Payne Furnace and Supply Co., Inc.

In the Matter Of PAYNE FURNACE AND SUPPLY CO., INC. and STOVE 'MOUNTERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL No. 93, AFL Case No. R-1709.-Decided March 20, 1940 Furnace Manufacturcng Industry-I vestigation of Representatives : contro- ersy concerning representation of employees : rival organizations ; refusal by employer to bargain with petitioning union because of doubt as to majority designation in an appropriate unit-Unit Appropriate for Collective Bargaining: all office employees whatever the nature of their work , all supervisory employees with power to hire and fire, all salesmen , all engineers and the night watch- man excluded from plant production and maintenance unit ; no controversy. as to exclusion ; employees in "retail " or "special" fitting department included in unit of plant production and maintenance employees over objection of petition- ing union where place of work and nature of work is similar to that of em- ployees in regular fitting department whose inclusion was agreed upon by rival labor organizations and where unit, in so far as the parties agree, Includes both production and maintenance employees ; truck drivers excluded from unit of plant production and maintenance employees because of eligibility to mem- bership in separate craft organization and request of one of the rival labor organizations for their exclusion ; plant production and maintenance employees, and employees in installation and service departments may constitute separate units in view of differences in duties and working conditions or may be com- bined into a single unit in view of similarity in wages, interchange of personnel, restriction of duties to work on Company's products ; determining factor is de- sire of employees : elections to determine-Representatives : eligibility to par- ticipate in choice : agreement as to ; proof of choice : neither labor organization offered evidence concerning extent of membership-Elections Ordered Mr. Alba B. Martin, for the Board. Mr. Arthur L. Erb, of Beverly Hills; Calif., and Latham di Watkins, by Mr. Paul R. Watkins, of Los Angeles, Calif., for the Company. Mr. Kenneth Petro and Mr. H. B. McMurr y, of Los Angeles, Calif., for the Stove Mounters and the Central Labor Council. Mr. John Despol, of Maywood, Calif., for the S. W. 0. C. Mr. Robert F. Koretz, of counsel to the Board. 21 N. L R B., No 82. 797 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On June 21, 1939, Stove Mounters International Union of North America Local No. 93, AFL,1 herein called the Stove Mounters, filed with the Regional Director'for the Twenty-first Region (Los Angeles, California) a petition, and on January 3, 1940, an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of Payne Furnace and Supply Co., Inc., Beverly Hills, California, herein called the Company, and requesting, an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 19, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 25, 1940, the Regional Director issued a notice of hear- ing, and on January 29, 1940, an amended notice of hearing, copies of which were duly served upon the Company, upon the Stove Mount- ers, upon the Central Labor Council, Los Angeles, California, and upon the Los Angeles Industrial Union Council. Pursuant to the notice and amended notice, a hearing was held on February 1 and 2, 1940, at Los Angeles, California, before Earl S. Bellman, the Trial Examiner duly designated by the Board. At the beginning of the hearing, a representative of Lodge 1981, Amalgamated Association of Iron, Steel, and Tin Workers of North America, through the Steel Workers' Organizing Committee, C. I. 0., herein called the S. W. O. C., entered an appearance on behalf of that organization, and stated that the S. W. O. C. was affiliated with the Los Angeles In- dustrial Union Council, which, as stated above, was served with the notice of hearing and amended notice of hearing, and that the S. W. O. C. claimed to represent employees of the Company. The Trial Examiner ruled that, pursuant to Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, the S. W. O. C. was a party to the proceedings, and, therefore, entitled to participate "without the necessity of filing any formal papers for intervention." No objection was interposed to the ruling. We find 'Designated in the petition , amended petition, and other formal papers as Stove. mounters International Union Local No 93 , AFL. At the hearing the Trial Examiner granted without objection a motion to state correctly the Stove Mounters' name. PAYNE FURNACE AND SUPPLY CO., INC.: -_ 799 it unnecessary to pass-upon the question of whether the S. W. 0. C. became a party by virtue of the notices served upon the Los Angeles Industrial Union Council, and will affirm the ruling as in effect per- mitting intervention. The Board and the Company were represented by counsel; the Stove Mounters 2 and the S. W. 0. C. were represented by duly authorized representatives. All parties participated in the hearing. Full opportunity to be heard, to examine-and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Payne Furnace and Supply Co., Inc., a California corporation with its plant and principal office at Beverly Hills, California," is engaged in the manufacture of gas-fired warm-air furnaces, heaters, and accessories. During the year ending June 30, 1939, the Company purchased raw materials