Payne Furnace and Supply Co., Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1940

21 N.L.R.B. 797 (N.L.R.B. 1940)

In the Matter Of PAYNE FURNACE AND SUPPLY CO., INC. and STOVE
'MOUNTERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL No.
93, AFL
Case No. R-1709.-Decided March 20, 1940
Furnace Manufacturcng Industry-I vestigation of Representatives : contro-
ersy concerning representation of employees : rival organizations ; refusal by
employer to bargain with petitioning union because of doubt as to majority
designation in an appropriate unit-Unit Appropriate for Collective Bargaining:
all office employees whatever the nature of their work , all supervisory employees
with power to hire and fire, all salesmen , all engineers and the night watch-
man excluded from plant production and maintenance unit ; no controversy. as
to exclusion ; employees in "retail " or "special" fitting department included in
unit of plant production and maintenance employees over objection of petition-
ing union where place of work and nature of work is similar to that of em-
ployees in regular fitting department whose inclusion was agreed upon by
rival labor organizations and where unit, in so far as the parties agree, Includes
both production and maintenance employees ; truck drivers excluded from unit
of plant production and maintenance employees because of eligibility to mem-
bership in separate craft organization and request of one of the rival labor
organizations for their exclusion ; plant production and maintenance employees,
and employees in installation and service departments may constitute separate
units in view of differences in duties and working conditions or may be com-
bined into a single unit in view of similarity in wages, interchange of personnel,
restriction of duties to work on Company's products ; determining factor is de-
sire of employees : elections to determine-Representatives : eligibility to par-
ticipate in choice : agreement as to ; proof of choice : neither labor organization
offered evidence concerning extent of membership-Elections Ordered
Mr. Alba B. Martin, for the Board.
Mr. Arthur L. Erb, of Beverly Hills; Calif., and Latham di
Watkins, by Mr. Paul R. Watkins, of Los Angeles, Calif., for the
Company.
Mr. Kenneth Petro and Mr. H. B. McMurr y, of Los Angeles, Calif.,
for the Stove Mounters and the Central Labor Council.
Mr. John Despol, of Maywood, Calif., for the S. W. 0. C.
Mr. Robert F. Koretz, of counsel to the Board.
21 N. L R B., No 82.
797
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On June 21, 1939, Stove Mounters International Union of North
America Local No. 93, AFL,1 herein called the Stove Mounters, filed
with the Regional Director'for the Twenty-first Region (Los Angeles,
California) a petition, and on January 3, 1940, an amended petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of Payne Furnace and Supply Co., Inc.,
Beverly Hills, California, herein called the Company, and requesting,
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On January 19, 1940, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 2, ordered an investigation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On January 25, 1940, the Regional Director issued a notice of hear-
ing, and on January 29, 1940, an amended notice of hearing, copies
of which were duly served upon the Company, upon the Stove Mount-
ers, upon the Central Labor Council, Los Angeles, California, and
upon the Los Angeles Industrial Union Council. Pursuant to the
notice and amended notice, a hearing was held on February 1 and 2,
1940, at Los Angeles, California, before Earl S. Bellman, the Trial
Examiner duly designated by the Board. At the beginning of the
hearing, a representative of Lodge 1981, Amalgamated Association of
Iron, Steel, and Tin Workers of North America, through the Steel
Workers' Organizing Committee, C. I. 0., herein called the
S. W. O. C., entered an appearance on behalf of that organization, and
stated that the S. W. O. C. was affiliated with the Los Angeles In-
dustrial Union Council, which, as stated above, was served with the
notice of hearing and amended notice of hearing, and that the
S. W. O. C. claimed to represent employees of the Company. The
Trial Examiner ruled that, pursuant to Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2, the
S. W. O. C. was a party to the proceedings, and, therefore, entitled to
participate "without the necessity of filing any formal papers for
intervention." No objection was interposed to the ruling. We find
'Designated in the petition , amended petition , and other formal papers as Stove.
mounters International Union Local No 93 , AFL. At the hearing the Trial Examiner
granted without objection a motion to state correctly the Stove Mounters' name.
