Brooklyn Borough Gas Co.

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would take away the bonuses and discontinue overtime if the Union got in. The other affiant stated that the mill room foreman informed him in a private discussion about a week before the election that if the Union got in, there would be "bad conditions. There will be less hours, no overtime, no Thanksgiving turkey an no Christmas bonus." The plant superintendent and the foremen concerned denied that they made the alleged statements.' The Regional Director concluded that such threats, if made, would constitute grounds for setting aside the election, and recommended that a hearing be conducted to determine the credibility of witnesses. However, we perceive no reason for conducting a hearing. Even if made, such isolated threats to only 2 of 165 eligible employees, in pri- vate conversations, do not constitute sufficient grounds for setting aside the election.4 Accordingly, we find that the Petitioner's objec- tions do not raise substantial and material issues with respect to the conduct or results of the election, and they are hereby overruled. As the Petitioner failed to receive a majority of the ballots cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for the Petitioner, Local 18-B, Furniture Workers of America, CIO, and that the Petitioner is not the exclusive representative of the employees of Western Table Company and Western Picture Frame Company, in the unit heretofore found appropriate.] CHAIRMAN FARMER and MEMBER MURDOCK took no part in the con- sideration of the above Supplemental Decision and Certification of Results of Election. a The Employer submitted to the Board affidavits apparently executed by 121 employees to the effect that no such threats were made to them or in their presence by any of the Employer's supervisors. In view of our disposition of this case, we find it unnecessary to consider the effect of these affidavits 6 See Morganton Full Fashioned Hosiery Company, et al, 107 NLRB 1534, and The Lib- eral Market, Inc., 108 NLRB 1481. Member Peterson , who dissented in the latter case, concurs here not only because the remarks were isolated but also because there is no show- ing that they were made generally or were relayed by the two affiants to other employees. BROOKLYN BOROUGH GAS COMPANY and LOCAL 815, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONERS. Cases Nos. 2-RC-6106 and 2-RC-6220. September 03,195 4 Decision and Direction of Election Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before 110 NLRB No. 11. BROOKLYN BOROUGH GAS COMPANY 19) Max Dauber, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer, a New York corporation with its principal plant and offices in Brooklyn, New York, is engaged in the distribution and sale of natural gas. During the past year, the Employer purchased natural gas, supplies, and equipment, valued in excess of $725,000, all of which originated outside the State of New York. The natural gas is delivered to a terminal in New York City, and from that point distributed to the Employer and other companies. During this period, the Employer sold natural gas, valued between 3 and 4 million dollars, to residential users in the Borough of Brooklyn. The Employer contends that the petition should be dismissed on the ground that the Employer's operations are essentially intrastate, and that it would not effectuate the purposes of the Act to assert juris- diction over a utility serving, almost entirely, residential users within a narrowly confined area of the State. Upon the foregoing facts we find, contrary to the Employer's con- tention, that its operations affect commerce within the meaning of then Act, and that it will effectuate the policies of the Act to assert jurisdic- tion in this case. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. At the hearing, the Intervenor moved to dismiss the petition of the International Brotherhood of Electrical Workers, AFL, herein called the IBEW, on the grounds that (1) the IBEW is fronting for an unorganized local union, which has not complied with the Act, and (2) there is now an employee organization in existence which is, in fact, a de facto local of the IBEW, and whose officers have not complied with the Act. Local 815, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL, herein called' the Teamsters, also moved to dismiss the IBEW's petition on the, ground that (1) the IBEW is acting on behalf of a local which is to 1 Local 101 , Utility Division , Transport Workers Union of America , CIO, herein called. the Intervenor , was permitted to intervene on the basis of a current contract with the- Employer. 2 The Intervenor moved to adjourn the hearing on the ground that there was pending before the Board an appeal from the Regional Director 's dismissal of unfair labor prac- tice charges against the Employer . The Intervenor also contended that no hearing should, be held because it had filed another charge against the Employer which had not been dis- posed of. The hearing officer denied the Intervenor's motions. The Board's records show that the Regional Director has dismissed both of the charges, that the General Counsel thereafter sustained the Regional Director's dismissal of one of the charges, and the Re- gional Director 's dismissal of the other charge has not been appealed . In these circum- stances, we are of the opinion that it will best effectuate the policies of the Act, and pro- mote the orderly processes of collective bargaining to direct an immediate election in this case. We therefore affirm the hearing officer 's denial of the Intervenor 's motion for an. adjournment. See Meridian Plastics, Inc , 108 NLRB 203 ; Mc Quay Incorporated, 107 NLRB 787; Everett Plywood & Door Corporation, 105 NLRB 17. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be formed and which is not in compliance with the Act, (2) there has been no showing that the cards signed for the IBEW represent em- ployees on the Employer's payroll, and (3) the employees who signed cards for the IBEW had previously designated the Teamsters as their bargaining agent and never revoked this authorization. The hearing officer referred these motions to dismiss to the Board. The record shows that some employees who were formerly active on behalf of the Intervenor have engaged in rival union activities on behalf of the IBEW, have made application for a charter from the IBEW, and have requested the Employer to permit them to discuss grievances during the interim period. On these facts, we find no merit to the Intervenor's contention that this constitutes a de facto local which has to comply with the filing provisions of the Act. The Board has held that whether or not a local union will be established, and whether or not its officers will comply with the Act, is conjectural and too premature to warrant consideration.3 Should the IBEW win an election, a certification would not issue if a local were in fact in the picture at that time, unless such local was in compliance., The Teamsters' second and third contentions, in substance, ques- tion the IBEW's showing of interest. A petitioner's showing of in- terest is an administrative matter not subject to direct or collateral attack.' Moreover, we are satisfied that the IBEW has made an ade- quate showing of interest. There is no reason why employees, if they so desire, may not join more than one labor organization. The election, hereinafter directed, will determine which labor organiza- tion, if any, the employees wish to represent them for the purposes of collective bargaining. We therefore find the contentions of the Intervenor and the Team- sters to be without merit. Their motions to dismiss are hereby denied. