Philadelphia Terminals Auction Co.

National Labor Relations Board - Board Decisions

Sep 24, 1942

44 N.L.R.B. 454 (N.L.R.B. 1942)

In the Matter of PHILADELPHIA TERMINAI.s AUCTION Co. and PHILA-
DELPIHA TYPOGRAPHICAL UNION, No. 2
Case No. R-417.3.-Decided September X4,19.1 2
Jurisdiction : auction service industry.
.Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; eligibility determined by pay roll pre-
ceding strike ; election necessary.
Unit Appropriate for Collective Bargaining : employees of Company's printing
department.
Mr. T. E. 211ontgomer"y, of Philadelphia, Pa., for the Company.
Mr. Benjamin R. Simons, of Philadelphia, Pa., for the I. T. U.
Mr. Edward Davis, of Philadelphia, Pa., for Local 929.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Philadelphia Typographical Union, No.
2, of the International Typographical Union, herein called the I. T. U.,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Philadelphia Terminals Auction Co.,
Philadelphia, Pennsylvania, herein called the Company, the National
Labor Relations Board provided an appropriate hearing upon due
notice before Robert H. Kleeb; Trial Examiner. Said hearing was
held at Philadelphia, Pennsylvania on August 14 and 18, 1942. The
Company, the I. T. U., and Produce, Poultry, Fish & Oystermen Driv-
ers & Helpers Union, Local 929, of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein
called Local 929, appeared, participated, and were afforded full oppor-
tunity to be, heard, to examine and cross-examine witnesses, and to
introduce evidence bearing' upon the issues. At the beginning of the
hearing Local, 929 made a motion to dismiss the petition upon the
ground that the Board had no jurisdiction of the proceeding. Said
motion was renewed at the close of the hearing. The Trial Examiner
reserved ruling on the motion. For the reasons hereinafter stated said
motion is hereby denied. The Trial Examiner's rulings made at the
hearing, are free from prejudicial error and are hereby affirmed.
44 N. L. II B, No. 78 '
454
PHILADELPHIA TERMINALS AUCTION co. 455
Upon the entire record in the case , the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
. _ Philadelphia Terminals Auction Co. is a New Jersey corporation
licensed to do business as an auction company by the State of Penn-
sylvania . It maintains its office and principal place of business in
Philadelphia , Pennsylvania , where it* renders a sales service as auc-
tioneer for owners and shippers of fruit and produce and conducts
daily auction sales at the terminals of the Pennsylvania and Baltimore
& Ohio Railroads . The produce handled by the Company, which
is chiefly fruit , is forwarded , by rail or boat, by the owners or shippers
from California , Texas , and Florida , and prior to the war, from Italy
and Spain , to their ' respective agents , receivers , or brokers in the
Philadelphia produce market. The Company takes no part in the
shipping, receiving, unloading, or delivery of the produce. It neither
buys'nor takes title to any of the produce- The Company's sole serv-
ice is to sell the produce at public auction . For the rendition of this
service, it first receives from the agents , receivers , or brokers , railroad
manifests of the produce shipped, from which it prepares and prints
sales catalogues, then checks the produce, and usually within 24 hours
of the delivery of the produce , sells at public auction to some 250
regular buyers. These buyers consist of chain store organizations,
jobbers, wholesalers , and retailers, about 10 percent of whom operate
in the States of Delaware and New Jersey.
During.1941 the Company handled for sale ,at auction approxi-
'mately 12,500 carloads of produce and its gross sales amounted ap-,
proximately to $190 ,000,000. During this period approximately 3
percent of . the gross sales was made to buyers from outside the State
of Pennsylvania. The Company's printing department, which is
involved herein, prepares and prints the sales catalogues which are
first placed in racks outside the printing room and then affixed ,to
the side of the railroad cars , where they are secured by the pros-
pective buyers shortly prior to the sales.
The contention of Local 929 that the Company is not engaged
in commerce within the meaning of the National Labor Relations
Act since the service the Company renders is wholly performed within
the State of Pennsylvania, is without merit. The Company's opera-
tions form an integral function in the shipment of large quantities
of produce from their States of origin to their ultimate destinations
in other States, and an interruption of the performance ,of the Com-
pany's service by reason of a labor dispute would dislocate the move-
ment of the produce, much of which is perishable , and would thereby
burden and obstruct commerce, and the free flow of commerce.
