American Warming & Ventilating Co.

In the Matter of AMERICAN WARMING & VENTILATING Co. and UNITED CONSTRUCTION WORKERS LOCAL #353 (C. I. 0.) Case No. R-3414.-Decided January 26, 1942 Jurisdiction : air-handling devices manufacturing industry. Investigation and Certification of Representatives : existence of question: stip- ulation as to ; contract held no bar where in fact it has been applied only to employees in a category expressly excluded from the unit found appropriate ; intervenor showing no interest in employees in appropriate unit, not to participate in election ; election necessary. Unit Appropriate for Collective Bargaining : all production employees, including so-called temporary production employees but excluding supervisory and clerical employees, temporary unskilled employees, and sheet metal workers. Mr. Richard C. Swander, for the Board. Mr. Frank E. Calkins, Mr. H. M. Bird, and Mr. Fred D. Merry, of Toledo, Ohio, for the Company. Mr. Lowell, Goerlich and Mr. Carl Schmidt, of Toledo, Ohio, for the C. 1. O. Mr. William F. Sturm and Mr. Charles Stallman, of Toledo, Ohio, for the A. F. of L. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 23, 1941, United Construction Workers Local ,x$353 (C. I. 0.), herein called the C. I. 0., filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of American Warming & Ventilating Co., Toledo, Ohio, herein called the Company, and requesting an investigation and certification of representatives purusant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November- 28, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act aucl Article III, Section 3, of National Labor Relations Board Rules and 88NLRB, No. 109. 515 516 - DECISIONS Or NATIONAL LABOR RELATION BOARD Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate Bearing upon due notice. On December 13, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the C. I. 0., and upon Sheet Metal Workers' International Association, Local #6, affiliated with the American Federation of Labor, herein called the A. F. of L., a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to notice, a hearing was held on December 18, 1941, at Toledo, Ohio, before Ed- ward Grandison Smith, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Company, and the unions were represented by counsel, and all 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 American Warming & Ventilating Co. is engaged in the manufac- ture, sale, and distribution of air handling devices at Toledo, Ohio. The Company purchases annually raw materials, consisting of sheet metal, steel, and iron, valued at $60,000, 99 percent of which comes to its plant from points within Ohio. The Company purchases annually aluminum, valued at $10,000, from The Sheet Aluminum Corpora- tion, Jackson, Michigan, and electric motors, valued at $5,000, from The Century Electric Company, St. Louis, Missouri. The Company purchases controlling equipment from The Minneapolis-Honeywell Company, Minneapolis, Minnesota. The Company distributes The American Heating Machine, made by The American Foundry & Fur- nace Company, Bloomington, Illinois. The Company's entire output, valued at $120,000 annually, is at the present time being sold to government agencies for use in national defense. Practically all its products are shipped from its plant in Toledo, Ohio, to points in Tennessee, Kentucky, and Pennsylvania. The Company admits that it is engaged in commerce within the meaning of the Act. AMERICAN WARMING ,& VENTILATING CO. II. THE ORGANIZATIONS INVOLVED 517 United Construction Workers Local #353 is a labor organization affiliated with the Congress of Industrial Organizations , admitting to membership employees of the Company. Sheet Metal Workers' International Association, Local #6, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In October 1941 the C. I. O. asked the Company to bargain with it for the Company's production employees. The Company contended that a contract between the Company and the A. F. of L. prevented its bargaining with the C. 1. 0. The Company and the C. I. O. agreed to submit the issue to the Board, and the C. I. O. thereafter filed the petition in this proceeding. At the hearing all parties stipulated that a question had arisen concerning the representation of the Com- pany's employees. The Company and other sheet metal contractors in Toledo, Ohio, are members of The Toledo Sheet Metal & Roofing Contractors' Association, Inc., herein called the Association. On April 30, 1941, the Association and the A. F. of L. entered into a preferential hiring contract, terminating April 30, 1942. By its terms the contract covers all skilled labor engaged in all sheet metal work on #10 U. S. Standard Gauge or lighter weight, all warm-air furnace work, and all metal roofing. A representative of the Company testified that at the time the contract was signed, the Company understood that the contract covered all its employees. At the hearing all parties stipu- lated that the contract between the A. F. of L. and the Association covered three sheet metal workers employed by the Company and no other employees of the Company. The record shows that the A. F. of L. has represented and bargained on behalf of the Com- pany's sheet metal workers only. The C. I. O. does not claim the sheet metal workers in its alleged appropriate unit of production employees. Production employees of the Company other than sheet metal workers have been bargaining with the Company individually and directly and not through any bargaining representative. Under these circumstances, we find that the contract between the A. F. of L. and the Association does not constitute a bar to an investigation and determination of representatives for the purposes of collective bar- gaining with the Company.1 1 Cf. Matter of Philadelphia Inquirer Company and Newspaper Guild of Philadelphia and Camden , 31 N. L. R. B., No. 7; Matter of Illinois Moulding Company and United Furniture and Bedding Workers Union Local 18-B , of the United Furniture Workers of America, affiliated with the C I. 0 , 35 N. L R B , No. 176 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement of a Field Examiner introduced into evidence at the hearing indicates that the C. I. O. represents a substantial number of employees in the appropriate unit.2 We find that a question has arisen concerning the 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 The parties agree that production employees, excluding super- visory and clerical employees and unskilled temporary employees,' should be included in the appropriate unit. The parties disagree with respect to certain so-called temporary employees and the sheet metal workers. Temporary employees. Before May 1, 1941, the Company employed three sheet metal workers and about eight other non-supervisory pro- duction employees, who at that time represented the Company's nor- mal working force. In May 1941, and thereafter, the Company obtained defense contracts and began to increase