The Santa Fe Trail Transportation Co.

National Labor Relations Board - Board Decisions

Dec 3, 1962

139 N.L.R.B. 1513 (N.L.R.B. 1962)

THE SANTA FE TRAIL TRANSPORTATION COMPANY 1513
goods or services which originated outside the employer's state but which he purchased
from a seller within the state who received such goods or services from outside the
state" [emphasis supplied], and the record is barren of any evidence that the
Respondent has purchased anything for his business, whether or not used in his
1961 building projects, from anyone "who received such goods or services from
outside" California. In other words, for all that appears, the products that "originated
outside . California," and were incorporated in the Respondent's structures,
whether by him or his subcontractors, were purchased from supply sources that, in
turn, bought the products within the State. Thus, the record will not support the
assertion of jurisdiction on the basis of the Siemons criteria.?
In summary, as the record does not contain a sufficient basis for application of
either the retail or nonretail standards, I am constrained to recommend dismissal of
the complaint without regard to the reason for Marez' discharge.8
Upon the basis of the foregoing findings of fact, and upon the entire relevant record
in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The evidence does not establish that the Respondent's operations meet any
of the Board's existing criteria for the assertion of its jurisdiction.
2. The evidence relating to interstate commerce .is insufficient to support a finding
that it will effectuate the policies of the Act for the Board to assert jurisdiction in
this proceeding.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the Board enter an order dismissing the complaint in this proceeding.
See also Better Electric Co , Inc., and Michael Gordon, as President of Local 199,
Industrial Workers of Allied Trades, affiliated with Confederated Unions of America,
129 NLRB 1012, 1013.
8 In view of my conclusion that the record , for the reasons stated, is insufficient to meet
either the Board 's retail or nonretail jurisdictional standards , I deem it unnecessary to
deal with the Issue , in effect raised by the pleadings read in the light of the evidence,
whether the mere fact that products used in the Respondent 's construction projects
"originated outside . . California" is sufficient, without more, to bring the Respondent's
operations within the Board 's statutory jurisdiction.
The Santa Fe Trail Transportation Company and Teamster,
Union Local 795, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Petitioner. Case No. 17-RC-3775. December 3, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harold L.
Hudson, 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 Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations 1 involved claim to represent certain em-
ployees of the Employer.
I The Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and
Station Employees was permitted to intervene on the basis of its current contract
139 NLRB No. 131.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Intervenor and the Employer contend that the petition
should be dismissed on the ground of contract bar.
Pursuant to the reopening provisions of their contract, effective
from July 1, 1958, to July 1, 1964, the Employer and the Intervenor
executed a supplemental agreement at approximately 3 p.m. on Feb-
ruary 16, 1962, which stated "Agreements . . . effective July 1, 1958,
are hereby amended for the period July 1, 1961, to July 1, 1964." Mean-
while, on February 15, 1962, the Petitioner notified the Employer by
telegram that it had filed a petition for representation with the Board,
and, on the same day, mailed its petition to the Board's Regional Of-
fice where it was received some time on the following day, February 16.
The Petitioner contends that the supplemental agreement does not
bar its petition because it was not a new agreement or an affirmation of
an old agreement, and that, in any event, its petition, together with its
actual notification of the Employer, was timely and made the contract
ineffective as a bar. We find, on the contrary, that the quoted language
was an express affirmation of the old agreement under the rationale of
Southwestern Portland Cement CompanJ,2 and that the petition, re-
ceived at the Regional Office on the day after notification of the Em-
ployer, was untimely filed under Deluxe Metal.'
The Petitioner contends further that the February 16 agreement is
not a bar because it contains an unlawful union-security provision.
The agreement executed by the Employer and the Intervenor con-
tained the following pertinent union-security and savings clauses:
Section 3. It is agreed that in the application of this rule any
employee who on the date on which compliance with this rule is
required, is not a member of the union, or any new employee enter-
ing the service of the Company after the effective date of this
Agreement, if he would otherwise be required to be a member of
the union, will be deemed to have met the requirements of the
Union Shop provisions of this Agreement provided he pays to
the union the periodic dues, initiation fees and assessments, (not
including fines and penalties) uniformly required of all members
2126 NLRB 931, 933 . The rule was there stated as follows : "[ W]here, after the end
of the first 2 years of a long-term contract and before the filing of a petition , the parties
execute ( 1) a new agreement which embodies new terms and conditions , or incorporates
