New York City Omnibus Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1953

104 N.L.R.B. 579 (N.L.R.B. 1953)

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.