have not sustained their burden of proving that contracts
for 3-year terms are customary in the industry. We conclude, there-
fore, that the 1944 contract is not a bar to a current determination of
representatives.'
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.
Iv. THE APPROPRIATE UNIT
All parties agree that the following unit is appropriate: All bus
drivers, starters and shop employees of the Employer; including me-
chanics, greasers, bodymen, washers, utility men, and maintenance
employees, but excluding clerical employees inspectors, and all super-
visory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or
effectively recommend such action.
They disagree, however, with respect to the supervisory status of
the supervisor of night washer-. T lie Employer and the Petitioner
agree that he should be excluded from the unit as a supervisory em-
ployee; the Intervenor would include him in the unit, claiming that he
is not a supervisory employee. The evidence clearly indicates that
he has the authority to recommend hire, promotion. discharge, and
discipline of employees, that he has done so, and that his recom-
mendations have been followed. In addition, he has actually hired
and discharged employees under his supervision. Accordingly, we
find that the supervisor of iiiglit washers is a supervisory employee
within the meanuig of our customary definition, and we shall include
him from the unit.
We find that all bus drivers, starters and shop employees of the
Employer, including mechanics, greasers, bodymein, washers, utility
men, and maintenance employees, but excluding clerical employees,
inspectors, the supervisor of night washers, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
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 ascdrtain representatives for the
purposes of collective bargaining with Boulevard Transit Lines, Inc.,
E It is unnecessary to consider the effect of the modification of the 1944 contract iu
the face of the petitions which were then pending
722 DECISION S OF NATIONAL LABOR RELATIONS BOARD
Bayonne, New Jersey, 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 Second 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 Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Section
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, and including employees in the armed forces
of the United States who present theiiiselves 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 they desire to be represented by
Transport Workers Union of America, CIO, Local 225, or by Boule-
vard Transit Drivers Association, Inc., for the purposes of collective
bargaining, or by neither.