San Joaquin Compress and Warehouse Co.

SAN JOAQUIN COMPRESS AND WAREHOUSE COMPANY 279 should be included in the same unit with the production employees.? We find that all production and maintenance employees at the Em- ployer's Dallas, Texas, warehouse, including welders, glass cutter, helpers, warehousemen, truck drivers, and shipping clerk)" but ex- cluding office and clerical employees, guards, watchmen, professional employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.9 [Text of Direction of Election omitted from publication in this volume.] Bushnell Steel Company, 93 NLRB No. 96. $ The Petitioner would exclude the shipping clerk as a supervisor. However, the shipping clerk has no authority effectively to recommend the hire or discharge of employees, nor is his direction of the warehousemen and truck drivers other than routine . Accord- ingly, the shipping clerk is included in the appropriate unit. ° The Employer maintains that the welders and helper should not be included in the unit because difficulties in obtaining materials and unprofitable operations may necessitate the closing of the welding shop. The record indicates that although the Employer'% principal supplier has ceased furnishing materials , the date of termination of the Employer's shop operations is indefinite. Under these circumstances , we are of the opinion that there exists sufficient expectancy of continued employment of the welders and helper to warrant their inclusion in the unit . Cf. Lone Star Seat Mfg. Co., 94 NLRB 19. Moreover, the Petitioner has indicated its willingness to represent the remaining employees in the event the Enployer is forced to close the shop. SAN JOAQUIN COMPRESS AND WAREHOUSE COMPANY and INTERNA- TIONAL LONGSHOREMEN AND WAREHOUSEMEN'S UNION, LOCAL 6, PETITIONER CALCOT COMPRESS AND WAREHOUSE and INTERNATIONAL LONGSHORE- MEN AND WAREHOUSEMEN'S UNION, LOCAL 6, PETITIONER CALCOT COMPRESS AND WAREHOUSE 1 and BUTCHERS UNION LOCAL No. 193, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL, PETITIONER . Cases Nos. 21-RC-1800, 21-RC-1801, and 21-RC-1916. July 18,1951 Decision and Direction of Election Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Ben Grodsky, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. ' The Employer named in the petition filed in 21-RC-1916 is California Cotton Coopera- tive Association , Ltd. Calcot Compress and Warehouse is the wholly owned subsidiary of California Cotton Cooperative Association , Ltd , and is the actual employer of the employees for whom representation is sought in both Case No. 21-RC-1801 and Case No. 21-RC-1916 . Accordingly, and on its own nrotion , the Board hereby orders that the petition and other formal papers in Case No. 21-RC-1916 be , and they hereby are, corrected to show the correct name of the Employer. 95 NLRB No. 49. 11 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record 2 in this case, the Board funds : 1. San Joaquin Compress and Warehouse Company, a California corporation, is engaged in the compressing and storage of cotton at Bakersfield, California. During the 12-month period from,April 1, 1950, to March 31, 1951, San Joaquin Compress and Warehouse Company performed necessary services, valued in excess of $50,000, for enterprises engaged in producing or handling goods destined for out-of-State shipment, or performing services outside the State, in the value of $25,000 per annum or more. Accordingly, we find that San Joaquin Compress and Warehouse Company is engaged in comm coerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert its jurisdiction in this proceeding.3 Calcot Compress and Warehouse, a California corporation, is also engaged in the compressing and storage of cotton at Bakersfield, Cali- fornia. During the 12-month period ending December 31, 1950, Calcot Compress and Warehouse made.shipments of cotton, valued in excess of $1,000,000, to points outside the State of California. Ac- cordingly, we find that Calcot Compress and Warehouse is engaged in commerce within the meaning of the Act and. that it will effectuate the policies of the Act for the Board to assert its jurisdiction in this proceeding .4 2. The labor organizations involved claim to represent certain em- ployees of the Employers. . 3. On November 10, 1949, San Joaquin Compress and Warehouse Company, herein referred to as San Joaquin, and Kern County Cot- ton Industrial Workers Union Local No. 272, Food and Tobacco and Agricultural and Allied Workers Union of America, hereinafter re- ferred to as Local No. 272, entered into a collective bargaining agree- ment, which provided for its termination upon 60 days' notice prior to August 15, 1952. On August 15, 1950, Calcot Compress and Ware- house, herein referred to as Calcot, and Local No. 272 entered into a collective bargaining agreement with the same expiration date. The Employers appear to urge these contracts as bars to these proceed- ings. However, although no elections have been held pursuant to Section 9 (e) (1) of the Act, both of the contracts contain union- 2 A stipulation concerning the extent of the operations of San Joaquin 'Compress and Warehouse Company, entered into by San Joaquin Compress and Warehouse Company and dated June 13, 1951 , was received after the hearing in this proceeding . It is hereby made a part of the record herein. 