Klauber Wangenheim Co.

In the Matter Of KLAUBER WANGENIIEIM Co. and INTERNATIONAL LONG- SHOREMEN 'S AND WAREHOUSEMEN 'S UNION, LOCAL No. 1-38, C. I. O. Case No. R-1873.-Decided July 9, 1940 Jurisdiction : wholesale grocery, notions, confections and liquor distributing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to union ; striking employees permitted to vote and those who replaced them ineligible ; election necessary. Unit Appropriate for Collective Bargaining : truck drivers, grocery packing room employees, paper furnishings and notions packing room employees, cigars- candy-beverage packing room employees, manufactut ing department em- ployees, shipping and receiving employees and floormen, and janitors at the Company's San Diego plant, excluding working foremen and other supervisory employees In view of distance between two plants, their operations as separate en- tities, and the absence of history of joint collective bargaining, single-plant unit held appropriate. Mr. William R. Walsh, for the Board. ilir. Allen S. Klauber, of San Diego, Calif., for the Company. Mr. T. H. Black, of San Diego, Calif., for the C. I. O. Mr. Leslie Dayton, of San Diego, Calif., for the A. F. of L. Mr. Thos. L. Pitts, of Los Angeles, Calif., for Teamsters Local No. 848 and Joint Council of Teamsters No. 42. Hr. A. C. Fortey, of Los Angeles, Calif., for Grocery Warehouse- men's Local No. 595, I. B. T. C. S. & H. O. F. A. Mr. Edward Pierce, of San Diego, Calif., for San Diego Federated ,Trade and Labor Council. Mr. Norman M. Neel, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On- April 5, 1940, International Longshoremen's and Warehouse- men's Union, Local No. 1-38, affiliated with the Congress of Indus- trial Organizations, herein called the C. I. 0., filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen con- 25 N. L It B., No. 28 245 25,000-I2-vo1 25-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning the representation of employees of Klauber Wangenheim Co.,' San Diego, 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 May 20, 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-Seines 2, as amended, ordered an investigation and directed its Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 29, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the C. I. 0., upon International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local No. 542, A. F. of L., herein called Local No. 542, a labor organization claiming to represent employees directly affected by the investigation.2 Pursuant to the notice a hearing was held on June 4, 1940, at San Diego, California, before Webster Powell, the Trial Examiner duly designated by the Board: The Board by its counsel, and the Com- pany, the C. I. 0., Local No. 542, Local 595, Local 848, Local 42, and the San Diego Federated Trade and Labor Council, by their representatii-es participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made sev- eral rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Exam- iner 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 3 The Company is a California corporation engaged in the whole- sale distributing business , having its main plant at San Diego, Cali- 1 The Company was inaccurately designated in the pleadings as Klaubcr and wagenheim wholesale Grocery Co The parties stipulated at the hearing that the correct name is Glauber wangenheim Co. - "The following were also served with notice of hearing Joint Council of Teamsters No 42, A F of L, herein called Local No 42. Local Union 595, wholesale Grocery Ware- housemen , A F of L, herein called Local No 595 ; International Brotherhood of Teamsteis, Chauffeurs, Stablemen and lIelpers, Local No 848, A F of L, herein called Local No 848; Central Labor Council The above organizations affiliated with the American Federation of Labor are herein collectively and interchangeably called A F of L. Los Angeles Industrial Labor Council was also served but did not appear a The findings in this section are based upon a stipulation entered into by the parties at the hearing KLAUBER WANGENHEIM CO. 247 fornia, and branch plants at Los Angeles and El Centro, California. The chief products handled by the Company are groceries, tobacco, candy, paper furnishings, notions, and liquor, of which over $4,000,- 000 worth were sold by the Company during the past year. During this period approximately 30 per cent of the products handled by the Company were shipped to it from outside the State of California, and through the sale of these products approximately 2 per- cent were shipped to other States and foreign countries. The Company em- ploys approximately 125 persons at its San Diego plant, approxi- mately 60 persons at its Los Angeles plant, and approximately 13 persons at its El Centro plant. II. THE ORGANIZATIONS INVOLVED International Longshoremen's and Warehousemen's Union Local 1-38 is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership truck drivers and ware- housemen of the Company, exclusive of supervisory employees. