National Cylinder Gas Co.

National Labor Relations Board - Board Decisions

Aug 16, 1957

118 N.L.R.B. 1036 (N.L.R.B. 1957)

1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IBL-AFL-CIO, failed to renew its compliance with Section 9 (g)
of the Act within the 90-day grace period.
IT is FURTHER DETERMINED that any action taken as a result of charges
or petitions filed by the Union during such period shall be withdrawn
or revoked.'
' Monsanto Chemical Company, supra.
National Cylinder Gas Company and General Drivers, Ware-
housemen and Helpers Local Union No. 968 , International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, Petitioner. Case No. 39-RC-
1034. August 16,1957
DECISION AND CERTIFICATION OF REPRESENTATIVES.
Pursuant to a stipulation for certification upon consent election
executed on May 14, 1956, an election by secret ballot was conducted
on May 21, 1956, under the direction and supervision of the Regional
Director of the Sixteenth Region of the National Labor Relations
Board among employees in the unit herein found appropriate. Follow-
ing the election the parties were furnished a tally of ballots. The,
tally shows that of approximately 12 eligible voters, 6 votes were cast
for the Petitioner, 4 were cast against the Petitioner, and 2 ballots;
were challenged.
As the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director, pursuant to. the Board's
Rules and Regulations, conducted an investigation, and on June 13,,
1956, issued and caused to be served on the parties a report on chal-
lenged ballots. In his report the Regional Director recommended to,
the Board that the challenge to the ballot cast by one voter (Walling)-
be overruled but that the challenge to the ballot cast by the other voter-
(McLain) be sustained.. He further recommended that the Petitioner-
herein be certified as the bargaining representative of the employees
in the unit in which the election was held. The Employer filed timely
exceptions; the Petitioner filed no exceptions.
On December 6, 1956, the Board issued an order herein overruling
the challenge to the ballot of Walling and directing the Regional'
Director to open and count such ballot and to prepare and serve upon
the parties a revised tally of ballots, including therein the count of
said challenged ballot. The Board further ordered that in the event
the results of the election shall not have been. determined upon the
counting of Walling's ballot, the record in the above-entitled proceed-
ing be reopened, and upon appropriate notice, a hearing be held for the
118 NLRB No. 140.
NATIONAL CYLINDER GAS COMPANY 1037
purpose of receiving evidence as to McLain's duties to determine
whether or not he is a supervisor within the meaning of the Act.
Pursuant to the terms of the aforesaid order, a hearing was held
on January 11, 1957, before T. Lowry Whittaker, hearing officer. On
February 18, 1957, he issued his findings and recommendations in
which he found that McLain was a supervisor at the time of the elec-
tion, and on the basis of the revised tally of ballots showing that the
Petitioner received 6 votes cast in its favor as against 5 cast against it,
that the Board issue a certification to the Petitioner as the duly
certified bargaining representative in the appropriate unit. The Em-
ployer filed timely exceptions to the hearing officer's report.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. The Board has considered
the hearing officer's report, the exceptions thereto, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendation of the hearing officer.
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-member panel [Members Rodgers, Bean, and
Jenkins].
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 certain 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.
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act:
All truckdrivers, truckdriver helpers, and warehousemen at the
Employer's Houston, Texas, plant, excluding office clerical employees,
plant clerical employees, all other employees, guards, watchmen, and
supervisors as defined in the Act.
5. At the hearing, the Employer maintained its previous positions
taken prior to the hearing that McLain held a nonsupervisory position
at the time of the election, and that the Petitioner's agreement to the
eligibility list foreclosed the matter. The Board in its order of
December 6, 1956, rejected the latter contention.
With respect to McLain's status at the time of the election, the
hearing officer found that McLain acted as a supervisor prior to and
on the date of the election by reason of his responsibly directing
the work of the other employees in the Employer's CO2 division, and
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he continued to exercise the authority of a supervisor after the
election without any visible or noticeable change being made in his
duties. The hearing officer further found that McLain exercised the
authority of a supervisor prior to the date of the election by executing
an order of termination for one of the employees (Cravens) and by
effectively recommending the hiring of employee Barnes and by his
placement on the payroll, and by his selection and hiring of employee
Jacobs subject to the approval of Soyars, and that following the;elec-
