The MacCallum Lines

National Labor Relations Board - Board Decisions

Jul 18, 1947

74 N.L.R.B. 553 (N.L.R.B. 1947)

In the Matter of EARL 1). IIACCALLUM, DOING BUSINESS AS THE MAC-
CALLUM LINES, EMPLOYER and LOCAL 163 , INTERNATIONAL UNION
OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY
WORKERS OF AMERICA, CIO, PETITIONER
Case No. 4-R-64.-Decided July 18, 1947
Mr. Roscoe B. Smith, of Wilkes-Barre, Pa., for the Employer.
Messrs. Martin F. Schilling and Joseph Walsh, both of Wilkes-
Barre, Pa., for the Petitioner.
Messrs. E. C. Marianelli and Vilas Shook, both of Wilkes-Barre,
Pa., for the Intervenor.
Mr. Benjamin B. Lipton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Wilkes-
Barre, Pennsylvania , on June 3, 1947 , before Sidney Grossman, hear-
ing 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 OF FACT
1. THE BUSINESS OF THE EMPLOYER
Earl D. MacCallum, an individual, doing business as The Mac-
Calluni Lines, is engaged in the business of hauling beer by truck.
This proceeding is concerned solely with his Contract Carrier Division
at Wilkes-Barre, Pennsylvania. During the past year, the Employer
hauled beer valued at approximately $110,000, of which 75 percent
represents beer transported to and through States other than the Com-
monwealth of Pennsylvania.
The Employer admits and we find that he is engaged in commerce
within the meaning of the National Labor Relations Act.
74 N. L. R. B., No 105 553
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
Local 401, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the Intervenor,
is a labor organization affiliated with the American Federation of
Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The Intervenor urges as a bar to the present proceeding a written
collective bargaining contract entered into between it and the Em-
ployer to run from June 17, 1946, to June 17, 1947, with a provision
for yearly automatic renewal unless either party gives 60 days' written
notice of a desire to change the said agreement. On April 1, 1947, the
Petitioner notified the Employer of its representation claim, and on
April 3, 1947, filed with the Board the petition herein.
It is well established that when a petition is filed prior to the opera-
tive date of an automatic renewal clause in a contract, as in the present
case, the contract may not be asserted as a bar.' Accordingly, we find
that the 1946-1947 contract is no bar to a present determination of
representatives.
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
In accordance with the agreement of the parties, we find that all
drivers, garage mechanics, and mechanics' helpers of the Employer's
garage at Wilkes-Barre, Pennsylvania, excluding office and clerical
employees and all supervisory employees, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
' In view of the seasonable filing of the petition , we find no merit to the Intervenor's con-
tention that the contract is a bar by reason of either contracting party's failure to give
notice of termination The Intervenor also made an offer of proof to show that during
the original contract term the Employer refused a request of the Petitioner to discharge
certain individuals under the contract. Under the circumstances presented here, we fail
to see that such facts, if true, affect the status of the contract as a bar or otherwise
impinge on our finding of a question concerning representation.
THE MACCALLUM LINES
DIRECTION OF ELECTION
555
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Earl D. MacCallum, doing
business as The MacCallum Lines, Wilkes-Barre, 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 Relations
Board, and subject to Sections 203.55 and 203.56, of National Labor
Relations Board Rules and Regulations-Series 4, among the em-
ployees in the unit 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 whether they desire to be represented by Local 163,
International Union of United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, CIO, or by Local 401, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, for the purposes of collective bargaining,
or by neither.2
2 Although, at the hearing, the Intervenor declined a place on the ballot, we are
according it a place thereon with leave to withdraw upon 10 days' notice to the Regional
Director.