West Ohio Gas Co.

National Labor Relations Board - Board Decisions

Dec 21, 1944

59 N.L.R.B. 1195 (N.L.R.B. 1944)

In the Matter of WEST OHIO GAS COMPANY and CONGRESS OF INDUS-
TRIAL ORGANIZATIONS
Case No. 8-R-1689.Decided December 21, 1944
Messrs. C. H. Neville, J. S. Vail, and F. L. Pringle, of Lima, Ohio,
for the Company.
Mr. TV. L. Young, of Lima, Ohio, for the C. I. O.
Mr. Kenneth Scott, of Toledo, Ohio, for the A. F. of L.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Congress of Industrial Organizations,
herein called the C. I. 0., alleging that a question affecting commerce
had arisen concerning the representation of employees of West Ohio
Gas Company, Lima, Ohio, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before William O. Murdock, Trial Examiner. Said hear-
ing was held at Lima, Ohio, on November 16, 1944. At the com-
mencement of the hearing the Trial Examiner granted a motion of
American Federation of Labor, Federal Local No. 23292, herein
called the A. F. of L., to intervene. The Company, the C. I. 0.,
and the A. F. of L. appeared, participated, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. During the course
of the hearing the A. F. of L. moved to dismiss the petition. The
Trial Examiner reserved ruling thereon. The motion is hereby
,denied. 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
West Ohio Gas Company is an Ohio corporation engaged in the
sale and distribution of fuel gas in Lima, Ohio, and within a 35-mile
59 N. L. R. B., No. 215.
1195
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
radius of that city. The company's sales are in excess of $1,000,000
annually and it numbers among its customers Lima Locomotive
Works, Lima Tank Depot, Westinghouse Manufacturing Company,
and numerous other war industries.
The Company admits, for the purpose of this proceeding, that it
is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
Congress of Industrial Organizations is a labor organization, ad-
mitting to membership employees of the Company.
American Federation of Labor, Federal Local No. 23292, is a labor
organization, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The C. I. O. requested the Company to recognize it prior to Decem-
ber 2, 1944, as exclusive collective bargaining representative of the
Company's employees. The Company refused this request on the
ground that it was operating under a contract with the A. F. of L.
On January 2, 1943, the Company and the A. F. of L. entered into
an exclusive collective bargaining contract. The contract provides
that it shall remain in effect for a period of 1 year and from year
to year thereafter unless either party thereto notifies the other of a
desire to terminate not less than 30 days prior to any annual expira-
tion date. Inasmuch as the C. I. O. made its claim upon the Com-
pany prior to December 2, 1944, the date upon which the contract
might have renewed itself, we find that it does not constitute a bar
to a determination of representatives at this time.
A statement of a Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the C. I. O. represents a sub-
stantial number of employees in the unit hereinafter found to be
appropriate.'
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 C. I. O. contends that all employees of the Company, including
janitors, watchmen, and collectors, but excluding clerks, superintend-
' The Field Examiner reported that the C . I. O. presented 31- authorization cards. There
are approximately 39 employees in the appropriate unit. The A . F. of L . did not present
any evidence of representation but relies upon its contract as evidence of its interest in
the instant proceeding.
WEST OHIO GAS COMPANY 1197
ents, assistant superintendents , general foremen, assistant general
foremen, and department heads, constitute an appropriate unit. The
only controversy with respect to the unit concerns the bill deliverer.
The Company and the A. F. of L . urge that he be excluded from the
unit and the C. 1. 0. that he be included.
The bill deliverer delivers bills to the premises of customers of the
Company and is under the same supervision as the meter readers,
who are admittedly in the unit . The record indicates that the duties
of this employee and his relationship to the employees in the unit are
such that he should be included . Accordingly , we find that the bill
deliverer should , be included in the unit.
We find that all employees of the Company , including janitors,
watchmen , collectors , and the bill deliverer , but excluding clerks,
superintendents , assistant superintendents , general foremen, assistant
foremen, department heads, and any other supervisory employees
with authority to hire, promote , discharge , discipline , or otherwise
effect changes in the status of employees , or effectively recommend
such action, constitute - a unit appropriate for the purposes of collec-
tive bargaining , within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
The A . F. of L . contends that no election should be conducted in
the immediate future because of certain actions of the Regional Direc-
tor. In June 1944, the C. I. O. filed a petition, which was withdrawn
at the request of the Regional Director because of its untimeliness.
It appears that although the Company and the C. I. O. were notified
of the withdrawal, the A. F. of L. was not so notified. The A. F. of
L. contends that it has been deprived of its rights under its contract,
alluded to above, because of this action, inasmuch as the Company
thereafter repeatedly questioned the A. F. of L .'s rights under the
contract because of the C. I. O.'s claim. It should be noted that the
A. F. of L. enjoyed exclusive collective bargaining rights under its
contract for a period of over 1 year prior to the petition filed in
June 1944, and that, in any event , the Company was under a duty to
continue to bargain with the A. F. of L. We find the position of
the A. F. of L. to bu untenable.
We shall direct that the employees eligible to vote shall be those
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,,
subject to the limitations and additions set forth in the Direction.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations 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 West Ohio Gas
Company, Lima, Ohio, 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 Eighth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among the employees
in the unit found appropriate in Section IV, above, who were em-
ployed 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 vacation 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
any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, to de-
termine whether they desire to be represented by Congress of Indus-
trial Organizations, or by American Federation of Labor, Federal
Local No. 23292, for the purposes of collective bargaining, or by
neither.