Texas & Pacific Motor Transport Co.

National Labor Relations Board - Board Decisions

Apr 13, 1948

77 N.L.R.B. 87 (N.L.R.B. 1948)

In the Matter of TEXAS & PACIFIC MOTOR TRANSPORT COMPANY, EM-
PLOYER and INTERNATIONAL ASSOCIATION OF MACI-IINISTS, PETI-
TIONER
Case No. 16-R-2 93.-Decided April 13,1948
Mr. J. W. Riley, of Dallas, Tex., for the Employer.
Daffan ct Proctor, by Mr. Robert F. Proctor , of Houston , Tex., for
the Petitioner.
Combs cft Dixie, by Mr. Chris Dixie, of Houston, Tex., for the In-
tervenor.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Dallas,
Texas, on November 26, 1947, before Elmer Davis, hearing officer.,,
The hearing officer's rulings made at the hearing are free from pre-
judicial error and are hereby affirmed.2
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE EMPLOYER
Texas & Pacific Motor Transport Company is a Delaware corpora-
tion engaged in transporting merchandise and commodities over a
line extending from New Orleans, Louisiana, to El Paso, Texas. It
is a subsidiary of Texas and Pacific Railway Company, and, in effect,
operates as a feeder to that company between the points above men-
tioned, performing a substituted motor carrier service for rail serv-
ice, under its certificate of public convenience and necessity of the
Interstate Commerce Commission. The Employer's annual revenues
exceed $1,000,000, approximately 50 percent of which constitutes in-
terstate commerce.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this case to a
three -man panel consisting of Members Houston, Reynolds , and Gray.
z The Intervenor , at the healing and in its brief, moved to dismiss the petition on various
grounds For reasons stated herein , this motion is hereby denied.
77 N. L. R. B., No. 15. 87
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization, claiming to
represent employees of the Employer.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Locals Nos. 47, 270, 568, 583, 745, 894,
and 941, herein called the Intervenor, is a labor organization affiliated
with the American Federation of Labor, claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On February 21, 1947, the Petitioner wrote the Employer that it
.represented a majority of the employees in the Employer's mechanical
department, and requested recognition as their bargaining representa-
tive. The Employer refused to grant the recognition on the ground
that the Intervenor was the recognized bargaining agent for the
employees in question. Thereupon the Petitioner, on February 28,
1947, filed the instant petition.
A. The contract bar issue
On October 25, 1945, the Intervenor and the Employer executed
a contract retroactive to August 1, 1945, covering the Employer's
drivers and drivers' helpers . The contract provides that it remain
in effect until July 31, 1946, and "shall continue in full force and
effect after the time and date herein named until either of the parties
hereto gives thirty ( 30) days written notice to the other of his or
its desire to revise , modify, or amend this agreement ." The contract
was amended by an agreement , executed on January 19, 1946, to °
become effective March 1, 1946.
On February 26, 1946, pursuant to a consent election , the Regional
Director designated the Intervenor as majority representative of the
employees in the Employer 's mechanical department . On March 25,
1946, the Employer and the Intervenor entered into a contract desig-
nated as "amendment to the agreement of August 1, 1945, to include
mechanical department employees ." Neither the January 19 nor the
March 25, 1946 , amendment changed the termination proviso of the
August 1, 1945, agreement.
On August 26, 1946, the Employer and the Intervenor executed
another amendment to the August 1, 1945, contract , providing for
a term ending December 31 , 1946, and "thereafter subject to notice"
,as provided in the August 1, 1945, contract. In January 1947, the
Intervenor and the Employer began negotiations to revise their
August 26 , 1946, contract . On February 21, the Petitioner notified
the Employer of its claim to represent the Employer 's employees.
TEXAS & PACIFIC MOTOR TRANSPORT COMPANY 89
On February 28, 1947, the Employer and the Intervenor executed a
new contract to take effect on March 1, 1947. The termination clause
thereof provided that the agreement was to remain in effect until
March 31, 1949, and thereafter be automatically renewed unless either
party notified the other at least 60 days prior to March 31, 1949, or
March 31 of any subsequent year, of its desire to "cancel, revise,
modify, or amend the agreement."
