Gladding, McBean & Co.

GLADDING, McBEAN & co. , -823 had been,'until the day of the hearing, no interchange of- employees between the two maintenance and repair depots, on that date the Diesel truck mechanics were permanently transferred from the light-duty equipment depot along with the Diesel trucks to the heavy-duty equip- ment depot.' Separate payrolls are kept for each group of employees. Although supervision for the two depots culminates in one equipment repair supervisor, each depot has its own separate supervisor and foremen, with authority to hire, discharge, and discipline other employees. - In view of the foregoing, we find that either a two-depot unit or the single-depot unit sought by the Petitioner may be appropriate for the purposes of collective bargaining within the meaning of Section $ (b) of the Act. However, we shall make no final unit determination at this time, but shall first ascertain the desires of the employees as expressed in the election hereinafter directed. If a majority vote for the Petitioner, they will be taken to have indicated their desire to con- stitute a separate appropriate unit. If they select the Intervenor as their bargaining agent, they will be taken to have indicated their desire to be added to the existing unit of heavy-duty equipment em- ployees currently represented by the Intervenor: We will, therefore, direct an election in the following voting group : All automobile and truck maintenance and repair employees at the automobile and truck maintenance and repair facilities of the Em- ployer's Paducah, Keutucky, operation, including mechanics, tire repairmen, grease and wash rack operators, gas station attendants, bodymen, front-end men, and radiator repairmen, but excluding all office and clerical employees, guards, and supervisors.' [Text of Direction of Election omitted from publication in this volume.] The Employer stated at the hearing that this action was taken because of the desira- bility of placing the Diesel trucks in the same depot with other Diesel equipment. a At the hearing, a question was raised as to the supervisory status of the automobile- and-`truck maintenance-and-repair foremen. However , as, there foremen may effectively recommend the discharge or transfer of an employee, may discharge in certain cases, and may discipline and reprimand , they are clearly supervisors within the meaning of the Act and are, thus , excluded. GLADDINO, MCBEAN & Co.' and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER. Case No. 20-RC-1335. October 15, 1951. Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before David Karasick, hearing 1 The name of the Employer appears as amended at the hearing. 96 NLRB No. 126. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2: The labpr organizations involved claim to represent certain employees of the Employer s 3. On July 1, 1948, a contract was executed by the Employer and the International Union of Mine, Mill and Smelter Workers, for itself and on behalf of its Local No. 391, in which these Intervenors were recognized as the bargaining representatives of a group of em- ployees identical with those described in the instant petition. This contract expired on June 30,1949. On July 1, 1949, another agreement was entered into for a 2-year period ending June 30, 1951, subject to renewal from year to year thereafter unless either party gave 60 days' notice, prior to June 30, 1951, of its desire to terminate or amend ,the contract. This contract was supplanted by a new agreement which -was executed on July 1, 1950, to remain in force until June 30, 1953, -and from year to year thereafter. The petition in this proceeding was filed March 21, 1951. In response to the Intervenors' contention that this proceeding is barred by its current contract with-the Employer, the Petitioner main- tains that the presentagreement is no bar because it prematurely ex- tended the previous agreement, and because a schism has taken place within Local No. 391. The record reveals that a special meeting of Local No. 391 was held on March 13, 1951, at which meeting the members of this Local''- passed 3 resolutions. The first resolution provided for disaffiliation from the International Union of Mine, Mill and Smelter Workers; the second provided for affiliation with the Petitioner; and the third provided that the officers of Local No. 391 would continue to act as officers of Local 4534 of the Petitioner. These resolutions were passed by votes of 63 to 2, 66 to 1, and 66 to 1, respectively. Shortly thereafter, 72 members of Local No. 391 who could not attend the March 13 meeting ratified in writing the action taken at the March 13 meeting. On March 16, 1951, the former officers of Local No. 391 addressed a letter 2 The Intervenors moved to dismiss the petition on the grounds, that a multiemployer unit is appropriate, and that the Board is without jurisdiction to decide this issue because of the absence of necessary parties, i e. Local 17 and Local 6, International Longshore- men's & Warehousemen 's Union, hereinafter called Local 17, ILWU, and Local 6, ILWU, and the Pacific Clay Products Company. In view of our finding herein that a single- employer unit is appropriate, we reject these 'alternative contentions and deny the motion to dismiss the petition. B International Union of Mine, Mill and Smelter Workers, and Its Local No. 391, herein- after referred to as Intervenors, were allowed to intervene on the basis of an existing collective bargaining agreement witjo the Employer. Local No. 391 included in its membership approximately 110 employees of the Employer and approximately 50 employees of The Mountain Copper Co., Ltd., an employer unrelated to the Employer in this proceeding. GLADDING, McBEAN & Co. 825 to the Employer, claiming that Local 4534 had succeeded to all the rights of Local No. 391. The present situation is similar to that in Boston Machine Works Company,' and for the reasons stated therein we find that the contract between the Employer and the Intervenors is not a bar to apresent determination of representatives. We conclude that the conflicting claims of the labor organizations involved can best be resolved by an election .6 A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. _ 4. The appropriate unit : The Petitioner claims as an appropriate unit all employees perform- ing work in the Employer's Pittsburg, California, plant or in sheds or lots adjacent thereto in the Pittsburg area where commodities are stored, processed, manufactured, or sold, excluding- supervisors within the meaning of the Act, professional employees, administrative, tech- nical, and office employees, independent contractors, and independent contractor employees, bricklayers, truck drivers transporting finished goods, and gatemen-guards. The Employer agrees