8 Hollow Tree Lumber Company, 91 NLRB 635. 4 Stanialaua Implement and Hardware Company, Limited, 91 NLRB 618. SAN-JOAQUIN COMPRESS AND, WAREHOUSE; COMPANY 281 security .clauses. The union-security clause in the contract between San Joaquin and Local No. 272, which is substantially the same as that in contract between Calcot and Local No. 272, reads as follows : 6 Section 2. The Employer agrees not to discriminate against any employee because of Union membership or activity. In the employment of new personnel, the Employer agrees to give pref- erence to members in good standing with the Union, but if satis- factory members of the Union are not available, ' the employer shall have the right to employ any persons available, provided such persons obtain a work permit from the Union. As the Board has previously held, such a union-security clause goes beyond the limited provisions permitted by Section 8 (a) (3) of the Act, and would be illegal even if it had been executed following an election conducted under Section 9 (e) (1) of the Act .6 Accord- ingly, the contracts cannot operate as bars to these proceedings. 4. In all these cases, the Petitioners seek units consisting of all pro- duction and maintenance employees, excluding office and clerical employees, watchmen, guards, and supervisors as defined in the Act. Calcot Compress and Warehouse objects to the inclusion of mainte- nance employees in the unit of its employees. During 8 months of the year, Calcot has only one maintenance employee, a mechanic, whose duty it is to keep the machinery in oper- ating condition. During the 4-month period of seasonal activity, an additional maintenance employee is hired. These employees are under the direct supervision of Calcot's superintendent. No union seeks to represent. the maintenance employees separately, and Calcot has ad- vanced no cogent reason which, in our opinion, would justify their exclusion from the plant-wide unit.7 Accordingly, in recognition of the normal community of interest between production and mainte- nance employees, and in conformance with Board policy, we shall include the maintenance employees in the unit hereinafter found appropriate 8 R The union -security clause in the contract between Calcot Compress and Warehouse and Local No. 272 reads as follows : "Section 2 . The Employer agrees not to discriminate against any Employee because of Union Membership or Activity . In the employment of new personnel , the Employer agrees to give preference to members of the Union if available, the Employer shall have the right to employ any persons available providing such persons obtain a work permit from the Union" ( sic). e Indiana Limestone Company, Inc., 92 NLRB 1337; McCoy Truck Tire Recap Company, '93 NLRB 673 , and cases cited therein . This conclusion makes it unnecessary to consider whether there exists such a confusion in the bargaining relationship that the ,conflicting claims to representation can best be resolved by an election . Cf. Erie Resister Corporation, 94 NLRB No . 89; Boston Machine Works Company, 89 NLRB 59. ' The Board has frequently held that the mode of payment of employees is not determina- tive of the scope of an appropriate unit, Bendim Aviation Corporation, Kansas City bivi8ion, ,88 NLRB 1281. 8 Florence Manufacturing Company, Inc., 92 NLRB 185; Spack Shoe Company, 86 NLRB 701 ; Mutual Rough Hat Company, 86 NLRB 440. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following employee groups of each of the Employers consti- tute separate units appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act : (1) All production and maintenance employees of San Joaquin Compress and Warehouse Company at Bakersfield, California, ex- cluding office and clerical employees, watchmen, guards, and super- visors as defined in the Act. (2) All production and maintenance employees of Calcot Com- press and Warehouse at Bakersfield, California, excluding office and clerical employees, watchmen, guards, and supervisors as defined in the Act. 5. At the time of the hearing, San Joaquin Compress and Ware- house Company had only 27 employees, and, in accordance with its usual practice, it expected to reduce the number of its employees to 10 or 12 within a short time. During the height of its seasonal activity, which should be reached between November 1 and November 15, San Joaquin expects to employ between 85 to 90 employees. Both San Joaquin and International Longshoremen and Warehousemen's Union, Local 6, request that any election directed herein be held at or about the peak of the seasonal activity. In accordance with the re- quest of the parties and in conformance with the Board's usual prac- tice in the holding of an election in a seasonal industry, we shall direct that the election in 21-RC-1800 be held at or about the approximate seasonal peak, on a date to be determined by the Regional Director for the Twenty-first Region, among the employees in the appropriate unit who are employed during the payroll period immediately preced- ing the date of the issuance of the notice of election by the Regional Director? Calcot Compress and Warehouse had approximately 44 employees at the time of the hearing. Although its employment is tapering off slowly, Calcot expects that it will keep approximately the same num- ber of employees engaged on a part-time basis until the end of July. At the height of its seasonal activity.in November, Calcot expects to employ between 90 and 100 employees. Calcot and Butchers Union Local No. 193, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL, contend .that the employees now employed by Calcot are a representative group and that an immediate election should be directed among such employees. International Longshore- men and Warehousemen's Union, Local 6, opposes this contention and urges that, if the election is not directed at the height of Calcot's sea- sonal activity, laid-off employees on Calcot's seniority list should be allowed to vote in the election directed herein. 