Brenizer Trucking Co.

National Labor Relations Board - Board Decisions

Oct 6, 1942

44 N.L.R.B. 810 (N.L.R.B. 1942)

In the Matter of BRENIZER TRUOKING COMPANY, DONALDSON PAVING
COMPANY, INC., MCGUIRE AND ROLFE, UNION PAVING COMPANY, C. S.
FowLER ,, WILMOTH PAVING COMPANY, CARSON AND GRUMAN, E. B.
DONALDSON AND BROTHERS , WARREN F. BRENIZER & COMPANY an4
UNITED PAVING AND BUILDING SUPPLY WORKERS LOCAL INDUSTRIAL
UNION No: 1221, C. I. O.
Case No. R-4189.-Decided October 6, 1942
Jurisdiction : street paving industry in District of Columbia.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; contract held no bar when -because
of an ^ elleged unauthorized change of affiliation of contracting union, there
existed an unresolved doubt with respect to the identity of the Labor or-
ganization which employees desired as their representative ; election necessary.
Unit Appropriate for Collective Bargaining : all employees of the Companies
'employed in, the District of Columbia and the counties immediately adjacent
thereto, except office employees , engineers , superintendents , assistant super-
intendents , foremen, and watchmen ; stipulation as to.
Mr. Albert P. Wheatley, for the Board.
Mr. John J. Carmody, of Washington, D. C., for the Employers.
Mr. Eugene Cotton, of Washington, D. C., for the C. I. O.
Mr. Henry Kaiser, of Washington, D. C., for the A. F. of L.
Mr. Yelverton Cowherd, of Washington, D. C., for District 50.
Mr. Mozart G. Ratner, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Paving and Building Supply
Workers, Local Industrial Union No. 1221, C. I. 0., herein called the
C. I. 0., alleging that a question affecting commerce had arisen con-
cerning the representation of the employees of Brenizer Trucking
Company, Donaldson Paving Company, Inc., McGuire and Rolfe,
Union Paving Company,' C. S. Fowler,' Wilmoth Paving Com-
1 The Trial Examiner granted a motion to dismiss the above-named employers on the
ground that they were no longer doing business in the District of Columbia.
44 N. L. R. B., No. 159.
810
BRENIZER TRUCKING COMPANY 811
pany, Carson and Gruman, E. B. Donaldson and Brothers, and Warren
F. Brenizer & Company, herein called the Employers, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Will Maslow, Trial Examiner. Said hearing was held
at Washington, D. C., on August 20, 1942. The' Employers, the
C. I. 0., and A. F. of L. Paving Council for the District of Columbia,
herein called the A. F. of L., appeared, participated, and were afforded
full opportunity to be heard, to examine and cross-examine wit-'
nesses, and to introduce evidence bearing on the issues. United Con-
struction Workers Local Union No. 30, Division of District 50, United
Mine Workers of America, herein called District 50, filed a special
appearance at the hearing for the purpose of presenting a motion to
dismiss, and upon the Trial Examiner's reservation of the motion for
the Board, District 50 withdrew completely from the hearing. For
the reasons hereinafter stated, the motion to dismiss is hereby denied.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. After the hearing the
'parties filed briefs which the Board has, considered. On September
15, 1942, oral argument was held before the Board at which all parties
participated.
Upon the entire record in the case the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
The Employers involved in this proceeding are engaged in the
business of paving streets in the metropolitan area of the District of
Columbia. The parties stipulated that a substantial amount of the
materials used by the Employers is secured from States,of the United
States other than the District of . Columbia and,' are -delivered to the
Employers within the District of Columbia. The Employers concede
that they are engaged in commerce within the meaning of the National
Labor Relations Act:
II. THE ORGANIZATIONS INVOLVED
United Paving and Building Supply Workers, Local Industrial
Union No. 1221, is a labor organization affiliated with the Congress
of Industrial Organizations, admitting to membership employees of
the Employers.
American Federation of Labor Paving Council for the District of
Columbia is a labor organization admitting to membership employees
of the Employers.
Local Union No. 30, United' Construction Workers Division, Dis-
trict 50, is a labor organization affiliated with the United Mine Work-
ers of America, admitting to membership employees of the Employers.
812 DECISIONS 'OF 'NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On August. 1, 1939, United Construction Workers Organizing Com-
mittee, herein called the UCWOC, was appointed by the president of
the C. I. O. The Committee consisted of five members, four of whom
delegated their administrative functions to Mr. A. D. Lewis, the fifth
lnember. On November 28, 1940, the UCWOC was certified after* a
consent election as exclusive representative of the employees in the
employer unit identical with tliat here involved. On November 13,
1940, the UCWOC entered into -a contract with the Employers which
expires by its terms on November 30, 1942.2 On June 11, 1942; the
C. I. O. dissolved the UCWOC and on June 19, 1942, the UCWOC's
charter was returned to the C. I. O.
On June 23, 1942, the employees in the employer unit here involved
net to discuss affiliation. It was testified that representatives of
District 50 were present at this meeting and urged affiliation with
the United' Mine Workers. However, a resolution was unanimously
passed by the employees present authorizing affiliation directly with
the C. ,I. O. 'Thereupon, a charter was requested of the C. I. O. and
on June 24, 1942 a charter was granted to the United Paving and
Building Supply Workers, Local Industrial Union No. 1221 by the
C. I. O. At a meeting on June 30, at which 125 employees were
present, this charter was accepted, and all officers of the, former
UCWOC local were elected officers of Local No. 1221. Local No.
1221 has all records of the former local of the UCWOC except the
financial records allegedly in the possession of Mr. A. D. Lewis. Local
No. 1221 alleges that the dueswhich rightfully belong to it as successor
to the UCWOC local are .being checked off under the contract and are
being paid to Mr. A., D. Lewis.
District 50 and the Employers contend that the contract is a bar to
a present determination of representatives. The C. I. 0. and the
A. F. of L. contend it is not a bar. As a general rule the Board will
