Western Freight Handlers, Inc.

In the Matter of WESTERN FREIGHT HANDLERS, INC., and INTERNATIONAL LONGSIIOREMEN '9 AND WAREHOUSEMEN'S UNION, LOCAL 6 Case No. R-50411.-Decided April 23, 194,3 MoKinstry, Haber cf Coombes, by Mr. Joseph Haber, Jr., of San Francisco, Calif., for the Company. . . Gladstein, Grossman, Margolis d Sawyer, by Mr. Aubrey Grossman, of San Francisco, Calif., for the C. I. O. Mr. James F. Galliano, of Oakland, Calif., for the Teamsters. Mr. William C. Waack, of Stockton, Calif., for the Operating Engi- neers. Mr. John J. Sweeney, of San Francisco, Calif., for the American Federation of Labor. Mr. A. Summer Lawrence, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petition duly filed by International Longshoremen's and Ware- housemen's Union, Local 6, affiliated with the C. I. 0., herein called the C. I. 0., alleging that a question affecting commerce had arisen con- cerning the representation of employees of Western Freight Handlers, Inc., Lathrop, California, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Gerald P. Leicht, Trial Examiner. Said hearing was held at San Francisco, California, on March 22, 1943. The Company, the C. I. O., International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers, Local 439, AFL, herein called the Teamsters, International Union of Operating Engineers, Local No. 3, AFL, herein called the Operating Engineers, and the American Federation of Labor appeared, participated, and 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 hear- ing are free from prejudicial error and "are hereby affirmed. The Com- pany's motions to dismiss are hereby denied for reasons hereinafter stated. The Company and the Operating Engineers filed briefs which have duly been considered by the Board. Upon the entire record in the case, the Board makes the following : 49 N L It. B, No. 12 66 ' WESTERN FREQGHT ' HANDLERS, I\IC. FINDINGS OF FACT 1 I. TIIE BUSINESS OF THE COMPANY 67 Western Freight Handlers, Inc., a California corporation with its principal office and place of business in San Francisco, California, is engaged in the warehousing and handling of freight. At the present time, the Company's sole business is by virtue of a contract with the United States Army for the unloading, storing, and reloading of. army freight at the United States Army Holding and Consignment Point located at Lathrop, California. The plant, grounds and equipment at Lathrop, California, together with all materials there handled by the Company, are owned by the United States Government. The shipment of materials both to and from the reservation in question is upon Government orders only. While employees of the Company who work upon the reservation must be approved by the Army before they can be hired and are likewise subject to military regulations on the premises, they are otherwise directed, controlled, and paid by the Company in the same manner as ordinary employees. Due to military restrictions on confidential subjects, detailed infor- mation as to the origin and destination of the materials handled at the Lathrop reservation was unobtainable at the hearing. However, it was admitted by the company manager and by an Army officer present at the hearing that some of the incoming freight crosses State lines and that the freight handled by the Company moves both by rail and by truck. The volume of material so handled is indicated by the fact that during the month of February 1943, the Company loaded and unloaded a total of 3,168 railroad cars. All the materials in question are closely connected with the national war effort and are for the use of the Army wherever it deems necessary. H. THE ORGANIZATIONS INVOLVED International Longshoremen's and Warehousemen's Union, Local 6, is a labor organization affiliated with the Congress of Industrial Organizations , admitting to membership employees of the Company. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers, Local 439, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. International Union of Operating Engineers , Local No. 3, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership employees of the Company. 531647-43-vol 49-6 68DECISIONS OF NATIONAL LABOR RELATIONS, BOARD III. THE QUESTIONS CONCERNING REPRESENTATION The Company stated at the hearing that it would not recognize any labor organization as bargaining representative for its employees until certified by the Board in a proceeding in which the Board decided that it had jurisdiction and directed an election of bargaining representatives. A statement of a Field Examiner, introduced in evidence at the hearing, and a statement of the Trial Examiner, indicate that each of the unions involved represents a substantial number of employees in the unit claimed by each to be appropriate .1 We find that questions affecting commerce have arisen concerning the representation of employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of- the National Labor Relations Act .2 IV. THE APPROPRIATE UNITS; THE DETERMINATION OF REPRESENTATIVES The C. I. O. requests as its first choice the finding of two appropriate units consisting of: (1) all warehousemen, lift truck operators, jitney operators, gang foremen, and assistant'superintendents, excluding the manager, the superintendents, the office force, and the crane operators and oilers; (2) all heavy tractor operators. As its second choice, the C. I. O. would include the heavy tractor operators within the first unit if the Board should find that such employees do not constitute a separate appropriate unit. In addition, the C. I. O. requests that provision be made in the' warehousemen's unit for prospective em- ployees in future operations described as "dunnage and strapping" now carried on by the Army but which the Company is expected shortly to assume as the result of negotiations now pending with the Army. . I i The Field Examiner