PAYNE FURNACE AND SUPPLY CO., INC.: -_ 799
it unnecessary to pass-upon the question of whether the S. W. 0. C.
became a party by virtue of the notices served upon the Los Angeles
Industrial Union Council, and will affirm the ruling as in effect per-
mitting intervention. The Board and the Company were represented
by counsel; the Stove Mounters 2 and the S. W. 0. C. were represented
by duly authorized representatives. All parties participated in the
hearing. Full opportunity to be heard, to examine-and cross-examine
witnesses, and to introduce evidence bearing on the issues was
afforded all parties. During the course of the hearing the Trial
Examiner made several rulings on motions and on 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Payne Furnace and Supply Co., Inc., a California corporation with
its plant and principal office at Beverly Hills, California," is engaged
in the manufacture of gas-fired warm-air furnaces, heaters, and
accessories. During the year ending June 30, 1939, the Company
purchased raw materials costing $581,020.26, of which materials cost-
ing $377,663.17 were purchased outside the State of California.'
During the same period the Company received approximately
$1,450,000 from the total sales of its products, approximately 50 per
cent of such sales being made and shipped to customers in States other
than California and in foreign countries. The Company sells its
products in Texas, Colorado, California, and other Western States
largely through salesmen who are on the Company's pay roll, and
in the Eastern and Southwestern States principally through brokers.
The Company advertises its products in newspapers, periodicals
having a national circulation, and other trade magazines and bulletins.
II. THE ORGANIZATIONS INVOLVED
Stove Mounters International Union of North America Local No.
93, is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the Company.
2 The representatives of the Stove Mounters also entered their appearance on behalf of
the Central Labor Council.
3 The Company operates a wholly owned subsidiary, Electrogas Furnace Co , at San
Francisco , California.
4 The raw materials used by the Company in the manufacture of its products consist
principally of steel, aluminum , tin, copper , asbestos paper, galvanized iron, pipe and
fittings, Iron casings, brass castings , electric motors, fans, blowers, filters , valves and
regulators , electric controls , thermostats , wire, registers , sheaves and pulleys, bearings,
belts, electric controls , lumber, paper cartons, paste , bolts, screws , nails , oxygen, acetylene,
and air conditioners.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lodge ,1981,. Amalgamated Association of Iron, Steel, and Tin
Workers of North America, through the Steel Workers Organizing
Committee, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees. of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated June 5, 1939, Kenneth Petro, a representative of
the Stove Mounters, wrote to the Company stating that the Stove
Mounters had been designated by a majority of employees of the.
Company as their representative for the purposes of collective bar-
gaining, and requesting a conference to discuss the negotiation of an
agreement. The Company, by E. L. Payne, its vice president and
general manager, replied that a conference could be arranged pro-
vided that the Stove Mounters were able to furnish proof that they
"represent the majority of the employees of" the Company. Petro
in turn suggested that the offices of the National Labor Relations
Board "be used to conduct a cross check between your pay roll and
our representation authorizations." Several telephone conversations
followed between Petro and Payne. The Company took the position
that an election by secret ballot conducted by the Board was necessary
to resolve the issue of majority designation because' it was uncertain
whether or not the Stove Mounters had been designated by a majority
of its employees in a unit appropriate for the purposes of collective
bargaining.5
Prior to the hearing the S. W. O. C. had made no claim to the
Company that it had been designated by employees of the Company
at the Beverly Hills plant as their agent for the purposes of collective
bargaining. At the hearing it was stipulated by the Stove Mounters
and the S. W. O. C. that the Stove Mounters "has paid up member-
ship" and that each of these organizations has "authorizations .. .
to act as a collective bargaining agent" among employees at the
Beverly Hills plant.
We find that a question has arisen concerning representation of
employees of the Company.
6 At the hearing counsel for the Company expressed concern that the "Sheet Metal
Workers' Union," also affiliated with the American Federation of Labor, would assert
jurisdiction over employees whom the Stove Mountei s claimed had designated it as their
representative for the purposes of collective bargaining . Counsel for the Board stated
that a representative of Local 108 of the Sheet Metal International Union had written
a letter to the Regional Director dated December 18, 1939, stating that "the union is no
longer interested in protesting any action as a result of the petition filed in this case by
the Stove Mounters Union , and is no longer interested in any election which might result
from any hearing on the basis of the petition "
PAYNE FURNACE AND SUPPLY CO., INC. 801
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
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 between the several States and foreign countries, and tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
The S. W. O. C. contends that an appropriate unit consists of all
production and maintenance employees of the Company at its Beverly
Hills plant, including employees in the "retail" or "special" fitting
department, all truck drivers, and employees in the installation and
service departments, but excluding all office employees whatever the
nature of their work,6 all supervisory employees with power to hire
and fire,? all salesmen ," all engineers,9 and the night watchman'0 As
thus defined the unit Would comprise approximately 171 employees.
