Pacific Metals Co., Ltd., et al.

In the Matter Of PACIFIC METALS COMPANY, LTD., ET AL.,' EMPLOYERS and WAREIIOUSE UNION, LOCAL. 12 (AFL), AFFILIATED WITH INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAIIFFEURS, WAREHousE- MEN AND HELPERS OF AMERICA, PETITIONER Cases Nos. 20-RC-810, 820, 822, 826, 833, 835, 836, 840, 841, 843, 844, 845, 851, 852, 856, 860, 862, 865, 870, 870, 87-6, 883, 886, 889, 8.91, 892, 899, 901, 908, 910, 911, 913, 917, 922, 925, 9977. Decided October 5, 1950 DECISION, DIRECTION OF ELECTIONS, AND ORDER Upon petitions duly filed and consolidated,-' a hearing was held before Benjamin B. Law, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby- affirmed .3 1 The following Employers, all located in San Francisco, California, are involved in this proceeding : Ralph Montali, Inc. ; Libby, McNeill & Libby ; S. C. Johnson & Son, Inc. ; H. S. Crocker Co., Inc. ; Stephen M. Whitman & Son, Inc. ; Kockos Bros. Co., Ltd. ; Robert Leavy, an individual, d/b/a The Williams Co. ; American Hospital Supply Corporation ; Beautili- ties, Inc. ; George Wagner, an individual, d/b/a Continental Merchandise Co. ; Carl Hunter and Manfred Hunter, a partnership, d/b/a Carl Hunter & Co. ; John Scagliola, Victor Ramezzaro, Leslie Bruzzone, a partnership, d/b/a Wm. Musante & Co.; Montebello Wine Company of California, Inc. ; American Industries Corp. ; Claser Brothers ; Edward Del Carlo, Frank Capone, and Anthony Erigero, a partnership, d/b/a Atlas Box Co. ; Lionel S. Hockwald and Sigmund S. Hockwald, a partnership, d/b/a Hockwald Chemical Co. ; Milo Coffee Company ; Ferry Morse Seed Co. ; Broemmels Pharmaceuticals ; Coast Whole- sale Music Company of San Francisco; Frederick G. Lundberg, an individual, ti/b/a Pioneer Pipe Co. Jules M. Sahlein, an individual, d/b/a J. Al. Sahlein Music Co.; D. H. Sutton Co., d/b/a Consolidated Drum Co.; Malcolm W. Lamb, an individual, d/b/a South End Warehouse Company ; V. Traverso Company ; L. R. Coplin and Simon Hymes, a partnership, d/b/a Lewis-Westco & Co. ; J. H. Coffman, an individual, d/b/a J. H. Coffman & Son ; Pacific Coast Rubber Co. ; Joseph Vannucci, Oliver A. Vannucci, Peter Vannucci, J. L. Vannucci, Isola Montali, Clarinda Bertagna, Teresa Cereghimo, a part- nership, d/b/a R. Vannucci Co. ; North Beach Distributing Co. ; Jones Thlerbach Company ; Overbeck-Ileyman Company ; A. B. C. Cigar Co. ; Albert Asher, an individual, d/b/a Albert Asher Co.; Carlene Kent and Jean Bercut, a partnership, d/b/a San Francisco City Calf Skin Company. 2 Ordered consolidated by the Regional Director on May 17, 1950, and by the hearing officer, during the hearing, on June 9, 1950. As consolidation is a matter for administra- tive discretion, we find no merit in the International Longshoremen's and Warehousemen's Union, Local 6 (CIO) contention that the Regional Director's order was improper. West Coast Trailways, 88 NLRB 1227. The record discloses that none of the parties was in any way prejudiced by the order or lacked opportunity to introduce evidence bearing on all the issues raised herein. Accordingly, we find without merit the Intervenor' s further contention that it was denied due process in that it was not served with notice prior to the issuance of the order for consolidation. Orkin Termite Company, Inc., et at., 79 NLRB 935. 'The Intervenor offered to prove that the Petitioner had coerced certain of the Employers into withdrawing from the Distributors Association of Northern California by duress in the form of unfair labor practices, and moved to continue the hearing until 91 NLRB No. 127. 696 PACIFIC METALS COMPANY, LTD. 697 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Styles]. Upon the entire record in this case, the Board finds : 1. The Employers are, for the most part, wholesale distributors of products within the San Francisco Bay area. Some also manufacture or process the products they distribute. Two provide warehouse services only, receiving and shipping goods in interstate commerce for industrial customers. The Employers include corporations, re- gional depots for national concerns, partnerships, and sole propietor- ships. Collectively, they deal in a wide variety of products, although, as will be noted below, only their warehouse and related employees are involved in this proceeding. They employ approximately 235 workers who would be involved in any election directed herein. Although all parties stipulated that the activities of each Employer affect commerce, we do not believe that it would effectuate the policies of the Act to assert jurisdiction over all Employers herein. Of the 37 Employers, only 31 (concerning whom commerce facts are sum- marized in Appendix A, attached hereto) fall within any of the cate- gories as to which this Board will exercise its discretion