3 Beall Brothers 3, Etc.

National Labor Relations Board - Board Decisions

Oct 29, 1954

110 N.L.R.B. 685 (N.L.R.B. 1954)

3 BEALL BROTHERS 3, ETC. 685
quite evident. The Employer, under 1 exclusive written and 2 oral
agreements, provides the sole limousine service for the 3 airlines serv-
ing the Baton Rouge airports. In addition, it provides taxi service for
white passengers to and from bus and rail terminals. Its income from
these services amounts to about $75,000 annually, more than 30 percent
of its total revenue.
I believe this segment of commerce and labor is sufficiently impor-
tant to persons traveling between and among the several States to
warrant the assertion of jurisdiction under the doctrine of the Cam-
bridge Taxi case which I see no reason to depart from as a reasonable
and satisfactory answer to the problem of jurisdiction in this industry.
As I have discussed at some length in the recent Breeding Transfer
Company case 5 the general propositions and authority upon which
the majority relies in this case, I shall not repeat that discussion here.
MEMBER PETERSON , dissenting :
Applying the jurisdictional criteria set forth in my separate opinion
in the recent Breeding Transfer Company case,6 I would assert juris-
diction over this Employer in conformity with the rule announced in
Cambridge Taxi Company'
5 110 NLRB 493
8 110 NLRB 493
7101 NLRB 1328.
3 BEALL BROTHERS 3; MCLELLAN STORES COMPANY; F. W. WOOLWORTH
COMPANY; THE FAIR, INC.; FRANKLIN STORES CORPORATION OF PORT
ARTHUR; C. R. ANTHONY COMPANY, INC.; MAYFAIR CORPORATION OF
PORT ARTHUR and SABINE AREA INDUSTRIAL UNION LOCAL 1814,
CIO, PETITIONER. Cases Nos. 39-RC-713,39-RC-7-15,39-RC-716,
39-RC-717, 39-RC-720, 39RC-721, and 39-RC-724. October
29,1954
Decision, Direction of Elections, and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Arthur Safos, hearing officer.' The hearing officer's rulings made at
i On May 3, 1954 , the Petitioner filed requests for permission to withdraw its petitions
in the above -entitled cases The requests were granted by the Officer in Charge of the 39th
Subregion , but permission to withdraw was subsequently rescinded on the same day On
May 4 , 1954, a hearing was held with respect to the withdrawal applications and, after the
hearing, the matter was submitted to the Board . By order dated June 10, 1954, the
Board denied the withdrawal requests upon the ground that the Petitioner had engaged in
a strike for recognition since the filing of the petitions and the Board had been admin-
istratively advised that the Petitioner had been picketing each of the Employers ' premises
and was continuing such picketing . As the Petitioner by its picketing was engaged in ac-
tion inconsistent with an unequivocal request for withdrawal , the proceeding was re-
110 NLRB No. 96.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing are free from prejudicial error and, with one exception,',
are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The following Employers are engaged in commerce within the
meaning of the Act and it will effectuate the policies of the Act to,
assert jurisdiction : McLellan Stores Company, F. W. Woolworth
Company, Franklin Stores Corporation of Port Arthur, C. R. An-
thony Company, Inc., and Mayfair Corporation of Port Arthur.
Although the following Employers' operations are not wholly un-
related to commerce, it will not effectuate the policies of the Act to,
assert jurisdiction: 3 Beall Brothers 3 and The Fair, Inc. Accord-
ingly, we shall dismiss the petitions as to these Employers .3
2. The labor organization involved claims to represent certain em-
ployees of the Employers.