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties agree that a unit of all physical employees, office employees, clerical employees, and salesmen is appropriate. They disagree as to the inclusion of about seven salesmen and special repre- sentatives in the Employer's new business department. The Em- ployer would exclude these employees from the unit as managerial employees, whereas the IBEW would include them. The IBEW stated at the hearing, however, that it would not object to a self- determination election for these employees. The Teamsters takes no position with respect to these employees. The Intervenor would ex- 3 Ozark Manufacturing and Supply Company, 108 NLRB 1476; Stokely-Van Camp Inc., 102 NLRB 1259 ; South Jersey Gas Company, 102 NLRB 194. 4 Lane-Wells Company, 79 NLRB 252 5 Golden Belt Manufacturing Company, 108 NLRB 164. Cf. American Potash & Chemi- cal Corporation, 107 NLRB 1418. BROOKLYN BOROUGH GAS COMPANY 21 elude them only if their duties have changed. They have previously been included in the bargaining unit covered by the contract between the Employer and the Intervenor. The Employer takes the position that since about 1950, it has prac- tically discontinued its direct selling activities in connection with gas appliances, and that in the future it plans to utilize its salesmen and special representatives in a user educational program which will re- quire their intimate association with policymaking and top-level man- agement. The Employer contends that union membership would be inconsistent with the proposed duties for these employees and would result in divided loyalties, making it impossible for them to function in the best interests of the Employer. The IBE`V contends that the Employer's plans for these employees are speculative, and their duties have not changed materially. Prior to 1950, the Employer was engaged in the business of selling gas appliances as well as the sale of gas. About that time, the Em- ployer decided to discontinue its direct sales activities with respect to gas appliances, and "went on record" with the New York State Public Service Commission as a nonmerchandising utility. In line with this decision, the Employer contracted with an independent sales organization to sell the gas appliances displayed in the Employer's showrooms. At the present time the Employer merely gives informa- tion, and invites customers to see a dealer to buy what they wish. Under the new program, the salesmen and special representatives visit customers and encourage the use of gas as such rather than the use of any particular appliances, and they also contact appliance dealers to encourage the sale of gas appliances. Thus, their function is now directed toward the increased consumption of gas as distin- guished from selling gas appliances. In their present function, these employees do not have a quota for the sale of gas appliances, and do not receive any commission on the sales of appliances. Formerly, they were rated on, and their commissions were based on, the number of appliances they sold. The Employer intends to retrain the men who were salesmen and spe- cial representatives to make business representatives of them. At the time of the hearing, these employees did not have the proper training for the Employer to use them in its promotional and educational pro- grams. The Employer contends that in order for them to do their work properly, it will be necessary to give these employees more con- fidential information as to the Employer's policies. The Employer in- tends to have them attend its meetings with its board of directors, de- partment heads, and other officials, and to have them attend industry- wide conferences on the subject of gas utilization and consumption, as representatives of the Employer. The Employer contends that it has not been able to put into effect its plan to have these employees attend 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conferences because it is bound by the working hours for the employees covered by the contract, and attendance at these conferences would, in large part, be outside of regular working hours. We do not believe the contemplated change in the duties of the sales- men and special representatives is sufficient reason to exclude them from the unit.' A unit determination must depend on the present duties of the employees involved, not on speculation as to future -changes in work assignments. Nor do we believe that inclusion in the unit would make it impossible for these employees to function in the best interests of the Employer. There is no incompatibility between the faithful performance of duty and the enjoyment of benefits under the Act' Moreover, the Board has held that attendance ut staff meet- ings at which company policies are discussed is not sufficient to confer in anagerial status upon employees.' We find that all physical employees, office employees, clerical em- ployees, salesmen, and special representatives, excluding executives, supervisors, confidential secretaries of executives and supervisory employees,' driver clerks employed in connection with offices of the president and treasurer, cashier, the assistant cashier and stock trans- fer clerk in the treasurer's office, payroll clerks, timekeepers, the con- tinuing property record accountant, and the general accountants, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.io [Text of Direction of Election omitted from publication.] a Cf. Jordan-Rogers Company, 107 NLRB 1136; Certain-Teed Products Corporation, 102 NLRB 1324, 1325; Atlas Tag Company, 84 NLRB 685, 686; Aluminum Company of Amer- ioe (Harvard Plant, Cleveland ), 80 NLRB 1342, 1345. The instant case is distinguishable from those cases where the Board has found a bargaining history not to be controlling because there has been an actual change in operations. See The Mennen Company, 108 NLRB 355. 4 E. I. DuPont De Nemours and Company, Inc., Construction Division, Savannah River Plant, 107 NLRB 734. 8 Westinghouse Radio Stations, Inc., covering Radio Stations KEX and KEX-FM, 107 NLRB 1407; Westinghouse Electric Corporation (Kansas City, Mo.), 97 NLRB 1271, 1272. 8 The parties stipulated that the secretaries to President Jeffords, Vice- Presidents Weber, Reilly, and Fouse, Assistant Treasurer Dillon, Treasurer Steers, Plant Superintendent Loftus, and Secretary Baas, should be excluded as confidential secretaries. 10 This is the unit covered by the contract between the Employer and the Intervenor. 'CROWN UPHOLSTERING Co. and FURNITURE WORKERS, UPHOLSTERERS & WOOD WORKERS UNION, LOCAL 516, INDEPENDENT, PETITIONER. ,Case No. 21-RC-3484. September X3,1954 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 Leo Fischer, hearing officer. 110 NLRB No. 10.