Wilmoth Paving Co.

National Labor Relations Board - Board Decisions

Sep 13, 1944

58 N.L.R.B. 235 (N.L.R.B. 1944)

In the Matter Of WILMOTH PAVING COMPANY, CARSON & GRUMAN
COMPANY, E. B. DONALDSON & BROTHER, DONALDSON PAVING COM-
PANY AND MCGUIRE & ROLFE COMPANY, INC. and A. F. OF L. PAVING
COUNCIL FOR THE DISTRICT OF COLUMBIA
Case No. 5-R-1577.-Decided September 13, 1944
Mr. George L. Weasler, of Baltimore Md., for the Board.
Mr. John J. Carmody, of Washington, D. C., for the Companies.
Mr. Robert A. Wilson, of Washington, D. C., for the A. F. of L.
Mr. Milford P. Jackson, of Baltimore, Md., and Mr. Lewis Williams,
of Washington, D. C., for the C. I. O.
Messrs. Daniel Quigley and John T. Oakley, of Washington, D. C.,
for the U. M. W. A.
Miss Ruth Rusch, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by A. F. of L. Paving Council for the
District of Columbia, herein called the A. F. of L., alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of Wilmoth Paving Company, Carson & Gruman
Company, E. B. Donaldson & Brother, Donaldson Paving Company
and McGuire & Rolfe Company, Inc., Washington, D. C., herein called
the Companies, the National Labor Relations Board provided for
an appropriate hearing upon due notice before Melton Boyd, Trial
Examiner . Said hearing was held at Washington, D. C., on August
11, 1944. The Board, the Companies, the A. F. of L.1 the United
Paving and Building Supply Workers, Local Industrial Union No.
1221, C. I. 0., herein called the C. I. 0., and the United Construction
Workers, District 50, United Mine Workers of America, herein called
the U. M. W. A., appeared and participated.' All parties were af-
forded full opportunity to be heard, to- examine and cross- examine
1 At the beginning of the hearing, the Tiial Examiner granted motions to intervene made
by the C. I. 0 and the U. M. W. A.
58 N.' L. R. B., No. 48.
235
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner reserved ruling for the Board on the Companies' motion
to dismiss the petition on the ground that the A. F. of L. is not a
labor. organization within the meaning of the Act and is not capable
of serving as a bargaining representative. For reasons hereinafter
stated, the motion is denied. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
The Companies are paving contractors engaged in business in the
District of Columbia and in counties immediately adjacent thereto
in the States of Maryland and,,Virginia. The Companies use a sub-
stantial amount of materials which is shipped from points outside the
District of Columbia.
The Companies admit that they are engaged in commerce within
the meaning of the National Labor Relations Act.
11. TIIE ORGANIZATIONS INVOLVED
A. F. of L. Paving Council for the District of Columbia is a labor
organization affiliated with the American Federation of Labor, au-
thorized by its constituent local unions to bargain on behalf'of their
members, including employees of the Companies.2
United Paving and Building Supply Workers, Local Industrial
Union No. 1221, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Companies.
United Construction Workers, District 50, United Mine Workers of
America, is a labor organization admitting to membership employees
of the Companies.
III. THE QUESTION CONCERNING REPRESENTATION
0
The Companies have refused to grant recognition to the A. F. of L.
as the exclusive bargaining representative of their employees until
the A. F. of L. has been certified by the Board in an appropriate unit.
2 The Companies deny that the A. F. of L. is a labor organization within the meaning of
the Act, ---asserting that it is actually an association of labor organizations which cannot
be a bargaining representative because it does not admit employees to membership. This
contention is plainly without merit See Matter of Hamilton Realty Corporation, 10
N. L. It. B. 858.
WILMOTH PAVING COMPANY 237
The Companies formerly had a bargaining contract with the C. I. 0,
covering the employees involved herein, which expired December 31,
1943. No new contract has since been negotiated.
A statement of a Field Examiner, introduced into evidence at the
hearing, indicates that the A. F. of L. 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 Companies, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
1V. TIIE APPROPRIATE UNIT
We find, in accordance with the stipulation of the parties, that the
Companies act in concert in bargaining collectively with their em-
ployees. It was further stipulated by all parties and we find, in ac-
cordance therewith and with the record, that all employees engaged
by all the Companies in the District of Columbia and the counties
immediately adjacent in the States of Maryland and Virginia, except
office employees, watchmen, foremen, superintendents, assistant super-
intendents, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.4
V. THE DETERMINATION OF 111VPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the data of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.b
3 The Field Examiner and the Board 's Attorney reported that the A. F. of L . submitted
216 cards There are apparently 421 employees in the appropriate unit. There were 99
cards dated in 1943 , 172 dated in 1944, and 45 were undated.
The C I 0 submitted 229 application cards. All the cards, with the exception of 12,
were dated in 1943.
U. 111 W. A submitted 81 application cards , all of which were dated in 1944.
4 This unit is substantially the same as the unit found appropriate by the Board in a
prior proceeding involving the same parties , as well as certain additional employers who
are no longer in business See Matter of Brenizer Trucking Company, et at., 44
N. L. R. B. 810. -
"In accordance with the request made by the A. F. of L, C. I 0, and U. M . W. A., at
the hearing , we shall designate the A. F. of L on the ballot as American Federation of
Labor, Paving Council of the District of Columbia ; the C. I O. as United Paving and
Building Supply Workers , Local 1221, C. I. 0 ; and the U. M. W. A as United Construction
Workers, affiliated with the United Mine Workers.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 representa-
tives for the purposes of collective bargaining with Wilmoth Paving
Company, Carson & Gruman Company, E. B. Donaldson & Brother,
Donaldson Paving Company and McGuire & Rolfe Company, Inc.,
Washington, D. C., 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 Fifth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations, among the employees of the
said Companies in the unit found appropriate in Section IV, above,
who were employed during the said pay-roll period immediately pre-
ceding 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
American Federation of Labor, Paving Council of the District of
Columbia, by United Paving and Building Supply Workers, Local
1221, C: I. 0., or by United Construction Workers, affiliated with the
United Mine Workers, for the purposes of collective bargaining, or
by none.