3. The Petitioner has been picketing the premises of each of the-
Employers since November 1953 for the purpose of obtaining recog-
nition from them as collective-bargaining representative. As dis-
cussed in detail below, the Employers have presented evidence show-
ing that with respect to each and every one of the strikers either he
was permanently replaced or his job was abolished. In its brief to the
Board, the Petitioner now contends that if the Board finds that the
strikers in fact have been permanently replaced or are otherwise not
entitled to reinstatement because their jobs no longer exist, then no
question concerning representation exists and the petitions should
therefore be dismissed. It bases this argument on the ground that it
manded to the Regional Director for the purpose of reopening the record to adduce evi-
dence principally as to the question of the appropriate unit
In its brief Petitioner attempts to reargue the validity of the Board's action by con-
tending that the petitions herein were filed prior to January 7, 1954. and that , as a re-
sult of a memorandum dated January 7, 1954, from the Board to the General Counsel
with respect to the disposition of requests for withdrawal of petitions where "incon-
sistent action" such as picketing exists. the Board has retroactively altered the provisions
of Sections 102 52 and 102 55 of its Rules and Regulations in disregard of the publication
requirements of Section 3 of the Administrative Procedure Act
We find no merit in this contention Section 102 52 reads in relevant part • "Prior to
the close of the hearing, pursuant to Section 102 55 the petition may be withdrawn only
with the consent of the Regional Director with whom such petition was filed After the
close of the hearing the petition may be withdrawn only with consent of the Board "
The procedure followed herein was strictly in conformity with these sections of the Rules-
which, contrary to the Petitionei aie unchanged Thus, neither the Officer in Chaige
before the hearing nor the Board after the hearing consented to the Petitioner's requests
for withdrawal of the petitions Furthermore, the memorandum of January 7, 1954, was
merely a restatement and reaffirmation of Board decisions dealing with withdrawal re-
quests ( see for example , McAllister Transfer , Inc, 105 NLRB 751 , Sears Roebuck & Corn-
patty, 107 NLRB 716) which in nowise altered the provisions of Section 102 52 or 102 55
and therefore did not have to be published in the Federal Register under Section 3 of the
Administrative Procedure Act any more than any other Board decision would have to
be so published
2 The hearing officer ruled that the question asked by the Petitioner of witnesses for
Employeis McLellan Stoics Company and F. W Woolworth Company with respect to the
exact amount of business decline percentagewise experienced by these Employers since the
strike was a proper, one This ruling is reversed inasmuch as we do not believe that it
was material to the specific issue involved which was whether the strikers had been per-
manently ieplaced
3 Hogue and Knott Super mar kets , 110 NLRB No 68.
3 BEALL BROTHERS 3, ETC. 687
expressly disclaims any desire to represent the replacements now at
work but rather claims to represent only the strikers.
We find no merit in this contention of the Petitioner.
In our opinion, the Petitioner's continuing picketing and claim to
represent the strikers is inconsistent with its disclaimer of interest
as a bargaining representative vis-a-vis the Employers. In this situa-
tion we cannot find that the bare disclaimer statement is sufficient to
remove the questions concerning representation initially raised by the,
Petitioner's strike action for recognition and its filing of the petitions.
Necessarily, the continuing picketing is for a purpose. It is a reason-
able inference that the Petitioner seeks discharge of the replacements,.
reemployment of the strikers, and eventual bargaining representative
status for the ultimate working force.
Griffin Hosiery Mills, Inc.,4 the case upon which the Petitioner relies
primarily, is substantially distinguishable on its face from the facts.
here. The union there disclaimed any interest in the replacement em-
ployees who were at work and stated that it wished to speak only on
behalf of the strikers. It did not appear, however, that it simultane-
ously and inconsistently picketed the employer's premises. It is the
Petitioner's picket line which most persuasively proves that in effect
the Petitioner has not abandoned its desire to bargain with the Em-
ployers with respect to the conditions of employment at the various
locations. Accordingly, we find that questions exist concerning the
representation of the employees of the Employers within the meaning-
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find appropriate for purposes of collective bargaining within
the meaning of Section 9 (b) of the Act, separate units composed of
the following employees, excluding confidential employees, profes-
sional employees, guards, and all supervisors as defined in the Act:-
Case No. 39-RC-715: All store employees of McLellan Stores Com-
pany at its Port Arthur, Texas, store.
Case No. 39-11C--716: All store employees of F. W. Woolworth
Company at its Port Arthur, Texas, store.
Case No. 39-RC-721: All store employees of C. R. Anthony Com-
pany, Inc., at its Port Arthur, Texas, store.
Cases Nos. 39-RC-720 and 724: All store employees of Franklin
Stores Corporation of Port Arthur and Mayfair Corporation of Port
Arthur at their Port Arthur, Texas, stores.'
