Western Equipment Co.

National Labor Relations Board - Board Decisions

Nov 8, 1951

96 N.L.R.B. 1376 (N.L.R.B. 1951)

1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Direction open and count the challenged ballots of James E. White,
W. T. Robinson, Henry E. Deskins, Newton Wileman, Benjamin F.
Spradlin, Ernest Brown, and Robert W. Mittendorf, and shall there-
after prepare and cause to be served upon the parties a supplemental
tally of ballots, including therein the count of these challenged
ballots.
WESTERN EQUIPMENT COMPANY and INTERNATIONAL ASSOCIATION OF
MACHINISTS, LOCAL LODGE No. 1712, AFL, PETITIONER
WESTERN EQUIPMENT COMPANY and INTERNATIONAL UNION OF OPER-
ATING ENGINEERS, LOCAL No. 370, AFL, PETITIONER
WESTERN EQUIPMENT COMPANY and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
LOCAL No. 983, AFL, PETITIONER. Cases Nos . 19-RC-824,19-RC-
825, and 19-KC-862. November 8, 1951
Decision and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Daniel J. Harrington, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with 'these cases to a three-
member panel. [Chairman Herzog and Members Houston and
Murdock].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees 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 2
'International Union of Operating Engineers , Local No. 370 , AFL, herein called the
Operating Engineers , moved to dismiss the Intervention by International Association of
Machinists , Local Lodge No. 1712, AFL, herein called the IAM, in Case No. 19-RC-825,
on the ground of surprise . By Its Intervention In Case No. 19-RC-825 , the JAM seeks to
represent the employees covered by its separate petition in Case No. 19-RC-824. As the
Operating Engineers was served with a consolidated notice of hearing, Its motion is denied.
' The Operating Engineers urges a current contract between the Employer and Pocatello
(Idaho ) Building Trades Council as a bar to the IAM's petition and to its Intervention
based on the Operating Engineers ' petition in Case No. 19-RC-825. The Operating En-
gineers Is party to this contract as a member of the Pocatello Building Trades Council.
'As the Operating Engineers Itself raised a question concerning representation as a peti-
tioner herein , its own contract assertedly covering the employees involved cannot now bar
the proceeding . We therefore find it unnecessary to pass upon the sufficiency of the con-
tract as a bar to the IAM's petition.
96 NLRB No. 204.
WESTERN EQUIPMENT COMPANY 1377
4. The Operating Engineers and the Employer propose an all-in-
clusive unit of the Employer's employees subject to certain specific
exclusions-set forth in detail below-as to which all parties are in
agreement. Opposed by the Employer and the Operating Engineers,
the IAM requests a separate unit limited to the railroad crew em-
ployees. International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 983, AFL, herein called
the Teamsters, seeks to represent-with the approval of all parties-
all truck drivers, warehousemen, and related categories, more spe-
cifically detailed below.
The Employer, one of a group of contractors engaged in building
Atomic Energy Commission facilities in Arco, Idaho, is responsible
for the repair and maintenance of the general construction equipment
used on the project. It operates warehouses, a supply depot, and a
railroad "spur" about 20 miles long, which connects the Union Pacific
Railroad with the warehouses and other facilities in the Arco project.
In addition, about 125 employees of the Employer maintain, repair,
and-to an extent undisclosed in the record-operate various kinds
of construction equipment, including bulldozers, shovels, hoists, and
other machinery.
One four-man train crew operates a Diesel locomotive on the Arco
project tracks. Pursuant to assignments made by an Atomic Energy
Commission dispatcher, this train crew picks up freight cars from
a Union Pacific siding, and delivers them to warehouses and other
facilities throughout the project. The train crew is composed of a
conductor, an engineer, a brakeman, and a switchman. Under the
general supervision of the Employer's master mechanic, these em-
ployees have, in the main, the duties implied by their titles. Their
contacts with others of the Employer's employees are few; although
locomotive repairs are made by the same mechanics who repair con-
struction equipment, there is no showing in the record that this leads
to more than casual contact between the train crew and those
mechanics. The Employer's witness testified that in case of sickness
or absence of a train crew member, any other employee could be
"classified" and assigned to the crew temporarily. No instance of
any such assignment was given, however, and on the record as a
whole it is apparent that railroad crew employees are not interchange-
able with others of the Employer's workmen. All of the Employer's
Arco employees are subject to certain security and safety regulations.
The train crew is also required to operate equipment in accordance
with the safety rules of the Union Pacific Railroad.
It is apparent from these facts that the train crew employees have
interests quite different from those of all others of the Employer's
Arco workers. They do a distinctive type of work, and have few con-
