Estate of Frank Newfield, Inc.

In the Matter of ESTATE OF FRANK NEWFIELD, INC. and TRANSPORT WORKERS UNION OF AMERICA LOCAL No. 206 , AFFILIATED WITH THE C. I. O. In the Matter of ESTATE OF FRANK NEWFIELD, INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN AND HELPERS. OF NORTH AMERICA, AFFILIATED WITH THE A. F. OF L. In the Matter of ESTATE OF FRANK NEWFIELD, INC. and TRANSPORT WORKERS UNION OF AMERICA LocAL No. 206, AFFILIATED WITH THE C. I. O. AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF NORTH AMERCA, AFFILIATED WITH THE A. F. OF L. Cases Nos. R-2627, R-2628, and BE-23.-Decided August 9,1941 Jurisdiction : freight receiving, hauling, storing, and delivering industry. Investigation and Certification of Representatives : existence of question: re- fusal to recognize either labor organization until an election is conducted by the Board ; strikers and those who have been hired since strike eligible to vote; election necessary. Unit Appropriate for Collective Bargaining : all drivers and helpers employed by the Company at New Orleans, Louisiana, excluding clerks, executives, and office workers ; agreement as to. Mr. E. B. Charbonnet, of New Orleans, -La., for the Company. Mr. H. L. Midlo, of New Orleans, La., for the T. W. U. Mr. Bentley G. Byrnes, of New Orleans, La., for the Teamsters. Mr. Ralph S. Clifford, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 2, 1941, Transport Workers Union of America, Local No. 206, herein called the T. W. U., filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) a petition alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Estate of Frank Newfield, Inc., New Orleans, Louisiana, herein called the Company, and requesting an investi- 34 N. L. R. B., No. 9. 77 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 3, 1941, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of North America, Local 270, A. F. 'of L., herein called the Teamsters, and the Company, each filed with the Regional Director 'for the Fifteenth Region, New Orleans, Louisiana, a petition alleging that a question affecting commerce had arisen concerning representation of employees of the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the Act. On June 5, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Sections 3 and 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 2, as amended, consolidated the cases, ordered an investigation, and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June 6, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the T. W. U., and the Teamsters. Pursuant to notice, a hearing was held on June 11, 1941, at New Orleans, Louisiana, before C. Paul Barker, the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany, the T. W. U., and the teamsters were each represented and participated in the hearing. At the hearing a motion made by the T. W. U. to suspend the hearing, because of pending charges of unfair labor practices which had been filed by the T. W. U. on June 11, 1941, before the hearing opened, was denied.,' A motion by the T. W. U. to intervene in this proceeding for the purpose of proving the unfair labor practice charges was denied. A request made by the T. W. U. to withdraw its petition was denied. During the course of the hear- ing the Trial Examiner made rulings on other motions and on objec- tions to the admission of evidence. The Board has reviewed all the rulings made by the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to leave granted by the Board, briefs were filed by the Teamsters and the T. W. U. on June 18 and 19, 1941, respectively, which the Board has considered. Upon the entire record in the case, the Board makes the following : I On June 19, 1941, the Regional Director refused to issue a complaint on the charges of unfair labor practices filed by the T. W. U. On July 8, 1941 , the T. W. U. filed an appeal, from the Regional Director's refusal to issue a complaint , with the Board. On July 19, 1941, the Board affirmed the Regional Director 's refusal to issue a complaint' or the charges of unfair labor practices filed by the T. W. U. ESTATE OF FRANK NEWFIELD, INC. FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 79 Estate of Frank Newfield, Inc., a Louisiana corporation, having its business offices in New Orleans, Louisiana, is engaged in receiving, hauling, storing, and delivering freight and merchandise under con- tract from ship and railroad terminals to consignees in the city of New Orleans and vice versa. In connection with its business,. the Company owns 20 trucks, 18 of which are in operation and are de- scribed as 5' stake-bodied trucks, 3 package trucks, and 10 truck trailers. The average annual gross revenue of the Company is approximately $50,000. Approximately 75 per cent of the total business done annually by the Company is composed of hauling freight which is in interstate commerce. The Company has pending an application with the Interstate Com- merce Commission for a license to operate. The Company admits it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of North America, Local 240, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. Transport Workers Union of America, Local No. 206, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION Both labor organizations, the Teamsters, and the T. W. U. presented their claims of representation to the Company, and the Company refused to recognize either labor organization until an election is conducted by the Board. From a report prepared by the Regional Director and introduced in evidence it appears that the Teamsters represent a substantial number of the employees of the Company in the unit hereinafter found to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company. 