Potosi Tie & Lumber Co.

National Labor Relations Board - Board Decisions

Apr 25, 1947

73 N.L.R.B. 590 (N.L.R.B. 1947)

In 'the Matter of POTOSI TIE & LUMBER COMPANY , EMPLOYER and
INTERNATIONAL BROTIIERIIOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICAS LOCAL' 415, AFL, PETITIONER
In the Matter of W. J. SMITH WOOD PRESERVING COMPANY, EMPLOYER
and INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CIAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 415, AFL,
PETITIONER
Cases Nos. 16-R-1972 and 16-R-2033, respectively.-Decided .April
05, 1947
Messrs. Ralph W. Malone and William Summerville, of Dallas,
Tex., and Mr. M. A. Dickey,'of Denison, Tex., for Potosi.
Messrs. R. W. Stoddard and W. J. Smith, of Denison, Tex., for
Smith.
Mr. John E. Torbett,,of Denison,-Tex., •for-the Petitioner.
Messrs. H. K. Steele and P. P. Barnes, of Denison, Tex., and Mr.
A. J. Pickett, of St. Louis, Mo., for the Intervenor.
Mr. Stanley Segal, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a consolidated hearing in these
cases was held at Sherman, Texas, on January 7, 1947, before Glenn
L.' Moller, 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 the case, the National Labor Relations
Board makes the following :
FINDINGS O FACT
I. THE BUSINESS OF THE EMPLOYERS
- W. J. Smith Wood Preserving Company, herein called Smith, is a
Texas corporation with its office and plant in Denison, Texas, where
it is engaged in purchasing, creosoting, and selling ties, poles, and
lumber. Smith annually purchases raw materials valued in excess of
73 N. L. R. B., No. 114.
590
POTOSI TIE & LUMBER COMPANY 591
$500,000, of wh'h approximately 50 percent is shipped to its plant
from points outside the State of Texas. It annually sells products
valued in excess of $750,000, of which approximately 40 percent is
shipped out of the State. -
Potosi Tie Sc Lumber Company, herein called Potosi, is a Missouri
corporation with its principal office in St. Louis, Missouri. 'Potosi is'
engaged in' purchasing and selling untreated and treated lumber,
principally railroad ties and telegraph and telephone poles. Potosi
purchases treating services from other companies located in Denison,
Texas; East St. Louis, Illinois; Madison, Illinois,; and Granite City,
Illinois. Only Potosi's operations at Denison,-Texas, are involved in
this proceeding. Potosi annually purchases for its operations at Deni-
son, Texas, raw materials valued in excess of $150;000, of which ap-
proximately 2.4-percent is shipped- from points outside'the State of
Texas.. It annually sells from its Denison operations products valued
in excess of $300,000, of which approximately 5 percent is shipped out
of the State. Practically all Potosi's sales within the State are to,
railroad and public -utility companies.
Each of the Employers admit, and we find, that it is engaged in
commerce within the meaning of the National Labor Relations Act.
If. TILE ORGAN IZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor , claiming to represent employees of the -Em-
ployer.
International Hod Carriers , Building and Common Laborers Union'
of America-Creosote Workers, Local No. 1281 , herein called the In-
tervenor , is a labor organization , affiliated with the . American Fed-
eration of . Labor, claiming to represent employees of-the Employer.
111. TILE QUESTIONS CONCERNING REPRESENTATION
Smith and Potosi refuse to recognize the Petitioner as the exclu-
sive bargaining representative of employees of the Employers until
the Petitioner has been certified by the Board in an appropriate unit
or units. -
The Intervenor contends that the Board has no jurisdiction in this .
proceeding on the ground that the employees involved are within the
jurisdiction of the Railway Labor Act because the land, buildings, and
other property used by Smith is leased from Missouri-Kansas-Texas
Railroad Company, herein called Railroad. In 1929, Smith leased
the property from Railroad for a period of 5 years with an option of
renewal which it has exercised continuously: - Smith is a separate cor-
poration and in no way connected with Railroad. It treats ties for
73992G-47-vol 73-39
592 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
Railroad as well as for other companies. There is no evidence in the
record that indicates that Railroad controls directly or indirectly
either the operations or the employees of Smith. We find that the
employees involved are not covered by the Railway Labor Act.'
