C. G. Cross and Stella Cross

In the Matter of C. G. CROSS AND STELLA CROSS, CO-PARTNERS and INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS , LOCAL No. 320, A. F. OF L. Case No. 9-R-2044.-Decided April 30, 1946 Messrs. C. G. Cross and Stewart Deisenroth, of Louisville, Ky., for the Company. Mr. Harold L. Colvin, of Louisville, Ky., for the Firemen. Mr. Joe E. Pirtle, of Louisville, Ky., for the Engineers. Mr. Samuel G. Hamilton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by International Brotherhood of Firemen and Oilers, Local 320, A. F. of L., herein called the Firemen, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of C. G. Cross and Stella Cross, Co-Partners, Louisville, Kentucky, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Harold M. Weston, Trial Examiner. The hearing was held at Louisville, Kentucky, on February 19, 1946. The Company, the Firemen, and International Union of Operating Engineers, Local 181, A. F. of L., herein called the Engineers, appeared and participated. All parties 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 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 C. G. Cross and Stella Cross are co-partners. The Company operates a construction business at Louisville, Kentucky, under the name and style of E. D. Cross and Son. Approximately 350 persons are em- ployed by the Company in its construction business. Since December 67 N. L. R. B., No. 123. 1005 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 15, 1945, it also has operated a warehouse at Louisville, Kentucky, here- inafter referred to as the Warehouse, under the name and style of E. D. Cross and Son, Warehousing Division. Approximately 75 per- sons are employed by the Company at the Warehouse. Separate books are kept and separate bank accounts, offices, and supervision main- tained for each of the Company's operations. The Warehouse is operated under the supervision and direction of the War Assets Corporation. Under its contract, the Company's oper- ations at the Warehouse consist of receiving, storing, and protecting surplus property that is shipped by the War Assets Corporation, tak- ing such property out of storage and shipping it to such points as may be designated by the War Assets Corporation. The Company is responsible for the maintenance and protection of the warehouse buildings, and for the handling of all labor relations. It alone has the authority to hire and discharge, discipline and promote and demote employees employed at the Warehouse. In its operations to date, approximately 2,000 tons of surplus property have been received by the Company at the Warehouse for storage and, of this amount, 33 percent was shipped to the Warehouse from points outside the Commonwealth of Kentucky. No stored property has as yet been shipped by the Company from the Warehouse. The Company admits, for the purpose of this proceeding, that it is engaged in commerce within the meaning of the National Labor Rela- tions Act. U. THE ORGANIZATIONS INVOLVED International Brotherhood of Firemen and Oilers, Local No. 320, and International Union of Operating Engineers, Local 181, are labor organizations, affiliated with the American Federation of Labor, ad- mitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Firemen as the exclusive bargaining representative of the Warehouse boiler room and power plant employees until the Firemen has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Firemen represents a substantial number of employees in the unit it alleges to be appropriate.' I The Field Examiner reported that the Firemen submitted 10 cards bearing the names of 9 employees hated on the Company's pay roll of January 29, 1946, and that the cards are dated January 1946, There are approximately 10 employees in the unit the Firemen alleges to be appropriate. The Engineers relies upon two contracts with the Company , neither of which is specifi- cally raised as a bar , as evidence of its interest in this proceeding. ( See Section IV, infra, for a discussion of these agreements ) C. G. CROSS AND STELLA CROSS 1007 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 DETERMINATION OF REPRESENTATIVES The Firemen contends that the boiler room and power plant employ- ees of tllg Company's Warehouse,' including the janitor,' but exclud- ing clerical and supervisory employees, constitute an appropriate bar- gaining unit. The Engineers contends that the Company's engineers, oilers, and mechanics, who operate and service the cranes in both the Company's warehousing and construction operations, should be in- cluded as well. The Engineers further contends that the janitor should be excluded. The Company takes no position with respect to the appropriate unit. On October 15, 1937, the Company apparently was engaged ex- clusively in the construction business. On that date a closed-shop agreement was entered into between Louisville Building Trades Coun- cil, as agent for certain constituent unions, including a sister local of the Engineers, and the General Contractors Association. Although the Company was not a member of the Association, it considered itself bound by the agreement as a subcontractor. Almost 4 years later, while the Company was still solely engaged in the construction busi- ness, the Company and the Engineers entered directly into a closed- shop agreement. Both