B. F. Gilmour Co., Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1944

55 N.L.R.B. 767 (N.L.R.B. 1944)

In the Matter of B. F. GILMOUR Co., INC. and PLUMBING, HARDWARE,
PAINT, ELECTRICAL SUPPLIES & AUTOMOBILE ACCESSORIES EMPLOYEES
UNION LOCAL #1146 OF THE RETAIL CLERKS INTERNATIONAL PRO-
TECTIVE ASSOCIATION, AFL and UNITED ASSOCIATION, AFL, BRANCH
#2, STEAMFITTERS AUXILIARY LOCAL UNION #638-C
Case No. 2-RE-59.-Decided March 2o, 1944
Mr. Bryan F. Gilmour, of Brooklyn, N. Y., for the Company.
Liebowitz di Sclzuman, by Mr. Henry Schwinan, of New York City,
for Local 1146.
Mr. Henry W. Hanick, of New York City, for Local 638.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by B. F. Gilmour Co. Inc., Brooklyn, New
York, herein called the Company, alleging that a question affecting
commerce had arisen concerning the representation of its employees,
the National Labor Relations Board provided for an appropriate hear-
ing upon due notice before Jack Davis, Trial Examiner. Said hearing
was held at New York City on February 2 and 9, 1944. The Company,
Plumbing, Hardware, Paint, Electrical Supplies & Automobile Ac-
cessories Employees Union, Local #1146 of the Retail Clerks Inter-
national Protective Association, AFL, herein called Local 1146, and
United Association, AFL, Branch #2, Steamfitters Auxiliary Local
Union #638-C, herein called Local 638, appeared, participated and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
During the hearing, Local 1146 made a motion to dismiss the petition
herein, which the Trial Examiner referred to the Board. For reasons
appearing below, the motion is hereby denied. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following :
55 N. L. R. B No. 138.
767
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. TIIE BUSINESS OF THE COMPANY
B. F. Gilmour Co. Inc., a New York corporation with its principal
cffice and place of business located in Brooklyn, New York, is engaged
in the wholesale distribution of pipe fittings, valves, heating equip-
ment, and industrial supplies. During the past year, the Company
purchased products for sale at its Brooklyn plant valued in excess
of $1,003,000, 90 percent of which was obtained from points located
outside the State of New York. Sales of the Company during this
period exceeded $1,000,000 in value, 15 percent of which necessitated
the shipping of merchandise by the Company to points located outside
the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act, and we find that we
have jurisdiction in this proceeding, despite the contention of Local
1146 to the contrary.'
II. THE ORGANIZATIONS INVOLVED
Plumbing, Hardware, Paint, Electrical Supplies & Automobile Ac-
cessories Employees Union, Local #1146 of the R-tail Clerks Inter-
national Protective Association and United Association, Branch .#2,
Steamfi'ters Auxiliary Local Union #638-C, each is a labor organiza-
tion affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 27, 1937, Local 1146 and Plumbing & Heating Wholesalers'
Employers Association, herein called the Association, executed a
closed-shop contract covering employees of members of the Associa-
tion, among whom was the Company. This contract was succeeded
by another between the same parties dated February 17, 1939, and by
supplemental agreements dated March 7, 1941, and May 15, 1942,
each of which extended, with modifications, the 1939 agreement to
December 31, 1942. Prior to this last date, Local 1146 presented to
the Association certain demands with respect to conditions of em-
ployment of the employees of the Association's members, and re-
quested a new contract. These demands were refused by the Associa-
tion, but it agreed verbally with Local 1146 to an extension of the
terms of the existing contract until such time as they could reach it
1 Local 1146 contended at the hearing that the Board has no jurisdiction since the Com-
pany had had recourse to the processes of the New York State Labor Relations Board
-,Ai nch had issued a formal ruling. We find this contention to be without merit.
B. F. GILMOUR CO., INC. 769
new agreement. No new agreement had been executed by these
parties at the time of the hearing in this proceeding.
Having failed to procure a new written contract from the Associa-
tion, Local 1146 undertook negotiations with the Company regarding
the latter's employees. On or about March 20, 1943, the Company
submitted a proposed contract to Local 1146. This contract was dis-
cussed at a meeting of the Company's employees held under the
auspices of Local 1146, at which time the employees rejected it, and
so notified the Company. Thereafter, in May 1943, Local 638 sought
recognition from the Company as the bargaining representative of
its employees. The Company refused such recognition. Thereupon,
Local 638 filed a petition with the New York State Labor Relations
Board, herein called the New York Board.' On September 15, 1943,
the New York Board dismissed the petition of Local 638 on the ground
that it presented "a controversy between two labor organizations
affiliated with the same parent body." On October 29, 1943, the,
Company filed the petition in the present proceeding.3
On November -10, 1943, the Association and Local 1146 executed
an agreement providing for the submission to arbitration of all dis-
puted matters, among which was the controversy between Local 1146
and Local 638 over the representation of employees of members of the
Association. On November 23, 1943, a further arbitration agreement
was executed by the parties respecting these matters.4 On December
29, 1943, the arbitrator issued his award, made retroactive to January
1, 1943, stating, inter alia, that "the jurisdictional dispute has been
withdrawn from the consideration of the arbitrator by agreement of
the parties.5
In 1937, Local 638 had unsuccessfully attempted to organize the
employees of the Company. The record discloses that a dispute
existed between Local 638 and Local 1146 with respect to jurisdiction
to represent employees in classifications covered by the contract be-
tween the Association and Local 1146, each labor organization claim-
ing the right to represent such employees. Between 1938 and 1943
several attempts were made by the labor organizations to settle this
dispute, without success. In 1943, at the annual conference of the
American Federation of Labor, the parent organization, representa-
tives of the Internationals of the two labor organizations met for the
2 Case No. SE-9768 The record does not disclose whether or not both labor organiza-
tions appeared in this proceeding although the title of the action includes both their names
S Pursuant to an understanding between the Company and the Association , the latter was
at all tunes fully apprised of these natters
Local 638 was not a pasty to either of these agreements
This award was made subject to the approval of the National War Labor Board, and
such approval had not been received as of the date of the hearing herein
578129-44-vol 35-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of discussing the dispute, but failed to make any arrange-
ments to submit the controversy to the executive council of the parent
organization, having decided that the dispute should be settled
locally. However, despite subsequent efforts of the labor organiza-
tions themselves to adjust their dispute, and the attempts of third
parties to do likewise, no settlement was reached. The jurisdictional
dispute is still in existence.
