Port Houston Iron Works, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1953

103 N.L.R.B. 1489 (N.L.R.B. 1953)

PORT HOUSTON IRON WORKS, INC. 1489
CONCLUSIONS OF LAW
1. Local 259, United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Nat
Glick, Richard Levinson, Raoul Will, Vincent Bowen, and Robert Kiefer, thereby
discouraging membership in a labor organization, Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Supplemental Intermediate Report
On April 9, 1952, I Issued my Intermediate Report in the above-entitled
proceeding, finding that Respondent had committed unfair labor practices in
violation of Section 8 (a) (1) and 8 (a) (3) of the Act, and making certain
recommendations with respect thereto. The Intermediate Report recited the fact
that at the hearing, upon Respondent's motion, I dismissed the 8 (a) (5) allega-
tions of the complaint which asserted that Respondent had failed to bargain
collectively with the Union.
It appears, however, that upon granting this motion I did not state explicitly
my reasons therefor, although they seem to me to be implicit in the record.
Accordingly, the Board on November 20, 1952, issued an order referring the
proceeding to me and directing me to issue a Supplemental Intermediate Report
stating the basis for the dismissal of the 8 (a) (5) allegation of the complaint.
My reasons were as follows :
First: The Union made no demand upon Respondent to bargain with it as
representative of its salesmen. In reaching this conclusion I credited the testi-
mony of M. A. Edelman, attorney for Respondent, and did not credit that of
Samuel Meyers, the Union's representative.
Second: Edelman had no authority to represent Respondent insofar as its
salesmen were concerned, nor did Edelman hold himself out as having such
authority. In arriving at this conclusion I credited Edelman's testimony.
PORT HOUSTON IRON WORKS, INC. and INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS OF AMER-
ICA, AFL, LocAL 968, PETITIONER . Case No. 39-RC438. April
2,1953
Supplemental Decision and Certification of Representatives
On December 24, 1952, the Board issued a Decision and Direction
of Election' in the above-entitled case, in which it found appropriate
a Not listed in the published volumes of Decisions and Orders of the National Labor
Relations Board.
103 NLRB No. 132.
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit of all truckdrivers at the Employer's Houston, Texas, ship-
repair establishment and machine shop, including the utility man, but
excluding all other employees and supervisors as defined in the Act.
On January 12, 1953, an election was held in the above-described
unit, and a tally of ballots was furnished to the parties. The tally
of ballots shows that, of 5 eligible voters, 2 voted for the Petitioner,
and 1 voted against the Petitioner. The ballots of 4 voters were
challenged.
On January 16, 1953, the Employer filed objections to the conduct
of the election, alleging (a) that 3 of the 4 challenged voters were
eligible employees and should have been allowed to vote; (b) that 3
other eligible employees, absent from the plant on election day through
no fault of their own, should have been afforded an opportunity to
vote; and (c) that the election as conducted was not representative
of employees in the appropriate unit, and was therefore invalid.
On January 26, 1953, the Regional Director issued his report on
challenged ballots, objections to election, and recommendations to
the Board, in which he found that the Employer's objections were
without merit and recommended that the Board sustain the challenges,
overrule the objections of the Employer, and certify the Petitioner
as the exclusive bargaining representative of all employees in the
appropriate unit.
On February 11, 1953, the Employer filed exceptions to the Re-
gional Director's report with respect to his conclusions (a) as to eli-
gibility of Holiday Lloyd, Harold Lloyd, and Raymond Brown and
(b) as to the representative character of the election. We adopt the
findings of the Regional Director, to which neither party takes excep-
tion. We therefore find that R. L. Durrenberger, a boilermaker
fourth class, who works in the toolroom dispensing tools and has
no demonstrable interest in the appropriate unit, was not eligible to
vote; and the challenge to his ballot is sustained.
The Eligibility of the Other Challenged Voters
The Employer excepts to the Regional Director's rulings that Holi-
day Lloyd, Raymond Brown, and Harold Lloyd are ineligible to vote,
and asks that the challenges to their ballots be overruled.
Holiday Lloyd, a boilermaker fourth class , acts as a chauffeur, driv-
ing the Employer's officials and other personnel to and from
steamship offices and other places . Brown, a boilermaker second
class, spends 99 percent of his time performing warehouse work.
Harold Lloyd, a machinist second class, though originally hired as
a truckdriver, was transferred to a machinist job at the Employer's
machine shop. Although he does the necessary driving for the ma-
chine shop, his main occupation is that of machinist.