costing $581,020.26, of which materials cost- ing $377,663.17 were purchased outside the State of California.' During the same period the Company received approximately $1,450,000 from the total sales of its products, approximately 50 per cent of such sales being made and shipped to customers in States other than California and in foreign countries. The Company sells its products in Texas, Colorado, California, and other Western States largely through salesmen who are on the Company's pay roll, and in the Eastern and Southwestern States principally through brokers. The Company advertises its products in newspapers, periodicals having a national circulation, and other trade magazines and bulletins. II. THE ORGANIZATIONS INVOLVED Stove Mounters International Union of North America Local No. 93, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. 2 The representatives of the Stove Mounters also entered their appearance on behalf of the Central Labor Council. 3 The Company operates a wholly owned subsidiary, Electrogas Furnace Co , at San Francisco, California. 4 The raw materials used by the Company in the manufacture of its products consist principally of steel, aluminum , tin, copper, asbestos paper, galvanized iron, pipe and fittings, Iron casings, brass castings , electric motors, fans, blowers, filters , valves and regulators, electric controls , thermostats, wire, registers , sheaves and pulleys, bearings, belts, electric controls , lumber, paper cartons, paste , bolts, screws , nails , oxygen, acetylene, and air conditioners. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lodge ,1981,. Amalgamated Association of Iron, Steel, and Tin Workers of North America, through the Steel Workers Organizing Committee, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees. of the Company. III. THE QUESTION CONCERNING REPRESENTATION By letter dated June 5, 1939, Kenneth Petro, a representative of the Stove Mounters, wrote to the Company stating that the Stove Mounters had been designated by a majority of employees of the. Company as their representative for the purposes of collective bar- gaining, and requesting a conference to discuss the negotiation of an agreement. The Company, by E. L. Payne, its vice president and general manager, replied that a conference could be arranged pro- vided that the Stove Mounters were able to furnish proof that they "represent the majority of the employees of" the Company. Petro in turn suggested that the offices of the National Labor Relations Board "be used to conduct a cross check between your pay roll and our representation authorizations." Several telephone conversations followed between Petro and Payne. The Company took the position that an election by secret ballot conducted by the Board was necessary to resolve the issue of majority designation because' it was uncertain whether or not the Stove Mounters had been designated by a majority of its employees in a unit appropriate for the purposes of collective bargaining.5 Prior to the hearing the S. W. O. C. had made no claim to the Company that it had been designated by employees of the Company at the Beverly Hills plant as their agent for the purposes of collective bargaining. At the hearing it was stipulated by the Stove Mounters and the S. W. O. C. that the Stove Mounters "has paid up member- ship" and that each of these organizations has "authorizations .. . to act as a collective bargaining agent" among employees at the Beverly Hills plant. We find that a question has arisen concerning representation of employees of the Company. 6 At the hearing counsel for the Company expressed concern that the "Sheet Metal Workers' Union," also affiliated with the American Federation of Labor, would assert jurisdiction over employees whom the Stove Mountei s claimed had designated it as their representative for the purposes of collective bargaining . Counsel for the Board stated that a representative of Local 108 of the Sheet Metal International Union had written a letter to the Regional Director dated December 18, 1939, stating that "the union is no longer interested in protesting any action as a result of the petition filed in this case by the Stove Mounters Union , and is no longer interested in any election which might result from any hearing on the basis of the petition " PAYNE FURNACE AND SUPPLY CO., INC. 801 IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection With the operations of the Company, described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and between the several States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The S. W. O. C. contends that an appropriate unit consists of all production and maintenance employees of the Company at its Beverly Hills plant, including employees in the "retail" or "special" fitting department, all truck drivers, and employees in the installation and service departments, but excluding all office employees whatever the nature of their work,6 all supervisory employees with power to hire and fire,? all salesmen," all engineers,9 and the night watchman'0 As thus defined the unit Would comprise approximately 171 employees. The Stove Mounters and the Company agree that the employees sought to be excluded by the S. W. O. C. should be excluded. The Stove Mounters, however, urge that, in addition, there should be excluded from the appropriate unit employees in the "retail" or "special" fitting department, all