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local No. 542, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company, exclusive of office and clerical employees, and super- visory employees having the power to hire and discharge.4 III. THE QUESTION CONCERNING REPRESENTATION On April 4, 1940, the C. I. O. requested recognition by the Company as exclusive bargaining representative of the truck drivers and ware- housemen of the Company. The Company refused such recognition, stating that the A. F. of L. also claimed to represent a majority of its employees and that it would await a determination of the issue by the Board. We find that a question has arisen concerning the representation of the 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 rela- tion 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. 4 The A F of L stated at the hearing that in the event that the San Diego plant unit was found to be appropriate, Local No 542 would represent the A. F. of L membership and should appear on the ballot in any election directed. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT The C. I. O. requests a unit consisting of employees 5 in the ware- house at the Company's San Diego plant, exclusive of working foremen and other supervisory employees. The A. F. of L., on the other hand, desires a unit composed of employees at the Company's Los Angeles and 'San Diego plants, including working foremen at the San Diego plant and persons employed in the Company's five cash-and-carry stores in San Diego, and a one-man navy branch in Long Beach. The two plants are a considerable distance apart and are operated 'independently with separate managerial staffs. The Los Angeles plant has as much as 60 per cent higher wage scales than the San Diego plant. Unlike the San Diego plant, the Los Angeles plant is not subdivided into departments, does not maintain separate cash-and-carry stores, and does not deal in groceries, a product requiring a major department at the San Diego plant. The A. F. of L. began to organize the Company's employees at the San Diego plant in November 1935 as part of the organization of grocery business generally in that area. Thereafter, joint negotia- tion with the entire industry in the San Diego area was only par- tially successful, and in 1939 the A. F. of L. negotiated with the Company alone for its San Diego plant, without result. In April 1940 the A. F. of L. sought unsuccessfully to negotiate with the Company for its employees at both the San Diego and Los Angeles plants. On April 3, 1940, the A. F. of L. called strikes at the San Diego and Los Angeles plants of the Company, and 5 employees at the San Diego plant and 13 employees at the Los Angeles plant went out on strike.- There is no showing in the record that the C. I. O. has sought to organize or bargain for any of the Company's employees other than those at the San Diego plant. Thus, until shortly before the strike at both plants on April 3, 1940, there had been no attempt to'bargain on a two-plant basis and there has been no history of collective bargaining on such basis. In view of the distance between the plants, their operation as separate entities, and the absence of any history of joint collective bargaining, we find that at the present time the San Diego plant alone constitutes an appro- priate unit for collective bargaining. The C. I. O. and the A. F. of L. are in agreement as to the pro- priety of excluding Wilmer Shields, house superintendent, and E. C. Collier, city shipping clerk, from the San Diego unit and they will be excluded. 5 At the hearing the parties stipulated that these employees included truck divers ; grocery packing room employees ; paper furnishings and notions packing room employees ; shipping, receiving, and floormen ; cigars, candy , and beverage packing room employees ; employees of the manufacturing department ; and janitors at the San Diego plant KLAUBER WANGENHEIM Co. 249 There are six working foremen at the San Diego plant.6 They do not have the power to hire or discharge employees but they recom- mend hiring and discharge. It is undisputed that these men direct the activities of the employees of whom they are in charge. Since one of the two labor organizations involved desires the exclusion of the working foremen, as supervisory employees, they will be excluded. The record discloses that the 10 persons employed in the cash-and- carry stores and the Long Beach Naval Branch are engaged in work similar to that of the warehouse employees. They are eligible to membership in the A. F. of L. and there is no showing with respect to their eligibility for membership in the C. I. 0. A considerable portion of their time is occupied in stocking shelves, selling over the counter, loading trucks and making book entries necessitated by the order and transfer system used. They are paid on a monthly basis but it does not appear from the record that there is any marked dif- ference in the amount of their compensation as compared with that of the warehouse employees. In three of the six stores there are helpers, who, like all the managers, are paid on a monthly basis, plus bonus. The manager at the cash-and-carry located at the main plant has two helpers. The manager orders for the paper furnishings and