O. F. Shearer & Sons

National Labor Relations Board - Board Decisions

May 21, 1947

73 N.L.R.B. 1231 (N.L.R.B. 1947)

In the Matter of 0. F. SHEARER , OLIVER SHEARER , BERT SHEARER, MRS.
LELIA C. SHEARER , JAMES N. SHEARER , FREDA SHEARER, MRS. REBA
CARLIE AND MRS. EARL PACE , PARTNERS , DOING BUSINESS UNDER THE
NAME OF O. F. SHEARER & SONS , EMPLOYER and NATIONAL MARI-
TIME UNION, CIO, PETITIONER
Case No. 9-B-2421.-Decided May 21, 1947
Messrs. 0. F. Shearer and 0. C. Shearer, of Winchester, Ky., for
the Employer.
Mr. Ervin W. Dement, of Pt. Pleasant, W. Va., for the Petitioner.
Messrs. M. E. Boiarsky and Charles Payne, of Charleston, W. Va.,
for the Intervenor.
Miss Frances Steyer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Hunting-
ton, West Virginia, on March 20, 1947, before William 0. Murdock,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby afrmed.1
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
0. F. Shearer & Sons is a partnership consisting of O. F. Shearer,
Oliver Shearer, Bert Shearer, Mrs. Lelia C. Shearer, James M. Shearer,
1 During the hearing, and by subsequent motion to the Board, the Intervenor moved to
dismiss on the ground that the Petitioner had withdrawn its petition, and that the Board
is now without jurisdiction to conduct an investigation in this matter. Action on the
motion was reserved by the hearing officer for the Board. It appears that at an informal
conference between the parties herein involved, held on December 6, 1946, the representa-
tive of the Petitioner expressed an intention to withdraw the petition without prejudice
because of the coal strike and the resulting lack of cargo to haul Request for withdrawal,
however, was never in fact filed. We find, therefore, that there is no merit to the conten-
tion that the petition has been withdrawn. The motion to dismiss is accordingly denied.
73 N. L. R. B., No. 218. 1231
739926--47-vol 73-79
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freda Shearer , Mrs. Reba Carlie , and Mrs . Earl Pace, with head-
quarters at Winchester, Kentucky.
The Employer is engaged in river transportation of coal and petro-
leum on the Ohio and Kanawha Rivers and their tributaries . In con-
nection therewith, the Employer operates boats, barges, and a land-
ing at Cedar Grove, West Virginia. The Employer operates in West
Virginia, Kentucky, Indiana, and Ohio, and does an annual gross
business valued in excess of $100,000.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
District 17, United Mine Workers of America, herein called the
Intervenor, is a labor organization affiliated with the American Fed-
eration of Labor, claiming to represent employees of the Employer.
II[. TIIE QUESTION CONCERNING REPRESENTATION
On September 24, 1946, the Petitioner advised the Employer by
letter that it claimed to represent a majority of the Employer's un-
licensed personnel. The Employer made no reply, and the Petitioner
filed the instant petition in the Regional Office on October 4, 1946.
The Intervenor and the Employer are parties to a 2-year contract,
expiring on May 31, 1947, which contains a clause, pursuant to an
amendment effective September 1, 1946, automatically renewing the
contract from year to year unless notice is given by either party 30
clays prior to any annual expiration date.
The Intervenor contends that the contract is a bar to this proceed-
ing. Apart from all other considerations, we find that this agreement
does not preclude a current determination of representatives inasmuch
as the unexpired contract period is now less than 1 month. °
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are in substantial agreement that the appropriate unit
should consist of all employees of the Employer, including mates, but
excluding office and clerical employees, captains, masters and pilots,
chief and assistant engineers, and all other supervisory employees with
0. F. SHEARER & SONS 1233
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such
action. The Employer and the Intervenor, however, would include,
and the Petitioner would exclude, two harbor men.
The two harbor men are stationed at the Employer's landing at
Cedar Grove, West Virginia, and are primarily engaged in the mainte-
nance and repair of the boats and other equipment. They work under
the supervision of the managing partner or the chief mechanic, and
frequently work with members of the crew. They have been repre-
sented by the Intervenor for several years as part of the contract unit.
The only reason advanced by the Petitioner for the exclusion of these
employees is that they technically come under the jurisdiction of
another labor organization affiliated with the CIO. The Petitioner,
however, presently represents similar employees in the area, and agrees
to represent the employees in question in the event that they are in-
clded in the unit and it wins the election. In the absence of any com-
pelling circumstances warranting a departure therefrom, we shall
adhere to our usual practice and not disturb the contract unit estab-
lished as a result of collective bargaining between the Employer and
the Intervenor. We find, therefore, that the harbor men should be
included in the appropriate unit.
We find that all employees of the Employer, including mates and
harbor men, but excluding office and clerical employees, captains, mas-
ters and pilots, chief and assistant engineers, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recom-
mend such action, constitute a unit appropriate for the purposes of
collective bargaining within the meiuiing of Section 9 (b) of the Act.
DIRECTION OF ELECTION 2
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with O. F. Shearer , Oliver Shearer, Bert
Shearer, Mrs . Lelia C. Shearer , James N. Shearer , Freda Shearer, Mrs.
Reba Carlie and Mrs. Earl Pace , doing business as O. F. Shearer &
Sons, Winchester , Kentucky, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty ( 30) clays from
the date of this Direction , under the direction and supervision of the
Regional Director for the Ninth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Sections 203.55
and 203.56 , of National Labor Relations Board Rules and Regula-
' Any participant in the election directed herein may, upon its prompt request to and
approval thereof by the Regional Director, have its name removed from the ballot.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions-Series 4, among the employees in the unit found appropriate in
Section IV, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill or
on vacation 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
discharged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether they desire to be repre-
sented by National Maritime Union, CIO, or by District 17, United
Mine Workers of America, A. F. of L., for the purposes of collective
bargaining, or by neither.