Davis Motor Co., Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1951

97 N.L.R.B. 125 (N.L.R.B. 1951)

DAVIS MOTOR COMPANY, INC. 125
September 28 were seen from about 10: 30 in the morning to 3 in the
afternoon. At this store the picket line was out in front of the ship-
ping entrance "a good 20 feet." Delivery, which normally makes
pickups from the stores at regularly scheduled intervals, picked up
some packages although its service was definitely curtailed during
the period of the dispute. At Meigs the sign carried by the picket at
first charged Meigs with having been unfair to the Respondent; about
1 hour later this sign was revised to conform to the placards borne
at the other stores which indicated that Delivery Company was unfair
to the Respondent.
In our opinion, the foregoing uncontroverted evidence in the record
in this case reasonably leads to the inference, and we find, that the
picketing at the three stores involved was not picketing of the primary
employer under the criteria of the Sailors' Union case. The Board
concludes that the picketing was not strictly limited to times when
the trucks of Delivery were located on the store premises nor to times
when the primary employer, Delivery, was engaged in its normal
business at the stores. The picketing, although irregular, did occur
for relatively long periods of time and was not related or limited to
the arrival and departure of Delivery's trucks which ran on a defi-
nitely curtailed schedule during the period of the dispute. Nor was
the picketing limited to places reasonably close to the location of
Delivery's trucks-the pickets patrolled along the sidewalk curb on
two sides of one of the stores and at another were at least 20 feet out
in front of the entrance. Furthermore, at least in one instance, the
placard borne by a picket stated that the Respondent's dispute was
with the secondary employer.
Accordingly, we hereby affirm the Decision and Order of August
31, 1949, without modification.
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision.
DAVIS MOTOR COMPANY, INC. and INTERNATIONAL ASSOCIATION OF
MACHINISTS, LOCAL LODGE No. 778, AFL, AND INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, OVER-TIIE-ROAD AND CITY TRANSFER DRIVERS,
HELPERS, DOCKMEN AND WAREHOUSEMEN, LOCAL No. 41, AFL,
JOINTLY, PETITIONER . Case No. 17-RC-1093. November 27, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Margaret L. Fassig,
97 NLRB No. 22.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 involved claim to represent employees
of the Employer.
3. No 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, for the following
reasons:
The Employer at present has a contract-apparently identical to
those of other individual motor car dealers in the Kansas City area-
with the International Union, United Automobile Workers of Amer-
ica, AFL, covering "service and parts department employees, includ-
ing any full-time garage employees, and excluding office clerical em-
ployees, automobile and truck salesmen , outside parts salesmen, serv-
ice salesmen, control tower operators, testers, supervisors, and any
part-time garage employees." This contract is dated June 30, 1950,-
at a time when the contracting union was in compliance-has a 2-year
term, and contains the following union-security provision under
which, at the time of the hearing, no union-authorization election had
been held pursuant to Section 9 (e) of the Act :1
Membership in the Union shall be a condition of employment of
each employee thirty (30) days after the date of his first employ-
ment or thirty (30) days after the effective date of this clause,
whichever is the later, provided, however, that this clause shall
not take effect until such time as the appropriate provisions of
the Labor Management Relations Act, 1947, have been fully com-
plied with.
The UAW-AFL was allowed to intervene at the hearing on the basis
of this contract. It urges the contract as a bar to the petition herein,
which was filed July 2, 1951, and requests the employees in the con-
tract unit. The Petitioners, on the other hand, urge that the contract
is not a bar because of the presence of the "unauthorized" union-
security provision quoted above, which they contend has been
enforced.
In view of the congressional policy expressed by the recent amend-
ment to the Act 2 deleting those portions of Section 9 (e) which for-
merly required Board-conducted elections authorizing unions to enter
1 It was stipulated by the parties that, in a unit of somewhat different description, the
UAW had previously been certified on July 2, 1948, as authorized to enter into a union-
security agreement with this Employer (Case No. 17-UA-965 ). Evidence - was conflicting
as to whether the union -security provision of the current contract was being enforced.
2 Public Law No 189, 82nd Congress , 1st Sess., Sec. ( c) (Oct. 22, 1951).
KIMEL SHOE COMPANY 127
into union-security agreements with employers, the Petitioners' con-
tract bar contention has become without merit.' We find that the
existing contract between the Employer and UAW-AFL is a bar to
the petition herein. Accordingly, we shall dismiss the petition'
Order
IT IS HEREBY ORDERED that the petition filed by the International As-
sociation of Machinists, Local Lodge No. 778, AFL, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Over-the-Road and City Transfer Drivers, Helpers,
Dockmen and Warehousemen, Local No. 41, AFL, jointly, be, and it
hereby is, dismissed.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
3 We distinguish those cases where we have held that contracts with unauthorized
union-security provisions which the parties sought to correct or suspend after the filing
of a representation petition are no bar to a determination of representatives . BrodAead-
Garrett Co , 96 NLRB 669 ; Allen Wales Adding Machine Dii.tision of the National Cash
Register Company, 94 NLRB 1288 ; Wettlauffer Manufacturing Corporation , 89 NLRB 696.
4 In view of the fact that the proviso contained in the union -security clause effectively
defers application of the clause , Member Reynolds finds that the existing contract between
the Employer and the UAW-AFL constitutes a bar to this proceeding. He therefore
considers it unnecessary to pass upon the effect of the recent amendment to the Act upon
the contract bar issue
KIMEL SHOE COMPANY, PETITIONER and UNITED SHOE WORKERS OF
AMERICA, CIO. Case No. f1-RM-178. November 97, 1951
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 George H. O'Brien, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 organization involved claims to represent employees
of the Employer.
3. The Employer, the Petitioner herein, seeks a determination of
the bargaining representative of production and maintenance em-
ployees at its Los Angeles, California, shoe manufacturing plant.
The Union moves to dismiss the petition, contending that it has ex-
pressly disclaimed all interest in the employees covered by the petition
and that a question concerning representation therefore does not exist.
The pertinent facts relative to the instant petition and the Union's
alleged disclaimer are as follows :
97 NLRB No. 14.