9 Arena-Norton, Inc., et al., 93 NLRB 875 ; Choctaw Cotton Oil Company, 84. NLRB 660. SAN JOAQUIN COMPRESS AND . WAREHOUSE . COMPANY 283 In accordance with its agreement with Local No. 272, Calcot has maintained a list showing the seniority of its employees. Employees with seniority are given preference in seasonal rehiring, and a sub- stantial number of such employees return: from year to year. We find that the employees now employed by Calcot Compress and Warehouse are a representative group of its employees, and that an immediate election should be directed.- We also find that employees laid off for not more than 1 year and retained on Calcot's seniority list have a reasonable expectation of reemployment and that they are entitled to participate in the selection of a bargaining agent, unless they have obtained permanent employment elsewhere or have failed to respond to an offer of reemployment by Calcot " Direction of Elections As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employers, elections by secret ballot shall be conducted : (1) On a date selected in accordance with the instructions set forth in paragraph 5, above, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 102.61 and 102.62 of National Labor Relations Board Rules and Regulations, among the employees of San Joaquin Compress and Warehouse Company in the unit found appropriate in paragraph numbered 4, above, who are employed during the payroll period immediately preceding the date of issuance of the notice of election, including employees who did not work during said payroll period because they were ill or on vacation or temporarily laid off, and employees in the military services of the United States who appear in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or re- instated prior to the date of the elections, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by International Long- shoremen and Warehousemen's Union, Local 6; (2) As early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 102.61 and 102.62 of National Labor Relations Board Rules and Regulations, among the employees of Calcot Compress and Ware- house in the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Elections, including employees who did 10 Arkport Dairies, Inc., 86 NLRB 319; Georgia Fertilizer Company, 83 NLRB 180. " American Transformer Company, 89 NLRB 824; Bethlehem Steel Company, Ship- building Division, 86 NLRB 577; E. H. Ferree Company, 77 NLRB 283 ; Scintilla Magneto Division, 61 NLRB 520. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not work during said payroll period because they were ill or on vacation or temporarily laid off, and employees in the military serv- ices of,the United States who appear in person at the polls, but ex.= cluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by International Longshoremen and Warehousemen's Union, Local 6, or by Butchers Union Local No. 193, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL, or by neither: COCA COLA BOTTLING COMPANY OF ST. Louis and HOWARD D. BREWER COCA COLA BOTTLING COMPANY OF ST. Louis and LOCAL UNION No. 606 AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F.. L. Cases Nos. 14-CA-451 and 14-CA-199. July 19, 1951 Decision and Order On February 2, .1951, Trial Examiner Allen McCullen issued his Intermediate Report in the above-entitled proceeding, finding that the -Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and -take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. ^ The Trial Examiner also found that, the:Respondent had not engaged in certain other unfair labor practices. and recommended, that the complaint be dismissed as to such pallegations. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the-Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member, panel. [Chairman Herzog and Members Reynolds and Murdock]. - - The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Respondent's request for oral argu- 1 The Respondent excepted to the Trial Examiner 's allowance of the General Counsel's motion to amend the complaints so as to include the names of four additional employees in the allegations alleging demotion for union activity. The motion was allowed at the close of the General Counsel 's case during the afternoon of Friday , November 3, 1950. The Trial Examiner thereupon allowed a recess until Monday morning, November 6, 1950. The Respondent did not request the recall of any of the General Counsel's witnesses for further examination, and was afforded a full opportunity to proceed with its defense of 95 NLRB No. 45.