truck drivers, and employees in the installation and service departments." The Company takes no position with respect to the inclusion or exclusion of the employees in the disputed categories. Employees in the "Retail" or "Special" Fitting Department. In ad- dition to the operations, referred to in Section I above, carried on at the Beverly Hills plant, the Company sells some of its products locally to contractors and architects'and installs the products so sold. ° The parties agreed that this definition of office employees includes the following em- ployees : two clerks or stenographers and the retail sales manager in the retail sales department ; three men engaged in installation design in the installation engineering department ; employees in the general bookkeeping department , employees in the whole- sale sales department, of which the advertising depaitment is apparently a subdivision, the clerk in the office of the plant superintendent ; the clerk in the retail installation office 7 The following employees were thus defined . Daley, retail installation superintendent ; Irwin, foreman of the service department ; Wesley, plant superintendent ; Schweitzer, in charge of truck drivers , stockroom , shipping and crating departments 8 The Company employed approximately seven i etail salesmen and two wholesale sales- men at the date of the heal ing -Defined as tl•e following nine employees in the engineering laboratory : three engi- neers, three draftsmen , two assistant engineers , one clerk or stenographer. 19The Company employs one night watchman General office cleaning is done by a "janitorial service company." " These exclusions would reduce the appropilate unit to approximately 117 employees. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -In such cases certain- employees in the- installation department secure measurements for pipe and fittings required for the installation of the heating system. The "lay-out" is then sent to the "retail" or "special" fitting department, which consists of five employees, and which draws from the regular fitting department 12 standard pipe and fittings which can be used on the particular installation job, produces such special fittings as are needed for the job, and assembles the pipe and fittings in accordance with the "lay-out," and turns them over to the installa- tion department. The employees in the "retail" or "special" fitting department work on the same floor of one of the Company's buildings as the 15 em- ployees in the regular fitting department. While the latter are en- gaged in the production of fittings and other accessories which are standard commercial items, approximately 50 per cent of their time is spent on items which are used by the "retail" or "special" fitting department in preparing assemblies for the installation department. Although the regular fitting department is under the supervision of the plant superintendent and the "retail" or "special" fitting de- partment is under the supervision of the retail installation superin- tendent, the employees in both departments perform essentially the same kind of work, and it seems clear that both departments are governed by the same wage policy. Substantially the only reason advanced by the Stove Mounters to justify the exclusion of the em- ployees in the "retail" or "special" fitting department from the appropriate unit was that the Company did not regard them as "pro- duction" employees. The record does not disclose • any reason to differentiate employees in the "retail" or "special" fitting department from the employees in the regular fitting department whose inclusion in the unit was agreed upon by both labor organizations involved. Moreover, we see no basis for excluding employees in the "retail" or "special" fitting department from a unit which both labor organiza- tions agree -should include both production and maintenance em- ployees, and should cover not only employees in the regular fitting department but also employees in the stockroom and in the shipping and crating department. We shall include employees in the "retail" or "special" fitting department in the unit of plant production and maintenance employees. Truck Drivers. The Company employs three men who are classi- fied as truck drivers. They deliver raw materials- to the Beverly Hills plant to be used in the manufacture of the Company's products; 2 Referred to in the record simply as the "fitting department." However, in order to distinguish it from the "retail" or "special" fitting department, we shall refer to it here- inafter as the regular fitting department. PAYNE FURNACE AND SUPPLY CO., INC. 803 transport materials between the buildings which comprise the Beverly Hills plant; and deliver finished products to local terminal points for trans-shipment. Only occasionally, when the installation department is busy, do the truck drivers assist in the delivery of products to be installed locally. Upon these facts, the interests of the truck drivers would seem to be such that they might appropriately be included in a, unit with the plant production and maintenance employees. We also feel, however, that such employees occupy a status differing somewhat from that of the other employees and that, inasmuch as they are apparently eligible to membership in a separate craft organization, they should not be included in a unit with other employees of the Company where, as in