by asserting jurisdiction: of these 31, some are regional subdivisions of multistate enterprises; some make out-of-State shipments exceeding $25,000 per annum ; some furnish services or materials valued at more than $50,000 to commercial customers over whom the Board would assert jurisdic- tion ; some have a direct inflow of $500,000 per annum or an indirect inflow of $1,000,000 per annum; and others have combined percentages of outflow and inflow which in combination total 100 percent of the minimum requirements 4 We shall accordingly assert jurisdiction related unfair labor practice charges against each of the Employers , filed the day before the hearing, were concluded . The offer of proof and proffered exhibit (the Decision and Order in 20-CB-128 and 129) were properly rejected by the hearing officer, as evidence pertaining to unfair labor practices is inadmissible in representation cases . Wheelco Instrument Company, 90 NLRB No. 138 ; Parks-Belk Company of Elizabethton, 77 NLRB 429. The denial of the motion to postpone the hearing was also proper . Wheelco Instru- ment Company, supra. Since the hearing , the General Counsel has dismissed charges against all employers except Glaser Brothers (20-CA-405) and Hockwald Chemical Co. (20-CA-406), for lack of evidence ; but settlement agreements have been approved in both cases. The hearing officer referred to the Board the Intervenor's motions to dismiss various petitions on the grounds either that no request for recognition supported by a claim of majority representation had been made upon the employer involved or that the petitions had been filed before such claims were made . For reasons stated in Advance Pattern Company, 80 NLRB 29, these motions are denied. The Rooney Optical Company, 90 NLRB No. 163. 'These bases for the assertion of jurisdiction are fully developed in the following cases : The Borden Company, Southern Division, 91 NLRB 628; Stanislaus Implement and Hardware Company, Ltd., 91 NLRB 618; Hollow Tree Lumber Company, 91 NLRB 635; Federal Dairy Co., Inc., 91 NLRB 638; Dorn's House of Miracles, Inc., 91 NLRB 632 ; and The Rutledge Paper Products Co., 91 NLRB 625. 698 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD over these 31 Employers, but dismiss the petitions involving the 6 Employers who fail to meet these, or any other, present criteria for the assertion of jurisdiction. The labor organizations involved claim to represent certain em- ployees of the Employers.' 3. Questions affecting commerce exist concerning the representa- tion of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit: The Petitioner seeks single-employer units of "warehouse em- ployees." The Intervenor contends that the sii gle-employer units are inappropriate and that the appropriate unit consists of all present members of the Distributors' Association of Northern California (herein called the Association), all former members who have recently resigned, and all other employers who, while they have never formally been members of the Association, have traditionally agreed to be bound by all wage agreements made between the Intervenor and the Associa- tion. At the hearing, the Employers involved either stated no posi- tion or expressed neutrality on the propriety of the single-employer units. The parties do not otherwise disagree significantly with re- spect to the composition of the unit or units.' The Association was organized in 1937 for the express purpose of representing in labor matters the approximately 150 employers in the San Francisco Bay area who employ members of the Intervenor. Since 1938, there have been a series of collective bargaining contracts between the Association and the Intervenor covering "warehouse em- ployees" of the Association members in a single unit. The master contract which was executed in 1947 expired on May 31, 1950. On April 4, 1950, the Association negotiated a. new contract to run for 6 The commerce data concerning these 6 Employers may be tabulated as follows Annual out-of-State A a Case No. Employer 20-RC- Purchases Sales Beautilities , Inc---------------------------------------------- 841 $85,000 $2,500 Wm. Musante & Cc----------------------------------------- 845 125.000 5,000 Montebello Wine Co_________________________________________ 851 None 10, 000 American Industries, Ine_______________________ ____ 852 None 11,250 Lewis-westco & Co--------------- ------------- --------------- 899 100, 000 7, 500 A . B. C. Cigar Company ____________________________ 922 480, 000 ------------ The Employers' names are abbreviated for convenience. s The figures cited are based on the data introduced into the record. 