PORT HOUSTON IRON WORKS, INC. 1491
With respect to Holiday Lloyd and Brown, we find without merit
the Employer's contention that, because they act as chauffeur and
warehouseman, respectively, they should be included in the unit. At
the hearing in this proceeding, the parties, at the Employer's request,
limited the scope of their unit inquiry to a consideration of truck-
drivers. Neither of the parties sought the inclusion of chauffeurs,
nor did they adduce testimony concerning chauffeurs as a group; fur-
thermore, the evidence was uncontradicted that no warehousemen
were then in the Employer's establishment. As the appropriateness
of the requested truckdrivers' unit was fully litigated at the hearing,
and neither party before the election requested that the record be re-
opened for the purpose of reconsidering the unit, we consider it to be
contrary to good administrative practice thus to reopen the unit issue
at this postelection stage of the instant proceeding.2 As neither
Holiday Lloyd nor Brown appear to spend any of their time as truck-
drivers, we find that they are not eligible voters. As Harold Lloyd
is primarily a machinist, we find that he is not an eligible voter.
We find that Holiday Lloyd, Raymond A. Brown, and Harold Lloyd
are ineligible to vote in the election, and we therefore sustain the
challenges to their ballots.
The Validity of the Election
Of the 3 absent employees who cast no ballots, 2 are admittedly
truckdrivers and the third is primarily a warehouseman. All these
employees were absent from the plant on election day because of per-
sonal circumstances beyond the control of any of the parties or the
Board agent in charge of the election.3 Manual elections require the
attendance of voters at the polls. We therefore find, without further
consideration of the eligibility of the absent employees, that their
absence from the polls does not render the election unrepresentative
and invalid.4
As a majority of the eligible employees voting cast their ballots for
the Petitioner, we shall certify that labor organization as the exclu-
sive bargaining representative of all employees in the appropriate
unit.
Certification of Representatives
IT Is HEREBY CERTIFIED that International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, AFL, Local
2 Lockheed Aircraft Corporation , 7R NLRB 1064.
' One of these employees was required to attend a emirt proceeding ; one had illness in
his family , which required his attention ; and one had to attend an immigration hearing.
• The Ann Arbor Press, 88 NLRB 391.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
968, has been designated and selected by a majority of all truckdrivers
at the Houston, Texas, ship-repair establishment and machine shop
of Port Houston Iron Works, Inc., including the utility man, but
excluding all other employees and supervisors as defined in Act, as
their representative for the purposes of collective bargaining and that,
pursuant to Section 9 (a) of the Act, as amended, the said labor or-
ganization is the exclusive representative of all such employees for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
MEMBERS HousTON and MuRDOOK took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
MILLER ELECTRIC COMPANY and OFFICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 294, AFL, PETITIONER . Case No. 11-RC-481.
April 2, 1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert J. Wall, hearing
officer.' The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed?
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Styles and Peterson].
Upon the entire record in this case, the Board finds :
At the hearing the petition and other formal papers were amended to show the correct
name of the Employer.
2 The hearing officer referred to the Board the Employer ' s motion to dismiss the petition
on the following grounds: ( 1) The Employer is not engaged in commerce within the
meaning of the Act; ( 2) there has been no showing that the requisite number of em-
ployees sought to be included in the unit have joined in the petition ; ( 3) there has been
no showing that the requisite non-Communist affidavits have been filed ; ( 4) the unit
sought is not appropriate because the employees are working on a construction project
which has reached its peak, and there will be a decrease in personnel ; and (5 ) the unit
sought is not appropriate because the employees sought to be included have no real
community of interest.
( 1) For the reasons stated infra, we find no merit in the Employer's first contention.
(2) We have repeatedly held that a Petitioner ' s showing of interest is an administrative
matter, not subject to direct or collateral attack. Charles A. Krause Milling Co., 97
NLRB . 530. Moreover , we are satisfied that the Petitioner has made an adequate showing
in the unit found appropriate . ( 3) The Board has consistently held that whether a labor
organization has complied with the filing requirements of the Act is not litigable at a
representation hearing , as it is a determination entrusted to the Board in its administra-
tive capacity . Sunbeam Corporation , 93 NLRB 1205 . Moreover, the Board has satisfied
itself, from its administrative investigations , that the Petitioner is in compliance with
the filing requirements of the Act . ( 4) For the reasons stated infra, we find no merit
to the Employer 's other contentions . Accordingly, the,'Employer's motion to dismiss is
hereby denied.
103 NLRB No. 130.