McCoy Truck Tire Recap Co.

National Labor Relations Board - Board Decisions

Mar 5, 1951

93 N.L.R.B. 667 (N.L.R.B. 1951)

McCOY TRUCK TIRE RECAP COMPANY 667
group inasmuch as the Clerks' unit is not itself an appropriate one.
Neither Petitioner has any interest in representing employees other
than those petitioned for, nor has either evinced any interest in seek-
ing to represent all employees of the Employer in a single unit. Ac-
cordingly, we find that the units requested by the Petitioners are in-
appropriate for collective bargaining purposes, and shall, therefore,
dismiss the petitions.
Order
IT IS HEREBY ORDERED that the petitions herein be, and they hereby
are, dismissed.
MONROE BROWNE AND LEONARD RuRUP, D/B/A McCoy TRUCK TIRE
RECAP COMPANY i and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL No. 87,
AFL, Case No. 21-RM-170. March 6, 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 Eugene M. Purver,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed .2
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Reynolds and Mur-
dock].
Upon the entire record in this case, the Board finds :
1. The Employer is a limited partnership, with its place of busi-
ness in Bakersfield, California. The Employer is engaged in the busi-
ness of recapping and repairing used tires and selling and servicing
new tires.
The Employer's total annual sales are approximately $450,000, all
of which are sold to customers located within the State of California.
However, during 1950, the Employer made sales of approximately
$104,000,3 to local customers who, according to the uncontradicted
evidence submitted by the Employer, are engaged in interstate com-
merce. Of that amount, sales totaling approximately $73,000 were
made to trucking firms engaged in transporting materials , agricul-
tural commodities, and cattle in interstate commerce. In view of the
I The petition and other formal papers were amended at the hearing to show the correct
name of the Employer.
2 The hearing officer referred to the Board the Union 's motion to dismiss this proceeding.
The motion is denied , for the reasons stated in paragraphs numbered 1 and 4.
8 Including Federal and State taxes of approximately 81/2 percent.
93 NLRB No. 92.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's sales to trucking firms which function as instrumen-
talities and channels of interstate commerce,4 we find that the Em-
ployer is engaged in interstate commerce and that it will effectuate
the policies of the Act for the Board to assert its jurisdiction in this
proceeding.
2. The' labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer, having been requested and having refused to
recognize the Union as the bargaining representative for the em-
ployees, filed the present petition. The Union contends that this
proceeding is barred by the existence of a contract entered into be-
tween the Employer and the Union on- April 21, 1948, following a
consent election on February 26, 1948 (Case No. 21-RC-117), and an
election for authorization of a union-shop agreement under Section
9 (e) (1) of the Act (Case No. 21-UA-372). The agreement con-
tains a provision for automatic renewal from year to year in the ab-
sence of written notice prior to June 1 of each year. The agreement
also contains a union-security clause, which reads as follows :
Conditions of Employment : All employees covered by this
Agreement shall be members of the Union in good standing as a
condition of employment.
When new or additional employees are needed the Employer
shall notify the Union to that effect and give equal consideration
to the men sent out by the Union. In the event a man is hired
who is not a member of the Union, he shall, before starting to
work secure a clearance from the Union, such clearance not to be
unreasonably withheld, and thereafter shall become a member
of the Union in good standing within thirty (30) days after
starting to work. It is further understood and agreed upon that
the employer shall be the judge of the competency and qualifica-
cations of the employee.
Contrary to the proviso of Section 8 (a) (3) of the Act, the first
clause of the union-security provision required employees who were
employed as of the date of the agreement to become or remain mem-
bers of the Union during the first 30 days of the agreement. The pro-
vision also requires that new employees who are not members of the
Union obtain a clearance from the Union as a condition of starting
to work. Moreover, the clear effect of the provision is to give prefer-
ential treatment to union members, who need not obtain such clear-
ance. Because of these requirements, the provision goes beyond the
limited union-security provisions permitted by Section 8 (a) (3) of
4 Edward Bosch h Sons, 92 NLRB 520; Depew-Paving Co , Inc, 92 NLRB , 245; see
Hollow Tree Lumber Company , 91 NLRB 635.
BUSHNELL STEEL COMPANY 669
the Act, and is illegal even though it was executed following an elec-
tion conducted under Section 9 (e) (1) of the Act. Accordingly, the
contract cannot operate as a bar to this proceeding.'
We find that a quest-ion affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the agreement of the parties, we find that
the vulcanizers, buffers, section men, tire changers, and floor service
men employed at the Employer's Bakersfield, California, place of,busi-
ness, excluding office employees, guards, and supervisors, as defined in
the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
5 Seattle Wholesale Florists Association , 92 NLRB 1186 ; Aeroil Products Company,
Inc, 86 NLRB 639; Broadway Iron and Pipe Corporation , 83 NLRB 942 ; American Emport
Lines, Inc., 81 NLRB 1370; C. Hager & Sons Hinge Manufacturing Company, 80 NLRB
163. The fact that the employer is presently not enforcing the provision is immaterial.
Evans Milling Company, 85 NLRB 391 ; Hawley & Hoops , Inc, 83 NLRB 371. This
conclusion makes it unnecessary to consider the Employer 's contention that the contract
has been open for negotiations since June 1, 1948.
BU SHNELL STEEL COMPANY and SHOPMEN 'S LOCAL UNION No. 616 OF
THE INTERNATIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNA-
MENTAL IRON `'YORKERS, AFL , PETITIONER . Case No. 10-RC-1085.
March 5,1951
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 James W. Mackle, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
'The hearing officer correctly overruled the Employer's motion to continue this pro-
ceeding indefinitely , pending disposition by the General Counsel of the appeal taken from
the Regional Director ' s dismissal of the unfair labor practice charge in Case No 10-CA-
1124 . We have been advised administratively that the General Counsel has since sus-
tained the action of the Regional Director
After the heating, the Employer filed with the Board a motion for rehearing and a
motion to dismiss In its motion for rehearing , the Employer contends , fiist , that the
hearing officer erroneously allowed the intervention of the International Association of
Machinists, District Lodge No 112 in this proceeding , because of alleged failures of
service on the Employer, of the motion and the Regional Director 's ruling thereon, as
required by Section 203 57 of the Rules and Regulations of the Board However, the
Employer has not shown in what way, if any, it was prejudiced by any such failure. Its
contention is, therefore, nithout merit The Employer also contends , in its motion
for rehearing , that the hearing officer erroneously made prejudicial rulings excluding
evidence regarding the existence and identity of the Petitioner and the Intervenor•andl
93 NLRB No. 9& '