456 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.'
If. THE ORGANIZATIONS INVOLVED
Philadelphia Typographical Uniori, No. 2 of the International
Typographical Union is a ,labor organization, admitting to-member-
ship employees of the Company's printing department.
Produce, Poultry, Fish & Oystermen Drivers & Helpers Union,
Local 929, chartered by International Brotherhood of Teamsters,
'Chauffeurs, Warehousemen `& Helpers of America, is a labor organi-
zation affiliated with the American Federation of Labor. It admits
to membership employees 'of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In November 1941, I. T: U. notified the Company that it repre-
sented the employees of the Company's printing department and re-
quested the negotiation of. a collective bargaining agreement. The
,Company expressed no unwillingness to negotiate with I. T. U., but
refused to enter into any bargaining agreement with it by , reason
of Local 929's professed claims of representation of the Company's
printing department employees and its threat, of a strike of the
Company's checkers.2 A statement of the Regional Director, idtro-
ducedinto evidence at the hearing, indicates that I. T. U. represents
a substantial number of employees in the unit hereinafter found to
be appropriate 3
IN. L R . B v Fainblatt, 306 U S 601 , revtg 98 F (2) 615 (C. C A 3 ) setting aside
,Matter of Benjamin Fainblatt and Marjorie Fainblatt , individuals, etc and Interndtional
Ladies ' Garment Workers ' Union, Local 149 , 1 N. L R B 864 and 4 N L R B 596;
N. L R B v Hearst, 102 F (2) 658 (C C. A. 9) enf'g as modified Matter of William
Randolph Hearst, et al. and American Newspaper Guild, Seattle Chapter, 2 N. L R B.
530; N. L R B v Levaur, Inc 115 F ( 2) 105 ( C C. A. 1 ) enf'g Matter of Henry Levaur,
Inc and International Association of Machinists, Local #1017 (A F L), 17 N L R B
1034, cert denied, 312 U S 682 ; Matter of Security Warehouse and Cold Storage Company
and International Longshoremen 's and Warehlousemervs Union, Local 1-6, 35 N L R B
857; Matter of Graham Mill d Elevator Company and United Grain Processors, a local
Federal Union of the American Federation of Grain Processors, affiliated with the American
Federation of Labor, 40 N L R B 1289; Matter of Lloyd Hollister, Inc. and Chicago Typo-
graphical Union, No. 16 of International Typographical Union (nnafliated), 33 N. L R. B.
982
2 Local 929 presently represents the Company's checkers On March 26; 1942, and subse-
quent to notice of I T. _ U 's claim of representation of the printing department employees,
Local 929 entered-into a contract With certain employer-associations in Philadelphia and
the Company covering specified classifications of production and delivery employees, includ-
ing the Company's checkers. Previously the checkers had•been coserel by contracts between
the Company and Checkers Union, Local 20642, an A F. of L. affiliate
3 The Regional Director's statement shows that I T U submitted 3 preliminary mem-
bership cards, 2 dated November 19, 1941, 1 dated November 24, 1941 and 1 dues card
showing payment of dues up to and including May 1942; that 'the above cards bear the
signatures or identification of persons whose names appear on the pay loll submitted'by the
Company , which contains 4 emplo3ees in the alleged appropriate unit At the hearing it
was established that I. T U. represented all printing department employees on the Com-
pany ' s pay roll prior to June 20, 19 42, the date upon which said emp'oyees went on strike,
PHILADELPHIA TERMINALS AUCTION CO. 457
r
We find that a question 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 APPROPRIATE UNIT
I. T. U. requests a craft unit confined to the Company's printing
department. employees. Local 929, denies the appropriateness of the
requested unit and contends that only an.industrial unit , on a plant-
wide basis is appropriate. The Company takes no position with
respect to the appropriate unit.
In addition to the printing department employees, the Company
employs checkers, auctioneers, clerks at sales,4 supervisory, clerical,
and miscellaneous employees. Considerable dissimilarity exists in
the wages, hours, and working conditions of the printing department
employees and all other employees of the Company, and the work of
the former is essentially different, requiring special skill, training,
and apprenticeship. There is no history of collective' bargaining for
the printing department employees and they were excluded from
Local 929's current, exclusive bargaining contract, to which the
Company is a party. Moreover, the printing department employees
have been traditionally within the jurisdiction of I. T. U., and Local
929 has neither been designated nor authorized to act as the exclusive
representative of these employees.
