Rosslyn Gas Co.

In the Matter of RossLYN GAS COMPANY AND WASHINGTON SUBURBAN GAS COMPANY and FEDERAL LABOR UNION 23874, AFL Case No. 5-R-2101.-Decided July 21, 19416 Hewes ar4 Awalt, by Messrs. Samuel O. Clark and W. V. 7'. Justis, of Washington, D. C., for the Companies. Mr. Herbert S. Thatohier, of Washington, D. C., for the Union. Mr. Herbert J. Nester, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OP THE CASE Upon an amended petition duly filed by Federal Labor Union 23874, AFL, herein called the Union, alleging that a question af- fecting commerce had arisen concerning the representation of em- ployees of Rosslyn Gas Company, Rosslyn, Virginia, and Washing- ton Suburban Gas Company, Hyattsville, Maryland, herein called Rosslyn and Suburban, respectively, and collectively referred to as the Companies, the National Labor Relations Board provided for an appropriate hearing upon due notice before Earle K. Shawe, Trial Examiner. The hearing was held at Washington, D. C., on May 20 and 21, 1946. The Companies and the Union appeared and par- ticipated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing the Companies moved to dis- miss the petition on the grounds that the unit sought is inappro- priate and that the Union has become dormant. This motion was referred to the Board by the Trial Examiner and, for reasons here- inafter stated, is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. All parties were afforded opportunity to file briefs with the Board. 69 N. L. R. B., No. 101. 843 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES The Rosslyn Gas Company, a Virginia corporation with its prin- cipal office in Rosslyn, Virginia, is engaged in the manufacture, sale, and distribution of gas for industrial and domestic consumption. During the year 1945, Rosslyn, at its Alexandria plant, manufactured gas valued at in excess of $15,000, and purchased gas for resale from points outside the Commonwealth of Virginia valued at in excess of $700,000. It distributes gas excessively within the Commonwealth of Virginia. Washington Suburban Gas Company, a Maryland corporation with its principal office located at Hyattsville, Maryland, is also engaged in the manufacture, sale, and distribution of gas for industrial and domestic consumption. In the year 1945, Suburban, at its Edmonds- ton, Maryland, plant, manufactured gas valued at in excess of $178,000,. and purchased gas for resale from points outside the State of Maryland valued at in excess of $17,000. Suburban sells and distributes wholly within the State of Maryland. The Companies admit that they are engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Federal Labor Union 23874 is a labor organization, affiliated with the American Federation of Labor, admitting to membership super- visory employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION The Companies have refused to grant recognition to the Union as the exclusive bargaining representative of certain of their super- visory employees until the Union has been certified by the Board in an appropriate unit. The Companies contend that during the past 12 months the Union has become dormant, in that it has held no meetings, has no designated headquarters or address, has failed to appoint or elect a president to replace its former president who resigned 6 months ago, and since the filing of the original petition herein on September 19, 1945, has been wholly inactive. Although the record is devoid of any evidence pertaining to union meetings or the election or appointment of a new president, it is clear that the Union was duly organized and that it received its charter on July 15, 1945, which charter is still existing; ROSSLYN GAS COMPANY 845 that upon the Companies' refusal to grant recognition, the Union filed its original petition herein on September 19, 1945; that its sub- sequently filed an amended petition on April 9, 1946; and that it actively participated in the instant proceeding.' From the foregoing facts, we are of the opinion, contrary to the Companies' contention, that the Union is a currently existing labor organization within the meaning of the Act. We find that a question affecting commerce has arisen concerning the representation of employees of the Companies, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union urges as appropriate a unit consisting of. all first level supervisory employees of Rosslyn and Suburban who are engaged in production, distribution, and maintenance operations, but excluding all first level supervisors engaged in promotional and commercial operations, and all other higher level supervisors. The Companies, although not opposing the geographical scope or the supervisory group- ing of the unit sought, contend that the Board is without authority to certify these supervisors in an appropriate unit because they constitute an integral part of the managerial hierarchy and participate in the formulation and administration of operating policies. Rosslyn and Suburban, although separate corporate entities, are wholly owned subsidiaries of Washington Gas Light Company, Wash- ington, D. C. They have the same corporate officers, the same execu- tives, and their operational activities are coordinated by the same managerial organization. The industrial activities of the Companies are practically identical but they extend their services to entirely sepa- rate geographical sections. In view of the highly integrated enterprises in which the Companies are engaged, we are of the opinion that they constitute a single employer within the meaning of Section 2 (2) of the Act, and that the employees of Rosslyn and Suburban might constitute a single ,ippropriate unit., The record discloses that the first level supervisors sought herein consist of all foremen, including the garage foreman and the trans- portation foreman, the inspector, the master mechanic, and the chief clerk. at both Rosslyn and Suburban. These employees, although 'The Companies contend that the Union has shown no substantial interest herein be- cause of the alleged antiquity of the membership cards submitted to the Board , but not introduced in evidence. The Board, however, has repeatedly held that the submission of membership cards is an administrative expedient and not subject to direct or collateral attack. We accordingly, find that this contention is without merit. See Matter of O. D. Jennings & Company, 68 N. L. R. B. 516. See Matter of Shepherd Tractor and Equipment Co., et al., 65 N. L. R. B. 38 ; Matter of Paniarkand Rugs, Inc., et al., 65 N. L. It. B. 1018. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vested with certain managerial responsibilities with respect to the administration of the Companies' policies and the promotion of har- monious relations between management and rank and file employees, are, however, readily distinguishable from the higher level policy making officials of the Companies. They have a definite community of interest, in that they comprise the first level group of noel-working supervisors engaged in the duties of instructing and supervising their subordinates, and the handling of general problems related to produc- tion, distribution, and maintenance activities. Accordingly, we find that they may constitute a unit appropriate for the purposes of collec- tive bargaining.3 There remains for consideration the question of the inclusion or exclusion of the chief clerk. The parties are in accord that the func- tions of the chief clerk are more closely related to promotional and commercial operations than to production, distribution, and main- tenance. Inasmuch as the unit sought specifically excludes promo- tional and commercial supervisors, we shall exclude the chief clerk from the unit. We find that all foremen engaged in production, distribution, and maintenance operations, including the garage foreman and the trans- portation foreman, the inspector and the master mechanic," employed at Rosslyn and Suburban, but excluding the chief clerk and all other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees 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. 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 Relations Board Rules and Regulations-Series 3, as amended, it is hereby 3 See Matter of Jones d Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L . R. B. 386; Matter of Westinghouse Electric Corporation, (East Springfield Works ), 66 N. L. R. B. 1297 ; Matter of General Mills, Inc., 66 N. L. R. B. 1423 ; Matter of Carnegie Illinois Steel Corporation, 67 N. L. R. B. 1238 ; Matter of Virginia Electric and Power Company, 68 N. L . It. B. 504. 4 These classifications comprise first level supervisors. ROSSLYN GAS COMPANY 847 DIRECTED that , as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Rosslyn Gas Com- pany, Rosslyn , Virginia , and Washington Suburban Gas Company, Hyattsville, Maryland , an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) (lays from the date of this Direction , under the direction and supervision of the Regional Director for the Fifth 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 Regulations , among employees in the unit found appropriate 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 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 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, to determine whether or not they desire to be represented by Federal Labor Union 2;874, AFL, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : For reasons stated in my dissenting opinion in Matter of Packard Motor Car Company, 61 N. L. R. B. 4, and Matter of Jones c< Laughlin Steel Corporation , Vesta-Shannopin Coal Division , 66 N. L. R. B. 386, 1 am constrained to dissent from the majority opinion in this case.