Estate of Frank Newfield, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1941

34 N.L.R.B. 77 (N.L.R.B. 1941)

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.