C. G. Cross and Stella Cross

National Labor Relations Board - Board Decisions

Apr 30, 1946

67 N.L.R.B. 1005 (N.L.R.B. 1946)

In the Matter of C. G. CROSS AND STELLA CROSS, CO-PARTNERS and
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS , LOCAL No.
320, A. F. OF L.
Case No. 9-R-2044.-Decided April 30, 1946
Messrs. C. G. Cross and Stewart Deisenroth, of Louisville, Ky., for
the Company.
Mr. Harold L. Colvin, of Louisville, Ky., for the Firemen.
Mr. Joe E. Pirtle, of Louisville, Ky., for the Engineers.
Mr. Samuel G. Hamilton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Brotherhood of Firemen
and Oilers, Local 320, A. F. of L., herein called the Firemen, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of C. G. Cross and Stella Cross, Co-Partners,
Louisville, Kentucky, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Harold M. Weston, Trial Examiner. The hearing was held
at Louisville, Kentucky, on February 19, 1946. The Company, the
Firemen, and International Union of Operating Engineers , Local 181,
A. F. of L., herein called the Engineers, 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 :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
C. G. Cross and Stella Cross are co-partners. The Company operates
a construction business at Louisville, Kentucky, under the name and
style of E. D. Cross and Son. Approximately 350 persons are em-
ployed by the Company in its construction business. Since December
67 N. L . R. B., No. 123.
1005
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15, 1945, it also has operated a warehouse at Louisville, Kentucky, here-
inafter referred to as the Warehouse, under the name and style of
E. D. Cross and Son, Warehousing Division. Approximately 75 per-
sons are employed by the Company at the Warehouse. Separate books
are kept and separate bank accounts, offices, and supervision main-
tained for each of the Company's operations.
The Warehouse is operated under the supervision and direction of
the War Assets Corporation. Under its contract, the Company's oper-
ations at the Warehouse consist of receiving, storing, and protecting
surplus property that is shipped by the War Assets Corporation, tak-
ing such property out of storage and shipping it to such points as
may be designated by the War Assets Corporation. The Company is
responsible for the maintenance and protection of the warehouse
buildings, and for the handling of all labor relations. It alone has the
authority to hire and discharge, discipline and promote and demote
employees employed at the Warehouse. In its operations to date,
approximately 2,000 tons of surplus property have been received by the
Company at the Warehouse for storage and, of this amount, 33 percent
was shipped to the Warehouse from points outside the Commonwealth
of Kentucky. No stored property has as yet been shipped by the
Company from the Warehouse.
The Company admits, for the purpose of this proceeding, that it is
engaged in commerce within the meaning of the National Labor Rela-
tions Act.
U. THE ORGANIZATIONS INVOLVED
International Brotherhood of Firemen and Oilers, Local No. 320,
and International Union of Operating Engineers, Local 181, are labor
organizations, affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Firemen as
the exclusive bargaining representative of the Warehouse boiler room
and power plant employees until the Firemen 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 Firemen represents a substantial number of
employees in the unit it alleges to be appropriate.'
I The Field Examiner reported that the Firemen submitted 10 cards bearing the names of
9 employees hated on the Company's pay roll of January 29, 1946, and that the cards
are dated January 1946,
There are approximately 10 employees in the unit the Firemen alleges to be appropriate.
The Engineers relies upon two contracts with the Company , neither of which is specifi-
cally raised as a bar , as evidence of its interest in this proceeding . ( See Section IV, infra,
for a discussion of these agreements )
C. G. CROSS AND STELLA CROSS 1007
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 DETERMINATION OF REPRESENTATIVES
The Firemen contends that the boiler room and power plant employ-
ees of tllg Company's Warehouse,' including the janitor,' but exclud-
ing clerical and supervisory employees, constitute an appropriate bar-
gaining unit. The Engineers contends that the Company's engineers,
oilers, and mechanics, who operate and service the cranes in both the
Company's warehousing and construction operations, should be in-
cluded as well. The Engineers further contends that the janitor
should be excluded. The Company takes no position with respect to
the appropriate unit.
On October 15, 1937, the Company apparently was engaged ex-
clusively in the construction business. On that date a closed-shop
agreement was entered into between Louisville Building Trades Coun-
cil, as agent for certain constituent unions, including a sister local of
the Engineers, and the General Contractors Association. Although
the Company was not a member of the Association, it considered itself
bound by the agreement as a subcontractor. Almost 4 years later,
while the Company was still solely engaged in the construction busi-
ness, the Company and the Engineers entered directly into a closed-
