Houston Cartage Co.

In the Matter of HOUSTON CARTAGE COMPANY, EMPLOYER a'nd TEXAS FEDERATION OF INDEPENDENT UNIONS (AFFILIATED WITH C. U. A.), PETITIONER Case No. 16-R-1810.-Decided October 2/, 1046 Messrs. Edward S. Boyles and M. U. S. Kjorlaug, both of Houston, Tex., for the Employer. Messrs. David Butler and G. G. Aldredge, Jr., both of Houston, Tex., for the Petitioner. Combs cfi Dixie, by Mr. Chris Dixie and Messrs. Murray W. Miller and I. A. Jester, all of Houston, Tex., for the Intervenor. Mr. R. S. Craig, of Houston, Tex., for the Association. 2I r. Warren H. Leland, of coulisel,to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Houston, Texas, on August 1, 1946, before Glenn L. Moller, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Houston Cartage Company, a Texas corporation with its office and place of business in Houston, Texas, maintains a pick up and delivery service for the Texas and New Orleans Railroad and for the Southern Pacific Transportation Company. The Employer picks up less-than- carload lots of freight from" the freight depots of these two carriers and delivers the freight to consignees in Houston. The Employer also picks up less-than-carload lots of freight from various consignees in,Houston and delivers them to the depots of the two carriers. Each month the Employer handles in excess of 500,000 pounds of freight, 71 N. L. R. B., No. 64. 424 HOUSTON CARTAGE COMPANY 425 which is either received from, or transported to, points outside the State of Texas. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED 1 The Petitioner is a labor organization affiliated with the Confeder- ated Unions of America, claiming to represent employees of the Employer'2 International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 968, herein called the Intervenor, is a labor organization affiliated with the American Federation of La- bor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION On May 14, 1946, the Intervenor requested recognition from the Em- ployer as the bargaining agent for certain of the Employer's em- ployees. On the morning of May 25, 1946, the Employer received a letter from the Petitioner in which the Petitioner also demanded rec- ognition as exclusive bargaining representative of certain employees of the Employer. In the afternoon of May 25,1946, the Employer, by telegram, agreed to recognize the Intervenor. Six days later the Peti- tioner filed the petition in this proceeding. Negotiations between the Employer and the Intervenor culminated in a collective agreement which was signed on July 15, 1946, and which provided that it was to continue in effect for 3 months, and from year to year thereafter in the absence of written notice by either party to the other, 30 days prior to October 15th of any year commencing with 1946, of a desire to "change or modify." The Intervenor contends that the telegram of May 25, 1946, in which the Employer recognized it as collective bargaining agent, and the contract dated July 15, 1946, preclude a current determination of rep- resentatives. We do not agree. It is well established that a contract merely providing for exclusive recognition and containing no substan- tive provisions, is insufficient to bar an election 3 And it is equally well settled that a full collective agreement cannot bar a present de- termination of representatives when a rival claim to representation is 'Although International Association of Motorized Common Carrier Truck Line Em- ployees, Inc , intervened at the outset- of the,hearing, it subsequently withdrew from the proceeding, specifically disclaiming any interest in representing the employees here concerned ' Evidence adduced at the hearing discloses that the Petitioner is c?early a labor organi- zation within the meaning of the Act 4 See Matter of Standard Oil Company of Indiana, 56 N. L. R. B. 1101 ; and Matter of Corn P,oducts Refining Company, 52 N L. R. B. 1324 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advanced before its execution, and a petition is filed with the Board within 10 days after the claim is made.' Thus, neither the telegram of May 25, 1946, nor the contract dated July 15, 1946, can serve to bar this proceeding., 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. 1V. THE APPROPRIATE UNIT In accordance with the agreement of the parties, we find that all drivers and driver helpers employed by the Employer, excluding clerical employees, the watchman, and all 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 ascertain representatives for the purposes of collective bargaining with Houston Cartage Company; Houston, Texas, 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 Sixteenth Region, acting in this matter as agent for the Na- tional Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and RegulatiQns- 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 ]aid off, and including employees in the armed forces of the United States who present themselves 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 Texas Federation of Independent Union (affiliated with C. U. A.), or by International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 968, A. F. L., for the purposes of collective bargaining, or by neither. Cf. Matter of General Electric X-Ray Corporation, 67 N L R B 997 As a matter . of fact, here the petition itself,was filed before the contract dated July 15, 1946, was executed This alone prevents the contract from operating as a bar . See Mat- ter of Ste Genevieve Lime & Quarry Company, 70 N. L. it. B 1259; and Matter of Fifth Ave Shoe Corporation, 69 N. L. it. B. 400.