by reference the terms and conditions of the long-term contract, or (2) a written amend-
ment which expressly reaffirms the long-term agreement and indicates a clear intent on
the part of the contracting parties to be bound for a specific period, such new agreement
or amendment shall be effective as a contract bar for as much of its term as does not
exceed 2 years ." The 2-year contract-bar limitation thus referred to has since been
changed to 3 years. See General Cable Corporation, 139 NLRB 1123. However, the
impact of either term of limitation upon the facts above set forth is the same.
3 121 :NLRB 995, 999, holding that a contract executed on the same day that a petition
is filed will bar an election if it is effective immediately or retroactively and the employer
has not been informed at the time of execution that a petition has been filed. In the
instant case the notice to the employer antedated the actual filing of the petition and
did not meet the requirements of the Deluxe rule. However , as set forth more fully in
the text , the contract-bar defense is vulnerable on an independent ground.
THE SANTA FE TRAIL TRANSPORTATION COMPANY 1515
of the union within the time limits provided for in Section 1 of
this rule.
* * * x * * *
Section 7. If any provision of this rule is invalid under the
law of any state wherein this contract is applicable such provision
shall be modified to comply with the requirements of such state
law. Nothing contained in this rule shall be construed so as to
require the Company to violate any applicable law.
Section 3 of the union-security clause thus requires all employees
to pay, in addition to initiation fees and dues, "assessments (not in-
cluding fines and penalties)." The Board has consistently held that
"assessments" are not included within the meaning of the term "pe-
riodic dues" as used in the proviso to Section 8(a) (3) permitting the
execution of union-security agreements' Section 3 of the union-
security agreement is therefore clearly unlawful and falls within the
ban set forth in Paragon Products Corporation 5 on clauses "which
expressly require as a condition of continued employment the pay-
ment of sums of money other than `periodic dues and initiation fees
uniformly required,"' and invalidates the contract as a bar.
The Intervenor contends, however, that section 7 of the union-
security provision is a savings clause which preserves the contract
as a bar. But that portion of section 7 which may properly be char-
acterized as a savings clause refers only to invalidity under state
law. Thus, even if it be assumed arguendo that a contract contain-
ing a clause illegal on its face under Federal law may be preserved
as a bar by a savings clause of sufficient scope, it is clear that the
savings clause here in question does not meet that test. The con-
tract is therefore not a bar to the representation proceeding.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer
within Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section
9(b) of the Act:6
All clerks, secretaries, stenographers, office machine operators,
P.B.X operators, clerical and office employees in the offices and
freight depots of the Employer employed in the geographical
area of Arkansas, Colorado, Kansas, Missouri, Nebraska, New
"Food Fair Stores, Inc., 131 NLRB 756, affd in relevant part 307 F 2d 3 (C.A 3) ;
Peerless Tool and Engineering Co, 111 NLRB 853, enfd. 231 F. 2d 298 (C.A 7), cert.
denied 352 U.S. 833 ; Anaconda Copper Mining Company , 110 NLRB 1925, 1926 : Central
Pipe Fabricating and Supply Co., 114 NLRB 350, 352 ; John Deere Planter Works of
Deere Company, 107 NLRB 1497.
5134 NLRB 662
0 The unit found appropriate herein is the same unit covered by the current contract
and is not disputed by any of the parties.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mexico, Oklahoma, and Texas, excluding professional employees,
confidential employees, executives, managerial employees, over-
the-road drivers, local cartage drivers, mechanics, garagemen,
dock employees, watchmen, guards, and all supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Direction of Election.
Merlyn Bunney and Clarence Bunney, partners , d/b/a Bunney
Bros. Construction Company and Harold L. Wilkins. Case No.
19-CA-2300. December 6, 1962
DECISION AND ORDER
On June 4, 1962, Trial Examiner Herman Marx issued his Inter-
mediate Report finding that the Respondents had not engaged in the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed, as set forth in the attached Interme-
diate Report. Thereafter, the General Counsel filed exceptions to
the .Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and finds merit in certain exceptions of the General Counsel.
Accordingly, it hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that they are
consistent with our decision herein.
The Trial Examiner found, and we agree, that Wilkins, the Charg-
ing Party, was discharged on September 1, 1961, for submitting a pay
claim for "show-up" time.' The issue here is whether that discharge
was unlawful. Contrary to the conclusion of the Trial Examiner, we
find that it was.
The Respondents were engaged as a subcontractor on the construc-
tion of a runway at the Oak Harbor, Washington, Naval Air Station.
Under the subcontracts, entered into with Western Contracting Cor-
poration, the general contractor, herein called Western, on July 11
and August 14, 1961, Respondents were to furnish drivers and trucks
1 "Show-up" time pay is generally that pay received for reporting to work when in fact
no work is performed because of conditions beyond the control of the employees.
139 NLRB No. 133.