We find that the employees of the Company's printing department
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. Since Local
929 made no showing of representation of any of the employees
within the unit found appropriate, we shall not accord Local 929 a
place upon the ballot in the election.' The parties expressed no
preference as to the pay-roll period to be used in determining eligi-
bility to vote. On June 20, 1942, the printing department employees
went on strike and the.strike was in progress at the time of the hear-
ing. While the Company is presently producing, mimeographed, in
place of printed, sales catalogues, the Company has not replaced any
as hereafter discussed The Regional Director further reported that Local 929 submitted
no evidence of representation and that it informed the Regional Director that it represents
none of the employees in`the alleged unit.
4 These employees are also refer red to as " Junior auctioneers
6ilfatter of Industrial Rayon Corporation and International B,otherhood of Firemen &
Oilers, Local No 52 (AFL ) etc, 33 N L. R B 680
458 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
of the printing department employees, and at the hearing, indicated
Iio disinclination to reemploy them, in the event of a disposition of
the pending controversy. Since employees of the Company, on its
pay roll next preceeding June 20, 1942, the date of the strike, retain
their status as employees who ceased work in connection with a cur-
rent labor dispute, we find that they are entitled to participate in
the selection of a bargaining representative.
We shall direct that those eligible to vote in the election shall be
the employees in the appropriate unit who were employed during
the pay-roll period immediately preceding June 20, 1942, subject
to the limitations and additions set forth in the Direction.
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 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby ,
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Philadelphia
Terminals Auction Co., Philadelphia, Pennsylvania, 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 Fourth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among the employees4in the unit found appropriate in
Section IV above, who were employed by the Company during the
pay-roll period immediately preceding June 20, 1942, including any
such employees who did not work during such pay-roll period because
they were ill or on vacation or in the active military service or
training of the United States, or temporarily laid off, but excluding
any who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by Philadelphia Typo-
graphical Union, No. 2, of the International Typographical Union,
for the purposes of collective bargaining.
ID the Matter Of PHILADELPHIA TERMINALS AuorIoN Co . and PHILA-
DELPHIA TYPOGRAPHICAL UNION, No. 2
Case No. R-4173
CERTIFICATION OF REPRESENTATIVES
October 15, 1942
On September 24, 1942, the National Labor Relations Board issued
a Decision and Direction of Election in the above-entitled proceed-
ing.' Pursuant to the Direction of Election, an election by secret
ballot was conducted on October 6, 1942, under the direction and
supervision of the Acting Regional Director for the Fourth Region
(Philadelphia, Pennsylvania). On October 8, 1942, the Acting Re-
gional Director, acting pursuant to Article III, Section 9, of the
National Labor Relations Board Rules and Regulations-Series 2,
as alnended, issued and duly served upon the parties a Report on
Ordered Election. No objections to the conduct of the ballot or the
Report on Ordered Election have been filed by any of the parties.
As to the balloting and its results, the Acting Regional Director
reported as follows :
Total on eligibility list-------------------------------------- 4
Total ballots cast ------------ !----------------------------- 4
Total ballots challenged------------------------------------ 0
Total blank ballots----------------------------------------- 0
Total void ballots ---------------------•--------------- 0
Total valid votes counted----------------------------------- 4
Votes cast for Philadelphia Typographical Union No 2, Inter-
national Typographical Union----------------------------- 4
Votes cast against Philadelphia Typographical Union No. 2,
International Typographical-Union ------------------------ 0
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Sections 8 and 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
IT IS HEREBY CERTIFIED that Philadelphia Typographical Union, No.
2, of the International Typographical Union, has been designated
144 N L R. B 454
44 N L R B., No. 78a
459
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and selected by a majority of the employees of the printing depart-
ment of Philadelphia Terminals Auction Co ., Philadelphia, Penn-
sylvania , as their representative for the purposes of collective bar-
gaining, and that, pursuant to the provisions of Section 9 (a) of
the National Labor Relations Act, Philadelphia Typographical Union,
No. 2, is the exclusive representative of all such employees for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment , and other conditions of employment.