Pacific Gas Heating Co.

National Labor Relations Board - Board Decisions

May 24, 1940

23 N.L.R.B. 1167 (N.L.R.B. 1940)

In the Matter of L. CINQ-MAttS, DOING BUSINESS UNDER THE NAME OF
PACIFIC GAS HEATING COMPANY ' and BAY CITIES METAL TRADES
COUNCIL, A. F. OF L.
In the Matter of L. CINQ-MARS, DOING BUSINESS UNDER THE NAME OF
PACIFIC GAS HEATING COMPANY 1 and AMALGAMATED ASSOCIATION
OF IRON , STEEL AND TIN WORKERS OF NORTH AMERICA, LODGE 1684,
THROUGH THE STEEL WORKERS ORGANIZING COMMITTEE, C. I. O.
Cases Nos . R-1794 and R-1795, respectively .Decided May 24., 1940
Furnace Manufacturing Industry-Investigation of Representatives: con-
troversy concerning representation of employees : rival organizations ; refusal
of employer to recognize any organization as exclusive representative of em-
ployees-Unit Appropriate for Collective Bargaining : controversy as to: all
employees including outside repairman , but excluding supervisory and office
employees-Representatives : eligibility to participate in choice : agreement as
to : all employees named on stipulated payroll ; employee named on eligible
pay roll having been laid off but not to be reemployed , ineligible to participate-
Election Ordered
Mr. John 7'. McTernan, for the Board.
Mr. L. Cinq-Mars, of San Francisco, Calif., for the Company.
Mr. Anthony Ballerini, of San Francisco, Calif., Mr. Louis Mar-
tin, of Oakland, Calif., and Mr. Joseph Lewis,2 of Centerville, Calif.,
for the Council.
Mr. Ken Hunter, of San Francisco, Calif., for the Amalgamated.
Mr. Gilbert V. Rosenberg, of counsel -to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 30, 1940, Bay Cities Metal Trades Council, American
Federation of Labor,3 herein called the Council, and on March 25,
1 The formal papers were amended at the hearing correctly to state the name of the Com-
pany as indicated above.
2 Mr. Lewis appeared on behalf of the Stove Mounters , which is associated with the
Council in this proceeding.
3 Incompletely designated in the petition as "Bay Cities Metal Trades Council, A F.
of L."
23 N L R . B, No 122
1167
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1940, Amalgamated Association of Iron, Steel and Tin Workers of
North America, Lodge 1684, through the Steel Workers Organizing
Committee, affiliated with the Congress of Industrial Organizations,'
herein called the Amalgamated, filed with the Regional Director for
the Twentieth Region (San Francisco, California) petitions alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of L. Cinq-Mars, San Francisco, California,
doing business under the name of Pacific Gas Heating Company,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act.
On March 29, 1940, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3 and Section 10 (c) (2), of National Labor
Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation in each case and authorized the Regional
Director to conduct it and provide for an appropriate hearing on
due notice, and further ordered that the cases be consolidated.
On April 1, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the
Council, upon the Amalgamated, and upon Stove Mounters Inter-
national Union of North America, herein called the Stove Mounters,
and Sheet Metal International Association, herein called the Metal
Workers, two labor organizations claiming to represent employees
directly affected by the investigation. Pursuant to notice a hearing
was held on April 15, 1940, at San Francisco, California, before
Thomas H. Kennedy, the Trial Examiner duly designated by the
Board. The Board was represented by counsel, and the Company,
the Council, and the Amalgamated were represented by their respec-
tive representatives; all participated in the hearing.1 Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
During the course of the hearing the Trial Examiner made several
rulings on motions and objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed. Thereafter, the Council and the Amalgamated filed briefs
with the Board which it has considered.
4Incompletely designated in the petition as "Amalgamated Association of Iron, Steel
and Tin Workers of North America, Lodge 1684, through the Steel Workers Organizing
Committee , C. I. O."
s while the Stove Mounters and the Metal workers did not directly participate in the
hearing, the Council apparently participated on their behalf . See Section IV, infra.
