City Lines of West Virginia, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1946

66 N.L.R.B. 904 (N.L.R.B. 1946)

In the Matter of CITY LINES OF WEST VIRGINIA, INC. and
BROTHERHOOD OF RAILROAD TRAINMEN
Case No. 6-R-1469.-Decided March 18, 1946
Messrs. Steptoe & Johnson, by Mr. Oscar J. Andre, of Clarksburg,
W. Va., and Messrs. B. J. Zewski and Henry C. Church, of Clarks-
burg, W. Va., for the Company.
Messrs. F. K. Fisk and Carl E. Burgy, of Cleveland, Ohio, for
the Brotherhood.
Mr. William L. Robinson, of Pittsburgh, Pa., and Mr. Russel Hall,
of Clarksburg, W. Va., for the Amalgamated.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon a petition duly filed by Brotherhood of Railroad Trainmen,
herein called the Brotherhood, alleging that a question affecting
commerce had arisen concerning the representation of employees of
City Lines of West Virginia, Inc., Clarksburg, West Virginia, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before W. G. Stuart
Sherman, Trial Examiner. The hearing was held at Clarksburg,
West Virginia, on October 24 and 25, 1945. The Company, the
Brotherhood, and Divisions 812, 813, and 815 of Amalgamated As-
sociation of Street, Electric Railway and Motor Coach Employees
of America, herein called the Amalgamated, appeared and partici-
pated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. At the hearing the Amalgamated moved to
dismiss the petition on the grounds (1) that the Brotherhood does
not "represent a majority of the membership of the group" it wishes
to represent, and (2) that the unit sought is inappropriate. The
1 The Motion of the Amalgamated to intervene was granted at the commencement of
the hearing
66 N. L . R. B., No. 110.
904
CITY LINES OF WEST VIRGINIA, INC. 905
Trial Examiner i eserved ruling on this motion for the Board. For
reasons set forth in Section III and IV, infra, the motion is denied.
The Trial 'Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board. After the hearing, the
Company and the Amalgamated filed briefs in which each urged
that the unit sought by the Brotherhood is inappropriate and that
the petition should be dismissed. For the reasons stated in Section
IV, infra, the motions are denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
City Lines of West Virginia, Inc., a West Virginia corporation,
having its principal office in Clarksburg, West Virginia, operates
and maintains local transportation facilities in and around Fairmont,
Clarksburg, and Parkersburg, West Virginia, and also the following
interurban lines over which it has exclusive transportation rights :
Clarksburg to Fairmont, Clarksburg to Weston, Clarksburg to Wolf
Summit, Clarksburg to Northview, Fairmont to Rivesville, and
Parkersburg to Marietta, Ohio. All the af ore-mentioned communities
are in West Virginia except Marietta, Ohio. In its operations the
Company utilizes both electric streetcars and motor coaches. At the
terminal operated by the Company at Fairmont, West Virginia,
it sells tickets on a commission basis for all connecting lines, including
the Greyhound and the Blue Ridge Transportation Company. The
Company carries United States Mail between Clarksburg and
Fairmont, West Virginia.
During the first 10 months of 1945, the Company purchased
operating equipment valued in excess of $50,000, all of which was
procured from sources outside the State of West Virginia. During
the same period, the gross operating revenue of the Company was
in excess of $1,400,000.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Brotherhood of Railroad Trainmen is a labor organization ad-
mitting to membership employees of the Company. Divisions 812,
813, and 815 of Amalgamated Association of Street, Electric Railway
and Motor Coach Employees of America are labor organizations
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
III. THE QtTESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Brother-
hood as the exclusive bargaining representative of certain of the
Company's employees in its Fairmont (West Virginia) Division
until the Brotherhood had been certified by the Board in an
appropriate unit.
The Amalgamated urges that the contract of July 1, 1942, as
extended, between its Divisions 812 and 813 and the Company, is
still in effect and a bar to this proceeding. However, both Divisions
812 and 813 gave timely notice on May 26, 1945, and May 30, 1945,2
respectively of their desire to negotiate a new contract. The Amal-
gamated attacks the effectiveness of this notice on the ground that
notices to amend or modify are not in effect notices of termination.