Local 1146 contends, in effect, that the combination of the verbal
extension of the written agreement which expired December 31, 1942,
the written arbitration agreements of November 1943, and the award
of December 29, 1943, which was retroactive to January 1, 1943, clear-
ly manifests a contractual relationship between itself and the As-
sociation (and the Company as a member thereof), which constitutes
a bar to this proceeding. We do not agree. Local 638 asserted its
claims of representation and the Company filed its petition with us
at a time when no written agreement existed either between Local
1146 and the Association or between Local 1146 and the Company.
Under such circumstances, we find that no bar exists to a present
determination of representatives.e
Nor, tinder the circumstances here presented, does the fact that a
jurisdictional dispute exists between two unions affiliated with the
same parent organization warrant a dismissal of this proceeding. The
dispute between Local 1146 and Local 638 is one of long duration, and
all attempts to settle it by the labor organizations themselves have
been unsuccessful. Although the disputants could have presented the
controversy to their parent organization for settlement, they failed to
do so. In view of these circumstances, the substantial representation
shown by both labor organizations among the employees in the unit
hereinafter found appropriate,' and the fact that the Company filed
the petition herein, alleging that a question affecting commerce had
arisen concerning the representation of its employees, we are of the
opinion that this proceeding is properly before us.
Accordingly, we find that a question affecting commerce has arisen
concerning the representation of employees of the Company within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
6 Matter of Gulf Oil Corporation , 36 N. L. R. B. 1003 ; Matter of Escor, Inc., 46 N. L. R. B.
1035 We also note that the representation claims of Local 638 and the petition herein
filed by the Company both preceded the arbitration agreements between the Association and
Local 1146 and the arbitrator's award which ensued.
° A statement of the Board's Field Examiner, introduced into evidence at the hearing,
with respect to designations submitted by the labor organization herein , bearing appar-
entlv original signatures of persons appearing upon the Company's pay ioll of November
1s, 1943, indicates that Local 1146 submitted 10 such designations, Local 638 submitted 17
such designations, and that the unit hereinafter found appropriate was then comprised of
20 employees.
B. F. GILMOUR CO., INC.
IV. THE APPROPRIATE UNIT
771
The parties agree that all manual employees of the Company, in-
cluding receiving clerks, shipping clerks, countermen, warehouse
clerks, pipe cutters, stockmen, packers, and shopmen, properly con-
stitute an appropriate unit.8 However, the record shows that the
Company employs a working foreman in the shop and another in its
receiving department, and while it appears that one of these, at least,
has authority to make recommendations with respect to hiring and
discharging employees under his supervision, it does not clearly ap-
pear whether or not his recommendations are accorded effective
weight. It further appears, however, that both of these employees
had previously been represented with other employees of the Company
for the purposes of collective bargaining. In view of the state of the
record, the exclusion or inclusion of these two employees will depend
upon whether or not they fall within our customary definition of
supervisory employees.
We find that all manual employees of the Company, including re-
ceiving clerks, shipping clerks, countermen, warehouse clerks, pipe
cutters, stockmen, packers, and shopmen, but excluding all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. At the
hearing, Local 1146 contended that eligibility to vote in the election
be determined as of June 7, 1943. However, in the absence of any
persuasive reason for departing therefrom, we shall adhere to our
customary practice, and shall direct that the employees of the Com-
pany eligible to vote in the election shall be those in the appropriate
unit who were employed during the pay-roll period immediately
preceding the date of the Direction of Election herein, subject to the
limitations and additions set forth in the Direction.
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,
These classifications are the same as those coveted by the contracts between the Asso-
ciation and Local 1146
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and pursuant to Article III, Section 9 of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with B. F. Gilmour Co.
Inc., Brooklyn, New York, an election by secret ballot shall be con-
ducted 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 Second Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but.excluding
any who have since quit or been discharged for cause, and have not
been rehired or reinstated prior to the date of the election, to determine
whether they desire to be represented by Plmbing, Hardware. Paint,
Electrical Supplies & Automobile Accessories Employees Union,
Local #1146, of the Retail Clerks International Protective Associa-
tion, affiliated with the American Federation of Labor, or by United
Association, Branch #2, Steamfitters Auxiliary Local Union #638-C,
affiliated with the American Federation of Labor, for the purposes
of collective bargaining, or by neither.