the instant case, one of two rival labor organ- izations objects to their inclusion within the unit. In accordance with our usual practice we shall exclude the truck drivers from the unit of plant production and maintenance employees .1-3 Employees in the Installation Department and the Service Depart- ment. The employees in the installation department, as noted above, are engaged in installing heating systems sold in the vicinity of Beverly Hills." The number of employees in this department varies from approximately 18 to 40 men ; 29 were employed therein at the time of the hearing. There is practically no interchange of personnel between the installation-department employees and plant production employees ; when additional men are needed, they are generally selected from a list of former employees. The employees in the service department are engaged in making final gas and electric connections for newly installed heating systems and in servicing heating systems installed by the Company. At the time of the hearing there were 17 employees in the service department. Although service work is highly seasonal, reaching its peak in winter, the Company seeks to maintain at least 12 men in this department throughout the year. During the winter, it is necessary upon oc- casion to take men from the installation department to perform serv- ice work, and during the first cold spell, the Company has placed plant production employees in service work for not more than 2 or 3 13 We have usually excluded outside truck drivers from a unit of production and main- tenance employees at the request of one of the rival labor organizations . Matter of Blue Diamond Corporation , Ltd and International Longshoremen's and Warehousemen's Union, Local 1-26, 18 N. L R. B 730 ; Matter of Swift cC Co . and Committee for Industrial Organization, 11 N. L R. B. 950, 954; Matter of Armour it Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 235, 10 N L R. B 912, 914. Compare Matter of The Connor Lumber it Land Company and International Woodworkers of America, Local 125 (C. I. 0.) 11 N. L. R. B. 776, 782. 14 The Company provides trucks in which the employees assigned to a particular instal- lation job deliver the Company 's products to the place of installation The Company also provides cars for employees in the service department. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days.15 On the other hand, the Company shifts some servicemen to installation and other work during seasonal slack periods.'-, Upon the foregoing facts we conclude that the approximately 122 plant production and maintenance employees and the approximately 46 employees in the installation and service departments appropri- ately may be established as separate units or combined into a single unit." The differences in the nature of work performed by employees in each of these groups, the fact that each group consists of a sub- stantial number of employees, and the further fact that employees, in the installation and service department perform the principal part of their work outside the plant serve to indicate the feasibility of dividing them into separate bargaining units. On the other hand, differences in duties and working conditions alone manifestly do not require the exclusion of employees in the service and installation department from a production and maintenance unit.'-, In the in- stant case, moreover, there is no appreciable difference in the average hourly wage paid employees in the installation and service depart- ments and the plant production employees; there is some interchange of personnel between service-department employees and plant produc- tion employees; and the installation-department employees are en- gaged solely in the installation of products manufactured at the plant. Under these circumstances the desires of the employees shall deter- mine the appropriate unit or units for the purposes of collective bargaining.'-, As stated in Section VI, infra, the determination of their desires can best be made in elections which we shall direct. Upon the outcome of the elections will depend our ascertainment of the appropriate unit or units herein. We will order elections among the Company's employees at its Beverly Hills plant within the groups described below, excluding all office employees whatever the nature of their work, all supervisory employees with power to hire and fire, all salesmen, all engineers, the night watchman, and all truck drivers : 16 During the time production employees peifoim service work, their pay-loll classifi- cation is accordingly changed. 10 Payne, vice president and general manager of the Company, summarized the situation as follows : "There are times in the summertime when there is very little service work to be done, and we have used some of those service men in the factory on production work, or used them in the maintenance of buildings, making alterations or anything we can find for them to do in order to keep them working the year around and keep them satisfied." 