S. S. Burford, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1961

130 N.L.R.B. 1641 (N.L.R.B. 1961)

S. S. BURFORD, INC. 1641
Robbins, a balance between potential votes for and against the Union , Respond-
ent chose not to risk upsetting this balance by the employment of another
employee. [ Emphasis supplied.]
The Trial Examiner has no quarrel with the common conception that an attorney
is merely an advocate whose duty is to present his client 's cause in the best possible
light . In the instant matter the counsel for the General Counsel very ably brought
forward such facts as he had available in the case he had been assigned to try. This
was perhaps his sole duty as a Government attorney . Again in his brief he mar-
shalled the facts to seek a conclusion favorable to his assignment , however in the
opinion of the Trial Examiner the conclusions advanced in the brief are not war-
ranted by a disinterested study of the facts.
The brief pictures Robbins as "a leading union adherent " whose "role" was both
outstanding and known to the Respondent and argues that because of Robbins'
testimony that he made no errors on the day he was discharged (he merely testified
he remembered no errors ) and because when previously told of his faults he was
not threatened with discharge , the Respondent could not discharge him. Even if bol-
stered by the allegations of "interrogation" and "withdrawal of benefits" this argu-
ment remains merely wishful thinking , bringing to mind the story attributed to
Lincoln regarding a meal consisting entirely of soup made by boiling the shadow
of a sparrow which had starved to death.
Mrs. Seibert may not be within the unit once sought in Case No . 5-RC-3122,
and perhaps the Respondent has not destroyed the Union 's two to one majority status.
But this has no place in this report.
Final Conclusion
Upon a review of the entire record in the case , and upon all the evidence con-
sidered as a whole , the Trial Examiner is persuaded that the evidence adduced by
the Counsel for the General Counsel does not sustain the allegations of the com-
plaint that the Respondent has engaged in unfair labor practices within the meaning
of the Act . The Trial Examiner will therefore recommend that the complaint be
dismissed in its entirety.
Upon the basis of the foregoing findings, the Trial Examiner makes the following:
CONCLUSIONS OF LAW ,
1. The Respondent is, and has been at all times material herein , engaged in com-
merce within the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent , Baltimore Binding and Waistband Corp . of Baltimore, Mary-
land, has not engaged in unfair labor practices within the meaning of Section 8(a) (1)
and (3 ) and Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
S. S. Burford , Inc. and International Union of Operating En-
gineers, Local 132, AFL-CIO, International Hod Carriers',
Building and Common Laborers' Union of America , Local 714,
AFL-CIO , and United Brotherhood of Carpenters and Joiners
of America , Local 428, AFL-CIO, Joint -Petitioners. Case No.
- 6-RC-2772. March 31, 1961
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 Sidney Lawrence, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
130 NLRB No. 169.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.'
3. District 50, United Mine Workers of America, the Intervenor,.
contends that its existing contract with the Employer is a bar to this
proceeding.
The Employer is principally engaged in general construction work,
especially in heavy construction such as roads and bridges. On Oc-
tober 24, 1960, the Employer and the Intervenor entered into a 1-year
agreement, agreed by the parties to be a prehire contract, executed
pursuant to Section 8 (f) of the Act, as amended.
Section 8(f) of the Act provides that.it shall not bean unfair labor
practice for an employer engaged primarily in the construction in-
dustry to make a prehire contract? The Act further provides, how-
ever, that any such agreement shall not be a bar to a petition filed
pursuant to Section 9(c). In these circumstances, Ave find that the
prehire agreement herein involved does not constitute a bar to the
petition. Accordingly, we find that a question affecting commerce
exists concerning the representation-of the employees of the Employer
within the meaning 'of Section 9(c) (1) and Section 2(6) and. (7) of
the Act.
4. The parties stipulated, and we find, the following employees of
the Employer constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act:
All building and construction employees of the Employer at its
Benton Ferry Bridge project, Fairmont, West Virginia, excluding
office clerical employees, professional employees, guards, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Decision and Direction of Election.
1 District 50, United Mine Workers of America was permitted to intervene on the basis
of its contractual interest.
Section 8 (f) of the Act, as amended , provides as follows : "It shall not be an un-
fair labor practice under subsections ( a) and ( b) of this section for an employer engaged'
primarily in the building and construction industry to make an agreement covering em-
ployees engaged ( or who, upon their employment , will be engaged ) in the building and'
construction industry with a labor organization of which building and construction em-
ployees are members ( not established , maintained, or assisted by any action defined in
section 8 ( a) of this Act as an unfair labor practice ) because ( 1) the majority status of"
such labor organization has not been established under the provisions of section 9 of this
Act prior to the making of such agreement , . Provided further, That any agreement
which would be invalid , but for clause (1) of this subsection, shall not be a bar to'a peti
tion filed pursuant to section 9(c). or 9(e)."
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