4 Griffin Hosiery Mills , Inc, d/b/a Dovedown Hosiery Mills , 83 NLRB 1240
5 In view of the fact that these Employers are affiliated corporations having a common
parent , that the manager of Franklin is the ultimate supervisor of Mayfair and has the
final word with respect to hiring firing, wage rates, and personnel policies at Mayfair
that the two stores carry essentially the same merchandise which is purchased by the
manager of . Franklin ; that , transfers and interchange of employees occurs frequently be-
tween the two stores , and, in view of the geographic proximity of the stores ( 1 block
apart on the same street ), we find that a two -store unit is alone appropriate Gordon's-
Jewelry Co . of Baton Rouge, Inc., 105 NLRB 709.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The employees of all the Employers went on strike in November
1953. The record reveals that a considerable number of the strikers
have been permanently replaced, a few have returned to their jobs, and
some jobs have been eliminated or consolidated due to streamlining
operations by the Employers such as the institution of self-service sys-
tems. As a consequence, the Employers do not contemplate additions
to their present working complements regardless of whether the strike
terminates. All the employees on strike either have been permanently
replaced or their jobs abolished. Accordingly, we find that the em-
ployees on strike, who have not been reemployed, are not entitled to
reinstatement and are ineligible to vote in the election.6
[Text of Direction of Elections omitted from publication.]
[The Board dismissed the petitions in Cases Nos. 39-RC-713 and
39-RC-717.]
MEMBER MURDOCK, dissenting :
I cannot concur in the direction of elections in this proceeding. Such
elections will be both futile and expensive. They are ordered by my
colleagues despite the fact that no question concerning representation,
as contemplated by the statute, exists among the Employers' employ-
ees. They will therefore accomplish no statutory purpose and are in
direct conflict with available precedent.
The record in this case establishes one matter beyond question. That
is the fact that the individuals whom the Petitioner claims to repre-
sent are all on strike and either have been permanently replaced or had
their jobs abolished. The Petitioner clearly does not represent any
employees of the Employers eligible to vote in an election. Nor does
it make any such claim. Indeed, the Petitioner has specifically dis-
avowed any position as representative of those employees now work-
ing for the Employers.
The Board has previously dealt with precisely this situation in the
Griffin case,7 where the Board stated :
We have held in the past that no question of representation exists
where the Union sought to be decertified has disclaimed interest
in representing the employees involved. At the hearing in the
instant case, the Intervenor repeatedly disclaimed interest in the
reinstated and replacement employees, and specifically limited its
oMeridian Plastics, Inc, 108 NLRB 203; Hamilton Foundry & Machine Company, 94
NLRB 51, 53, 54 and cases cited therein
7 Griffin Hosiery Mills, Inc., d/b/a Dovedown. Hosiery Mills, 83 NLRB 1240.
3 BEALL BROTHERS 3, ETC. 689
claim to representation of the strikers. As these are economic
strikers who have been permanently replaced, they would not
under Section 9 (c) (3) of the Act be entitled to vote in the elec-
tion sought herein. Thus, the Intervenor has disclaimed interest
in all of the employees eligible to vote in such an election. To
hold an election under these circumstances would, as the Employer
contends, be futile, and the Board will not engage in a futility.
Accordingly, we find that no question affecting commerce exists
concerning the representation of employees now working for the
Employer and eligible to vote; we shall, therefore, dismiss the
petition.
The majority attempts to distinguish the Griffin decision on the
ground that it did not involve picketing. The factual basis for this
distinction, however, is somewhat dubious. The transcript of record
in the Griffin case makes no reference to the absence of picketing al-
though a strike, which normally is accompanied by such activity, was
unquestionably in existence. But, in any event, the distinction drawn
by the majority, even if it exists, is without legal significance. The
Board's decision in the Griffin case did not rest upon the presence or
absence of picketing and rightfully so. The simple fact of the matter
is that the issue raised by the picketing is not a question which can or
will be decided by the election which the majority directs. As the
majority admits, the claim of the pickets is that the Petitioner repre-
sents the strikers. The election will not prove or disprove this claim.
As the majority admits, the hope of the pickets is that they will regain
employment at the plant and then establish the Petitioner as bargain-
ing representative. The election will in no way decide the merits of
that claim. The majority, it is clear, are awarding an election in an
attempt to show the pickets that the Petitioner does not represent the
employees in the plant. Inasmuch as the Petitioner has made it very
clear that it does not represent those employees and the pickets appar-
ently know that fact, I am at a loss to determine the value of this use-
less gesture.
In summary, this election will be a futility, no one claims to repre-
sent those persons eligible to vote. Those strikers whom the Petitioner
does claim to represent will not be allowed to vote. We shall there-
fore go to considerable expense to prove precisely nothing.
MEMBER PETERSON took no part in the consideration of the above
Decision, Direction of Elections, and Order.
338207-55-vol. 110-45