Westheimer Transfer & Storage Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1946

71 N.L.R.B. 1286 (N.L.R.B. 1946)

In the Matter Of WESTHEIMER TRANSFER & STORAGE COMPANY, INC.,
EMPLOYER and TEXAS FEDERATION OF INDEPENDENT UNIONS (AF-
FILIATED WITH C. U. A. ), PETITIONER
Case No. 16-B-1809.-Decided December 30, 1946
Messrs. Edward S. Boyles and M. U. S. Kjorlaug , both of Houston,
Tex., for the Employer.
Messrs. David Butler and G. G. Aldredge , Jr., both of Houston, Tex.,
for the Petitioner.
Combs cf Dixie , by Mr. Chris Dixie and Messrs . Murray W . Miller
and L. A. Jester, all of Houston , Tex., for the Intervenor.
Mr. Warren H. Leland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Houston,
Texas, on August 1, 1946, before Glenn L. Moller, 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 National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Westheimer Transfer & Storage Company, Inc., a Texas corpora-
tion engaged in the general transfer and storage business and in the
hauling of freight, inaultains its principal office and place of business
in Houston, Texas. The Employer picks up less-than-carload lots of
freight from railroad depots and delivers them to various companies
in Houston. The Employer also picks up less-than-carload lots of
freight from various consignees in Houston and delivers them to the
railroad depots. Annually, the Employer handles freight, of which
in excess of 500,000 pounds moves outside the State of Texas. An-
nually, the Employer also handles household furnishings, approxi-
mately 240,000 pounds of which is either shipped to, or received from,
points outside the State of Texas.
71NLIt B ,No205.
1286
WESTHEIMER TRANSFER & STORAGE COMPANY, INC. 1287
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED 1
The Petitioner is a labor organization affiliated with the Confed-
erated Unions of America, claiming to represent employees of the
Employer.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 968, 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
On May 14, 1946, the Intervenor requested recognition from the
Employer as the bargaining agent for certain of the Employer's em-
ployees. On the morning of May 25, 1946, the Employer received
a letter from the Petitioner in which the Petitioner also demanded
recognition as exclusive bargaining representative of certain em-
ployees of the Employer. On the afternoon of May 25, 1946, the
Employer, by telegram agreed to recognize the Intervenor.- Six days
later the Petitioner filed the petition in this proceeding. Negotia-
tions between the Employer and the Intervenor culminated in a col-
lective bargaining agreement which was signed on July 15, 1946, and
which provided that it was to continue in effect for 3 months, and from
year to year thereafter in the absence of written notice by either party
to the other, 30 days prior to October 15th of any year commencing
with 1946, of a desire to "change or modify."
The Intervenor contends that the telegram of May 25, 1946, in which
the Employer recognized it as collective bargaining agent, and the
contract dated July 15, 1946, preclude a current determination of
representatives. We do not agree. It is well established that a con-
tract merely providing for exclusive recognition and containing no
substantative provisions is insufficient to bar an election.2 And it is
equally well settled that a full collective agreement cannot bar a pres-
ent determination of representatives when a rival claim to representa-
tion is advanced before its execution, and a petition is filed with the
Board within 10 days after the claim is made.3 Thus, neither the
telegram of May 25, 1946, nor the contract dated July 15, 1946, can
serve to bar this proceeding.4
1 International Association of Motorized Common Carrier Truck Line Employees, Inc,
disclaimed any interest in representing the employees here concerned
' See Matter of Standard Oil Company of Indiana, 56 N. L. R. B. 1101 ; and Matter of
Corn Products Refining Company, 52 N. L R. B. 1324
3 Cf Matter of General Electric X-Ray Corporation, 67 N. L. R B 997
As a matter of fact, here the petition itself was filed before the contract dated July 15,
1946, was executed. This alone prevents the contract from operating as a bar See Mat-
ter of Ste. Genevieve Lime d Quarry Company, 70 N L. R B 1259, and Matter of Fifth
A oe. Shoe Corporation, 69 N. L P. B 400
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
IN. THE APPROPRIATE UNIT ; TTIE DETERMINATION OP REPRESENTATIVES
The Petitioner seeks a unit comprised of all employees in all de-
partments of the Employer, including truck drivers, helpers, ware-
house men, furniture men, checkers and porters, but excluding the
watchman, and clerical and supervisory employees. The Intervenor,
on the other hand, desires a unit limited solely to the truck drivers and
helpers in the Employer's freight department. The Employer ap-
parently takes no position with respect to the broad issue raised by
the overlapping claims of the unions.