The Stove Mounters and the Company agree that the employees sought
to be excluded by the S. W. O. C. should be excluded. The Stove
Mounters, however, urge that, in addition, there should be excluded
from the appropriate unit employees in the "retail" or "special"
fitting department, all truck drivers, and employees in the installation
and service departments." The Company takes no position with
respect to the inclusion or exclusion of the employees in the disputed
categories.
Employees in the "Retail" or "Special" Fitting Department. In ad-
dition to the operations, referred to in Section I above, carried on at
the Beverly Hills plant, the Company sells some of its products
locally to contractors and architects'and installs the products so sold.
° The parties agreed that this definition of office employees includes the following em-
ployees : two clerks or stenographers and the retail sales manager in the retail sales
department ; three men engaged in installation design in the installation engineering
department ; employees in the general bookkeeping department , employees in the whole-
sale sales department , of which the advertising depaitment is apparently a subdivision,
the clerk in the office of the plant superintendent ; the clerk in the retail installation
office
7 The following employees were thus defined . Daley, retail installation superintendent ;
Irwin, foreman of the service department ; Wesley, plant superintendent ; Schweitzer, in
charge of truck drivers , stockroom , shipping and crating departments
8 The Company employed approximately seven i etail salesmen and two wholesale sales-
men at the date of the heal ing
-Defined as tl•e following nine employees in the engineering laboratory : three engi-
neers, three draftsmen , two assistant engineers , one clerk or stenographer.
19The Company employs one night watchman General office cleaning is done by a
"janitorial service company."
" These exclusions would reduce the appropilate unit to approximately 117 employees.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-In such cases certain- employees in the- installation department secure
measurements for pipe and fittings required for the installation of the
heating system. The "lay-out" is then sent to the "retail" or "special"
fitting department, which consists of five employees, and which draws
from the regular fitting department 12 standard pipe and fittings which
can be used on the particular installation job, produces such special
fittings as are needed for the job, and assembles the pipe and fittings
in accordance with the "lay-out," and turns them over to the installa-
tion department.
The employees in the "retail" or "special" fitting department work
on the same floor of one of the Company's buildings as the 15 em-
ployees in the regular fitting department. While the latter are en-
gaged in the production of fittings and other accessories which are
standard commercial items, approximately 50 per cent of their time
is spent on items which are used by the "retail" or "special" fitting
department in preparing assemblies for the installation department.
Although the regular fitting department is under the supervision
of the plant superintendent and the "retail" or "special" fitting de-
partment is under the supervision of the retail installation superin-
tendent, the employees in both departments perform essentially the
same kind of work, and it seems clear that both departments are
governed by the same wage policy. Substantially the only reason
advanced by the Stove Mounters to justify the exclusion of the em-
ployees in the "retail" or "special" fitting department from the
appropriate unit was that the Company did not regard them as "pro-
duction" employees. The record does not disclose • any reason to
differentiate employees in the "retail" or "special" fitting department
from the employees in the regular fitting department whose inclusion
in the unit was agreed upon by both labor organizations involved.
Moreover, we see no basis for excluding employees in the "retail" or
"special" fitting department from a unit which both labor organiza-
tions agree -should include both production and maintenance em-
ployees, and should cover not only employees in the regular fitting
department but also employees in the stockroom and in the shipping
and crating department. We shall include employees in the "retail"
or "special" fitting department in the unit of plant production and
maintenance employees.
Truck Drivers. The Company employs three men who are classi-
fied as truck drivers. They deliver raw materials- to the Beverly Hills
plant to be used in the manufacture of the Company's products;
2 Referred to in the record simply as the "fitting department." However , in order to
distinguish it from the "retail" or "special" fitting department , we shall refer to it here-
inafter as the regular fitting department.
PAYNE FURNACE AND SUPPLY CO., INC. 803
transport materials between the buildings which comprise the Beverly
Hills plant; and deliver finished products to local terminal points for
trans-shipment. Only occasionally, when the installation department
is busy, do the truck drivers assist in the delivery of products to be
installed locally.