not proceed with an investigation as to representation where there
exists a valid contract, having a reasonable period to, run, with an
active liibor organization of clearly established identity. Where,
however, a labor organization seeks to effect a change in its designa-
tion, or organization, or affiliation, the Board, as>a matter, of policy,
issues a rule to show cause why such change should not be permitted.
Upon'cause being shown, hearings are held so that the dispute may be
resolved. District 50 contends that Mr. A. D. Lewis, exercising the
functions delegated to him by the other members of the UCWOC, was
2 In. support of its motion to dismiss , District 50 alleges that on May 29, 1942, the
UCWOC requested affiliation with the United Mine Workers , and that such affiliation was
granted on June 4, 1942 . It was further alleged that on June 9, 1942 ,-the UCWOC local
here involved approved affiliation with District 50, United Mine Workers of America. The
parties agree that the UCWOC is no longer in existence.
BRENIZER TRUCKING 'COMPANY . 813
authorized to and did affiliate that organization with'District 50. The
C. I. 0. contends that Mr. Lewis' act was beyond the -scope of his
authority and that, consequently, when the •UCWOC was dissolved,
the employees were free to adopt any affiliation they desired. Dis-
trict 50 bases its claim to successorship to the defunct UCWOC upon
the action of the local on June 9, 1942, approving affiliation with
District 50., The C. I. 0. bases its claim upon the action of the local
on June 30, 1942; in which the C. I: 0. charter was accepted'. Resolu-
tion of these questions, involving as they do a construction of the
constitutions of the C. I. 0. and of the United Mine Workers and of
the charters granted to the UCWOC local, is'not the function of the
Board. But these conflicting claims do establish that there is an
unresolved doubt with respect to the identity of the labor organization
which the employees desire to represent them.3 Under such circum-
stances, we hold that the contract does not constitute a bar to a present
determination of the'employees' desires and we shall resolve the dispute
which has arisen by an election by secret ballot. Furthermore, we
have frequently held that a contract which is about to expire will not '
'beat' ,a_ determination -of representatives. Since the contract bet*een
the UCWOC and the Company, in this case will expire on November
30, 1942, it would not in any event constitute a bar to a determination
of representatives at this time.
The A. F. of L. and the C. I. 0. stipulated that each represents a
substantial number of employees in the unit hereinafter found
appropriate.4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employers,'-within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the National Labor Re-
lations Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with a stipulation of the Employers, the
C. I. 0., and the A. F. of L. that all employees of the•Empldyers em-
ployed in the District of Columbia and the counties immediately
adjacent thereto, except office employees, engineers, superintendents,
3Matter of Hazleton Brick Company and Uusted Bieck and Block Woikeis. L I. Union
No 1227, C . 1 0., 44 N. L . R B 222 _
A statement of the Regional Dnectoi indicates that the A F of L - presented 316 appli-
cation cards of which 134 were dated between October 1941 and August 1942, and 182
were dated in 1939 The C I 0 submitted 161 designated cards, all except one of which
were dated in June or July of 1942 All cards bore apparently genuine original signatures.
The Regional Ili ector made no check to determine whether these signatures appear on: the
Emplot ei s' pay i oil At the hearing the C I 0 submitted additional cards which the Trial
Examiner tound to bear apparently genuine original signatures , making a total of 277 cards
presented by the C I 0 ,
ihstriet 50 submitted no evidence that it presently represents ' airy of the employees in
the appropriate unit but relies upon'its claini'as'suceessor 6 the UCR'OC.
0
814 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
assistant superintendents, foremen, • and watchmen, constitute. a single
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.'
V. THE DETERMINATION OF REPRESENTATIVES
The C. I. 0 and the A. F. of L. contend that anyone on the pay roll
of the Employers between July 15 and the, first pay-roll period in Sep-
tember should be permitted to vote. The Employers suggest that the
Board follow its usual practice. We find no reason for departing
therefrom. We shall therefore direct that the question concerning
representation which has arisen be resolved by an election by secret
ballot among the employees in the appropriate unit who were'employed
during the pay-roll period immediately preceding the date of this
Direction of Election, subject to the limitations and additions set forth
in the Direction e
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 Relations
Act, 49 Stat. 449, 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 to ascertain representa-
tives for the purposes of collective bargaining with Brenizer Trucking
Company, Donaldson Paving Company, Inc., McGuire and Rolfe,
Wilmoth Paving Company, Carson and Grumari, E. B. Donaldson
and Brothers, and Warren F. Brenizer & Company, Washington, D. C.,
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 Fifth
Region, acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regula-
tions, among the employees of the Employers in the unit found to be
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, including
any such employees who did not work during said payroll period be-
cause they were ill or on,vacation or in the active military service or
training of the United States, or temporarily laid off, but excluding
any who have since quit or been discharged for cause, to determine
whether they desire to be represented by United Paving and Building
5 This is unit covered by the contract.
6 We shall permit District 50 to appear on the ballot.
L
0
BRENIZER TRUCKING COMPANY 815
Supply Workers Local Industrial Union No. 1221, C. I. 0., by A. F.
of L. Paving Council for the District of Columbia, or by Local 30, of
the United Construction Workers Division of District 50 of the United
Mine Workers of America, for the purposes of collective bargaining,
or by none of these organizations. -
MR. WM. M. LEISERSON took no part in the consideration of the
above Decision and Direction of Election.