The Intervenor also apparently asserts that an existing collective
bargaining agreement with Smith is a bar to a current determination
of representatives. The Intervenor and Smith executed a collective
bargaining agreement effective January 1, 1942, to continue until
July 1, 1942. Subsequently, the parties signed an addendum effective
August 1, 1942, which, among other things, extended the contract "for
a period of six (6) months . . . and thereafter until a thirty (30)
day written notice" is served by either party signifying an intent to
alter its provisions. Thereafter, the parties executed other addenda,
the last one dated August 17, 1945. None of the additional addenda
altered the termination provisions contained in the August 1, 1942,
addendum. Neither contracting party has served notice of a desire
to alter this agreement. In view of the fact that the contract is.
terminable at will, we find that it does not constitute a bar to a present
determination of representatives 2
The Intervenor further contends that the authorization cairds sub-
mitted by the Petitioner became null and void when the Intervenor
subsequently secured from a majority of employees powers of attorney
empowering it to act for the employees in bargaining negotiations.
We have repeatedly pointed out that the interest showing of a peti-
tioning labor organization serves only an administrative purpose and,
.therefore, is not subject to attack by an opposing party.3
The Intervenor finally contends that the petition should be dismissed
because both labor organizations involved are affiliated with the
American Federation of Labor. We find no merit in this contention
inasmuch as it appears that the dispute cannot be resolved effectively
without resort to the administrative processes of the Board.
We find that questions affecting commerce have arisen concerning
the representation of employees of Smith and Potosi within the mean-
ing of Section 9 (c), and Section 2-(6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
The Petitioner filed separate petitions seeking:
1. A unit at Smith of all production and maintenance employees,
including assistant treating engineers, subforemen, general inspector,
' See Railw iy Labor Act, Sec. 151, 45 U " S C '§ 151
2 See Matter of United Brass and Aluminum Manufacturing Company, 66 N L. R B.
579 . Matter of Lennox Furnace Company, 60 N L R. B 580.
See Matter of 0 D Jennings & Company, 68 N. L R B. 516 ; Matter of General Electric
X-Ray Corporation, 67 N L R B 997.
POTOSI TIE & LUMBER COMPANY 593
firemen, doormen, iron and truck laborers, crane engineers and helpers;
dinkey engineers afid helpers, watchmen, framers, chemists, inspectors,
blacksmiths and helpers, checkers, stock straighteners, car to yard,
yard to train, and tram to car employees, but excluding office and
clerical employees, auditor, treating engineer, yard foreman, adzer
foreman, and all other supervisory employees.
2. A unit at Potosi of all production and maintenance employees
including checkers, but excluding office and clerical employees and
all supervisory employees.
The Intervenor and the Employers contend that there should be
only one unit embracing the employees of both Smith and Potosi.
There is also some question as to the inclusion or exclusion of the
general inspector, the assistant treating engineers and the checkers.
Potosi is one of Smith's principal customers. Potosi has always
used the premises of Smith to carry on its operations. Before August
1945, Potosi had employed only a crew of farmers to trim incoming
logs and ties and ready them for treatment by Smith. All other serv-
ices in connection with the handling of the logs and ties were per-
formed by Smith. In August 1945, Potosi took over from Smith the
handling job, including loading and unloading railroad cars, stacking
poles and ties and moving lumber to and from the creosoting cylinders.
Smith continued to do the treating work. Smith has transferred sev-
eral of its employees to Potosi and has also permitted the latter to use
its equipment. Potosi also uses one of its own cranes.