2 The Regional Director reported that the Teamsters submitted 17 application cards all dated June 5, 1941, with apparently genuine, original signatures of persons whose names appear on the May 29, 1941 pay roll of the Company. He further reported that the T. W. U. has refused upon request to submit evidence in support of its claim of representation. The average pay roll of the Company includes approximately 33 employees. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing, the Teamsters, the T. W. U., and the Company agreed, and we find, that all drivers and helpers employed by the Company, excluding clerks, executives, and office workers, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. TILE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representation of employees of the Company can best be resolved by an election by secret ballot. At the hearing the Company asked that the pay roll for the period ending June 17, 1941, be used to determine eligibility to vote in the election. The Teamsters contend that those employees listed on the pay roll as of the week ending June 15, 1941, should be allowed to vote. The T. W. U. contends that the dates of eligibility requested by the Company and the Teamsters should not be used, because additional men have been hired to replace employees who are on strike.3 On June 2, 1941, a strike of the employees of the Company was called by the T. W. U. As a result of the strike 11 employees did not report to work June 2, 1941. Three other employees reported to work on June 2, 1941, and then left of their own accord. On June 9, 1941, one of .these three employees returned to work. The strike was still current at the time of the hearing. The strikers have, therefore, con- tinued to be employees of the Company, within the meaning of Sec- tion 2 (3) of the Act. The strikers, being employees within the mean- ing of the Act, are entitled to vote in the election. 3 The T. W. U. contends further that evidence excluded at the hearing would establish the fact that a fair election could not be had unless only employees listed on the pay rolls prior to February 28, 1941, be allowed to vote. We find no merit in this contention. See footnote 1, supra. ESTATE OF FRANK NEWFIELD, INC. 81 Three truck drivers have been hired since the strike was called to replace strikers. These three persons are employees of the Company and as such are entitled to participate in the selection of the bargaining representative of such employees.4 We shall direct that all employees of the Company in the appro- priate unit who were employed during the pay-roll period imme- diately preceding this Direction of Election, subject to such limitations and additions as are set forth in the Direction, shall be eligible to vote. While it is not clear from the record whether the T. W. U. desires to participate in the election, we shall place its name on the ballot. However, we shall permit it to withdraw by filing with the Regional Director within five (5) days from the date of the Direction a request that its name not be placed on the ballot. Upon such filing the Regional Director is authorized to withdraw its name from the ballot. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Estate of Frank Newfield , Inc., New Orleans, Louisiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All drivers and helpers employed by the Company, at New Orleans, Louisiana, excluding clerks, executives, and office workers, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Estate of Frank Newfield, Inc., New Orleans, Louisiana, an election by secret ballot shall be conducted as soon 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 Fif- teenth Region, acting in this matter as agent for the National Labor 4 Matter of The Rudolph Wurlitz6r Company and Piano, Organ and Musical Instruments Workers' Union, Local No. 1190, 32 N. L R. B. 163. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all drivers and helpers employed by the Com- pany at New Orleans, Louisiana, who were employed during the pay- roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, or in the active military service or training of the United States, or temporarily laid off, but excluding clerks, execu- tives, and office workers, and employees who have since quit or been discharged for cause, to determine whether they desire to be repre- sented by Transport Workers Union of America, Local No. 206, affiliated with the Congress of Industrial Organizations, or by Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of North America, Local 270, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting in part : I dissent from the ruling of the majority that persons hired to replace striking employees may participate in the election to be con- ducted in this case for the reasons set forth in my dissenting opinion in the Wurlitzer case.5 5 Matter of The Rudolph Wurlitzer Company and Piano, Organ and Musical Instruments Workers' Union Local No 1190, 32 N. L. R B. 163 See also Matter of A Sartorius & Co, Inc., and United Mine Workers of Amsrica, District 50, Local 12090, 10 N. L. R. B. 493, and Matter of The Eastern Box Company and Baltimore Paper Box and Miscellaneous Work- ers' Union No 481, 30 N. L R. B. 673.