that the unit re- quested is appropriate. The Intervenors contend that only a multi- employer unit is appropriate, consisting of the employees at the Em- ployer's Pittsburg, California, plant; the employees at the Employer's Lincoln, California, plant; and the employees at the Alameda, Cali- fornia, plant of the Pacific Clay Products Company? The Employer is engaged in the manufacture and distribution of clay products, and now operates plants, among others, at Pittsburg, California, and Lincoln, California. It formerly operated another plant at Livermore, California, which was closed in January 1949. The Intervenors commenced bargaining for the employees at the Pittsburg plant in 1937, when it was owned by another company. When the Employer acquired the Pittsburg plant, between May 1, 1943, and April 30, 1944, the' Intervenors continued to represent the a 89 NLRB 59. Other cases which follow Boston Machine Works Company, and on which we also rely, are The Bassick Company, 89 NLRB 1143 , and New York Shipbuilding Corporation, 89 NLRB 915 6 The Intervenors contend that the meeting, at which the above referred to resolutions were passed , was called and conducted in violation of provisions of the constitution of the international Intervenor and of the bylaws of the local Intervenor. As it is not the func- tion of the Board to resolve questions concerning the constitution of a labor organization, we reject this contention. See Sun Shipbuilding and Dry Dock Company, 86 NLRB 20; Brenazer Trucking Company, 44 NLRB 810. In view of our finding that the contract is no bar for the reason set forth above, we do not find it necessary to consider the alleged premature extension of the July 1, 1949, contract. 7 The Pacific Clay Products Company is a separate company in no way related to the Employer in this proceeding. This Company will be referred to hereinafter as Pacific. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Asa result of consent elections in 1943 and 1946,$ Local, 17, ILWU has been representing employees at the Employer's Lincoln plant. In June 1946, also as a result of a consent election, Local 6, ILWU, was certified as the bargaining representative for all produc- tion and maintenance employees at the Employer's Livermore plant.9 The employees at Pacific's Alameda plant are now represented by Local 6, ILWU 10 Beginning in 1947 and continuing through the agreement of July 1, 1950, there has existed a type of bargaining in which representatives of the Employer and Pacific on one hand, and the labor organizations listed above on the other hand, have met together before the execution of contracts in 1948, 1949, and 1950 by each individual employer and the particular labor organization at the employer's plant 11 Since this joint bargaining, the schism described above took place in Local 391 in March 1951. In January 1951, the Lincoln Industrial Council, AFL, filed a petition to represent production and mainte- nance employees at the Lincoln plant. Thereafter, in accordance with the results of a consent election as provided in an agreement between the Employer and Local 17, ILWU, the Lincoln Industrial Council, AFL, was certified as the exclusive representative at the Lincoln plant12 . We reject the Intervenors' contention that now the proper unit is one that is multiemployer in scope. Assuming, without deciding, that a multiemployer unit was established as a result of the joint negotia- tions from 1947 to 1950, we ordinarily would not allow the Employer to withdraw from multiemployer bargaining in the middle of a con- tract term13 However, in view of the unusual situation with which we are here confronted, this principle is inapplicable. The closing of the Livermore plant in 1949, the schism in the Intervenor and affilia- tion of the employees at the Pittsburg plant with the Petitioner in March 1951, and the consent election of June 1951 at the Lincoln plant entered into by the Employer and Local 17, ILWU, with the sub- sequent certification of a labor organization which is completely de- tached from the pattern of bargaining discussed herein, all persuade 8 The information with respect to the 1946 consent election and certification , of which we take administrative notice, is contained in the files of the Board. 9 The information with respect to this consent election and certification , of which we take administrative notice, is contained in the files of the Board. 10 Thus at one time Local 6, ILWU, represented employees at the Alameda plant of Pacific, and the Livermore plant of the Employer . There is no information available , regarding when Local 6, ILWU, commenced bargaining on behalf of the employees at Pacific's Alameda plant. 11 As the Livermore plant was closed in 1949, there were no negotiations or contracts for this plant in 1949 and 1950. u The information with respect to the consent election and certification at the Lincoln plant, of which we take administrative notice, is contained in the files of the Board. 11 See e. g. Engineering Metal Products Corporation , 92 NLRB 823; Purity Stores, Ltd., 93 NLRB 199 ; W. S. Ponton, of Y. J., Inc., 93 NLRB 924. (This decision was later amended following the submission of new evidence . W. S. Ponton, of N. J., Inc., 95 NLRB 581.) PERMANENTE STEAMSHIP CORPORATION 827 us that there has been so great a disintegration of the alleged joint bargaining relationship that there no longer exists an effective means of bargaining upon a multiemployer basis.14 Accordingly, we find that the single-employer unit as requested by the Petitioner is now appropriate. We find that all employees performing work in the Employer's plant or in sheds or lots adjacent thereto in the Pittsburg, California, area, where commodities are stored, processed, manufactured, or sold, ex- cluding professional employees, administrative, technical, and office employees, independent contractors and independent contractor em- ployees, bricklayers, truck drivers transporting finished goods, gate- men-guards, and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 15 [Text of Direction of Election omitted from publication in this volume.] 1' Cf. Remington Rand, Inc., 89 NLRB 1638; United Fur Manufacturers Association, Inc., 49 NLRB 1405. 11 The composition of the unit was stipulated to by the parties. PERMANENTE STEAMSHIP CORPORATION and SAILORS UNION OF TIlE PACIFIC, SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETITIONER PERMANENTS STEAMSHIP CORPORATION and NATIONAL UNION OF MARINE COOKS AND STEWARDS, INDEPENDENT, PETITIONER. Cases Nos. 20-RC-1408 and 20-RC-1433. October 15, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert V. Magor, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists in Case No. 20-RC-1408 concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the 96 NLRB No. 122.