Upon these facts, the interests of the truck drivers would seem to
be such that they might appropriately be included in a, unit with
the plant production and maintenance employees. We also feel,
however, that such employees occupy a status differing somewhat
from that of the other employees and that, inasmuch as they are
apparently eligible to membership in a separate craft organization,
they should not be included in a unit with other employees of the
Company where, as in the instant case, one of two rival labor organ-
izations objects to their inclusion within the unit. In accordance
with our usual practice we shall exclude the truck drivers from the
unit of plant production and maintenance employees .1-3
Employees in the Installation Department and the Service Depart-
ment. The employees in the installation department, as noted above,
are engaged in installing heating systems sold in the vicinity of
Beverly Hills." The number of employees in this department varies
from approximately 18 to 40 men ; 29 were employed therein at the
time of the hearing. There is practically no interchange of personnel
between the installation-department employees and plant production
employees ; when additional men are needed, they are generally
selected from a list of former employees.
The employees in the service department are engaged in making
final gas and electric connections for newly installed heating systems
and in servicing heating systems installed by the Company. At the
time of the hearing there were 17 employees in the service department.
Although service work is highly seasonal, reaching its peak in winter,
the Company seeks to maintain at least 12 men in this department
throughout the year. During the winter, it is necessary upon oc-
casion to take men from the installation department to perform serv-
ice work, and during the first cold spell, the Company has placed
plant production employees in service work for not more than 2 or 3
13 We have usually excluded outside truck drivers from a unit of production and main-
tenance employees at the request of one of the rival labor organizations . Matter of Blue
Diamond Corporation , Ltd and International Longshoremen's and Warehousemen's Union,
Local 1-26, 18 N. L R. B 730 ; Matter of Swift cC Co . and Committee for Industrial
Organization, 11 N. L R. B. 950, 954; Matter of Armour it Company and Amalgamated
Meat Cutters and Butcher Workmen of North America , Local No. 235, 10 N L R. B
912, 914. Compare Matter of The Connor Lumber it Land Company and International
Woodworkers of America, Local 125 (C. I. 0.) 11 N. L. R. B. 776, 782.
14 The Company provides trucks in which the employees assigned to a particular instal-
lation job deliver the Company ' s products to the place of installation The Company
also provides cars for employees in the service department.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days.15 On the other hand, the Company shifts some servicemen to
installation and other work during seasonal slack periods.'-,
Upon the foregoing facts we conclude that the approximately 122
plant production and maintenance employees and the approximately
46 employees in the installation and service departments appropri-
ately may be established as separate units or combined into a single
unit." The differences in the nature of work performed by employees
in each of these groups, the fact that each group consists of a sub-
stantial number of employees, and the further fact that employees,
in the installation and service department perform the principal part
of their work outside the plant serve to indicate the feasibility of
dividing them into separate bargaining units. On the other hand,
differences in duties and working conditions alone manifestly do not
require the exclusion of employees in the service and installation
department from a production and maintenance unit.'-, In the in-
stant case, moreover, there is no appreciable difference in the average
hourly wage paid employees in the installation and service depart-
ments and the plant production employees; there is some interchange
of personnel between service-department employees and plant produc-
tion employees; and the installation-department employees are en-
gaged solely in the installation of products manufactured at the
plant.
Under these circumstances the desires of the employees shall deter-
mine the appropriate unit or units for the purposes of collective
bargaining.'-, As stated in Section VI, infra, the determination of
their desires can best be made in elections which we shall direct.
Upon the outcome of the elections will depend our ascertainment of
the appropriate unit or units herein. We will order elections among
the Company's employees at its Beverly Hills plant within the groups
described below, excluding all office employees whatever the nature
of their work, all supervisory employees with power to hire and fire,
all salesmen, all engineers, the night watchman, and all truck drivers :
16 During the time production employees peifoim service work, their pay-loll classifi-
cation is accordingly changed.
10 Payne, vice president and general manager of the Company, summarized the situation
as follows : "There are times in the summertime when there is very little service work to
be done, and we have used some of those service men in the factory on production work,
or used them in the maintenance of buildings, making alterations or anything we can find
for them to do in order to keep them working the year around and keep them satisfied."
14 Cf. Matter of TValgreen Co. and Wholesale and Chain Drug Warehouse Employees
Unwn, Local 21704, 15 N. L R. B. 980
18 Thus, where only one union has been involved we have, upon the request of the
union, included similar employees in a unit of production and maintenance workers.
