Whitehurst Construction Co.

National Labor Relations Board - Board Decisions

Feb 5, 1946

65 N.L.R.B. 810 (N.L.R.B. 1946)

In the Matter of JOHN W. WHITEHURST, AN INDIVIDUAL, D/B/A
WHITEHUItST CONSTRUCTION COMPANY and INDEPENDENT OIL
WORKERS' UNION OF OKLAHOMA
Case No. 16R-1087.-Decided February 5, 1946
Mr. Felix Duvall, of Ponca City, Okla., for the Company.
Messrs. L. R. Marls, C. E. Morrison, and L. J. Buchanan, of Ponca
City, Okla., for the Independent.
Mr. Dean Baugh, of Oklahoma City, Okla., Mr. Earl E. Phillips,
of Ponca City, Okla., and Mr. L. W. Eudy, of Fort Worth, Tex., for
the AFL.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Independent Oil Workers' Union of
Oklahoma, herein called the Independent, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of John W. Whitehurst, an individual,- d/b/a Whitehurst
Construction Company, Ponca City, Oklahoma, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Earl Saunders, Trial Ex-
aminer. The hearing was held at Ponca City, Oklahoma, on December
18, 1944. The Company, the Independent, and Ponca City Building
and Construction Trades Council, A. F. L., herein called the AFL,
appeared and participated.' All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
1 This case was originally consolidated with Case No 16-R-1062, a proceeding initiated
by the AFL and involving substantially the same employees of the Company . Subsequent
to the hearing and at the request of the AFL, the Board severed the two cases and per-
mitted the AFL to withdraw its petition , closing that case. The AFL has made no
application for intervention in the present proceeding. Accordingly its name will not
be placed on the ballot in the election ordered hereinafter.
65 N. L . R. B., No. 140.
810
WHITEHURST CONSTRUCTION COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
811
During the past few years, the Company has been engaged almost
exclusively in doing maintenance and construction work for the Ponca
City, Oklahoma, refinery of the Continental Oil Company, under a
cost-plus arrangement. Approximately 85 percent of the work per-
formed by the Company for Continental is in connection with the re-
pair, maintenance, and remodeling of plant facilities. During the
6-month period preceding October 1944, the Company furnished labor
and materials to Continental costing about $215,000. During the 6-
month period immediately preceding November 25, 1944, the Company
purchased approximately $60,000 worth of materials, of which more
than 50 percent in value originated outside the State of Oklahoma
although purchased from intrastate vendors. Continental is engaged
in interstate commerce; z the work performed by the Company is es-
sential to the continued operation of the Ponca City refinery.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Independent Oil Workers' Union of Oklahoma is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Independent
as the exclusive bargaining representative of any of its employees
until the Independent has been certified by the Board in an appropriate
unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Independent represents a substantial number
of employees in the unit hereinafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Independent seeks a unit of all building and construction em-
ployees of the Company at the Ponca City refinery of the Continental
Oil Company, including truck drivers, landscapers, warehousemen,
helpers and laborers, but excluding clerks, timekeepers, guards, brick-
Matter of Continental Oil Company, 55 N. L R B 1157.
3 The Field Examiner reported that the Independent submitted 00 cards, bearing the
names of 56 employees listed on the Company's pay roll of October 11, 1944, which con-
tained the names of approximately 145 employees in the appropriate unit.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
masons, electricians , carpenters , welders , painters , and all supervisors.
The Company is neutral.
We find, in the absence of any disagreement between the parties,
that all building and construction employees of the Company at the
Ponca City refinery of the Continental Oil Company, including truck
drivers, landscapers , warehousemen , helpers, and laborers , but exclud-
ing clerks , timekeepers , guards, brickmasons, electricians , carpenters,
welders, painters , and all supervisory employees with authority to
hire, promote , discharge , discipline, or, otherwise effect changes in
the status of employees , or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with John W. White-
hurst, d/b/a Whitehurst Construction Company, Ponca City,
Oklahoma, an election by secret ballot shall be conducted as early as
possible, but not later than thirty ( 30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Sixteenth Region, acting in this matter as agent, for the Na-
tional Labor Relations Board, and subject to - Article III, Sections
10 and 11 , of said Rules and Regulations , among the employees 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 or not they desire to be represented by Independent
Oil Workers' Union of Oklahoma , for the purposes of collective bar-
gaining.