Comwel Co.

National Labor Relations Board - Board Decisions

Feb 24, 1950

88 N.L.R.B. 810 (N.L.R.B. 1950)

In the Matter of H. C. SOMMER, D/B/A COMWEL COMPANY, EMPLOYER
and WORKERS ASSOCIATION OF MANUFACTURERS AND BUILDERS OF
AUTO SERVICE STATION UNION (LOCAL No. 1), PETITIONER
Case No. 21-RC-971.-Decided February./ .4, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Jack R. Berger,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The business of the Employer :
The Employer has its principal place of business in Lynwood, Cali-
fornia, where it is engaged in manufacturing and distributing air
compressors, steel storage tanks, hydraulic hoists and platform lifts,
air and water reels and wells, structural steel buildings, and special
products equipment. The major portion of its business is devoted
to the fabrication and installation of equipment and buildings used
1 Throughout the hearing and in its brief, Metal Trades Council of Southern California,
A. F. L., herein called the Intervenor , contended that the hearing officer committed preju-
dicial error by excluding evidence with respect to the jurisdiction of the Board , the status
of the Petitioner as a labor organization , and the appropriate unit. We have closely
examined the entire record and find that the hearing officer did not deny any party oppor-
tunity to introduce admissible evidence pertinent to the issues.
The Employer contends that the Intervenor should be denied intervention because It has
not made a substantial showing of interest in the unit it claims to be appropriate. As the
showing of interest is an administrative matter not subject to collateral attack, we have
affirmed the hearing officer ' s ruling permitting intervention . Moreover, we are adminis-
tratively advised that the Intervenor has made a showing of interest sufficient ' to justify
its participation in the election . As both unions here seek an industrial unit, we believe
that the rule enunciated in Boeing Airplane Company, S6 NLRB 368, is inapplicable.
There, the Intervenor was required to make a 30 percent showing of interest because it
sought to sever a craft unit from an existing industrial unit.
88 NLRB No. 148.
810
COMWEL COMPANY 811
by service stations? During the first 10 months of 1949, the Employer
purchased materials, consisting mostly of steel and steel products,
valued at approximately $220,000, of which $152,698.98 was received
directly from out-of-State sources. During the same period its sales
amounted to approximately $582,000, of which $27,448.26 was derived
from sales of products shipped directly to out-of-State customers.
The Employer also received $88,325.43 from sales to Standard Oil
Company and Richfield Oil Corporation, both engaged in interstate
commerce.' Notwithstanding the Employer's admission in this re-
spect, the Intervenor contends that the Employer is not engaged in
commerce within the meaning of the Act.
We find, contrary to the Intervenor's contention, that the Employer
is engaged in commerce within the meaning of the National Labor
Relations Act 4
2. The labor organizations involved :
The Intervenor moved to dismiss the petition on the ground that
the Petitioner is not a labor organization within the meaning of the
Act. It is clear that the Petitioner exists by virtue of a-formal con-
stitution adopted by its members, that it functions with regularly
elected officers, and admits employees to membership, and that its
object is to bargain with the Employer with respect to working con-
ditions of its employees. The Intervenor's motion is based primarily
on the assertion that the Petitioner is employer-dominated within
the meaning of Section 8 (a) (2) of the Act. As we have repeatedly
held, matters pertaining to unfair labor practices are not litigable in
representation proceedings.5 The hearing officer, therefore, correctly
rejected the Intervenor's evidence in this respect. Moreover, the Gen-
eral Counsel has refused to issue a complaint upon a charge filed by
the Intervenor against the Employer alleging the Employer's domina-
tion of the Petitioner." ,
Accordingly, we hereby deny the motion to dismiss the petition and
we find that the Petitioner, an independent labor organization, and
2 The Employer uses subcontractors for some of the work connected with installations,
such as the laying of flat cement.
8 The Intervenor contends that the Employer 's testimony, derived from arithmetical sum-
maries of the. Employer 's annual business , and the summaries themselves , should have
been excluded under the technical hearsay and best evidence rules because the sum-
maries were compiled from invoices and records not introduced in evidence at the hear-
ing. J. C. Sommer, the Employer, directed the preparation of these summaries and
