Rio Grande Truck Lines

National Labor Relations Board - Board Decisions

Jul 29, 1940

25 N.L.R.B. 1069 (N.L.R.B. 1940)

In the Matter of R. G. SPITZER, DOING BUSINESS AS Rio GRANDE TRUCK
LINES and MOTOR TRANSPORTATION EMPLOYEES ASSOCIATION
Case No. R-1928.-Decided July 09, 1940
Jurisdiction : motor transportation industry.
Investigation and Certification of Representatives : existence of question:
refusal to accord recognition to union ; dispute as to appropriate unit ; contract
entered into after institution of proceedings, no bar to ; elections necessary.
Unit Appropriate for Collective Bargaining : single or separate units com-
prising: (1) dock and pick-up men, drivers, and the non-supervisory mechanic;
(2) clerks, general office employees, and agents without power to hire or
discharge ; other factors evenly balanced determining factor desires of em-
ployees themselves ; determination of, dependent upon elections.
Mr. H. 0. Waggoner, of Albuquerque, N. Mex., for the Company.
Mann cC Tonkin, by Mr. Allen Tonkin, of Albuquerque, N. Mex.,
for the Association.
Mr. R. R. Keigley, of Denver, Colo., for the Brotherhood.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On April 30, 1940, Motor Transportation Employees Association,
herein called the Association, filed with the Regional Director for the
Twenty-second Region (Denver, Colorado) a petition alleging that
a question affecting commerce had arisen concerning the representation
of employees of R. G. Spitzer, doing business as .Rio Grande Truck
Lines, Albuquerque, New Mexico, herein called the Company, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On June 18, 1940, the National Labor
Relations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
25 N. L. R. B., No.,108.
1069
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 20, 1940, the Regional Director issued a notice of hearing,,
copies of which were served upon the Company, the Association, and
the International Brotherhood of Teamsters, Chauffeurs, Stablemen,
and Helpers of America, herein called the,Brotherhood, a labor organ-
ization claiming to, represent employees of the Company. Pursuant
to notice, a hearing was held on June 28, 1940, at Albuquerque, New
Mexico, before Paul S. Kuelthau, the Trial Examiner duly designated
by the Board. The Company and the Association were represented
by counsel and the Brotherhood by a representative; all participated
in the hearing. Full opportunity to be heard, to examine and cross-'
examine witnesses, and to introduce evidence bearing on the issues was
afforded all, parties. During the course of the hearing, the Trial
Examiner made several rulings on motions and objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
R. G. Spitzer, an individual doing business in Albuquerque, New
Mexico, as Rio Grande Truck Lines, is engaged in the transportation
of freight by truck between El Paso, Texas, Denver, Colorado, and
intermediate points. During May 1940, a typical month in the Com-
pany's business, the Company handled 3,168,278 pounds of freight, of
which approximately 90 per cent was transported by the Company to
points in States other than the State of origin.
We find that the Company is engaged in traffic, transportation, and
commerce among the several States of the United States and that
its employees are directly engaged in such traffic, transportation, and
commerce.
H. THE LABOR ORGANIZATIONS INVOLVED
Motor Transportation Employees Association is an unaffiliated-labor
organization admitting to membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Stablemen, and
Helpers of America, is a labor organization affiliated with the American
Federation of Labor, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 23, 1940, the Association, claiming to represent a majority
of the Company's employees, requested the Company to bargain with
R. G. SPITZER - 1071
it as their exclusive representative. The Company refused to bargain
because of asserted doubts as to the Association's designation by a
majority of the employees. On April 30, 1940, the Association filed
.a petition initiating this proceeding.
Thereafter, in May 1940, the Company entered into contractual rela-
tions with the Brotherhood covering dock and pick-up men, and
,drivers, and providing for exclusive recognition and a closed shop.
There was no showing at the hearing that at the time the contracts
with the Company were executed,ithe Brotherhood represented a ma-
jority of employees in the unit 'covered therein: Moreover, the con-
tracts were entered into after the Association had filed the petition
in this proceeding. Under these circumstances, the closed-shop exclu-
sive recognition contracts do not constitute a bar to this investigation
and certification of representatives.'
At the hearing the Association and the Brotherhood advanced con-
flicting claims concerning the scope of the appropriate unit and each
organization claimed to represent a majority of its employees within
the unit asserted by it to be appropriate.
We find that a question has- arisen concerning the representation of
-employees of the Company.
IV. THE APPROPRIATE UNIT
The Association contends that all employees of the Company, in-
eluding dock and pick-up men, drivers, mechanics, clerks, general office
employees, and agents without power to hire and discharge, but ex-
,eluding agents with power to hire and discharge, traffic men, solicitors,
shop foremen, and supervisory employees, constitute an appropriate
unit. In this alleged appropriate unit, consisting of approximately
58 persons, 42 are classified as dock and pick-up men and drivers. The
Brotherhood contends that the unit should be restricted solely to dock
and pick-up men and drivers. The Company made no contention
concerning the appropriate unit.
The drivers operate trucks carrying freight on the highways be-
tween, the respondent's terminals, occasionally picking up freight at
intermediate points. The Company employs two mechanics, one being
a foreman, who repair and service its trucks. Under all the circum-
stances of this case, it appears that dock and pick-up men, drivers, and
the non-supervisory mechanic, excluding the foreman, may be con-
sidered an appropriate unit.2
'Matter o f Pacific Greyhound Lines and Brotherhood of Locomotive Firemen and En-
