W. J. Smith Wood Preserving Co.

National Labor Relations Board - Board Decisions

Nov 24, 1948

80 N.L.R.B. 824 (N.L.R.B. 1948)

In the Matter of W. J. SMITH WOOD PRESERVING COMPANY, EMPLOYER
and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 415, AFL,
PETITIONER
In the Matter of W . J. SMITH WOOD PRESERVING COMPANY, EMPLOYER
and INTERNATIONAL UNION OF OPERATING ENGINEERS, PETITIONER
Cases Nos. 16-RC-200 and 16-RC-2O4, respectively.-Decided
November 24, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon separate petitions duly filed, and after a consolidation of
cases, a consolidated hearing was held before a hearing officer of the
National Labor Relations Board. At the hearing, the hearing officer
permitted the Petitioner in Case No. 16-RC-204, International Union
of Operating Engineers , on its motion, to withdraw its petition.'
The hearing officer referred to the Board a motion, made by the
Intervenor, to dismiss the petition in Case No. 16-RC-200 on the
grounds : (1) that, pursuant to the provisions of Section 103 of the
Act, this proceeding is barred by its contract with the Employer; and
(2) that the Petitioner in Case No. 16-RC-200 had not made an ade-
quate showing of interest after amendment, at the hearing, of the
unit requested. The motion is denied. Section 103 of the Act is in-
1 Section 203 52 of the Board 's Rules and Regulations vests in the Regional Director or
in the Board , and not in the hearing officer, the power to permit the withdrawal of a peti-
tion None of the parties herein , however, objected to the request by International Union
of Operating Engineers to withdraw its petition , and that union in no wise participated
in the hearing other than to appear initially and move to withdraw . Moreover , the em-
ployees whom it sought to represent , namely, assistant heating engineers , firemen, crane
operators , dinky engineers and helpers, and blacksmiths and helpers , are all included in
the unit herein found appropriate . We, therefore , find that the withdrawal of the petition
in Case No 16-RC-204 will prejudice neither the parties nor the employees . Accordingly,
the ruling of the hearing officer permitting International Union of Operating Engineers
to withdraw its petition is hereby affirmed, and Case No. 16-RC-204 is hereby ordered
severed from Case No. 16-RC-200 in which International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Local 415, AFL, appears as the
Petitioner.
80 N. L . R. B., No. 129.
824
W. J. SMITH WOOD PRESERVING COMPANY 825
applicable to this case; 2 and we have been administratively advised
that the Petitioner's interest in the unit requested, after amendment,
is adequate.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner in Case No. 16-RC-200, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 415, and the Intervenor, International Hod Carriers' Build-
ing and Common Laborers' Union of America, Creosote Workers'
Local 1281, are labor organizations affiliated with the American Fed-
eration of Labor, claiming to represent employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.3
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's
Denison, Texas, plant, including assistant treating engineers, chem-
ists,' subforemen, doormen, iron and truck drivers, crane engineers and
helpers, dinky engineers and helpers, framers, checkers, inspectors,
a Section 103 of the Labor Management Relations Act, 1947, provides as follows* "No
provisions of this title shall affect any certification of representatives or any determina-
tion as to the appiopriate collective bargaining unit, which was made under Section 9 of
the National Labor Relations Act prior to the effective date of this title until 1 year after
the date of such certification or if, in respect of any such certification, a collective bar-
paining contract was entered into prior to the effective date of this title, until the end of
the contract period or until 1 year after such date , whichever first occurs ." Because the
haigaining agreement in question was executed by the Employer and the Intervenor on
September 16, 1947 (after the effective date of the Act, August 23, 1947 ), the section is
clearly inapplicable, nor does the section apply herein by reason of the Intervenor's cer-
tification, as the Intervenor was certified as bargaining representative of employees of
the Eniplover in Case No. 16-R-2033 on May 27, 1947-more than a year before the
filing of the petition in this case.
*Chairman Herzog and Members Houston and Gray
3 The petition in Case No . 16-RC-200 was filed June 29, 1948 . The contract between
the Employer and the Intervenor, referred to in footnote 2, continued in force and effect
until September 16, 1948, and thereafter until a 30-day notice was served by either party
of any changes desired. Therefore , as the petition was filed within an appropriate time
prior to September 16, 1948, we find, contrary to the contention of the Employer and the
Intervenor, that the petition is timely , and is not barred by the contract in question.
Matter of General Shale Products, 75 N. L . R. B. 778; Matter of Elder Manu facturing
Company, 73 N L. R. B 230.
4 No contention has been made , nor does the record disclose , that the chemists are pro-
fessional employ ees as defined in the Act.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blacksmiths and helpers, stock straighteners, car to yard - yard to
tram and tram to car employees, and crane crews, but excluding the
auditor, treating engineers, the general inspector, watchmen, office and
clerical employees, yard foreman, and all supervisors as defined in the
Act.5
5. The determination of representatives :
Issue is raised regarding the eligibility of John Wineinger, a crane
operator, and his crew of four helpers to vote in the election. It ap-
pears, and we find, that they are at least regular part-time employees
of the Employer, and, as such, are eligible to participate in the election
hereinafter directed .6
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur.
poses of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and su-
pervision of the Regional Director for the Sixteenth Region, and sub-
ject to Sections 203.61 and 203.62 of National Labor Relations Board
Rules and Regulations-Series 5, as amended, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction of Election, 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 rein-
stated prior to the date of the election, and also excluding employees on
strike who are not entitled to reinstatement, to determine whether they
desire to be represented, for purposes of collective bargaining, by
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 415, A. F. L., or by International
Hod Carriers' Building and Common Laborers' Union of America,
Creosote Workers' Local 1281, A. F. L., or by neither.
This Is substantially the unit established as appropriate by the Board in a representa-
tion case involving the same plant, Matter of Potosi Tie and Lumber Company, et al.,
73 N. L. R. B. 590 . Despite agreement of the parties to the contrary , we are excluding
watchmen from the unit in accordance with our policy. See Matter of H d H Manufac-
turing Company, Inc., 76 N. L. R. B. 459; Matter of Stonewall Cotton Mills, 75 N. L. it. B.
762 ; Matter of Macungie Silk Company , 75 N. L. it. B. 741.
6 Matter of John Oster Manufacturing Co., 60 N . L. it. B. 805; Matter of Maroellue
M. Murdock, 67 N. L. R. B. 1426.