its production staff to fill such contracts. Between May 12 and October 1, 1941, the Com- pany added to its force 13 non-supervisory production employees, in- cluding welders, assemblymen, metal workers, and helpers. Between ' The C. I. O. submitted 20 cards, dated in October 1941 , of which 17 bear names of production employees in the shop division . There are about 28 employees in the appropriate unit. The A F of L submitted no records to the Field Examiner , but its representative named four employees as A F. of L. members , claiming that all such employees were covered by its contract with the Association. At the hearing the parties stipulated , as noted above, that only the three sheet metal workers were covered by the contract between the Company and the A. F of L. The C I O. does not contest the claim of the A. F. of L. to represent them. At the hearing, the attorney for the A. F. of L. indicated that the shop foreman, whom all the parties agreed to exclude from the bargaining unit as a supervisory employee , was also a member of the A. F. of L The record does not disclose that the A . F. of L. has attempted to organize the production employees of the Company other than the sheet metal workers. The C. I. 0 contends that the A F. of L. has not disclosed a substantial interest among employees in the appropriate unit . For the reasons set forth above, we find merit in such contention. a At the time of the hearing, there were seven unskilled temporary employees who the parties agreed should be excluded under this category : R. E. Roughton, Robert Buch, Fred Hentges, Ernest Parker, Louis Birdsang , George Donald , and Asker Rease AMERICAN WARMING & VENTILATING CO. 519 October 1 and the date of the hearing, the Company hired four addi- tional non-supervisory production employees. All such ' employees were hired to perform work to be concluded by specific contracts. For this reason the Company called them "temporary" employees when they were hired. The C. 1. 0. would include within the bargaining unit such so=called temporary production employees hired before October 1, 1941, the approximate date of its request to bargain, and would exclude such employees hired thereafter. The A. F. of L. would exclude all so- called temporary employees. At the commencement of the hearing, the Company agreed with this contention of the A. F. of L. During the course of the hearing, however, a representative of the Company testified that with the entry of the United States into war the Company expected to retain all such employees indefinitely to fill its government contracts and, further, that none of the so,-called tem- porary employees could at this time be considered more permanent than others. The Company therefore modified its former conten- tion, and proposed that the unit should be restricted to its normal peace-time staff of May 1, 1941, or, in the alternative and with greater fairness, that it should include all production employees of the Com- pany at the time of the Board's decision in this proceeding. Since it clearly appears that, under present conditions, all such so-called temporary employees have reasonable expectation of future employ- ment with the Company, we shall include them within the bargaining unit. Sheet metal workers. The A. F. of L. and the Company would include the sheet metal workers in the bargaining unit. The C. I. O. would exclude them. The Company regularly employs three sheet metal workers, two of whom under normal conditions perform their work entirely in the shop. The third sheet metal worker normally spends a portion of his time in installation work outside the shop and the remainder of his time within the shop. All sheet metal workers are highly skilled craftsmen who have served a period-of apprenticeship. -Some products made by the Company pass in their processing from the sheet metal workers to welders and other production employees. The parties agree, and so stipulated at the hearing, that the sheet metal workers and only the sheet metal workers are covered by the contract between the Association and the A. F. of L. None of the parties attacks the validity of this contract, nor does the A. F. of L. waive any right accruing under it. Although an industrial unit in- cluding the sheet metal workers would not be inappropriate for bar- gaining, we shall, under the present circumstances, and for the rea- 520 DECISIONS OF NATIONAL LABOR RELATION'S BOARD sons set forth above, exclude the sheet metal workers from the bar- gaining unit.4 We find that all production employees of the Company, including the so-called temporary production employees, but excluding super- visory and clerical employees, temporary unskilled employees, and sheet metal workers, constitute a unit appropriate for the purposes of collective bargaining. We further find that said unit will insure to employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise will effec- tuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation can best be resolved by, and we shall accordingly direct, an election by secret ballot. Since the record does not disclose that the A. F. of L. repre- sents any employees in the unit which we have found appropriate in Section V above, we shall make no provision for the participation of the A. F. of L. in such election. Those eligible to vote in the election shall be employees in the appro- priate unit who were employed during the pay-roll period immediately preceding the date of our Direction of Election, subject to the limitations and additions set forth therein. 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 American Warming & Ventilating Co., Toledo, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All production employees of American Warming & Ventilating Co., Toledo, Ohio, including so-called temporary production employees, but excluding supervisory and clerical employees, temporary un- skilled employees, and sheet metal workers, constitute a unit appro- priate 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 Relations Act, * Cf. Matter of Merchants & Miners Transportation Co and National Organization Mas- ters, Mates & Pilots of Aneerica, Local ##9, 37 N L R B. 1165 AMERICAN WARMING & VENTILATING Co. 521 and pursuant to Article III, Section 8, 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 American Warming & Ventilating Co., Toledo, Ohio, 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, tinder the direction and supervision of the Regional Director for the Eighth 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 production employees of the Company who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including so-called temporary production employees and employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding clerical and supervisory employees, temporary un- skilled employees, sheet metal workers, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Construction Workers Local #353 (C. I. 0.), for the purposes of collective bargaining.