Conroe Creosoting Co.

National Labor Relations Board - Board Decisions

Jul 30, 1948

78 N.L.R.B. 821 (N.L.R.B. 1948)

In the Matter of CONROE CREOSOTING COMPANY , EMPLOYER and INTER-
NATIONAL UNION OF OPERATING ENGINEERS , AFL, PETITIONER
Case No. 16-RC-98.-Decided July 30, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization named below claims to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
I At the opening of the hearing, the Employer moved to dismiss the proceeding on the
ground that the petition did not indicate on its face that it had been verified. The record
shows that a representative of the Petitioner signed the petition under oath before a Board
agent but that the latter neglected to affix his signature to the petition. The hearing officer
properly verified the petition at the hearing over the objection of the Employer and reserved
ruling on the Employer's motion for the Board. There is no showing that any prejudice
has resulted to the interests of the Employer by reason of the minor defect which appeared
on the face of the petition at the opening of the hearing but which was thereafter corrected.
Furthermore, a Board agent and not the Petitioner was responsible for the flaw. Under
these circumstances, we believe that it would be inequitable to defeat the right of the
employees under the Act to designate representatives of their own choosing. Cf. Matter
of Chicago Mill & Lumber Co., 69 N. L. R. B. 855. The Employer's motion to dismiss is
hereby denied.
*Chairman Herzog and Members Reynolds and Murdock.
78 N. L. R. B., No. 102.
798767-49-vol. 78-53 821
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act: 2
All operating and maintenance employees, including helpers and
unskilled laborers, but excluding office and clerical employees, watch-
men, guards, professional employees, and all supervisors.3
DIRECTION OF ELECTION.
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30
clays from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, among the em-
ployees in the unit found appropriate in paragraph numbered 4, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during said pay-roll period because they were ill or on vaca-
tion or temporarily laid off, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desired to be represented, for purposes of collective
bargaining, by International Union of Operating Engineers, AFL.
2 At the hearing , the Employer questioned the competency of the Petitioner to represent
employees who are not engineers , on the ground that the Petitioner is not authorized by its
constitution to represent them. We find no merit to this contention . The Board has
repeatedly held that the willingness of a petitioner to represent employees is controlling
under the Act, not the eligibility of employees to membership , or the exact extent of
the Petitioner 's constitutional jurisdiction . Moreover , there is no showing that the
Petitioner will not accord adequate representation to the employees in the unit. See
Matter of Rutherford Freight Lines , Inc., 74 N. L. R . B. 1302; Matter of Virginia Ferry
Corporation, 67 N. L. R. B. 698.
3 Upon the basis of the evidence in the record as to their duties, functions and authority,
we find, in accordance with the Employer 's contention , that the following individuals are
supervisors within the meaning of the Act, as amended Marlon McDonald, E. M Purswell,
Albert Anderson , K. G. Hilbig, A . D McDonald.