Merrill Motor Line

National Labor Relations Board - Board Decisions

Oct 7, 1944

58 N.L.R.B. 828 (N.L.R.B. 1944)

In the Matter of WILEY H. MERRILL , AN INDIVIDUAL, D/B/A MERRILL
MOTOR LINE and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, `VAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
LOCAL UNION No. 47
Case No. 16-R-997 .-Decided October 7, 1941.11
Mr. Wiley H. Merrill, of Greenville , Tex., and Callaway cC Reed, by
Mr. Carl B. Callaway , of Dallas, Tex., for the Company.
Mr. 117. F. Derden, of Fort Worth , Tex., for the Union.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, Local Union No. 47, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Wiley H. Merrill, an individual doing business as
Merrill Motor Line, Greenville, Texas, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Elmer Davis, Trial Examiner. Said hearing
was held at Greenville, Texas, on September -8, -1944. The Company
and the Union appeared and participated.:All- parties were-,afforded
full opportunity 1o be heard, to examine and cross-examine witnesses,
to introduce evidence bearing on the issues, and to file briefs with the"
Board. At the opening of the hearing Merrill, on behalf of the Com-
pany, protested proceeding with the hearing on the grounds that he
had not received reasonable notice and consequently had not had an
opportunity to consult counsel, and in substance requested that the
hearing be postponed. The Trial Examiner at that point denied the
request for a continuance, but stated that he would entertain the
motion again after hearing evidence. At the close of the hearing
the Trial Examiner ruled that no continuance would be granted, stat-
58N.L. R.B.,No.164.
828
MERRILL MOTOR LINE 829
ing that in his opinion the record seemed complete. In his brief, coun-
sel for the Company urged that a further hearing be held, for the
reason that an adequate opportunity to be heard had not been accorded
the Company; in the alternative, counsel urged that the proceeding be
dismissed because the evidence did not warrant the Board in finding
that a question of representation existed or that the unit sought by
the Union is appropriate.
Notice of Hearing was issued by the Regional Director on Saturday,
September 2, and received by the Company the morning of September
5, 3 days before the hearing. It appears that counsel for the Company,
who customarily handles the Company's legal affairs, returned to his
office in Dallas on the morning of the hearing after an absence of 3
weeks. Upon receipt of the Notice of Hearing on September 5, Merrill
wired the Regional Director requesting a postponement until after
September 13. The Regional Director, on the same day, denied the
iequest. Upon.examination of the record, we, are satisfied that ade-
quate notice was given the Company and that it has not been prejudiced
by the absence of counsel at the hearing. The Trial Examiner assisted
in adducing evidence relevant and material in representation cases
and appears to us to have been solicitous of the interests of the Com-
pany. Counsel for the Company has not, in his brief, pointed to any
matters of a relevant nature which the Company would adduce if
the record were reopened. Accordingly, the Trial Examiner's ruling
denying a continuance is affirmed, and the request to reopen, or in the
alternative to dismiss the proceeding, is denied. The Trial Examiner's
other rulings made at the hearing are free from prejudicial error and
are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Wiley H. Merrill, operating from Greenville, Texas, under the name
of Merrill Motor Line, is engaged as a contract carrier licensed by the
Interstate Commerce Commission in the transportation of packing-
house products for Swift and Company, Wilson and Company, and
Cudahy Packing Company to military establishments, as well as for
civilian needs, in Texas and Oklahoma. Products from the Fort
Worth, Texas, plant of Swift and Company are transported by the
Company to points in Texas and Oklahoma; shipments from the Okla-
homa City plant of Wilson and Company are delivered in Texas. Prod-
ucts from the plant of Cudahy Packing Company in Wichita, Kansas,
are transported to Oklahoma City by another carrier and then trans-
ported by the Company, which does not operate in Kansas, to points
is
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
in Texas. The Company is authorized to operate 43 trucks, but at
present operates only 20. Its annual volume of business is about $100,-
000, of which about two-thirds is attributable to deliveries in Texas and
the balance to deliveries in Oklahoma.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
-men and Helpers of America, Local Union No. 47, affiliated with the'
American Federation of Labor, is a labor organization admitting to