notions department, and the two helpers order for the grocery de- partment and cigar, candy, and beverage department respectively. They all engage in the physical labor of storing merchandise, stock- ing shelves, loading trucks, and selling over the counter and assem- bling orders. The cash-and-carry employees do some clerical work and the managers occasionally solicit business. The man at the Naval branch spends a considerable portion of his time soliciting business on board ships. Although the managers receive a greater compen- sation and apparently can direct, to some extent at least, the activities of their helpers, there has been no contention made by any of the parties here involved that the work of the managers is of a super- visory nature. The cash-and-carry stores as a group constitute an extension of the warehouse function to convenient places throughout the city, where a retailer can purchase and carry away goods needed, quickly and at slightly reduced cost. The duties of these employees remain essentially those of warehouse employees and they will be included in the unit. We find that truck drivers, grocery packing room employees, paper furnishings and notions packing room employees, cigars-candy-bev- erage packing room employees, manufacturing department employees, shipping and receiving employees and floormen, and janitors, at the 'The men listed as working foremen on the Company's pay roll of March 23 , 1940, are : George Koop, W. M. Lang, Leo Johnson , E. T. Brown, George Morgan, and C. W. Buerkin. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's San Diego plant, excluding working foremen and other supervisory employees, and including all employees in the five cash- and-carry stores and in the Long Beach branch, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and other- wise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing, the C. I. 0. presented the applications for mem- bership in the C. I. 0. of 25 persons at the San Diego plant who were listed on the pay roll of March 23, 1940, the last pay roll prior to the strike of April 3. The A. F. of L. presented 17 signatures of persons on said pay roll, exclusive of cash-and-carry men. We find that the question which has arisen concerning representation can best be resolved by the holding of an election by secret ballot. The A. F. of L. requests the use of a pay-roll date prior to the strike of April 3, 1940, as determinative of eligibility to participate in the election, since this would allow the five men out on strike to vote. A comparison of the pay roll of March 23, 1940, with the pay roll of June 1, 1940, discloses that with the exception of the five men out on strike and three men who have replaced them,' those in the employ of the Company at the present time are the same as those employed prior to the strike. We are of the opinion that the strikers should be per- mitted to vote and that those who replaced them are ineligible. In Matter of A. Sartorius cC Co., Inc. and United Mine Workers of America, District .50, Local 12090,$ where we considered a similar question, we said: The strike began on July 18, 1938, and was current at the time of the hearing. But by Bolding that individuals, who took jobs vacated by striking employees, also were eligible to participate in the selection of the bargaining representative of the employees in the appropriate unit, there resulted a situation where two indi- viduals, with interests diametrically opposed, were, by virtue of one and the same job, entitled to participate in the selection of the bargaining representative. If those who have, during the cur- rency of the strike, replaced the strikers are permitted to vote, and the strikers are also permitted to vote, possibly twice as many as can be employed may participate in the election. This was not the intent of Congress. Yet the intent that strikers should re- Only one , L. E. Boyd , among the five employees who originally replaced the strikers, is listed on the June 1 pay roll. The other four original replacements do not appear thereon but two new men do appear. 1 10 N. L. It. B. 493. KLAUBER WANGENHEIM CO. 251 main employees for the purposes of the Act is clear. By pre- serving to employees who go on strike their status as employees and the rights guaranteed by the Act, the Act contemplates that during the currency of a strike, the employer and the striking employees may settle the strike, with -the striking employees re- turning to their former jobs, displacing individuals hired to fill those jobs during the strike. Strikes are commonly settled in this manner.' The hold of individuals who, during the currency of a strike, occupy positions vacated by striking employees is notably tenuous.4 To accord such individuals, while the strike is still current, a voice in the selection of the bargaining represen- tative of the employees in the appropriate unit would be contrary to the purposes of the Act and the ends contemplated by it; since it might effectively foreclose the possibility of the settlement of the labor dispute, whether by the return of the striking em- ployees to their jobs and the displacement of the individuals occupying those jobs during the strike, or by some other settle- ment agreement, a possibility which the Act contemplates should not be foreclosed during the currency of the strike. [Footnotes omitted] We shall direct that the March 23, 1940, pay roll be used-to deter- mine eligibility. 