The specific provision in question states : "This agreement shall
remain in force and during the period of one year from date hereof,
unless continued or dissolved by mutual agreement of the parties
hereto, provided, however, that this agreement shall continue in
force from year to year following the period specified above unless
one of the parties hereto shall serve written notice upon the other
thirty days before the expiration of the agreement of their desire to
terminate it." The communication dated May 30, 1945, from
Division 813 stated : "In view of the fact that our contract will
expire on July 1st, 1945, we desire to negotiate a new contract for
the coming year, for Local 813, Fairmont, West Virginia." 3 We
find that the timely notice served to terminate the contract pursuant
to the provisions of the agreement, and that the agreement of July 1,
1942, as extended, does not constitute a bar to this proceeding.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Brotherhood represents a substantial
number of employees in the unit hereinafter found appropriate.4
2 Although dated May 30, 1945, the notice was actually received by the Company on
May 26, 1945.
8 The Brotherhood asserted that Division 813 of the Amalgamated was defunct but it
failed to adduce proof thereof. It is reasonable to Infer that Local 813 is a functioning
labor organization.
4 The Field Examiner reported that the Brotherhood submitted 59 personal authoriza-
tion statements, of which 57 bear the names of employees listed on the Company's pay
roll for the period ending September 15, 1945, and that there are approximately 59
employees In the unit sought.
The Amalgamated relies upon Its contract, referred to above, as evidence of its interest
in the proceeding.
At the hearing the Trial Examiner refused the Amalgamated 's offer to introduce evi-
dence and testimony that the Brotherhood used fraud and misreprese$tation In securing
its membership among the employees of the Company 's Fairmont Division , which the
Brotherhood denies . His ruling is hereby upheld . As noted above , one of the grounds
CITY LINES OF WEST VIRGINIA , INC. 907
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Brotherhood seeks a unit consisting of all bus drivers, streetcar
operators, and maintenance employees working in the Fairmont
Division of the Company, at Fairmont, West Virginia, but excluding
dispatchers, executives, and supervisory employees.5 The Amalga-
mated and the Company contend that such a unit is inappropriate
and that the appropriate unit should comprise these classifications
of employees in all three of the Company's divisions,6 or in the
alternative should be composed of at least these employees in the
Fairmont and Clarksburg Divisions. Further, the Amalgamated
would include dispatchers whereas the Company, like the Brother-
hood, would exclude them.
The Amalgamated and the Company base their contentions for
a company-wide unit, or in the alternative for a unit covering the
Fairmont and Clarksburg Divisions, upon the integration of the
Company's operations and upon the collective bargaining history
extending back to 1918.
Although the Company operates transportation facilities, street-
cars, and busses, in and about Clarksburg, Fairmont, and Parkers-
burg, West Virginia, and also operates and maintains interurban lines
from out of each of the afore-mentioned communities, the administra-
tion of the system is centralized in Clarksburg where the Company's
general offices are located. All orders, directions, and authorizations
originate there; the Company's labor relations and personnel policies
are handled there; and all hiring and discharging must be approved
by the president of the Company at the main offices. There is a
single accounting and pay-roll system at Clarksburg for the entire
Company, where checks are issued for all employees and all cost
accounting records are maintained on a system-wide basis, and where
fare receipts from both the Fairmont and Clarksburg Divisions are
counted and accounted for daily. Procurement authority for all major
of the Amalgamated 's motion to dismiss the petition was, that the Brotherhood does not
"represent a majority of the membership of the group " it wishes to represent . This con-
tention was based on the alleged fraud and misrepresentation practiced by the Brother-
hood in enrolling members at the Fairmont Division of the Company. We have fre-
quently held that the authenticity of cards or authorizations submitted for the purpose
of showing the interest of a labor organization in a proceeding before the Board is not a
subject matter for challenge by the other parties thereto since the cards are submitted
only in order to satisfy the Board 's own administrative requirements . Accordingly, we
find no merit in the first ground of the motion to dismiss . See Matter of Rubin E.
Rappaport , et al., 62 N. L R . B. 1118 , and cases therein cited.
• At the hearing the Brotherhood amended the unit sought as shown above.