ginemen, 4 N. L: R. B., 520; Matter of J _ Edwards & Co. and United Shoe Workers of
America, Local 127, C I 0, 20 N L R B. 244
2 See Matter of Perry Truck Ltines, Inc and Motor Freight Carriers ' Employees Associa-
tion, 25 N . L. R B. 487.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees whom the Association would include and the Brother-
hood would exclude number about 15. Of these the clerks in the
Company's employ perform ordinary, office clerical work and the
general office employees are employed in the accounting department.
The agents whom the Association would include in the unit also per-
form a substantial amount of clerical and accounting work.
Upon the foregoing facts, we conclude that the dock and pick-up
men, the drivers, and the non-supervisory mechanic, on the one hand,
and the employees performing, clerical and accounting work, on the
other, appropriately may be established as separate units or combined
into a single unit. The functional differences in the nature of the work
performed by employees in, each of these groups, and the fact that there
is no history of collective bargaining on a company-wide basis serves to
indicate the feasibility of dividing them into separate bargaining units.
On the other hand, such circumstances alone manifestly do not require
the exclusion of clerks, general office employees, and agents without
power to hire and discharge from a company-wide unit. We shall,
therefore, follow our decisions in similar situations that the determin-
ing factor is the desires of employees themselves.3 In any event, agents
with power to hire and discharge, traffic men, solicitors, foremen, and'
supervisory employees will be excluded from any unit or units which
we find to be appropriate.
Accordingly, we shall direct two separate elections by secret ballot.
The first election shall be conducted among the dock and pick-up men,
drivers, and the non-supervisory mechanic; therein these employees
will be afforded an opportunity to vote for the Brotherhood, for the
Association, or for neither. The second election will be conducted
among the clerks, general office employees, and agents without power
to hire or discharge. Inasmuch as only the Association desires to,
represent them, they will have the opportunity to vote for or against
the Association. If, in the first election, a majority of the employees
vote for the Brotherhood, we shall determine that those employees con-
stitute a unit appropriate for collective bargaining, and-shall certify
the Brotherhood as the representative of that unit. If the Association
is selected by a majority of employees in both elections, both voting
groups together will constitute an appropriate unit, and we shall certify
the Association as the representative of that unit. If the Association
is selected by a majority of employees in either one of the two elections
and does not receive a majority vote in the other, the employees who,
participated in the election wherein the Association received a majority
s Globe Machine and Stamping Company and Metal Polishers Union, Local No 3, at al,
3 N. L. R. B 294 ; Electric Auto Lite Company and International Union, United Automobile
Workers of America No. 12, 9 N. L R. B. 147; Willys Overland Motors, Inc, and Interna-
tional Union, United Automobile Workers of America, Local No. 12, 9 N. L. R. B. 924.
R. G. SPITZER 1073
vote will constitute an appropriate unit, and we shall certify the Asso-
ciation as the representative of that unit. We shall, therefore, make
no final determination of the appropriate unit pending the elections
herein directed.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion can best be resolved by elections by secret ballot. We shall direct
that elections be held ( 1) among the dock and pick -up men, the drivers,
and the non -supervisory mechanic, and (2) among the clerks, general
- office employees , and agents without power to hire and discharge.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the representa-
tion of employees of R. G . Spitzer, doing business as Rio Grande
Truck Lines, Albuquerque , New Mexico , within the meaning of Sec-
tion 9 ( c) and Section 2 (6) and (7) of the National Labor Relations
Act.
DIRECTION OF ELECTIONS
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 Art;.cle III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as a part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with R. G. Spitzer , doing business as Rio Grande Truck Lines, Albu-
querque, New Mexico, 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 Twenty -second Region, acting in this matter as agent
for the National Labor Relations Board and subject to Article III,
Section 9 , of said Rules and Regulations , among :
(1) All dock and pick-up men , drivers, and the non-supervisory
mechanic employed by the said Company during the pay-roll period
last preceding the date of this Direction , including any such employees
who did not work during such pay-roll period because they were ill
or on vacation and any who were then or have since been temporarily
laid off , but excluding foremen, agents , traffic men , solicitors , super-
visors, and any employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Motor
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transportation Employees Association, or by International Brother-
hood of Teamsters, Chauffeurs, Stablemen, and Helpers of America,
affiliated with the American Federation of Labor, for the purposes of
collective bargaining, or by neither;
(2) All clerks, general office employees, and agents without power to
hire or discharge, who were employed by the said Company during
the pay-roll period last preceding the date of this Direction, including
any such employees who did not work during such pay-roll period
because they were ill or on vacation and employees who were then or
have since been temporarily laid off, but excluding agents with power
to hire and discharge, traffic men, solicitors, foremen, and supervisory
employees and any employees who have since quit or been discharged
for cause to determine whether or not they desire to be represented by
Motor Transportation Employees Association for the purposes of
collective bargaining.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Direction of Elections.