Clyde J. Merris

National Labor Relations Board - Board Decisions

Jun 23, 1948

77 N.L.R.B. 1375 (N.L.R.B. 1948)

In the Matter Of CLYDE J. MERRIS, EMPLOYER and W. S. MUNROE, PE-
TITIONER and DISTRICT 50,- LOC AI. 13076, UNITED MINE WORKERS OF
AMERICA, UNION 1
Case No. 30-RD 3 .Decided June 23, 19.48
Mr. B. E. Madden , of Canon City , Colo., for the Employer.
Mr. W. S. Munroe , of Canon City , Colo., for the Petitioner.
Messrs. Fred K. Ileffer, C. L. Hamblin , Curti Hanawalt, and John
Ehinke , all of Canon City, Colo ., for the Union.
DECISION
AND
ORDER
Upon a petition for decertification duly filed, hearing in this case
was held at Canon City, Colorado, on January 28,1948, before Howard
W. Kleeb, hearing officer. At the hearing the Union moved to dis-
miss the petition on the ground that it had been brought by a super-
visor employed by the Employer. The hearing officer referred the
motion to the Board. For reasons set forth below, the motion to dis-
miss is granted. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Clyde J. Merris is engaged in Canon City, Colorado, in the hauling
of dolomite rocks from the quarry to the tipple of the Colorado Fuel
and Iron Company.2 The Colorado Fuel and Iron Company uses
the dolomite rock as a flux in the production of iron and steel.
I The petition herein designated the Union as "District 50, Local 13076, United Mine
Workers of America, AFL." As the Union severed its affiliation with the American
Federation of Labor on December 12, 1947, we have amended - the caption 'accordingly.
The Union is not in compliance with Section 9 (f), (g), and ( h) of the Act , but was
nevertheless permitted to intervene because of its recognition agreement with the
Employer executed on June 26, 1947.
2 See Matter of Colorado Fuel and lion Corp ., 67 N L R B. 100
77 N. L . R. B., No 212.
1375
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The'Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE PARTIES INVOLVED
The Petitioner, a supervisor in the employ of the Employer, asserts
that the Union is no longer the representative of the Employer's em-
ployees as defined`in Section 9 (a) of the Act.
The Union is a labor organization claiming to be the exclusive bar-
gaining representative of the Employer's employees by virtue of its
recognition agreement of June 26, 1947.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
On June 26, 1947, the Employer executed a recognition agreement
with the Union in settlement of unfair labor practice charges which
had been filed by the Union. The Employer and the Union were un-
able to reach agreement on the substantive terms of a contract.3 On
July 21, 1947, the Union called an economic strike, which was still in
effect at the time of the hearing herein. The employees on whose
behalf the decertification petition herein was allegedly brought are
new employees hired as replacements for the strikers.
The individual who filed the petition had been an employee of the
Employer at the time of the strike, but he had not joined the Union
and had not participated in the strike. He was made a foreman when
the Employer resumed operations with newly hired employees on about
August 21, 1947. He has authority to hire and discharge employees
during the frequent absences of the Employer, and at all times to make
effective recommendations concerning these matters. He is ineligible
for membership in the Union, and is excluded from the unit which was
stipulated to be appropriate by the parties at the hearing. The peti-
tion herein was filed on September 29, 1947, more than a month after
the Petitioner became a foreman. He admittedly obtained during
working hours the employee signatures for the prima facie showing of
interest to accompany the petition.
Section 9 (c) (1) (A) of the Act provides that a petition for certi-
fication or decertification of the bargaining representative of em-
ployees may be filed by an "employee or group of employees or'any
individual or labor organization acting in their behalf." Section 9
(c) (1) (B) provides that a petition to ascertain the bargaining repre-
sentative of employees may be filed by an employer. Congress there-
fore apparently intended to preclude employers from filing decertifica-
3 The recognition agreement , lacking substantive terms regarding wages, hours, and
conditions of employment , does not constitute a bar to this proceeding . Matter of Casten
Distributing Co , 76 N. L R B 153, Mattei of Bell Cabinet Co., 73 N L. R B. 332.
CLYDE J. MERRIS 1377
tion petitions. Furthermore, whenever Congress intended any
provisions of the Act to be applicable to emmployers, it specifically so
provided. The Petitioner, therefore, could not file a decertification
petition herein in his capacity as a management representative.
Nor can the Petitioner be deemed to fall within the designation in
Section 9 (c) (1) (A) of "any individual" acting in behalf of em-
ployees. One purpose of the Act was to draw a clear line of demarca-
tion between supervisory representatives of management on the one
hand and employees on the other because of the possibility of con-
ilicts in allegiance if supervisors were permitted to participate in
union activities with employees.4 To permit supervisors to act as
employee representatives would therefore defeat the purposes of the
Act.
Accordingly we find that the petition herein is invalid, and therefore
that no question affecting commerce now exists concerning the repre-
sentation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the National Labor Relations
Act. We shall therefore dismiss the petition.
ORDER
Upon the basis of the foregoing findings of fact and the entire record
in this proceeding, the National Labor Relations Board hereby orders
that the petition filed by W. S. Munroe for the decertification of
District 50, Local 13076, United Mine Workers of America, as the
bargaining representative of the employees of Clyde J. Merris, Canon
City, Colorado, be, and it hereby is, dismissed.
4 93 Cong . Rec. 1888 , 3952, 5146, A1099, A2377 ; Rept. of the House Committee on
Education and Labor No. 245, 80th Cong, 1st Sess, pp 16-17
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