Ambridge Motor Coach Co. Appeal

• Decision Date: 06 July 1950
• Docket Number: 52
• Citation: 75 Pa. D. & C. 13
• Parties: Ambridge Motor Coach Co. Appeal
• Court: Pennsylvania Commonwealth Court

75 Pa. D. & C. 13

Ambridge Motor Coach Co. Appeal

No. 52

Common Pleas Court of Beaver County, Pennsylvania

July 6, 1950

June term, 1950.

Appeal from Pennsylvania Labor Relations Board.

Reed, Ewing & Ray, for appellant.

George L. Reed, for Pennsylvania Labor Relations Board.

OPINION

MCCREARY P. J.

We have before us for consideration a petition filed by the Ambridge Motor Coach Company to obtain a review of a final order of the Pennsylvania Labor Relations Board dismissing the exceptions to a nisi order of certification and making the order absolute.

Transport Workers of America, C. I. 0., hereinafter called the union and Ambridge Motor Coach Company, hereinafter called the company, filed a petition for a consent election with the Pennsylvania Labor Relations Board, and on October 19, 1949, the board issued an order directing the election and fixed October 26, 1949, as the date thereof. An employee named Michael Perza, whose name was not on the list of eligible voters, requested a ballot and the director of elections permitted him to mark a ballot. This ballot was segregated from the other ballots by being placed in a sealed envelope for the determination of the board as to whether the envelope should be opened and the ballot counted. On November 14, 1949, the board issued an order directing the taking of testimony limited to the issue whether Michael Perza was, on October 26, 1949, an employee of the company within the bargaining unit.

After the taking of testimony pursuant to the order of November 14, 1949, the board issued a nisi decision and order on January 5, 1950, finding facts and stating conclusions, and certifying the union as having been selected and designated by a majority of the employees in the bargaining unit as the collective bargaining representative. Exceptions were filed by the company to this order, and oral argument thereon was held before the board on February 21, 1950. The board issued its final decision and order on March 13, 1950, dismissing the exceptions to the nisi order of certification and making the order absolute and final.

On March 27, 1950, this court issued an order granting an appeal from the final order of the board.

As appears by reference to the nisi order of certification the board certified a list of 20 employees of the company as eligible to vote at the election. The name of Michael Perza did not appear on the eligible list. At the election ballots were cast by 19 eligible employees, excluding the ballot which was marked by Perza. The 19 legal ballots were canvassed and it was shown that 10 ballots were in favor of representation by the union and nine ballots were against representation.

It is apparent that the ballot of Perza, if counted, could determine the result of the election. If the envelope should be opened and the ballot found to be in favor of the union, the result would be 11 votes in favor of representation by the union, and nine votes against representation. On the other hand, if the ballot of Perza should be found to be a vote " No", there would be 10 votes in favor of the union and 10 votes against representation and the board could not certify the union as the bargaining representative because it had failed to secure a majority of the votes of the employees who had voted: National Labor Relations Board v. A. J. Tower Co., 152 F.2d 275, 279.

In the petition for consent election the company and the union had suggested in paragraph 4 that " the unit appropriate for the purpose of collective bargaining... is a subdivision of the bus service unit and comprises steady employees employed in the Ambridge Terminal Garage exclusive of clerical employees" . In paragraph 8 it is averred that " attached hereto and made a part hereof is a list of employees of the employer representing the nearest payroll to October 15, 1949, which contains the names of the employees of the employer in an appropriate unit consisting of steady employees of the bus terminal exclusive of clerical employees having the right to hire or discharge or otherwise affect the status of other employees" .

Obviously, if Perza was on October 15, 1949, the payroll date and the date of the election, a rank and file steady employee of the bus terminal, the envelope should be opened and the ballot counted. On the other hand, if Perza was on those dates a supervisory employee, the board, in the exercise of a proper administrative discretion, refused to open the envelope and count the ballot.

In its final decision and order the board said:

" We are convinced that the evidence establishes that Mr. Perza is a supervisory employee within our customary definition of that term. Accordingly, he was properly excluded from voting at the election which was conducted on October 26, 1949. "

The board properly found from the evidence that Perza was a " supervisory employee" within the meaning of the Pennsylvania Labor Relations Act. Paraniuk, the manager, says that he became acting manager about September 1, 1949, and before that he had been the " dispatcher" . He admits that part of Perza's duties were " dispatching", and that the present status of Perza was the same as his own had been before he became acting manager.