Matter of Lennon Furnace Co, Inc. and Syracuse Federation of Labor, 20 N. L. R B. 962
(installers) ; Matter of Coldwelt Lawnmower Company and International Asosciatson of
Machinists, Lodge No 757, affiliated with the American Federation of Labor, 14 N. L. R; B.
38, 42 (service repairmen)
18 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local
No. 3, et at., 3 N. L . R. B. 294.
PAYNE FURNACE AND SUPPLY CO., INC. 805
(a) All production and maintenance employees, including em-
ployees in the "retail" or "special" fitting department and the regular
fitting department, but excluding employees in the installation depart-
ment, and the service department, to determine whether they desire
to be represented by the Stove Mounters, or by the S. W. 0. C., for
the purposes of collective bargaining, or by neither;
(b) All employees in the installation department and the service
department, to determine whether or not they desire to be repre-
sented by the S. W. 0. C.
We shall certify the union, if any, designated by a majority of
the employees within each election unit as the exclusive representative
thereof. If the S. W. 0. C. should win both elections, we shall certi-
fy it as the exclusive representative of both election units combined.
VI. THE DETERMINATION OF REPRESENTATIVES
As stated above, the Stove Mounters and the S. W. 0. C. stipulated
at the hearing that the Stove Mounters "has paid up membership"
and that both organizations have "authorizations . . . to act as a
collective bargaining agent" among employees at the Beverly Hills
plant. Neither of these organizations, however, offered any other
.proof of designation, but joined with the Company in stipulating
that an election should be held. Under the circumstances we find
that the question concerning representation which has arisen can
best be resolved by the holding of elections by secret ballot.
While the sales of the Company vary considerably from month
to month, depending on the seasonal demand for furnaces, the Com-
pany seeks to spread production throughout the year, and conse-
quently the number of employees does not vary in proportion to the
seasonal demand for and sale of furnaces. Although the parties
stipulated at the hearing that "during the- next few months .. .
there will probably be a decrease in the number of employees on the
production and maintenance pay roll," they further stipulated "that
the present pay roll of approximately February 1 [1940] . . . be
accepted as the pay roll for all purposes pertaining to this hearing,
it being an approximate pay roll and reflecting a fair basis for deter-
mination in this hearing." We construe the stipulation to mean that
those eligible to vote in each election will be those persons in the
respective election units who were employed by the Company during
the pay-roll period which covers February 1, 1940, including em-
ployees who did not work during such pay-roll period because they
were ill or on vacation, or temporarily laid off, but excluding those
who between such pay-roll period and the date of the election have
quit or been discharged for cause. As thus construed, we see no
reason to depart from the wishes of the parties with respect to the
283032-41-vol 21-52
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination of employees who shall be eligible to vote, and we
shall direct accordingly.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the repre-
sentation of employees of Payne Furnace and Supply Co., Inc., Bev-
erly Hills, California, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sec-
tion 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 Payne Furnace and Supply Co., Inc., Beverly Hills, California,
elections 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
Twenty-first Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations, among the employees within the groups
described below who were employed by the Company at its Beverly
Hills plant during the pay-roll period which covers February 1, 1940,
including employees who did not work during such pay-roll period
because they were ill or on vacation or temporarily laid off, but
excluding all office employees whatever the nature of their work,
all supervisory employees with power to hire and fire, all salesmen,
all engineers, the night watchman, all truck drivers and those who
between such pay-roll period and the date of the election have quit
or been discharged for cause :
(a) All production and maintenance employees, including em-
ployees in the "retail" or "special" fitting department and the reg-
ular fitting department, but excluding employees in the installation
department, and the service department, to determine whether they
desire to be represented by Stove Mounters International Union of
North America, Local No. 93, affiliated with the American Federa-
tion of Labor, or by Lodge 1981, Amalgamated Association of Iron,
Steel, and Tin Workers of North America, through the Steel Work-
ers Organizing Committee, affiliated with the Congress of Industrial
PAYNE FURNACE AND SUPPLY CO., INC. 807
Organizations, for the purposes of collective bargaining, or by
neither ;
(b) All employees in the installation department and the service
department, to determine whether or not they desire to be repre-
sented by Lodge 1981, Amalgamated Association of Iron, Steel, and
Tin Workers of North America, through the Steel Workers Organ-
izing Committee, affiliated with the Congress of Industrial Organiza-
tions, for the purposes of collective bargaining.