Yellow Transit Co.

In the Matter Of YELLOW TRANSIT COMPANY, EMPLOYER and INTER- NATIONAL ASSOCIATION OF MACHINISTS , LODGE 850 , PETITIONER Case No. 16 R-1975.-Deeided February 5, 1947 Mr. Theodore E. Dean, of Oklahoma City, Okla., for the Employer. Mr. Henry J. 11Iurphy, of Fort Worth, Tex., and Mr. Joe E. Wheeler, of Oklahoma City, Okla., for the Petitioner. Moore & Moore , by Mr. A. J. Moore, of Oklahoma City, Okla., for the Intervenor. Mr. Henry W. de Koznniwn, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Oklahoma City, Oklahoma, on November 15, 1946, before V. Lee McMahon, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial 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 Yellow Transit Company is an Oklahoma corporation engaged in the transportation of commodities by common carrier motor vehicles into and through the States of Oklahoma, Texas, Kansas, Illinois, Indiana, Kentucky, and Missouri. The Employer's shop in Oklahoma City, Oklahoma, is solely involved in this proceeding. Approxi- mately 80 percent of the commodities transported by the Employer are delivered from points in one State to points in another State. The Employer operates pursuant to a certificate issued by the Inter- state Commerce Commission. The Employer operates more than 400 vehicles, which annually travel more than 7,000,000 miles. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. 72N L R. B , No 75. 401 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization, claiming to represent em- ployees of the Employer. General Drivers, Chauffeurs and Helpers, Local Union No. 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Intervenor, is a labor organ- ization affiliated with the American Federation of Laboi, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION On November 3, 1945, the Employer and the Intervenor executed a contract covering employees in the Employer's Oklahoma City, Okla- homa, shop, which provided that it was to remain in effect until .September 22, 1946, and from year to year thereafter in the absence of notice of a desire to change or modify given by either party 30 days .before September 22, 1946, or any subsequent anniversary date. On August 21, 1946, the Intervenor wrote the Employer that it desired to "open" the 1945 agreement and enclosed a copy of its proposed new contract. On August 23, 1946, the Employer acknowledged receipt of the Intervenor's proposal. On September 12, 1946, the Employer and the Intervenor executed a new agreement which took effect on September 23, 1946, and which provided that it was to run until September 22, 1947. On August 21, 1946, the Petitioner wrote the Employer that it repre- sented a majority of the Employer's employees and requested recog- nition as their collective bargaining agent. On August 23, 1946, the Employer acknowledged receipt of the Petitioner's letter and refused .to recognize the Petitioner as the exclusive bargaining representative ,of employees of the Employer until the Petitioner had been certified by -the Board in an appropriate unit. On August 30, 1946, the Petitioner filed the petition in this case.' Since the petition in this proceeding was filed prior to the execution ,of the 1946 agreement between the Employer and the Intervenor, we find, contrary to the Intervenor's contention, that the 1946 agreement is not a bar to a current determination of representatives.' Nor do we find merit in the Intervenor's contention that, since em- ployees of the Employer voted to ratify the 1946 agreement on Sep- 1 And the 1945 agreement cannot serve to operate as a bar, since the Petitioner 's claim was received by the Employer prior to this agreement's automatic renewal date (see flatter of C,addoek -Terry Shoe Corp, 55 N. L. R. B 1406), and the petition was filed within 10 days of the claim ( see Matter of General Electric X-Ray Corporation, 67 N. L R B 997 ). Moreover, automatic renewal of the 1945 agreement was effectively forestalled .by the Intervenor's timely letter of August 21, 1946. YELLOW TRANSIT COMPANY 403 tember 10, 1946, they thereby indicated their intention to be repre- sented by the Intervenor, that the Petitioner no longer has any interest in them, and that the petition should therefore be dismissed. Once a timely and otherwise proper petition has been filed and conflicting claims have been advanced, the true desire of the employees as to rep- resentation can best be resolved by means of an election by secret ballot conducted by the Board 2 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. IV. THE APPROPRIATE UNIT In accordance with the stipulation of the parties, we find that all maintenance and repair employees of the Employer's Oklahoma City, Oklahoma, shop, including working foremen,s machinists, mechanics, bodymen, welders, electricians, painters, tiremen, grease and wash men, apprentices and helpers, but excluding office and clerical employ- ees, 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 mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot, subject to the limitations and additions set forth in the Direction. Although the Petitioner contends that the Intervenor has not made a showing of interest, in view of the Intervenor's contractual relations with the Employer, we shall place it on the ballot .4 2 In any case, it is not clear how many employees of the Employer voted to ratify the 1946 agreement The ratification meeting included employees of other companies with whom the Intervenor had negotiated substantially identical contracts, and all the em- ployees voted in one group. There is no accurate evidence as to the number of employees of the Employer who attended the meeting, and no evidence whatsoever as to how they voted. 3 It does not appear that working foremen are supervisory employees within the meaning of our customary definition. * The Petitioner contends that the 1945 and 1946 agreements executed by the Employer and the Intervenor are illegal. But since this is a representation proceeding and not an, unfair labor practice case, this contention is not properly before us The Petitioner's demand that dues collected from employees of the Employer under the 1945 and 1946 agreements be refunded is also improperly made in this representation proceeding. Nor do we find merit in the Petitioner's contention that the Intervenor's motion to intervene was defective because it was dictated orally into the record at the hearing. See Section, 203.25, National Labor Relations Board Rules and Regulations-Series 4. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Yellow Transit Company, Oklahoma City, Oklahoma, an election by secret ballot shall be con- ducted 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 National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regu- lations-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 employ- ees 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 per- son 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 International Association of Machinists, Lodge 850, or by General Drivers, Chauffeurs and Helpers, Local Union No. 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL; for the purposes of collective bar- gaining, or by neither.