6 International Longshoremen 's and Warehousemen 's Union , Local 6 , was granted inter- vention on the basis of recently expired and current contracts covering the employees in issue. G The questions relating to the inclusion or exclusion of specific categories of employees are treated in the unit findings below. PACIFIC METALS C0'MPANT', LTD. 699 3 years, from June 1, 1950, to May 31, 1953. Under the articles and bylaws of the Association, the Association is authorized to negotiate wage agreements with labor unions covering employees of its members. After an agreement has been reached, each member has 7 days within which either to ratify the agreement or to resign from the Association. Fifteen of the 37 employers here involved have been members of the Association.,, However, of this 15, 3 resigned from the Association in 1949 and 12 resigned in the spring of 1950, after the Petitioner commenced its organizing drive. The remaining 22 employers in- volved in this case have never been members of the Association, but have, for many years, adopted, for the most part in separate individual agreements,` the terms of the master contracts and wage reopenings, negotiated between the Association and the Intervenor. In 1948 and 1949, each of the nonmembers made written commitments to the In- tervenor, agreeing in advance to be bound by any agreement reached in negotiations pending between the Association and that Union. The Intervenor contends that the only appropriate unit is a mul- tiple-employer unit including employees of the Association members, its former members, and the nonmembers. The Board has held that the essential element warranting the establishment of multiple-em- ployer units is clear evidence that the employers unequivocally intend to be bound in collective bargaining by group rather than individual action." The correlative standard for excluding an employer from such a unit is evidence of an intent to pursue an individual course of action with respect to labor relations.1' The evidence which suffices to establish either intent varies with the circumstances involved. Here, group bargaining has been based on an association. Under circum- stances such as are here present, the Board has held that an employer by withdrawing from the association evinces an intention to abandon group action and to pursue an independent course of bargaining 12 Participation for a substantial period of time in group bargaining does not preclude an employer from abandoning such bargaining. 8 Jones Thierbach Co. ; Beautilities , Inc. ; R . Vannucci & Co. ; South End Warehouse Company ; Libby, McNeill & Libby; Broenlmels' Pharmaceuticals ; Kockos Bros. Co.. Ltd. ; V. Traverso Company; Pacific Metals Company, Ltd. : Wm. Musante & Co. ; H. S. Crocker Co., Inc.; Albert Asher Co.; J. H . Coffman & Son; Hockwald Chemical Co.; Stephen M. Whitman & Son, Inc. ° In a few instances a single attorney has represented more than one of the nonmembers and has executed a single contract covering his clients . It is clear, however , that in such cases the attorney was authorized only to represent each client individually and the con- tracts resulted from concurrent rather than joint bargaining. 10 Bunker Hill and Sullivan Mining and Concentrating Company, et at., 89 NLRB 243 ; and cases cited therein ; Associated Shoe Industries of Southern Massachusetts, Inc., et. at., 81 NLRB 224. "Johnson Optical Company , et at., 87 NLRB 539 ( Supplemental Decision). 12 Association of Motion Picture Producers, Inc., et at., 88 NLRB 1155 ( Supplemental Decision ) and 89 NLRB 706 (Second Supplemental Decision ) ; Bercut -Richards Packing Company, 68 NLRB 605 , 606. Cf. Associated Fleet Owners, et at ., 90 NLRB No. 169. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And once such bargaining has been abandoned, the factor which war- rants a conclusion that only a multiple-employer unit is appropriate has been removed.13 We therefore find that 15 of the Employers, by disaffiliating from the Association, elected to pursue individual courses of action with respect to their labor relations, thereby rendering the inclusion of their employees in a multiple-employer unit no longer proper.14 With respect to the remaining 22 nonmembers, as noted above, the record shows that these employers never participated with the Asso- ciation members in joint negotiations or regularly delegated to the Association or any other employer representative the authority to conduct negotiations on their behalf on a group basis. Nor does the fact that the nonmember customarily adopts the standard contract in itself provide a sufficient basis for the inclusion of their employees in a unit with those of the other Employers.15 It is true that in 1948 and 1949 the nonmembers individually agreed in advance to abide by the results of collective bargaining negotiations between the Associ- ation and the Intervener. But this merely evinced their individual intent to continue, as they had in the past, to adopt that contract. As the agreement was between the individual nonmember and the Inter- venor, rather than the Association, it is not evidence of participation in joint bargaining as a group, such as would warrant their inclusion in a multiple-employer unit.'