14 Cf. Matter of TValgreen Co. and Wholesale and Chain Drug Warehouse Employees Unwn, Local 21704, 15 N. L R. B. 980 18 Thus, where only one union has been involved we have, upon the request of the union, included similar employees in a unit of production and maintenance workers. Matter of Lennon Furnace Co, Inc. and Syracuse Federation of Labor, 20 N. L. R B. 962 (installers) ; Matter of Coldwelt Lawnmower Company and International Asosciatson of Machinists, Lodge No 757, affiliated with the American Federation of Labor, 14 N. L. R; B. 38, 42 (service repairmen) 18 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3, et at., 3 N. L. R. B. 294. PAYNE FURNACE AND SUPPLY CO., INC. 805 (a) All production and maintenance employees, including em- ployees in the "retail" or "special" fitting department and the regular fitting department, but excluding employees in the installation depart- ment, and the service department, to determine whether they desire to be represented by the Stove Mounters, or by the S. W. 0. C., for the purposes of collective bargaining, or by neither; (b) All employees in the installation department and the service department, to determine whether or not they desire to be repre- sented by the S. W. 0. C. We shall certify the union, if any, designated by a majority of the employees within each election unit as the exclusive representative thereof. If the S. W. 0. C. should win both elections, we shall certi- fy it as the exclusive representative of both election units combined. VI. THE DETERMINATION OF REPRESENTATIVES As stated above, the Stove Mounters and the S. W. 0. C. stipulated at the hearing that the Stove Mounters "has paid up membership" and that both organizations have "authorizations . . . to act as a collective bargaining agent" among employees at the Beverly Hills plant. Neither of these organizations, however, offered any other .proof of designation, but joined with the Company in stipulating that an election should be held. Under the circumstances we find that the question concerning representation which has arisen can best be resolved by the holding of elections by secret ballot. While the sales of the Company vary considerably from month to month, depending on the seasonal demand for furnaces, the Com- pany seeks to spread production throughout the year, and conse- quently the number of employees does not vary in proportion to the seasonal demand for and sale of furnaces. Although the parties stipulated at the hearing that "during the- next few months .. . there will probably be a decrease in the number of employees on the production and maintenance pay roll," they further stipulated "that the present pay roll of approximately February 1 [1940] . . . be accepted as the pay roll for all purposes pertaining to this hearing, it being an approximate pay roll and reflecting a fair basis for deter- mination in this hearing." We construe the stipulation to mean that those eligible to vote in each election will be those persons in the respective election units who were employed by the Company during the pay-roll period which covers February 1, 1940, including em- ployees who did not work during such pay-roll period because they were ill or on vacation, or temporarily laid off, but excluding those who between such pay-roll period and the date of the election have quit or been discharged for cause. As thus construed, we see no reason to depart from the wishes of the parties with respect to the 283032-41-vol 21-52 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determination of employees who shall be eligible to vote, and we shall direct accordingly. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW A question affecting commerce has arisen concerning the repre- sentation of employees of Payne Furnace and Supply Co., Inc., Bev- erly Hills, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sec- tion 8, of National Labor Relations Board Rules and Regulations- Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Payne Furnace and Supply Co., Inc., Beverly Hills, California, elections by secret-ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the employees within the groups described below who were employed by the Company at its Beverly Hills plant during the pay-roll period which covers February 1, 1940, including employees who did not work during such pay-roll period because they were ill or on vacation or temporarily laid off, but excluding all office employees whatever the nature of their work, all supervisory employees with power to hire and fire, all salesmen, all engineers, the night watchman, all truck drivers and those who between such pay-roll period and the date of the election have quit or been discharged for cause : (a) All production and maintenance employees, including em- ployees in the "retail" or "special" fitting department and the reg- ular fitting department, but excluding employees in the installation department, and the service department, to determine whether they desire to be represented by Stove Mounters International Union of North America, Local No. 93, affiliated with the American Federa- tion of Labor, or by Lodge 1981, Amalgamated Association of Iron, Steel, and Tin Workers of North America, through the Steel Work- ers Organizing Committee, affiliated with the Congress of Industrial PAYNE FURNACE AND SUPPLY CO., INC. 807 Organizations, for the purposes of collective bargaining, or by neither ; (b) All employees in the installation department and the service department, to determine whether or not they desire to be repre- sented by Lodge 1981, Amalgamated Association of Iron, Steel, and Tin Workers of North America, through the Steel Workers Organ- izing Committee, affiliated with the Congress of Industrial Organiza- tions, for the purposes of collective bargaining.