Electrogas Furnace Co.

In the Matter of ELECTROGAS FURNACE CO. and AMALGAMATED Assoc. OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA Case No. R-1743.-Decided March 27,1940 Furnace Manufactv-ring Industry-Investigation of Representatawes : contro- versy concerning representation of employees : rival unions ; contract, notice of termination given by employer and request of union of its desire to effect changes in, no bar to-Unit Appropriate for Collective Bargaining : production and mainte- nance employees , excluding superintendents , managers, bookkeepers, purchasing agents, order clerks , stenographers, salesmen , and a foreman ; stipulated in part Representatives : eligibility to participate in choice : employees allegedly hired in violation of contract-Election Ordered : eligibility to vote determined as of pay roll immediately preceding shut down of the plant. Mr. John Paul Jennings, for the Board. Burbank, Laumeister e0 Littler, by Mr. Robert Littler, of San Fran- cisco, Calif., for the Company. Mr. Ken Hunter, of San Francisco, Calif., for the Amalgamated. Mr. Anthony Ballerini, of San Francisco, Calif., for the M. T. C. Mr. Richard H. Meigs, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 27, 1940, Amalgamated Association of Iron, Steel & Tin Workers of North America, herein called the Amalgamated, filed With the Regional Director for the Twentieth Region (San Francisco, California) a petition 1 alleging that a question affecting commerce had arisen concerning the representation of employees of Electrogas Furnace Co., San Francisco, California, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 12, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section I At the hearing, the petition was amended so as to designate the Amalgamated as Amal- gamated Association of Iron , Steel & Tin Workers of North America, Lodge 1684, through .the Steel Workers Organizing Committee, C. I 0 21 N L R. B., No. 117. 1144 ELECTROGAS FURNACE COMPANY 1145 9 (c) of the Act, and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On February 14, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and upon the Amalgamated. Copies of the notice of hearing were also served upon the following labor organizations claiming to represent em- ployees directly affected by the investigation : Bay Cities Metal Trades Council, herein called the M. T. C.; Allied Stove Mounters & Stove Processors International Union, Local No. 65, herein called the Stove Mounters; and Sheet Metal Workers International Association, Local 104, herein called the Sheet Metal Workers. Pursuant to notice, a hearing was held on February 21, 1940, at San Francisco, California, before William B. Barton, the Trial Examiner duly designated by the Board. The Board, the Company, and the Amalgamated were repre- sented by counsel and the M. T. C. by its representative; all partici- pated in the hearing.2 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 1. THE BUSINESS OF THE COMPANY Electrogas Furnace Co., San Francisco, California, is a division of Payne Furnace and Supply Company, Inc., herein called Payne Furnace, a California corporation having its principal office in Beverly Hills, California. Payne Furnace and the Company are engaged in the manufacture and sale of gas-fired warm-air furnaces, heaters, and accessories. The principal raw materials used by Payne Furnace and the Company are steel, aluminum, tin, copper, asbestos paper, galva- nized iron, pipe and fittings, iron castings, brass castings, electric motors, fans, blowers, filters, valves and regulators, electric controls, thermostats, wire, registers, sheaves and pulleys, bearings, belts, etc. During the year ending June 30,1939, Payne Furnace purchased raw materials amounting in value to $581,021.26, approximately 65 per cent of which amount represented expenditures for materials obtained 2 At the hearing, the M. T. C. appeared on behalf of the Stove Mounters and the Sheet Metal workers 1146 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD from points outside the State of California. The Company purchased raw materials for its use amounting in value to $50,111.67 during the year 1938 and to $70,036.42 during the year 1939. Of these amounts 65 per cent was expended for materials obtained outside the State of California. Gross sales of Payne Furnace's products during the year ending June 30, 1939, amounted in value to $1,604,802.36 approximately 50 per cent of which amount represented sales of products shipped to points outside the State of California. Total sales of goods produced by the Company during the year 1938 ' amounted in value to $113,020.35, approximately 36 per cent of which amount represented sales of products shipped to points outside the State of California. During the year 1939 gross sales of the Company totaled $153,173.45, approxi- mately 33 per cent of which amount represented sales of products shipped to points outside the State of California. - Approximately 43 persons are employed in connection with the Company's operations. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1684, through the Steel Workers Organizing Com- mittee, C. I. 0.; Sheet Metal Workers International Association, Local 104; and Allied Stove Mounters & Stove Processors International Union, Local No. 65, are labor organizations, admitting to their mem- bership employees of the Company. The Stove Mounters and the Sheet Metal Workers are affiliated with the American Federation of Labor. Bay Cities Metal- Trades Council is a labor organization composed of delegates from various affiliated labor organizations, including the Stove Mounters and the Sheet Metal Workers.3 III. THE QUESTION CONCERNING REPRESENTATION In May 1938 the Stove Mounters and the Company entered into- a contract as of January 1, 1938, by which the Company recognized the Stove Mounters as the collective bargaining representative of its em- ployees. The contract was to remain in effect for 1 year and to con- tinue in effect from year to year thereafter in the absence of notice of cancelation given by either party to the other not less than 30 days prior to the expiration of the contract. In the absence of such notice, • the agreement continued in effect during the year 1939. On November 20, 1939, the Company advised the Stove Mounters that it had determined not to renew the agreement after December e At the hearing it was