The record reveals that the Employer's operations are divided into
five departments : packing, storage, local moving, long distance mov-
ing, and freight. The five departments are under the general super-
vision of a vice president and general manager. The packing depart-
ment, which is comprised of six packers and a general warehouse fore-
man,° is engaged by local families to pack their personal effects, such
as household goods, furniture, and fragile articles of all kinds. The
storage department is spread over various warehouses, each of which
is supervised by a warehouse foreman. The local moving department,
which is under the supervision of a dispatcher,7 is engaged in the local
moving of household goods within the city of Houston. The long
distance moving department, which is under the supervision of a
general manager and dispatcher,$ is engaged in long distance moving
of household goods from Houston to various points outside the City
and State. The freight department, which is engaged exclusively in the
pick-up of less-than-carload lots of freight from the railroad freight
depots for delivery to various consignees in Houston, and the pick-up
of less-than-carload lots of freight from individual consignors in
Houston for delivery to the railroad freight depots, is directly super-
vised by a separate superintendent of operations, under whom are a
general supervisor and dispatcher, two warehouse foremen and an
assistant foreman.s
There are approximately 35 drivers and helpers in the freight de-
partment whom the Intervenor wishes to represent in a separate ap-
propriate unit. There is no interchange of personnel between the
6 The Petitioner and the Employer agree to the exclusion of the general warehouse fore-
man
°The Petitioner and the Employer agree to the exclusion of all these warehouse foremen,
except Wiley Wain en, who is hereinafter discussed, the Petitioner requests Warren's inclu-
sion whereas the Employer takes a neutral position as to this eniplovee
° The Petitioner and the Employer agree to exclude this employee
9 The Petitioner and the Employer agree to exclude these two employ ees
° All parties agree to exclude the superintendent, the general supervisor , the dispatcher,
the warehouse foremen and the assistant forman
WESTHEIMER TRANSFER & STORAGE COMPANY, INC. 1289
freight department and other departments. Any transfers into or
out of the freight department are of a permanent nature. Signifi-
cantly, the Employer plans to form a separate corporation in the near
future which will encompass only the operations of the freight de-
partlilelnt.io
It is clear that the all-inclusive unit urged by the Petitioner
would be feasible for collective bargaining purposes. But it also
appears that the employees sought by the Intervenor constitute a
separate, functionally coherent, and homogeneous group, capable of
bargaining in a separate unit. Therefore, our determination of the
appropriate unit or units, in these circumstances, will depend, in
part, upon the desires of the employees themselves, as expressed in
the elections which we hereinafter direct.
There remains for consideration the question of the inclusion in
the residual voting group hereinafter established of Wiley Warren,
a warehouse foreman at the Live Oak Street warehouse of the storage
department. The Live Oak Street warehouse is under the super-
vision of a warehouse foreman whom the Petitioner and the Employer
agree to exclude. Warren is directly responsible to him. The record
,reveals that Warren has never been told that he possesses supervisory
authority, nor has he ever attempted to exercise such authority. Under
these circumstances, we shall include him in the residual voting group.
We shall direct that the question concerning representation which
has arisen be resolved by separate elections by secret ballot among
the employees in each of the following groups, who were employed
during the pay-roll period immediately preceding the date of the
Direction of Elections herein, subject to the limitations and additions
set forth in the Direction.
Group. 1. All drivers and helpers employed by the Employer in
its freight department, excluding office and clerical employees, the
superintendent. of operations, the general supervisor, warehouse fore-
men, the assistant foreman, the dispatcher, and all other super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action.
Group 2. All remaining employees of the Employer engaged in
its packing, storage, local moving and long distance moving'depart-
ments, including drivers, helpers, warehouse nien, furniture men,
checkers, porters, and Wiley Warren, but excluding clerical em-
ployees, the general warehouse foreman, warehouse foremen, dis-
patchers, the general manager, and all other supervisory employees
With authority to hire, promote, discharge, discipline, or otherwise
'"We note'that the final contract, adverted to in Section III, above, which was made
between the Employer and the Intervenor, embraced only the employees here sought by the
Intervenor.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect changes in the status of employees, or effectively recommend
such action.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Westheimer Transfer & Stor-
age Company, Houston, Texas, separate 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 Sixteenth 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 employees in the voting
groups 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, and in-
cluding employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the elections, (1)
to determine whether the employees in Group 1, described iii Section
IV, above, desire to be represented by Texas Federation of Inde-
pendent Unions (affiliated with C. U. A.), or by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 968, AFL, for the purposes of collective bargain-
ing, or by neither; and (2) to determine whether or not the employees
in Group 2, described in Section IV, above, desire to be represented
by Texas Federation of Independent Unions (affiliated with C. U. A.),
for the purposes of collective bargaining.