The Intervenor contends that the contract of February 28, 1947, is
a bar to a present representation proceeding and that the petition
should therefore be dismissed. We find no merit in this contention.
It is clear that, by'negotiating for a new contract, the parties effected
a termination of the August 26, 1946, contract, thereby rendering it
ineffective as a bar to a current election.3 Inasmuch as the February
28, 1947, contract was not executed as of the time of the Petitioner's
claim, which was followed in 7 days by the filing of the instant peti-
tion,, it cannot, under well-established principles, operate as a bar to
an election.5 Accordingly, we find that no contract bar exists to a
present determination of representatives.
B. The limitation of membership issue
The Intervenor also contends that because the Petitioner does not
admit to membership Negroes, and some of the employees concerned
are Negroes, the present proceeding should be dismissed. There is no
showing that the Petitioner will not accord adequate representation to
all employees included within the unit hereinafter found appropriate.
For this reason, we find no merit in the Intervenor's contention s
C. The adequacy of prima facie showing
At the hearing the Intervenor questioned the adequacy of the Peti-
tioner's showing of interest, alleging that the authorization cards
3 Matter of P. L Bruce Company, 74 N L R B 1354; Matter of P I. DuPont de Nemours
if Company, Inc, 73 N L R B 439, Matter of Falcon Manufacturing Company, 73 N. L.
R B 467; Matter o f Honolulu Rapid Tiansit Company Limited, 71 N. L R. B 172
4 At the hearing the Petitioner amended the petition to include welders, body men, paint-
ers, and electricians Inasmuch as the unit petitioned for included lead mechanics , mechan-
ics, and mechanics ' helpers, who with the additional employes requested make up the
Employer's mechanical department, which is the unit the Petitioner seeks and which is
covered by the Intervenors current contract, the amendment is not so substantial as to con-
stitute the filing of a new petition, or affect the timeliness of the original petition on the
contract bar issue Matter of E L Bruce Company, 74 N. L R B 1354
5 Matter of Kaiser Company, Inc, 73 N L. R B 931 ; Matter of Indianapolis Power &
Light Company, 76 N L R B 136; Matter of Southern Advance Bag if Paper Co , Inc.,
75 N L it.B 614
6 On March 11, 1948, the Petitioner moved to reopen the record in this proceeding to In-
corporate a statement that Negroes had been voted into full membership in the Petitioner's
organization For reasons above stated, we find the matter urged for incorporation not
essential to determine the issue raised , and deny the motion. Matter of F W Wint Co.,
76 N. L R B 472 ; Matter of Norfolk Southern Bus Company , 76 N. L . R. B. 488.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submitted to the Board at the time the petition was filed were old
designations. We have held that the requirement of a showing of
representation is an administrative expedient, adopted to enable the
Board to determine for itself whether or not further proceedings are
warranted, and is not subject to objection at the hearing.? Moreover,
we are administratively satisfied that the Petitioner has made an
adequate shown of representation to justify our investigation of this
petition.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. TIIE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a unit consisting of all employees in the Em-
ployer's mechanical department in the shops of the Employer's system
located along the route from El Paso to New Orleans, including lead
mechanics, mechanics, helpers, welders, body men, automotive elec-
tricians, and painters, but excluding office and clerical employees and
supervisors. The Intervenor objects to the exclusion of drivers and
drivers' helpers from this unit on the ground that mechanical-depart-
ment employees and drivers and drivers' helpers were included as a
single unit in its recent contracts with the Employer. The Employer
takes no position with respect to the appropriate unit.
The Board has previously found in other cases that drivers and
mechanical employees may, with equal appropriateness, constitute
separate units or be included in a single unit." The Intervenor urges
however, that the bargaining history covering the Employer's em-
ployees militates against the establishment of separate units in this
instance.
Between November 1939 and March 1946, the Petitioner represented
employees in the Employer's mechanical department as a single unit.