- PACIFIC GAS HEATING COMPANY 1169
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
L. Cinq-Mars, an individual doing business as Pacific Gas Heating
Company, is engaged at a plant in San Francisco, California, in the
manufacture and sale of gas-fired warm-air furnaces. During 1939
the Company purchased raw materials valued at $40,842, of which
$14,900 represented the value of materials shipped to the Company
from points outside the State of California. During the same period
the Company sold finished products valued at $89,767, of which
$49,580 represented the value of products shipped to points outside
the State of California. The Company admits for the purpose of
this proceeding that it is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
H. THE ORGANIZATIONS INVOLVED
Bay Cities Metal Trades Council is a labor organization comprising
certain unions affiliated with the American Federation of Labor.
Stove Mounters International Union of North America, Local No.
65, and Sheet Metal Workers International Association, Local No.
355, are members of the Council. They admit to their respective
memberships certain employees of the Company.
Amalgamated Association of Iron, Steel and Tin Workers of
North America, Lodge 1684, is a labor organization affiliated, through
Steel Workers Organizing Committee, with the Congress of Indus-
trial Organizations. It admits to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company and the Stove Mounters executed a contract as of
January 1, 1938, wherein the Company agreed to recognize the
Stove Mounters as the exclusive representative of its employees.
The contract was for a term of one year and was to continue in
effect from year to year, in the absence of notice "to modify or add
to this Agreement" given by either party to the other not less than
30 days prior to its expiration date. This agreement continued in
effect during 1939. By letter dated November 20, 1939, the Com-
pany notified the Stove Mounters that it would not renew the exist-
ing contract after its expiration on December 31, 1939. On Novom-
ber 30, 1939, the Stove Mounters notified the Company that it desired
to effect changes in the contract.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During December 1939 and January 1940 the Stove Mounters,
the Metal Workers, and the Amalgamated, respectively, requested
of the Company exclusive recognition and the negotiation of a writ-
ten contract. Thereafter the Council on behalf of the "Organiza-
tions that have agreements with" the Company e requested the Com-
pany to negotiate a joint agreement covering all its employees. The
Company had refused to negotiate a contract with any of the above
organizations, basing its refusal' upon the conflicting claims to repre-
sentation among its employees.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
In its petition the Council alleged that all production employees
of the Company, excluding clerical employees and executives above
the rank of foreman, constitute an, appropriate unit. At the hearing
it amended its petition to include all employees of the Company,
without exception, in the unit claimed to be appropriate. The peti-
tion filed by the Amalgamated alleged that all production and main-
tenance employees of the Company, excluding clerical, office, and
supervisory employees, constitute an appropriate unit. The Com-
pany took no position regarding the composition of the bargaining
unit.
The Company employs 13 persons. The conflicting unit conten-
tions of the Council and the Amalgamated resolve themselves into
a dispute concerning the inclusion of three of these employees, W.
Neller, A. Wehr, and Charles Lawler, the Council wishing to include,
and the Amalgamated to exclude all three.
The Amalgamated seeks Neller's exclusion on the ground that he
is a clerical employee. There is no dispute concerning his duties.
He acts as the Company's office manager and bookkeeper. We shall
exclude Neller from the unit.
° The record does not indicate that any labor organization had an agreement with the
Company at the time this letter was written.
PACIFIC GAS HEATING COMPANY 1171
Wehr does the Company's outside repair and installation work
which consumes between one-third and one-half of his time. The
remainder of his time is spent in and about the plant where he
uncrates, picks up, and delivers materials, cleans the plant, and
installs electric thermostats on certain types of furnaces. Approxi-
mately 40 per cent of the furnaces made by the Company are
equipped with thermostats. The work done by Wehr in the plant
warrants his inclusion in the unit. The fact that he also- does a
substantial amount of outside service work does not militate against
his inclusion, since it is our usual practice to include outside service
employees in the production unit.7 We shall accordingly include
Wehr.
Lawler's exclusion is sought by the Amalgamated on the ground
that he is a supervisory employee. He has been employed by the
Company for approximately 17 years and receives a wage higher
than other employees doing comparable work. Lawler works in the
assembling, spraying, and crating department, a part of the produc-
tion process. However, in addition to this work he opens the plant
in the morning, keeps time, sees that the men report for work and
remain in the plant during working hours, gives routine instruc-
tions to other employees concerning the filling of customers' orders,
and transfers employees from one department to another. Mr.