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 Klauber Wangenheim Co., San Diego, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. Truck drivers, grocery packing room employees , paper furnish- ings and notions packing room employees , cigars-candy -beverage pack- ing room employees , manufacturing department employees , shipping and receiving employees and floormen , and janitors at the Company's San Diego plant, excluding working foremen and other supervisory employees, and including all employees in the five cash-and-carry stores and in the Long Beach branch, constitute a unit appropriate for the purposes of collective bargaining , within the meaning of Sec- tion 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of National Labor -Relations 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, and pursuant to Article III, Section 8, of National Labor Rela- tions 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 Klauber Wangenheim Co., San Diego, 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, 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 all truck drivers, grocery packing room employees, paper furnishings and notions packing room employees, cigars-candy-bev- erage' packing room employees, manufacturing department em- ployees, shipping and receiving employees and floormen, and janitors, at the Company's San Diego plant, excluding working foremen and other supervisory employees, and including all employees in the five cash-and-carry stores and in the Long Beach branch, whose names appear on the Company's March 23, 1940, pay roll, including em- ployees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding all persons who have quit or have been discharged for cause since that date, to determine whether they desire to be represented by International Longshoremen's and Warehousemen's Union, Local No. 1-38, C. I. 0., or International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local No. 542, A. F. of L., for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEISERSON, dissenting in part: I do not agree with that part of the Decision which holds the employees who filled the strikers' jobs ineligible to vote in the election directed. So far as the record shows the strike was not caused by any unfair labor practices and the Company was acting within its rights in filling the strikers' jobs.9 While there might be some justi- fication for voting the striking employees as well as the employees who filled their jobs, it is in my opinion beyond the Board's authority to deny those who are now bona fide employees an opportunity to vote.10 MR. EDWIN S. SMITH, dissenting in part : I dissent from the holding that an employer unit consisting of the San Diego and Los Angeles plants is inappropriate in this case. While the Los Angeles plant has fewer employees and departments ° See National Labor Relations Board v Mackay Radio & Telegraph Co, 304 U. S 333. 10 See my dissenting opinion in Matter of Easton Publishing Co and Easton Typographical Union No. 258, Affiliated with International Typographical Union, 19 N L. R B 389. KLAUBER WA1 GENHEIM CO. 253 than the San Diego plant, the work of the two plants and classifica- tion of employees are basically the same and both are operated under the same ownership, although each has a different managerial staff. - While the wage scales differ at the two plants, there is nothing inherent in that fact to militate against collective bargaining on a single-unit basis. The distance between the two plants is not such as to make a single bargaining unit impractical. Although the A. F. of -L. has organized the employees of each plant into different locals both locals are affiliated with the Teamsters and in recent months the A. F. of L. has sought to bargain collectively with the Company on the two-plant unit basis. Moreover, the failure of joint negotiations has resulted in a joint A. F. of L. strike at both plants which is still current. Under all the circumstances, I am of the opinion that the establishment of a single bargaining unit for both plants-would best insure to the employees of each plant the full bene- fit of their right to self-organization and collective bargaining and thus effectuate the policies of the Act. In view of the foregoing, I would find that both plants together constitute the appropriate unit.h1 11 Compare my dissenting opinions in Matter of Colorado Builders ' Supply Company and International Association of Bridge, Structural, and Ornamental Iron Works, Shopmen's Local Union No 507 (A F L ), 18 N L R B 29, Matter of United States Rubber Com- pany (Pioridence plant ) and Rubber Workers Federal Labor Union Local No 22014, affiliated with the American Federation of Labor, 20 N L R. B 473, Matter of Hood Rubber Company, Inc and Rubber Workers Federal Labor Union No 2191) (A F. L ), 20 N. L R. B. 485.