contracts advert to firemen and oilers, and they cover employees falling within the Engineers' craft jurisdiction. It is quite apparent from a reading of these agreements, however, that they pertain to employees engaged in construction operations. Testi- mony elicited at the hearing indicates that the two agreements had been renewed orally from time to time and that the Company is still operating under them. On December 15, 1945, the Company entered the warehouse field, an enterprise virtually divorced from its construction activities .4 A few days later the stationary firemen in the warehouse boiler room were organized by the Firemen. Upon threat of a strike by the Engineers, which claimed jurisdiction over the boiler room employees under the contracts, the stationary firemen were replaced by the Company with hoisting engineers' firemen. After ascertaining that this conduct might be violative of the National Labor Relations Act, the Company reemployed the stationary firemen and discharged the hoisting engineers' firemen. 2 It appears that, although there is a boiler room connected with the warehouse, there is no power plant, as such. 8 Miller. 4 See Section I, supra. 1008 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD Consistent with its earlier stand concerning the boiler room em- ployees, the Engineers here contends that the two contracts discussed above cover these workers, together with engineers, oilers, and me- chanics who do work relating to the cranes used in both the Company's warehousing and construction operations . It urges, in substance, that in view of the coverage of these agreements, only a single unit of Warehouse boiler room employees, and engineers , oilers, and mechanics performing work on the Company's cranes, is appropriate. Even assuming arguendo that the contracts do embrace the Warehouse boiler room employees, the history of collective bargaining with regard to such workers has been too brief to require the finding that only the unit sought by the Engineers is appropriate . It is true that the Engineers claims that the boiler room employees tall within its tra- ditional craft unit. Furthermore, it would seem that the mechanical skills required of them are somewhat similar to those possessed by the engineers, oilers, and mechanics now represented by the Engineers, On the other hand, it is not disputed that the boiler room employees work under separate immediate supervision and in a building of their own located about 35 feet from the Warehouse proper. Unlike the other employees in the unit desired by the Engineers , the boiler room employees are not interchanged with other workers of the Company's warehousing or construction operations . The employees in the unit sought by the Firemen, moreover, form a functionally coherent and identifiable group which the Board has frequently found may be represented for collective bargaining purposes either as a separate unit or as part of a more comprehensive unit. In these circumstances, we shall not make a determination of the appropriate unit at the present time. Such determination will depend, in part, upon the desires of the Warehouse boiler room employees , as reflected by the results of the election we hereinafter direct. As noted above , dispute exists with respect to the inclusion of the janitor. According to the testimony of the Warehouse manager, this employee is engaged in maintenance and clean -up work in the boiler room only about 20 percent of his working time . He is admittedly not a fireman. Under all the circumstances , we shall exclude him. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the follow- ing employees who were employed during the pay-roll period imme- diately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction : 5 See Matter of Sangaino Electric Company, 59 N L. It. B 364. C. G. CROSS AND STELLA CROSS 1009 All boiler room and power plant employees engaged in the Com- pany's Warehouse, excluding the janitor, and all supervisory employ- ees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, If the employees in this voting group select the Firemen as their bargaining representative they will be taken to have indicated a desire to constitute a separate appropriate unit; if they select the Engineers, however, they will be taken to have indicated a desire to be bargained for as part of the unit of engineers, oilers, and mechanics performing work on the cranes used in both the Company's warehousing and con- struction operations, which is presently represented by the Engineers. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions 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 C. G. Cross and Stella Cross, Co-Partners, Louisville, Kentucky, 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 Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regula- tions, among employees in the voting group described in Section IV, above, 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 vaca- tion 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 those employees who have since quit or been dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by International Brotherhood of Firemen and Oilers, Local No. 320, A. F. of L., or by International Union of Operating Engineers, Local 181. A. F. of L., for the purposes of collective bargaining, or by neither. 692148-46-vol. 67-65