reported that the C. I. O. had submitted 158 signed authorization- cards, of which 118 including 80 dated between January and March of 1943, bore the apparently genuine original signatures of persons whose names are on the pay roll of February 13, 1943, containing the names of 258 persons-within the alleged appropriate unit. The Trial Examiner stated at the hearing that the Teamsters had prior, to the hearing submitted 104 authorization cards, of which 50 bore the names of persons on the pay roll of February 13, 1943. The Trial Examiner further stated that the Operating Engineers had submitted at the hearing six cards, of which four bore names which corresponded to the names of persons Included in a group of seven employees who were identified at the hearing as tractor operators within the unit claimed to be appropriate by the Operating Engineers 2 We find, contrary to the contention of the Company, that it is engaged in an operation affecting commerce and subject to the juzisdiction of the Act See Matter of Day & Zimmermann, Inc, Iowa Ordnance Plant and Brotherhood of Locomotive Firemen and Engineers, 39 N L. R B 1313 See also iratter of United States Cartridge Company and International Brotherhood of Electrical Workers, Local No 1, A. F. of L, 42 N L R B. 191 , Matter of Certain-Teed Piodvcts Corporation and Order of Railway Conductors, 48 N. L R. B 43. The mere fact that its employees must be approved by the Gov- ernment does not prevent the Company from being an employer within the meaning of the Act Matter of H. K. Dickson, an individual doing business as Navy Yard Cafeteria and United Cafeteria Employees, Local Industrial Union No. 1171, 41 N. L R. B. 1230 WESTERN FREIGHT HANDLERS, INC. 69 The Teamsters urges the adoption of a single unit comprising all warehousemen, lift truck operators, jitney operators, and gang fore- men, excluding the manager, the superintendents, the assistant. super- intendents, office force, crane operators and oilers, and the heavy tractor operators. The only difference in the contentions of the Teamsters and the C. 1. 0. concerns the question of including or exclud- ing assistant superintendents and the further question of a separate ,unit for heavy tractor operators. The Operating Engineers makes no contention with respect to the unit of warehousemen other than that there should be excluded there- from the heavy tractor operators together with the'crane operators and oilers, for whom the Operating Engineers urges the creation of a separate unit for purposes of collective bargaining. The question of multiple appropriate units raised by both the C. I. O. and the Operating Engineers depends primarily upon the issue as to, whether the employees described as heavy tractor operators, crane ,operators, and oilers, are properly separable from the group of em- ployees generally known as warehousemen. So far as the heavy tractor operators are concerned, it appears that while these employees are both eligible to membership in and were formerly included by the C. I. O. in its statement of the appro- priate unit, both the C. I. O. and the Teamsters subsequently agreed that tractor operators, whom the Teamsters do not admit to member- ship, should be excluded from the unit of warehouse employees. The record reveals that the tractor operators are not assigned to any of the warehouse working groups or "gangs" but operate outside the ware- house together with the crane operators and oilers. Moreover, it appears that while tractor operators receive the same rate of pay and are occasionally interchanged with lift truck operators, the former do generally a heavier type of work involving the use of large tractors in place of locomotives, for the shifting of railroad cars in operations outside the warehouse. In addition, the evidence shows that the tractor operators have been largely organized by the Operating Engineers, which is-seeking to represent them in a unit separate from the unit of warehouse employees. The Company has no outstanding bargaining agreements and no history of collective bargaining. Under the, circumstances, we are of the opinion that the considera- tions are sufficiently balanced to make the desires of the tractor oper- ators themselves controlling in our determination of the type of unit through which they shall bargain.' We shall accordingly grant the tractor operators an opportunity to determine whether they,desire to be represented for purposes of collective bargaining by the C. I. 0., a See Matter of The Goodyear Aircraft Corporation and Pattern Makers League of North America (AFL), 45 N. L. R. B. 298. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, the Operating Engineers, or by neither labor organization. In the event that a majority of the tractor operators and the crane operators and oilers, discussed below, select the Operating Engineers, these two groups will constitute a single appropriate unit. If, on the other hand, the tractor operators select the C. I. O. and that organization is also the choice of the unit of warehouse employees, • the tractor operators will be merged in and become part of the unit of warehouse employees. With respect to the related group of crane operators and oilers, the evidence shows that, while the crane operators and oilers have not been claimed by either the C. I. O. or the Teamsters, such employees have, like the tractor operators, been largely organized by the Operating Engineers. The latter has, moreover, not only supplied the Company in the past with employees of this type but has intervened in the present proceeding and requested the privilege of representing these employees, as well as the tractor operators, in a unit separate from the unit of warehouse employees. Under the circumstances, we are of the opinion that in the interest of avoiding further proceedings, the crane operators and oilers may properly be given