° The Employers involved are not members of the Association, have .not authorized the Association, or any organization or individual, or other employer to bargain for them and do not engage in joint negotiations together or with any other employers. In the light of the foregoing facts and considerations, we are persuaded that the single-employer units, requested by the Petitioner, are appropriate. We therefore find appropriate for purposes of collective bargain- ing within the meaning of Section 9 (b) of that Act, separate units composed of the following employees, excluding in each case all office and clerical employees, guards, and supervisors as defined in the Act: All warehouse employees of Pacific Metals Company, Ltd. :17 13 RKO Radio Pictures, Inc., 90 NLRB No. 58, and cases cited therein. The factors motivating the employer's decision are immaterial. See footnote 3, supra; Association of Motion Picture Producers, Inc., et al., 89 NLRB 700. We note however that the present disafflliations occurred before the filing of the petitions. 14 The Association, in notifying the Intervenor of each resignation, stated : "In view of the resignation of the above named company our authority to represent the company in any collective bargaining matters with you has been terminated." Is The Independent Motion Picture Producers Association, et al., 88 NLRB 1285; Bunker Hill and Sullivan Mining and Concntrating Company, et al., supra, and cases cited therein at footnote 32 ; Associated Shoe Industries of Southern Massachusetts, Inc., at al., supra. 38 The Independent Motion Picture Producers Association, et al., 88 NLRB 1285. IT As the record establishes that Foreman Herren has authority to discharge, we shall exclude him as a supervisor. PACIFIC METALS COMPANY, LTD. 701 All warehouse employees of Ralph Montali, Inc.; 18 All warehouse employees of Libby, McNeill & Libby; All warehouse employees of S. C. Johnson & Son, Inc.; 19 All warehouse employees of H. S. Crocker Co., Inc.; 20 All warehouse employees of Stephen M. Whitman & Son, Inc.; All warehouse employees of Kockos Bros. Co., Ltd. ; 21 All warehouse employees of Robert Leavy, an individual, d/b/a The Williams Co.; All warehouse employees of American Hospital Supply Corpora- tion ; All warehouse employees of George Wagner, an individual, d/b/a Continental Merchandise Co.; All warehouse employees of Carl Munter and Manfred Munter, a partnership, d/b/a Carl Munter & Co.; All warehouse employees of Glaser Brothers; 22 All warehouse employees of Cast Wholesale Music Company of San Francisco ; All warehouse employees of Frederick G. Lundberg, an individual, d/b/a Pioneer Pipe Co.; All warehouse employees of Malcolm W. Lamb, an individual, d/b/a South End Warehouse Company; 23 All warehouse employees of V. Traverso Co.; All warehouse employees of J. H. Coffman, an individual, d/b/a J. H. Coffman & Son; All warehouse employees of Pacific Coast Rubber Co. Inc. ; All warehouse employees of Joseph Vannucci; Oliver A. Vannucci, Peter Vannucci, J. L. Vannucci, Isola Montali, Clorinda Bertagna, Teresa Cereghimo, a partnership, d/b/a R. Vannucci Co.; 18 The parties agreed that the petition was limited to the Employer 's San Francisco opera- tion , excluding the Oakland plant which is covered by a current contract with another union. The allocation of warehouse work among warehousemen seldom requires the exercise of independent judgment required of a supervisor as defined in Sec. 2 (11) of the Act. As the record reveals that the warehouse "gang leader" possesses no other indicia of a supervisor, we Shall include him in the unit. Stremel Bros. Manufacturing Company, 89 NLRB 1404. 39 For the reasons stated in footnote 18, we do not believe that the warehouseman super- vises his assistant and we shall therefore include him. 20 The Employer operates two divisions , 15 miles apart : Crocker Division and Crocker Union Division. Although there is no exchange of employees between the two divisions, both divisions have been covered by the same contract, are operated by the same personnel office, and are subject to a common labor policy. Under these circumstances, we consider only a multiplant unit appropriate. Hanovia Chemical and Manufacturing Company, 90 NLItB 650; Remington Rand, Inc., 89 NLRB 1638. 21 In accordance with our usual policy, we shall include the shipping clerk, Boschero, the sole other employee in the warehouse. See American Perfit Crystal Corp., 90 NLRB No. 109. 