-membership employees of the Company. -
III. THE QUESTION CONCERNING REPRESENTATION
The Union began organizing employees of the Company about July
1, 1944. On July 6, Derden, representative of the Union, advised
Merrill that he had organized'a majority of the Company's employees
and requested a collective bargaining conference. At a conference
between union representatives and Merrill on July 8, Merrill requested
further time to consider the matter. About a week later Derden called
Merrill and was advised that the latter had not had sufficient oppor-
tunity to discuss the Union with his employees. Later Derden unsuc-
cessfully attempted to meet Merrill, and thereupon filed the petition
herein on July 26. Thereafter the Regional Office `attempted to dis-
pose of the petition informally.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce' has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRTATE UNIT
The Union seeks a unit of the Company's drivers and helpers en-
gaged in over-the-road driving, excluding office and clerical employees,
maintenance crews, and supervisory employees within the Board's cus-
tomary definition. Merrill, on behalf of the Company, testified that
he would include all employees except himself and his wife who assists
in conducting the business, on the ground that the services of all em-
ployees are necessary to conduct the business.
'The Field Examiner reported that the Union submitted 14 application cards, all of
which bore apparently genuine original signatures ; that the names of all persons appearing
on the cards were listed on the Company's pay roll as of September 2, 1944, which con-
tained the names of 19 employees in the appropriate unit ; and that 13 of the cards were
dated July 1944, and 1 undated.
MERRILL MOTOR LINE 831 .
As of the date of the hearing, the Company employed 16 drivers and
1 helper, 4 office and clerical employees, a general manager, a service
manager, 5 mechanics, 3 greasemen, 1 warehouseman, a shop superin-
tendent, and 2 plant foremen. The record clearly shows that the gen-
eral manager, the service manager, the warehouseman, the shop super-
intendent; and the 2 plant foremen are supervisory employees; we shall
therefore exclude them. The office and clerical workers perform the
usual duties of such employees and, in accordance with our settled
practice, we shall exclude them. The mechanics are engaged in main-
tenance of the equipment; the greasemen wash and grease the trucks.
These maintenance employees work under considerably different con-
ditions than the drivers, and are paid on a weekly basis whereas the
drivers are paid on a trip basis. We have on many occasions found
that drivers and helpers,-engaged in over-the-road transportation,
- constitute a separate iuut apart from other employees who inay be
engaged in related manual work.2 Accordingly, we shall exclude the
mechanics and greasemen from the unit.
We find that all over-the-road drivers and helpers of the Company,
but excluding office and clerical employees, mechanics, greasemen, the
general manager, the service manager, the warehouseman, the shop
superintendent, plant foremen, and any other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise ef'
'-feet changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REFI.ESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction .3
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
8 See . a g, Matter of Sutherland Paper Co, 55 N L R B ;8; Matter of Engii,k Freight
Company. 58 N L R B 67.
'In his brief, counsel for the Company suggests that some of the employees are now in
military service and that no evidence concerning their eligibility to vote was adduced at the
hearing Our policy with respect to employees in the armed forces is well known ; we do
not provide for mail balloting but such of them as appear in person are eligible to vote. See
Matter of Mine Safety Appliances Company, 55 N. L R. B. 1190.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Wiley H. Merrill,
d/b/a Merrill Motor Line, Greenville, Texas, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Sixteenth Region, acting
in this matter as agent for the National Labor Relations Board; and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during the said pay-roll period because they- were ill or on vaca-
tion or temporarily laid off, and including employees in the armed
forces of the United States who-present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, to determine whether or not they desire to be
represented by International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers,of America, Local Union No. 47, af-
filiated with the American Federation of Labor, for the purposes of
collective bargaining.
MR. GERARD D. REILLY took no part in the, consideration of the
above Decision and Direction of Election.