stipulated by all parties that in the event of an election, the M. T. C. should be designated on the ballot as Bay Cities Metal Trades Council , represent- ing the American Federation of Labor. ELECTROGAS FURNACE COMPANY 1147 Si, 1939. On November 30, 1939, the Stove Mounters notified the Com- pany that it desired to effect changes in the existing agreement. The contract, therefore, is no bar to a determination of a question concern- ing representation. - On December 12, 1939, the Steel Workers Organizing Committee, herein called the S. W. O. C., on behalf of the Amalgamated, advised the Company that a majority of its employees had joined the Amal- gamated and that the S. W. O. C. was prepared to enter into negotiations for the purpose of executing a collective bargaining agreement with the Company. On December 28, 1939, the S. W. O. C. submitted to the Company a copy of a proposed agreement and requested a conference thereon. In December 1939 the Sheet Metal Workers presented to the Company a claim of substantial membership among its employees. On January 3, 1940, the M. T. C. advised the Company that it had been requested by "the Organizations that have agreements with your firm" to negotiate on their behalf a new collective bargaining agree- ment for the year 1940 covering all employees in the Company's plant. On January 23, 1940, the Company closed down its plant and has not since reopened it. At the hearing counsel for the Company stated that the Company was ready and willing to reopen its plant and bar- gain with its employees as soon as the conflicting claims of the Amal- mated and the M. T. C. had been adjudicated by the Board. We find that a question has arisen concerning representation of employees of the Company. 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 tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing it was stipulated by all parties that the production and maintenance employees of the Company, excluding the superin- tendent, manager, bookkeeper, purchasing agent, order clerk, two stenographers, and two salesmen, constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. The M. T. C. seeks to include in the agreed unit one Rosenbaum, a foreman, on the ground that he is a working foreman whose duties are predominantly those of a production employee rather than super- visory in nature. The Amalgamated, however, contends that Rosen- 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD baum should be excluded from the unit. While the record is not clear as to the exact nature of the duties performed by Rosenbaum, it is not disputed that he receives a rate of pay higher than do ordinary production employees and does exercise supervisory authority in di- recting other employees in the performance of their work. In addi- tion, on at least one occasion in the absence of the plant superintendent, Rosenbaum laid off an employee. We find that Rosenbaum should be excluded from the unit.4 We find that the production and maintenance employees of the Com- pany, excluding superintendents, managers, bookkeepers, purchasing agents, order clerks, stenographers, salesmen, and Foreman Rosen- baum, constitute a unit appropriate for the purposes of collective bar- gaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. VI. TAE DETERMINATION OF REPRESENTATIVES At the hearing the Amalgamated, and the M. T. C., acting on behalf of its affiliates, claimed substantial membership among the employees in the appropriate umt. We find that an election by secret ballot is necessary to resolve the question concerning representation which has arisen. At the hearing the M. T. C. claimed that seven men 6 employed by the Company subsequent to November 30, 1939, should be ineligible to vote in the election on the ground that they were allegedly hired "through the S. W. 0. C." in violation of a preferential employment clause in the contract existing between the Stove Mounters and the Company at the time the men were hired. We are of the opinion that the eligibility to vote of the seven employees in question is not _ affected by the alleged violation of the Stove Mounters' contract at the time of their employment, and we shall not, for that reason, ex- clude them from voting in the election. We shall direct that the employees in the appropriate unit who were employed during the pay-roll period immediately preceding January 23, 1940, the date on which the Company closed down its plant, includ- ing the employees who did not work during such pay-roll period be- cause they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote in the election. 4 See Matter of Rex Manufacturing Co, Inc. and A. F. of L. Federal Local Union No. $0893, 7 N. L R. B. 95. 5 George Perry , Bruno Columbine, Gene Brandt, James Conwell , Edward Knowlton, T. Purdon, and R. Lawrence. ELECTROGAS FURNACE COMPANY 1149 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Electrogas Furnace Co., San Francisco, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. - 2. The production and maintenance employees of the Company, ex- cluding superintendents, managers, bookkeepers, purchasing agents, order clerks, stenographers, salesmen, and Foreman Rosenbaum, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 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 Rela- tions Act, and pursuant to Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Electrogas Furnace Co., San Francisco, California, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Twentieth 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 production and maintenance em- ployees of Electrogas Furnace Co., San Francisco, California, who were employed by the Company during the pay-roll period immedi- ately preceding January 23, 1940, including employees who did not work during such pay-roll period because they were ill or on vacation and those who were then or have since been temporarily laid off, but excluding superintendents, managers, bookkeepers, purchasing agents, order clerks, stenographers, salesmen, Foreman Rosenbaum, and those who have since quit or been discharged for cause, to determine whether they desire to be represented by Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1684, through the Steel Workers Organizing Committee, C. I. 0., or by Bay Cities Metal Trades Council, representing the American Federation of Labor, for the purposes of collective bargaining, or by neither.