American Warming & Ventilating Co.

National Labor Relations Board - Board Decisions

Jan 26, 1942

38 N.L.R.B. 515 (N.L.R.B. 1942)

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 o f 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.