testified as to their, accuracy at the hearing. Moreover, the invoices. and records from
which the summaries were prepared were available for examination at the hearing.
We find the Intervenor's contention without merit, and the Employer's testimony and
summaries properly , admitted in evidence at the hearing. The Great Atlantic and?
Pacific Tea Company, 81 NLRB 1052.
A Edgar P. Fosse, Inc., 86 NLRB 394; John A. Denie's'Sons Co., 86 NLRB 682.
Bonauit Teller, Inc., 84 NLRB 414.
e See Times Square ' Stores Corporation, 79 NLRB 361.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intervenor are both labor organizations claiming to represent
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.7
4. The appropriate unit :
The Petitioner and the Employer agree on a unit of all the Em-
ployer's hourly rated production and maintenance employees, ex-
cluding professional employees, guards, executives, and supervisors
as defined in the Act. The Intervenor also agrees , except that it would
exclude outside servicemen.
As stated above, the Employer fabricates and installs a variety
of equipment, mostly service stations. Its plant consists of three
buildings, one used principally for storage and as a garage, the second
for manufacturing tanks, and the third for the fabrication and manu-
facture of other products. The same employees used by the Employer
to manufacture products inside its plant are used to erect and install
the prefabricated service stations and related equipment in the field
at j ob locations. Because of a constant interchange between employees
working in the plant and those doing construction work in the field,
the Employer's production and maintenance employees are not clas-
sified and their skills are many and varied. The Employer employs
four foremen, of whom two supervise the manufacturing operations of
the plant, and two supervise the erection and installation operation, but
no foreman has the same men under his supervision at all times 8
A difference in the situs of employment of two groups of employees
does not of itself require establishment of separate bargaining units,
especially where there is evidence of a community of interest in their
employment joining both groups. Where, as here, there is a constant
interchange of employees between such groups, similar conditions of
employment and types of work performed, and substantially the same
relationship to management, we believe that the two groups together
constitute a single bargaining unit.9 Accordingly, we shall include the
outside servicemen in the unit herein found appropriate.
We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
'The Intervenor 's further contention that the petition should be dismissed because the
Petitioner made no claim for recognition on the Employer before filing the. instant petition
Is also without merit, because, as we have heretofore held, the filing of a petition is -tanta-
mount to a claim for recognition . Advance Pattern Company, 80 NLRB 29.
g None of the employees sought by the Petitioner have been represented by any labor
organization for the purposes of collective bargaining since 1940.
e San Antonio Machine f Supply Company, 85 NLRB 143 ; Beatrice Foods Company,
84 NLRB 512.
COMWEL COMPANY 813
All hourly rated production and maintenance employees at the Em-
ployer's Lynwood, California, plant, including hourly rated outside
construction and installation employees, but excluding professional
employees, guards, office and clerical employees, and supervisors as
defined in the Act.
DIRECTION OF ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor Re-
lations Board Rules and Regulations, among the employees in the unit
found appropriate in paragraph numbered 4, above, who were em-
ployed during the payroll period immediately preceding the date of
this Direction of Election, including employees who did not work dur-
ing said payroll period because they were ill or on vacation or tem-
porarily laid off, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, and also excluding employees on strike
who are not entitled to reinstatement, to determine whether they desire
to be represented, for purposes of collective bargaining, by Workers
Association of Manufacturers and Builders of Auto Service Station
Union (Local No. 1), or by Metal Trades Council of Southern Cali-
fornia, A. F. L., or by neither.
10 At the hearing , the Intervenor requested that no election be held while its charge that
the Employer had committed an unfair labor practice was pending. We are administratively
advised that the General Counsel has ' sustained the Regional Director's dismissal of this
charge. Accordingly , we shall direct an immediate election. Bonwit Teller, Inc., supra.