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tacts with the mechanics and maintenance men who comprise most
of the unit sought by the Engineers. Although subject to the general
supervision of the master mechanic, they operate under assignments
given by the Atomic Energy Commission dispatcher and are sub-
ject to the day-to-day supervision of the conductor. In view of the
train crew's distinctive interests and working conditions, we find that
they may, if they so desire, constitute a separate appropriate bargain-
ing unit apart from all other employees 3 They may, of course, also
be represented together with the bulk of the Employer's workmen.
We shall, therefore, make no final unit determination at this time,
but shall be guided in part by the desires of the railroad crew em-
ployees, as expressed in a separate election. If a majority vote for the
IAM, they will be deemed to have expressed a desire to constitute a
separate bargaining unit.
The record shows that the train crew conductor receives general in-
structions from the Atomic Energy Commission dispatcher, who noti-
fies him where various freight cars are to be delivered by the train
crew. The conductor, acting upon these instructions, directs the rest
of the train crew in the performance of their duties. There is some
suggestion in the record that the conductor is classified as a fore-
man; in any event, it shows that he handles minor grievances of others
on the crew, and that he can recommend disciplinary action affecting
them. Although he has no power to hire or discharge train crew
employees, this power being vested in the master mechanic, it is clear
from the record, and we find, that the conductor responsibly directs
the other members of the train crew in the performance of their day-
to-day tasks. Accordingly, we find that he is a supervisor as that term
is defined in the Act, and we shall exclude him from the voting group.
Accordingly, we shall direct that separate elections be conducted
among the Employer's employees in the following voting groups:
Voting Group No. 1: All railroad crew employees of the Employer
at its Arco, Idaho, operations, excluding the conductor, guards, pro-
fessional employees, all other 'employees, and all supervisors as de-
fined in the Act.
Voting Group No. 2: All employees of the Employer at its Arco,
Idaho, operations, including all employees engaged in the erection,
dismantling, operation, maintenance, and repair of all hoisting and
portable machines and construction machinery and equipment, and
engaged in maintaining and repairing railroad equipment, excluding
railroad crew employees, the conductor, truck drivers, warehousemen,
O Gifford-Hill & Company , Inc., et al., 90 NLRB 428; United Motor Service, Inc., 59
NLRB 351.
MICHIGAN-CALIFORNIA LUMBER COMPANY 1379
parts warehousemen, service station employees, tire, battery, and gas
men, truck greasers , office and clerical employees, professional em-
ployees, guards, and all supervisors as defined in the Act 4
In accordance with the agreement of the parties, and on the record
as a whole, we also find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act : All truck drivers, warehousemen,
parts warehousemen, service station employees, tire, battery, and gas
men, and truck greasers, employed at the Employer's Arco, Idaho,
operations, excluding the parts manager and assistant parts manager,
office and clerical employees, guards, professional employees, all super-
visors as defined in the Act, and all others of the Employer's em-
ployees."
[Text of Direction of Elections omitted from publication in this
volume.]
4 The unit description set out in the petition of the Operating Engineers , includes
among the duties of the employees the word "supervising," and qualifies the exclusion of
supervisors by use of the phrase "excluding valid supervisors ." Although the record indi-
cates that the "supervising " duties are related to machine erection rather than to man-
agerial functions , we have corrected the unit described to conform with the Board's
established practice.
5 Both the IAM and the Operating Engineers disclaimed any interest as to the employees
in this unit . Accordingly , we shall direct that only the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America , Local No. 983, AFL, appear
on the ballot in the election directed in this unit.
MICHIGAN-CALIFORNIA LUMBER COMPANY and LUMBER AND SAWMILL
WORKERS LOCAL UNION No. 2749, AFFILIATED WITH UNITED BROTH-
ERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, and INTER-
NATIONAL WOODWORKERS OF AMERICA, LOCAL UNION No. 13-286,
CIO, PETITIONER. Case No. 2O-RM-79. November 8, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis S. Penfield, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
I Lumber and Sawmill Workers Local Union No. 2749, affiliated with United Brother-
hood of Carpenters and Joiners of America, AFL, herein called the LSU, moved to dismiss
the petition upon the grounds, that ( a) an existing contract is a bar , ( b) International
Woodworkers of America , Local Union No. 13-286, CIO, herein called the IWA, does not
claim to represent an appropriate unit, and (c) an election at the present time is prema-
ture. For the reasons given hereinafter , the motion to dismiss is hereby denied.
96 NLRB No. 206.