tion, McLain continued to act in a supervisory capacity by his inde-
pendent determination of the job assignment for Barnes' replacement.
The Employer in its exceptions and brief contends that McLain's
duties were more in the nature of those exercised by an experienced
employee over less experienced employees. The record shows, how-
ever, that after the transfer of District Manager Artis to the west
coast in February 1956, McLain's authority increased substantially in
view of the fact that Soyars, the District Manager of the Gas Division
(as distinguished from the CO2 division), who was given overall
charge devoted virtually very little time to the CO2 division, enhancing
materially McLain's responsibilities,there. Moreover, when employee
Jacobs was hired, he was informed by McLain that he was to take
orders from him (McLain). McLain directed Jacobs' work. Indeed,
when McLain left on a trip, he left instructions for the employees to
get in touch with him in case of emergency and did not refer them
to Soyars for instructions. McLain had to authorize Jacobs' pur-
chases of paint to use on steel cylinders, to have repair work done
on the trucks, to buy new truck tires. Although Soyars testified that
he was the only one authorized to purchase truck tires, he did not
specifically deny that McLain in fact authorized such purchase.
McLain decided whether an icebox furnished by the Employer would
be repaired or replaced, customer complaints were directed to McLain
rather than to Soyars, McLain posted written notices and gave oral
instructions to employees to advise the secretary of their leaving and
returning to the plant, and, when necessary, McLain authorized
working beyond the regular quitting time and authorized and signed
the time sheets for payment of overtime. In addition, McLain
granted leave to employees in the division.
The Employer in its exceptions and brief contends that McLain
had no authority to hire or discharge employees. The record shows,
however, that McLain effectively recommended the hiring of employee
Barnes, and on April 29, 1956, hired employee Jacobs. In the case
of the latter, the record clearly supports the hearing officer's finding
that Jacobs' hiring by McLain was not an emergency hiring, as
contended by the Employer, that Jacobs was employed as a perma-
nent employee, and that Soyars' assent to the hiring was a mere
formality.
GULF STATES TELEPHONE COMPANY 1039
On the basis of the entire record, we are satisfied that the factual
findings of the hearing officer are amply supported. Because the
revised tally shows that a majority of the votes has been cast for the
Petitioner, we shall certify the Petitioner as the collective-bargaining
representative of the employees in the appropriate unit.'
[The Board certified the General Drivers, Warehousemen and
Helpers Local Union No. 968, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL-
CIO, as the collective-bargaining representative of the employees at
the Employer's Houston, Texas, plant in the unit found appropriate.]
1 On June 29 , 1957 , the Employer moved to dismiss this proceeding on the ground that
more than a year had elapsed since the election . The cases relied on by the Employer
were overruled . by The American Thread Company, 96 NLRB 956 . In Mike Persia Chevro,
let Co ., Inc., 107 NLRB 377, the Union lost the election and filed objections which were
consolidated with a pending unfair labor practice proceeding . As more than a year would
have elapsed from the time of the election to the end of the posting period respecting unfair
labor practices found by the Board, the Board held that no useful purpose would be served
in deciding the issue raised by the objections as the Union was able under the Act to obtain
a new election in any event . This case is therefore inapposite . Barby's Frosted Foods,
Inc., 108 ' NLRB 814, is likewise inapposite.
Gulf States Telephone Company and Local Union 1692, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO , Petitioner.
Case No. 16-RC-2138. August 16,1957
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 John C. Crawford, hearing
officer. 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-member panel [Chairman Leedom and Members
Murdock and Jenkins]..
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.'
1 The parties stipulated that the record and briefs in Case No . 16-RC-2078 ( not re-
ported in printed volumes of Board Decisions and Orders ) be incorporated in the present
proceeding. That case was dismissed by the Board for failure of the Petitioner to renew
compliance under Section 9 ( g) of the Act . The instant petition , which seeks the same
unit as in the prior case, was filed as a result of that dismissal.
In Case No . 16-RC-2078 ( not reported in printed volumes of Board Decisions and Orders)
the Employer had moved to dismiss the petition for failure to join the Communication
workers of America, hereinafter referred to as CWA, as a necessary party and to serve it
with notice of hearing. As the CWA in the instant proceeding was served with process,
the Employer has withdrawn its motion to dismiss.
9 The Board asserts jurisdiction over telephone companies whose annual revenues are in
excess of $200,000. Hanford Broadcasting Company, KNCS, 110 NLRB 1257, 1258.
118 NLRB No. 141.