shop agreement. Both contracts advert to firemen and oilers, and they
cover employees falling within the Engineers' craft jurisdiction. It
is quite apparent from a reading of these agreements, however, that
they pertain to employees engaged in construction operations. Testi-
mony elicited at the hearing indicates that the two agreements had
been renewed orally from time to time and that the Company is still
operating under them.
On December 15, 1945, the Company entered the warehouse field,
an enterprise virtually divorced from its construction activities .4 A
few days later the stationary firemen in the warehouse boiler room
were organized by the Firemen. Upon threat of a strike by the
Engineers, which claimed jurisdiction over the boiler room employees
under the contracts, the stationary firemen were replaced by the
Company with hoisting engineers' firemen. After ascertaining that
this conduct might be violative of the National Labor Relations Act,
the Company reemployed the stationary firemen and discharged the
hoisting engineers' firemen.
2 It appears that, although there is a boiler room connected with the warehouse, there is
no power plant, as such.
8 Miller.
4 See Section I, supra.
1008 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD
Consistent with its earlier stand concerning the boiler room em-
ployees, the Engineers here contends that the two contracts discussed
above cover these workers , together with engineers , oilers, and me-
chanics who do work relating to the cranes used in both the Company's
warehousing and construction operations . It urges, in substance, that
in view of the coverage of these agreements, only a single unit of
Warehouse boiler room employees , and engineers , oilers, and mechanics
performing work on the Company's cranes, is appropriate. Even
assuming arguendo that the contracts do embrace the Warehouse boiler
room employees , the history of collective bargaining with regard to
such workers has been too brief to require the finding that only the
unit sought by the Engineers is appropriate . It is true that the
Engineers claims that the boiler room employees tall within its tra-
ditional craft unit. Furthermore , it would seem that the mechanical
skills required of them are somewhat similar to those possessed by the
engineers , oilers, and mechanics now represented by the Engineers,
On the other hand, it is not disputed that the boiler room employees
work under separate immediate supervision and in a building of their
own located about 35 feet from the Warehouse proper. Unlike the
other employees in the unit desired by the Engineers , the boiler room
employees are not interchanged with other workers of the Company's
warehousing or construction operations . The employees in the unit
sought by the Firemen , moreover, form a functionally coherent and
identifiable group which the Board has frequently found may be
represented for collective bargaining purposes either as a separate
unit or as part of a more comprehensive unit. In these circumstances,
we shall not make a determination of the appropriate unit at the
present time . Such determination will depend , in part, upon the
desires of the Warehouse boiler room employees , as reflected by the
results of the election we hereinafter direct.
As noted above , dispute exists with respect to the inclusion of the
janitor. According to the testimony of the Warehouse manager, this
employee is engaged in maintenance and clean -up work in the boiler
room only about 20 percent of his working time . He is admittedly
not a fireman. Under all the circumstances , we shall exclude him.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the follow-
ing employees who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, subject
to the limitations and additions set forth in the Direction :
5 See Matter of Sangaino Electric Company, 59 N L. It. B 364.
C. G. CROSS AND STELLA CROSS 1009
All boiler room and power plant employees engaged in the Com-
pany's Warehouse, excluding the janitor, and all supervisory employ-
ees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action,
If the employees in this voting group select the Firemen as their
bargaining representative they will be taken to have indicated a desire
to constitute a separate appropriate unit; if they select the Engineers,
however, they will be taken to have indicated a desire to be bargained
for as part of the unit of engineers, oilers, and mechanics performing
work on the cranes used in both the Company's warehousing and con-
struction operations, which is presently represented by the Engineers.
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 C. G. Cross and
Stella Cross, Co-Partners, Louisville, Kentucky, 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 Ninth 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 Regula-
tions, among employees in the voting group 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 vaca-
tion 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 dis-
charged 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 International Brotherhood of Firemen and Oilers, Local No. 320,
A. F. of L., or by International Union of Operating Engineers, Local
181. A. F. of L., for the purposes of collective bargaining, or by neither.
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