City Lines Of West Virginia, Inc. And Brotherhood Of Railroad Trainmen, 904 (1946)

In the Matter of CITY LINES OF WEST VIRGINIA, INC. and BROTHERHOOD OF RAILROAD TRAINMEN Case No. 6-R-1269.-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 Clarksburg, 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 THE 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 Association of Street, Electric Railway and Motor Coach Employees of America, herein called the Amalgamated,1 appeared and participated. 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.

904 905 Trial Examiner reserved 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 afore-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.

2. THE ORGANIZATIONS INVOLVED Brotherhood of Railroad Trainmen is a labor organization admitting 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 affiliated with the American Federation of Labor, admitting to membership employees of the Company.

3. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Brotherhood 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 Amalgamated 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 2Although dated May 30, 1945, the notice was actually received by the Company on May 26, 1945.

   3 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.

   'The Field Examiner reported that the Brotherhood submitted 59 personal authorization 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...