• Clarksburg, Fairmont , and Parkersburg.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases is centralized in Clarksburg although local purchases are
authorized in each of the two other divisions, and Fairmont does
some purchasing of small items for Parkersburg as well. All heavy
streetcar repair work and overhauling is done in the Company's
shop at Fairmont where busses are also painted for the Clarksburg
Division, while the Company's garage at Clarksburg repairs busses
for both the Clarksburg and the Fairmont Divisions and rebuilds
motors for the latter division; however, all repair and maintenance
facilities will be located in Clarksburg and the shop in Fairmont
will be closed upon the replacement of streetcars by busses. At the
present time Clarksburg is connected by interurban streetcar lines
with Fairmont and Weston, West Virginia, each of which is approxi-
mately 25 miles from Clarksburg, and the operation of these inter-
urban streetcars is controlled by dispatchers at Clarksburg, whose
supervision on the Clarksburg-Fairmont interurban line extends as
far as Edgemont Junction on the outskirts of Fairmont.
The Company and its predecessor, the Monongahela West Penn
Public Service Company, herein called Monongahela, from which
it acquired the system on December 1, 1944, have been bargaining
with the Intervenors, Locals 812, 813, and 815 of the Amalgamated,
since 1918. Thus, from 1918 to 1941 Local 812 (Clarksburg) and
Local 813 (Fairmont) of the Amalgamated jointly negotiated and
entered into joint contracts with Monongahela. During those years,
Local 815 (Parkersburg) was under separate contract with Mononga-
hela. For 1 year, from July 1941 to July 1942, all three locals
joined in a single contract with Monongahela. In July 1942, Local
812 and Local 813 resumed their joint negotiations apart from Local
815, and entered into a separate contract from that of Local 815.
These latter contracts, after unsuccessful negotiations and submission
of the disputed issues to an arbitrator, were extended verbally to
December 1, 1944. In the course of the arbitration the three locals
of the Amalgamated asked, and the arbitrator ordered, that the
issues be considered jointly on a company-wide basis. The picture
changed again after the Company purchased the system on December
1, 1944. Thereafter, Local 812 (Clarksburg) on April 6, 1945, and
Local 815 (Parkersburg) on May 21, 1945, each signed separate con-
tracts retroactive from December 1, 1944, to July 1, 1945, and Local
813 (Fairmont) on May 25, 1945, signed an addendum extending
the July 1942 contract, originally entered into jointly with Local
812 (Clarksburg), until July 1, 1945. All agreements since 1918
for the three divisions have been closed-shop contracts.
In our opinion, the evidence points to the equal propriety either
of a single division unit as sought by the Brotherhood, or of either
a two-division unit embracing the Clarksburg and Fairmont Divi-
CITY LINES OF WEST VIRGINIA, INC. 909
sions, or a system-wide unit comprising all three of the Company's
divisions, as urged by the Amalgamated and the Company.
Favoring the establishment of a separate unit covering only the
Fairmont Division are the following facts : the most recent bargain-
ing history, as indicated above, has been on a divisional basis,7 and
there has been no previous Board approval of any appropriate unit;
there is a distance of approximately 25 miles separating the Fairmont
Division from Clarksburg and 105 miles separating Fairmont from
Parkersburg; although an interurban streetcar line connects Fair-
mont with Clarksburg, the Company does not operate either an
interurban streetcar line or motor coach route between Parkersburg
and Fairmont; seniority is on a division-wide basis although provi-
sions exist for transfer of individual seniority under certain cir-
cumstances; grievances are handled separately in each division;
although there has been some intermingling of personnel, there has
been little or no interchange of employees between Clarksburg and
Fairmont since the Company acquired the system on December 1,
1944; and aside from its interurban lines, the Company operates
local transportation systems in each of the three cities : Fairmont,
Clarksburg, and Parkersburg, which appear to be independent of
one another.
On the other hand, there are indicia of integration, set forth above,
of the Fairmont Division with the Clarksburg and Parkersburg
Division, and even more clearly apparent, between Fairmont and
Clarksburg. Thus, in the latter connect ion, the track gang of ap-
proximately 60 employees working out of Clarksburg maintains the
track and roadbed between Clarksburg and Fairmont, and half of
the operating personnel on the Clarksburg-Fairmont interurban
streetcar line comes from Fairmont, the others from Clarksburg,
there being three "runs" daily each way between Clarksburg and
Fairmont. Furthermore, wages. hours. and working conditions are
substantially the same for employees in all three divisions, and all
enjoy similar vacation privileges.