Perza says that he is the " dispatcher" and that his duties are to see that drivers make their scheduled runs. In addition, he reschedules runs if necessary.

E. F. Kimmel, who is an employee of Management Controls, Inc., a corporation organized for the purpose of furnishing certain supervisory services to the company and in addition to the Beaver Valley Motor Coach, testified as follows:

" Q. When Mr. Cole was moved to Elmira under those circumstances was Mr. Paraniuk's job changed at Ambridge Motor Coach Company?

" A. Mr. Paraniuk had been a dispatcher at the Ambridge Motor Coach Company. Mr. Paraniuk was advanced to acting manager at the time for the same period that Mr. Cole was sent to Elmira.

" Q. When that change was made, was any change made in Mike Perza's duties?

" A. Mike Perza was advanced from his duties as a driver to the former duties of Paraniuk's in the office, except that he was not placed on salary. He is a rate employee....

" Q. And, is it the understanding of everybody that if Mr. Cole remains and is left in Elmira, you still may have another manager at Ambridge besides Paraniuk?

" A. Yes. The thing is all a temporary basis entirely there. If Paraniuk doesn't work at Ambridge, even if Cole may remain in Elmira, he understands that he may be replaced as manager at Ambridge.

" Q. And, if he doesn't become manager, will he revert to dispatcher?

" A. Yes.

" Q. And, if he does, will there be any work for Perza to perform?

" A. No, he will go back to his former status as a driver.

" Q. No one knows presently what Perza's duties will be in the next six months?

" A. That is correct."

Hence it is obvious that since September 1949 Perza has been the " dispatcher" of the company and he will be so employed for an indefinite period.

Authorities need not be multiplied which prove that a " dispatcher" is a supervisory employee who is properly included in a unit composed exclusively of supervisory employees and is improperly included in a unit of rank and file employees. In the case of In re Harmony Short Line Motor Transportation Company, 42 N. L. R. B. 757, 759 (1942), it was ruled that dispatchers whose employment is similar to that of Perza are supervisory employees.

Directly in point is Supervisory Employees Union v. Pittsburgh Rys. Co., 93 Pitts. L. J. 47. In that case the issue before the Court of Common Pleas of Allegheny County was whether supervisory employees, including the dispatchers, constitute a unit appropriate for collective bargaining. All rank and file employees had been excluded from the unit. It was said by Judge Egan (p. 48):

" It is admitted that Division 1327 is a labor organization within the meaning of the act, but it does not follow that it should be certified as the collective bargaining representative of the members who are supervisory employees of the Pittsburgh Railways Company. That is a matter for the Board's determination. Petitioner contends that the board was without authority to find that Division 1327 is not a proper bargaining unit for the employees which it represents.

" The Board's decision in this case cannot be overthrown unless it has acted arbitrarily and capriciously, and under the record we cannot find that it did so. These members are instructors, district route foremen dispatchers and traffic dispatchers, who exercise a certain amount of supervision over other employees."

Under the Pennsylvania Labor Relations Act of June 1, 1937, P. L. 1168, as amended by the Act of June 9, 1939, P. L. 293, the findings of the board as to the facts, supported by substantial and legally credible evidence, Relations Board, 364 Pa. 541. See, also, Chapin v. Pennsylvania Labor Relations Board, 356 Pa. 577.

In Duquesne Light Company Case, 345 Pa. 458, the Supreme Court ruled that under the Pennsylvania Labor Relations Act the duty of determining the appropriate bargaining unit for employees is placed upon the Pennsylvania Labor Relations Board, and Mr. are conclusive on appeal: Lester v. Pennsylvania Labor Justice Parker said (p. 462):

" ... The real question involved is not as contended for by the appellant, one of sufficiency of evidence, but rather whether the order made was so unreasonable, arbitrary or illegal that it cannot be sustained."

Tested by this rule, it cannot be said that error was committed by the board in refusing to accept and count the ballot of Perza. This is one of the issues contemplated by Learned Hand, J., in the decision of the United States Court of Appeals for the Second...