Potosi and Smith are separate corporations without any elements
of common control. The operations of the two companies, including
supervision, are also separate and distinct. The employees of each
company are-clearly identifiable ;here is no intermingling of em-
ployees. Interchange of employees is infrequent. When it does occur,
the borrowing company pays for the services rendered. As the result
of an oral understanding, Potosi has generally followed the wage
policies of Smith. However, Potosi is not under any legal obligation
to do so. Potosi has nb collective bargaining agreements with either
the Petitioner or the Intervenor.
As previously indicated, Potosi and Smith are separate corpora-
tions. Their relationship to one another has not been such as to war-
rant a finding that they constitute a single "employer" within the
meaning of Section 2 (2) of the At. Under these circumstances, a
single two-company unit is not appropriate.4 Accordingly, we shall
establish the employees of Potosi and Smith in separate units.
' See California State Brewers Institute, 72 N. L. R. B. 665 , Matter of California Metal
Trades Association, 72 N. L. R. B. 624.
594 DECISIONS OF-NATIONAL. LABOR RELATIONS BOARD
General inspector of Smith: This employee supervises the activities
of about 20 to 30 employes engaged in unloading cross ties and moving
them to the treating department. He directs the work through 2 or 3
subforemen. The general inspector-has the authority to hire and dis-
charge. In the case of a discharge, the discharged employee may
appeal to the president of Smith, as provided in the collective bar-
gaining agreement between Smith and the Intervenor. He has been
covered by the current contract between Smith and the Intervenor.
We find that the general inspector is a supervisor within the Board's
customary, definition-. Inasmuch as there is no evidence that it is the
custom in the industry to include supervisors in a rank and file unit,
we shall, in accordance with our usual policy, exclude the general
inspector from the unit.
Assistant engineers at'Smith: Smith-employs about four assistant
treating engineers. These employees are highly skilled mechanics who
are in charge of the technical treating processes. They direct the work
-Of doormen. It does not-appear,that they have the authority to change
or effectively to recommend a change in-'status of doormen. The as-
sistant treating engineers have been included in the unit represented
by the Intervenor. We find that the assistant treating engineers are
not supervisors within the Board's customary definition and we shall
include them in the unit.
- Checkers: Potosi employs three checkers, each of whom is in charge
of a locomotive crane and a creme- of four helpers. The checkers have,
the authority to hire and discharge employees under their supervision.
We find that the checkers are supervisors within the Board's customary
definition,-and we shall exclude then from the unit:
We find that each of the followink units, excluding office and cleri-
cal employees, yard foremen, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively.•ecominend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b)•of the Act:
1. All production and maintenance employees of Smith, including
assistant treating engineers, subforemen, firemen, doormen, iron and
truck drivers, crane engineers and helpers, dinkey engineers and help-
ers, watchmen, framers, checkers '5 inspectors, blacksmiths and helpers,
chemists, stock straighteners, car-to yard,,-yard to tram, and tram to,
car employees, but excluding auditor; treating engineers, and general
inspector. -
2. All production and maintenance employees of Potosi,-including
framers, common laborers and crane engineer helpers, but excluding
superintendent and checkers.
The checkers at Smith coricededly have no supervisory authority
POTOSI TIE & LUMBER COMPANY
. DIRECTION OF ELECTIONS s
595
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with W. J. Smith Wood Preserving
Company and Potosi Tie & Lumber Company, Denison, Texas, sepa-
rate elections 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 Sections 203.55 and 203.56, of National °
Labor Relations Board Rules and Regulations-Series 4, among the
employees in the units 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
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 in each of the units whether they desire to be represented'
by International Brotherhood of Teamsters, Chauffeurs, Warehouse-'
men and Helpers of America, Local No. 415, AFL, or by International
Hod Carriers Building and Common Laborers Union of. Anlerica-
'Creosote Workers, Local No. 1281, A. F. L., for the purposes of collec-
tive bargaining, or by neither.
° Any participant in the elections herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot.