Heating and Cooling Contractors Association

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heating and Cooling Contractors Association and International Union of Operating Engineers, Locals 6, 6A and 613, AFL-CIO,' Petitioner. Case No. 17-RC-2006. February 10, 1956 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 Harry Irwig, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed.2 Upon the entire record of the case, the Board finds : s United sought to intervene on the basis of an alleged representative and contractual interest in the unit sought and a general interest in the industry. It predicated its representative interest on the cards of employees of three firms which were not members of the Employer, and its contractual interest on a contract with a firm which had with- drawn from the Employer prior to the hearing herein. As its third basis for intervention, United relied on the theory that as "95 out of 100" employees in the industry are United members, a "substantial probability" exists that members of the Employer presently employ or will in the future employ its members. It is clear from the record that United has neither a representative nor contractual interest in the instant proceeding, and it is not indicated in the record that any of the members of the Employer employ United members. Finally, it appears that the assumption that members of the Employer will in the future hire United members is based purely on conjecture. Ac- cordingly, we find that the hearing officer correctly denied United's motion to intervene. 1. The Employer is an association of nine members engaged in the installation , service, and sale of refrigeration equipment . During 1954, the member-firms, located in Kansas City, Missouri, and Kansas City, Kansas, excluding Preston-Porter Refrigeration Co., shipped 1 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are amending the identification of the affiliation of the Petitioner accordingly. 2 At the hearing, the hearing officer refused to allow United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and - Canada, Local No 533 , AFL-CIO, herein called United ( which sought to intervene in the instant proceeding ), to litigate the matter of the Petitioner's compliance with the filing require- ments of the Act. The Board has held that compliance matters may not be litigated in Board representation or complaint proceedings, but has adopted the practice of per- mitting parties to representation and complaint proceedings to cause to be instituted an administrative investigation of those compliance matters which the Board may properly decide in collateral proceedings United States Plywood Corporation and Kals8tron, Inc , 112 NLRB 1471 , at footnote 2 The Board is administratively advised that the Petitioner has at all times material to this proceeding been and now is in compliance with the filing requirements of Section 9 (f), (g), and ( h) of the Act J For the reasons stated infra, United's motion to dismiss the petition on the grounds that the Board should not assert jurisdiction and that the requested unit is inappropriate, is hereby denied 115 NLRB No. 68. HEATING AND COOLING CONTRACTORS ASSOCIATION 387 goods and performed services outside their respective States valued at approximately $44,000. During 1954, Preston-Porter shipped ma- terials, supplies, and equipment valued at approximately $110,000 directly from manufacturers in 1 State to its customers in other States. Although none of the merchandise shipped came into Preston-Porter's possession in the State of Missouri where its office is located, the record reveals that this firm purchased -and took title to the materials in question in its own name and in turn sold them to its out-of-State customers. All of the shipping arrangements and billing procedures were handled from Preston-Porter's Kansas City office. It appears from the record that Preston-Porter formulates and transmits to the manufacturers involved the shipping instructions under which they in turn forward the merchandise. Accordingly, as Preston-Porter determines the destination of the goods shipped, we find that it is a shipper of goods produced or handled within the meaning of the Board's direct outflow standard 4 In these circumstances, and in ac- cordance with Board practice of considering the totality of the opera- tions of all of the association members in determining whether to assert jurisdiction,5 we find that as the Employer has direct outflow that meets the Board's minimum standards, it will effectuate the - policies of the Act to assert jurisdiction herein.' 2. The labor organization involved claims to represent certain em- ployees of the Employer. 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 Employer, organized in 1954, commenced collective-bargain- ing negotiations with the Petitioner in May 1955, pursuant to general authority vested in it by its articles of incorporation and specific authority granted it by its members. On August 1, 1955, the.parties entered into a 1-year contract effective from June 1, 1955, covering the employees involved herein. The parties agree, and we find-, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act:' All service and installation engineers em- -ployed by the members of the Heating and Cooling Contractors Asso- Cf Reliable Hailing Service Company, 113 NLRB 1263 a Insulation Contractors of Southern California , Inc, 110 NLRB 638. ° Jonesboro Gratin Drying Cooperative, 110 NLRB 481. +Although five of the Association members have no employees in the job categories herein sought by the Petitioner , as these firms are regularly constituted members of the Employer for all purposes , and as testimony at the hearing indicated that should business conditions permit the hiring of employees in the job categories in question , these firms would adheie to the Employer's collective-bargaining contract with the Petitioner, we find that all members of the Employer are entitled to participate in the bargaining in the asso- ciatioriRide unit herein found appropriate See Associated Banning Company, ILO NLRB 1644, 1645 , at footnote 6 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation at their respective Kansas City, Missouri, and Kansas City, Kansas, establishments, and excluding all other employees and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] J. H. Rutter-Rex Manufacturing Company , Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Cases Nos. 15-CA- 721 and 15-CA-723. February 13,1956 - DECISION AND ORDER On July 29,.1955, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged and was engaging in unfair labor practices within the meaning of-Section 8 (a) (1) and (5) of the Act and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications. The Charging Union was certified as the exclusive representative of the Respondent's employees on February 2, 1954, and then met with the latter's representatives on three occasions in an attempt to negotiate a collective-bargaining contract. No agreement was reached; the employees went on strike on April 21, 1954; and the parties never met again. The principal issue presented here is whether, as alleged in the complaint, the Respondent refused to bargain with the Union in good faith, in violation of its obligation under the statute. The Trial Examiner found enough evidence in the events preceding the inception of the strike to prove the basic allegation of the coin- plaint. In its exceptions, the Respondent insists that it honestly at- tempted to reach agreement with the Union when it met with its repre- sentatives before the strike, and that therefore the complaint should be dismissed. We agree with the Trial Examiner's ultimate conclusion in this case because, whether or not the Respondent's conduct before I The Respondent also requested oral argument In our opinion , the record , with the exceptions and briefs, fully present the issues and the positions of the parties . Accord- ingly , the request for oi.il ai *iei,t s n. icuy .umu,, 115 NLRB No 61.