Cinq-Mars, who personally supervises the operation of the plant,
testified that he does not consider Lawler a foreman in the sense
that he has complete control over the other employees with authority
to hire and discharge, or has charge of the plant, yet he has on
occasion held out Lawler to some of the other employees as their
foreman. Moreover, Lawler as a member of the Stove Mounters
enjoyed an immunity from paying fines for failing to attend its
meetings because of his status at the plant.
Although Lawler does a substantial amount of production work,
we believe that his other duties identify him directly with the man-
agement and warrant his exclusion from the unit as a supervisory
employee.
We find that all employees of the Company, excluding W. Neller
and Charles Lawler, constitute a unit appropriate for the purposes of
collective bargaining and that said unit will insure to employees of the
Company the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
7 See Matter of Caldwell Lawnmower Company and International Association of Machin-
ists, Lodge No. 757, affiliated with the American Federation of Labor, 14 N. L R B 38;
Matter of La Plant -Choate Manufacturing Co , Inc. and United Farm Equipment Workers
Organizing Committee , Local 116, affiliated with the C. I. O., 13 N. L R B. 1228; Matter
of Joe Lowe Corporation and Independent Union of Confectionery Workers, Local 1, 13
N L R B. 672.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATAVES
In support of its claim of majority representation among the em-
ployees in an alleged appropriate unit the Amalgamated submitted 8
authorization cards to the Regional Director. The latter reported
in a written statement introduced in evidence that the names signed
to the cards appear to be genuine signatures of persons employed
by the Company. At the hearing the Council submitted to the Trial
Examiner in support of its claim of majority representation a peti-
ticii signed by 6 employees in an alleged appropriate unit designating
the Council as their exclusive bargaining representative. The Trial
Examiner reported that the names signed, on or after January 1,
1940, to the petition, appear to be the authentic signatures of persons
employed by the Company on January 12, 1940. We find that the
question concerning representation which has arisen can best be re-
solved by an election by secret ballot.
At the hearing the Council and the Amalgamated stipulated that
the Company's pay roll of January 12, 1940, in evidence, be used to
determine eligibility to vote in an election. The Company offered
no objections. This pay roll, containing 13 names, reflects the normal
complement of the Company's personnel prior to a seasonal reduction
of force. No reason appears why the stipulation should be denied
effect.
The name of J. Canale, among others, appears on the pay roll in
question as having been temporarily laid off. At the hearing, how-
ever, Mr. Cinq-Mars testified that Canale would not be reemployed.
Under the circumstances, since it appears that Canale is not now an
employee of the Company he will not be permitted to participate in
the election.
We shall accordingly direct that an election by secret ballot be held
among the Company's employees in the appropriate unit whose names
appear on the Company's pay roll of January 12, 1940, excluding J.
Canale, to determine whether they desire to be represented by the
Council, by the Amalgamated, or by neither, for the purposes of
collective bargaining.
Upon the above findings of fact and the entire record in the case
the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of L. Cinq-Mars, San Francisco, California,
doing business under the name of Pacific Gas Heating Company,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
PACIFIC GAS HEATING COMPANY 1173
2. All employees of the Company, excluding W. Neller and Charles
Lawler, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National La-
bor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it
is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with L. Cinq-Mars, San Francisco, California, doing business under
the name of Pacific Gas Heating Company, 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 of Election under the di-
rection and supervision of the Regional Director for the Twentieth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all employees of L. Cinq-Mars, doing business
under the name of Pacific Gas Heating Company, whose names appear
on the pay roll of January 12, 1940, excluding W. Neller, Charles
Lawler, J. Canale, and any who have since quit or been discharged for
cause, to determine whether they desire to be represented by Bay
Cities Metal Trades Council, American Federation of Labor, or by
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Lodge 1864, through the Steel Workers Organizing Com-
mittee, C. I. 0., or by neither, for the purposes of collective
bargaining.
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