From October 1945 to March 1946, the Intervenor represented the Em-
ployer's drivers and drivers' helpers under a separate contract. On
February 15, 1946, the Intervenor won a consent election among the
employees in the Employer's mechanical department, and on March
25, 1946, added these employees under the coverage of its drivers' con-
7 Matter of 0 D Jennings & Company, 68 N. L. R B 516; Matter of Lion Oil Company,
76 N. L R. B. 565, Matter of Dickson -Jenkins Manufacturing Company, 76 N. L. R B.
449, Matter of Hortex Manufacturing Company, 75 N L R. B . 1232; Matter , of Wil-
son Transit Company, 75 N. L. R B. 181 ; Matter of Minnesota Mining and Manufacturing
Co., 76 N. L R. B. 568. For reasons stated above, the Intervenor 's request to be allowed
to examine the authorization cards submitted by the Petitioner was properly denied by the
hearing officer.
8 Matter of Auto Interurban Company, 73 N. L. R. B. 214 ; Matter of Norfolk Southern
Bits Company , 76 N. L. R. B. 488 ; Matter of Illtni Coach Company, 72 N. L. R B. 408.
TEXAS & PACIFIC MOTOR TRANSPORT COMPANY 91
tract.9 In view of the separate bargaining history for the employees
in the mechanical department from November 1939 to March 1946,
we are of the opinion that the bargaining history of the Employer
since March 1946 is not determinative of the present issue.'°
In view of the past bargaining history,1' we shall make no findings
at this time respecting the unit appropriate for employees in the me-
chanical department, but shall first ascertain the desires of the em-
ployees. We shall direct an election among the:emptoyees in the
Employer's mechanical department, including all lead mechanics,12
mechanics' helpers, welders, body men, automotive electricians, and
painters at the shops of the Employer's system located along the route
from El Paso to New Orleans, but excluding office and clerical em-
ployees and all supervisors.
If the employees in the voting group select the Petitioner, they will
be taken to have indicated a desire to constitute a separate bargaining
unit represented by the Petitioner; if they vote for the Intervenor,
they will be taken to have indicated a desire to remain part of the
larger unit represented by the Intervenor.
DIRECTION OF ELECTION 13
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Texas & Pacific Motor Trans-
port Company, Dallas, Texas, 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 Sixteenth Region, subject to Sections 203.61
and 203.62, of National Labor Relations Board Rules and Regula-
9 This agreement followed the consent determination of representatives referred to above
The Petitioner and the Intervenor were both on the ballot in this election which covered
a unit of mechanics , mechanic helpers, and apprentices . By agreement the Intervenor and
the Employer set up the following classifications : lead mechanics , mechanics, mechanic
helpers, painters , welders, and body men The aggregate work performed by these latter
classifications is identical with that performed by the previous classifications.
10 The employees ' rejection of the Petitioner at the consent election in February 1946,
does not warrant the conclusion , as the Intervenor contends , that they thereby irrevocably
demonstrated their desire to be represented as part of an industrial unit rather than in a
departmental unit. Inasmuch as the consent election covered only the mechanical -depart-
ment employees , the designation of the Intervenor as bargaining agent by the Regional
Director was only for a unit of those employees , and did not include the drivers or drivers'
helpers. It is clear that the industrial unit set up under the Intervenor 's contract was
based upon the consent of the parties thereto rather than on adjudication of a controversy.
11 The record indicates that there has been no material change in the categories of the
Employees involved herein since 1946.
12 The record shows that lead mechanies ` do'not have" power to-hire - or discharge employees,
nor is there any evidence that they have power effectively to recommend such action. All
parties agree that lead mechanics should be included in the unit . It is clear from the record
that the lead mechanics have no supervisory authority within the meaning of the Act, as
amended.
12 Any participant in the election herein may, upon its prompt request to , and approval
thereof by , the Regional Director , have its name removed from the ballot.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions-Series 5, among the employees in the voting group described
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, 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, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented by International Association of
Machinists or by International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, AFL, Locals Nos. 47, 270,
568, 583, 745, 894, and 941, for the purposes of collective bargaining, or
by neither.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Direction of Election.