Divisions 812, 813, and 815 of the Amalgamated have acted both
jointly and severally in the course of their bargaining relations with
The Company, in its brief, advanced the argument that several factors relating to the
execution of the separate agreements in 1945 tend to minimize the effect of this separate
execution and do not offset or outweight the previous 27 years of joint bargaining for
Clarksburg and Fairmont Thus, the Company contends that the separate agreements
were all signed by the same union , and embodied identical terms , and that their separate
execution is in effect nothing more than a meaningless formality. We have treated a
somewhat similar contention in the Matter of Cobbs and Mitchell Company, 65 N. L.
R. 13 488, where the intervening union contended that "for the past two years the
two locals have attempted to keep the contracts covering the two units as uniform as
possible and that some of the contract negotiations have been conducted simultaneously."
No attempt had been made , however, to write one contract covering both operations
There we found that the separate units established by the history of collective bargain-
ing and already approved by the Board were appropriate
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company. It is,evident, therefore, that the bargaining history
does not conclusively establish the appropriateness of separate units
or a single unit, and that the groups respectively represented by
the Amalgamated may either function as separate units or as a single
unit for collective bargaining purposes. We have held that a system-
wide unit of a public utility or a transportation system is appropriate
whenever there is a labor organization in a position to represent
employees throughout the system.8 However, in view of the absence
of any question concerning representation among the employees in
the Clarksburg and Parkersburg Divisions, we shall direct an election
only among the employees in the Fairmont Division wherein a ques-
tion concerning representation has arisen. Under the circumstances,
we shall make no final unit determination at this time, but shall
be guided, in part, by the desires of the employees involved as ex-
pressed in the election directed hereinafter. In the event that the em-
ployees in the voting group described hereinafter select the Brother-
hood, they will have expressed a desire that the Fairmont Division
constitute an appropriate unit; but if the employees select the Amal-
gamated, the latter should notify the Board whether it desires to
represent them as a separate appropriate unit or desires dismissal
of the Brotherhood's petition.
Dispatchers: There remains for consideration the question whether
dispatchers should be included or excluded. The Brotherhood and
the Company would exclude them as supervisory employees. The
Amalgamated would include them in view of the fact that they
have an equity in the union's insurance coverage. The dispatchers
operate a telephone board through which they control the operation
of the streetcars on both the interurban and intracity lines. They
are in direct contact with the streetcar operators and transmit orders
and instructions to them by telephone. They can effectively recom-
mend the discharge or discipline of streetcar operators. Accordingly,
it is clear that dispatchers are supervisory employees within our
customary definitions Therefore, we shall exclude them.10
We shall direct that an election by secret ballot be held among
the employees in the following voting group who were employed
during the pay-roll period immediately preceding the date of the
Direction of Election herein, subject to the limitations and additions
set forth in the Direction : all bus drivers, streetcar operators, and
9 See Mattel` of Northern States Power Company of Wisconsin, 37 N. L. R. B. 991,
and cases therein cited ; and Matter of T. S. C. Motor Freight Lines , 61 N. L. R. B. 638,
and cases therein cited.
6 See Matter of Kerrville Bus Company , 60 N L . R. B. 1192 ; Matter of Central Freight
Lines, Incorporated , and Central Forwarding , Inc, 58 N. L. R. B . 263; and Matter of
Blue " Ribbon Lines, 43 N. L. R. B. 381.
w Furthermore, dispatchers never have been included in any of the contracts between
the Amalgamated and the Company, or its predecessor , and it is our practice not to dis-
turb the established contract unit . See Matter of Petersen d Lytle , 60 N. L. R. B. 1070.
CITY LINES OF WEST VIRGINIA, INC. 911
maintenance employees working in the Fairmont Division of the
Company, at Fairmont, West Virginia, but excluding dispatchers,
executives, and all or any other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 3, as amended,
it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with City Lines of
West Virginia, Inc., Clarksburg, West 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 Sixth
Region, acting in this matter as agent for the National Labor Re-
lations Board, and subject to Article III, Sections 10 and 11, of
said Rules and Regulations, among the employees in the voting
group described 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 themselves in person at the polls, but excluding those em-
ployees 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 Brotherhood of
Railroad Trainmen, or by Amalgamated Association of Street Elec-
tric Railway and Motor Coach Employees of America, for the pur-
poses of collective bargaining, or by neither.
CHAIRMAN HERzoG took no part in the consideration of the above
Decision and Direction of Election.