12 For the reasons stated in footnote 9, we do not believe that Glaser Brothers has estab- lished a pattern of joint bargaining with North Beach Distributing Co., and therefore consider appropriate the single-employer units. 23 The parties agree that the petition includes both the California Warehouse and Terminal Warehouse of the Employer . The two warehouses are located a block apart, employees are interchanged , and both have been included in prior contracts. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All warehouse employees of Overbeck-Heyman Co.; All warehouse employees of North Beach Distributing Co.; 24 All salters and warehouse employees of Carlene Kent and Jean Bercut, a. partnership, d/b/a San Francisco City Calf Skin Company; All packers and warehouse employees of Albert Asher, an indi- vidual, d/b/a Albert Asher Co.; All coffee roasters, spice grinders, packers, and warehouse em- ployees of Jones Theirbach Company ; All roasters and warehouse employees of Milo Coffee Company; All drum workers, painters, laborers, and warehouse employees of D. H. Sutton Co., d/b/a Consolidated Drum Company; All soap makers and warehouse employees of Lionel S. Hockwald and Sigmund S. Hockwald, a partnership, d/b/a Hockwald Chemi- cal Co.; All laboratory workers and warehouse employees of Broemmels Pharmaceuticals ; 25 All box makers and warehouse employees of Edward Del Carlo, Frank Capone, and Anthony Erigero, a partnership, d/b/a Atlas Box Co.; All employees in the packing room, packet department, and ware- house of the Ferry Morse Seed Company; 26 All warehouse employees, including combination warehouse-sales employees of Jules M. Sahlein, an individual, d/b/a J. M. Sahlein Music Co.27 [Text of Direction of Elections omitted from publication in this volume.] ORDER IT IS HEREBY ORDERED that the petitions for investigation and certi- fication of representatives in Cases Nos. 20-RC-841, 20-RC-845, 20-RC-851, 20-RC-852, 20-RC-899, and 20-RC-922, filed herein be, and they hereby are, dismissed. APPENDIX A This commerce data concerning the 001 Employers over which the Board herein asserts jurisdiction may be tabulated as follows: 23 See supra, footnote 22. 2s The so-called laboratory workers fill , bottle , and label drug orders. 29 The packet department employees fill seed envelopes and the packing room employees fill bulk orders. zr The so-called warehouse-sales employees serve as extra sales clerks but are primarily engaged in handling stock. PACIFIC METALS COMPANY, LTD. 703 I Case ' 9 Annual out-of-State 2 Employer 0 - Other factors RC- Purchases Sales Libby, McNeill & Libby -__ __ 822 (3) (3) Branch of nat'l co. H. S. Crocker & Co____________________ 833 $167 , 500 $6,500 Multistate co. Stephen M. Whitman & Son ----------- 835 1,000, 000 (+) Branch of nat'l co. S. C. Johnson & Co-------------------- 826 1,000,000 20, 000 Branch of nat'l co. Ferry Morse Seed Co------------------ 870 150, 000 600, 000 Branch of nat'l co Kockos Bros. Co----------------------- 836 150,000 300,000 Broemmels Pharm --------------------- 872 50, 000 43,000 Coast Wholesale Music ____ 876 112, 000 40,000 Hockwald Chemical ___________________ 862 375, 000 75,000 Consolidated Drum ____________________ 889 25,000 80,000 (Estimated.) Glaser Brothers -_ ____ 856 10, 000,000 200,000 San Francisco Calf Skin Cc ------------ 997 150, 000 1 , 000,000 Atlas Box Co____ ______________________ 860 (6) 64,000 Milo Coffee Co------------------------- 865 220,000 32,500 Sahlein Music Co---------------------- 886 270, 000 236,500 Albert Asher Co_______________________ 925 10, 000 125,000 Overbeck -Heyman Co ----------------- 917 375,000 25,000 Pacific Metals Co---------------------- 810 950,000 50,000 V. Traverse Co--- --------- ------------ 829 500, 000 25,000 R. Vannucci Co________________________ 910 500,000 50,000 American Hospital Supply Corp ------- 840 (3) 600,000 Ralph Montali,Inc -------------------- 820 3,000, 000 400,000 Continental Merchandise Cc ----------- 843 720, 000 200,000 Jones Thierbach Co-------------------- 913 500, 000 50,000 J. H. Coffman & Son___________________ 910 6750,000 0375,000 Pioneer Pipe Company (Pipes used in 8813 None 9,600 Sells more than $50,000 per conduit) of oil , gas, etc.). annum to commercial cus- tomers. North Beach Dist. Co __________________ 911 800,000 None Pacific Coast Rubber Co--------------- 908 285,000 15,000 Williams Company___________________ &38 285, 000 19, 500 Carl Munter & Co--------------------- 844 195, 000 (7) South End Warehouse ----------------- 891 61, 000, 000 6None I The Employer's names are abbreviated for convenience. 2 The figures cited are based on the data introduced into the record. 3 Unknown. 4 Substantial. 5 Very little. 6 Handles but does not purchase or sell. 7 In excess of $15,000.