an opportunity at this time to elect whether or not they desire to be represented by the Operating Engineers for the purposes of collective bargaining. There remains for consideration, the question regarding "dunnage and strapping" operations and the question of exclusions from the unit of warehouse employees. With respect to the "dunnage and strapping" operations, the record reveals that negotiations are now pending between the Com- pany and the Army with the object of having the Company take over these operations from the Army. There is, however, nothing in the evidence to show the number of persons presently employed in these operations or the number of persons who would be required if the Com- pany should take over such operations. Since the subject matter was considered confidential, no specific testimony was obtained at the hearing with regard to the exact nature of these operations. We are of the opinion that, in the absence of adequate information on the subject and evidence to the effect that such operations have actually been assumed by the Company, any provision for including within the unit of warehouse employees the prospective employees in such oper- ations would be premature. We shall not include these prospective employees at this time. There remains for final consideration the question of exclusions from the unit of warehouse employees. The only dispute among the parties' concerns the assistant superintendents whose inclusion and exclusion are sought by the C. 1. 0. and the Teamsters unions, respectively. The record discloses that'while the assistant superintendents are paid on an hourly basis and are eligible to, membership in the C. I. 0., they are not k WESTERN FREIGHT HAND'LERS, 1NC. 71 similar to working foremen in that they do no physical work and have as their duty the obligation to see that the orders of the super- intendents are carried out. Assistant superintendents have the right of discharge and the right to recommend the hiring of employees. In the exercise of these rights as in the enforcement of discipline gen- erally, the assistant superintendents are generally supported by the Company. The latter stated at the hearing that assistant superintend- ents are appointed to represent the Company in labor matters. We are of the opinion and find that the assistant superintendents are supervisory employees and we shall, accordingly, exclude the assist- ant superintendents from the unit of warehouse employees as here- inafter set forth. So far as other exclusions are concerned, while we agree with both the Teamsters and the C. I. O. that the manager, superintendents, and office force should be excluded from the warehouse unit as super- visory or clerical employees, we are unable to assent to their proposed inclusion of gang foremen therein. The evidence shows that not- withstanding the fact that gang foremen are working foremen, they have not only the power to discharge but also keep the only•time records of the men working under them. Under the circumstances, we find that the gang foremen have interests substantially different from those of the employees in the unit of warehouse employees. We shall, accordingly, exclude them from such unit. We find that all warehousemen, lift truck operators, and jitney ,Operators,* excluding the marrager, the superintendents, assistant superintendents, gang foremen, and office employees, may constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. We shall, however, make no definite determination of the appropriate unit at this time pending the results of the separate elections hereinabove referred to. We find that the questions concerning representation which have arisen can best be. resolved by means of,^ secret elections among the employees in the aforesaid groups 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. DIRECTION OF ELECTIONS 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 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Western Freight Handlers, Inc., Lathrop, California, elections by secret ballot shall be 72 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD conducted as soon 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 Twentieth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the following groups of employees 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 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 employees who have since quit or been discharged for cause : 1. All warehousemen, lift truck operators, and jitney operators, excluding the manager, superintendents, assistant superintendents, gang foremen, and office-force', employed by the Company at the United States Army Holding and Consignment'Point, Lathrop, Cali- fornia, to determine whether they desire to be represented by Inter- national Longshoremen's and Warehousemen's Union, Local 6, affili- ated with the Congress of Industrial Organizations, or by Interna- tional Brotherhood of Teamsters, Chauffeurs,' Warehousemen and Helpers, Local 439, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. 2. All heavy tractor operators employed by the Company- at the United States Army Holding and Consignment Point, Lathrop, Cali- fornia, to determine whether they desire to be represented by Inter- national Longshoremen's and Warehousemen's Union, Local 6, affili- ated with the Congress of Industrial Organizations, or by Interna- tional Union of Operating Engineers, Local No. 3, affiliated with the America Federation of Labor, for the purposes of collective bargain- ing, or by neither. 3. All crane operators and oilers employed by the Company at the United States Army Holding and Consignment Point, Lathrop, Cali- fornia, to determine whether or not they desire to be represented by International Union of Operating Engineers, Local No. 3, affiliated with the American Federation, of Labor,, for the purposes of collective bargaining.