General Motors Sales Corp.

National Labor Relations Board - Board Decisions

Apr 17, 1940

22 N.L.R.B. 1036 (N.L.R.B. 1940)

In the Matter of GENERAL MOTORS SALES CORPORATION, FRIGIDAIRE
DIVISION and ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HY-
DRAULIC, PIPING, SPRINKLER, PNEUMATIC TUBE, ICE MACHINE, AIR
CONDITIONING, AND GENERAL PIPEFITTERS OF NEW YORK AND VICINITY,
LOCAL No. 638, UNITED ASSOCIATION OF JOURNEYMEN, PLUMBERS
AND STEAMFITTERS OF THE UNITED STATES AND CANADA, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR, BRANCH C 1
Case No. R-1745.Decidecd April 17, 1940
Servicing Refrigeration Machines and Selling Refrigeration Machine Parts
Industry-Investigation of Representatives: controversy concerning representa-
tion of employees: employer refuses to bargain until certification of union by
the Board-Unit Appropriate for Collective Bargaining: all employees in the
production shop and all the shipping, receiving, and stock-department employees,
of the Company's Long Island City shop, excluding supervisors, employees in
the maintenance department, clerical and field-service employees, dealer-con-
tacting men, and service salesmen-Election Ordered
Mr. Albert Ornstein, for the Board.
Mr. Henry M. Hogan, of New York City, for the Company.
Mr. Harry Donohue, of New York City, for the Union.
Mr. Louis S. Penfield, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 30, 1939, Enterprise Association of Steam, Hot Water,
Hydraulic, Piping, Sprinkler, Pneumatic Tube, Ice Machine, Air
Conditioning, and General Pipefitters of New York and Vicinity, Lo-
cal No. 638, United Association of Journeymen, Plumbers and Steam-
fitters of the United States and Canada, affiliated with the American
Federation .of Labor, Branch C, herein called the Union, filed with
1 At the hearing all parties stipulated, and the Trial Examiner ruled that the title of the
proceeding herein be amended to show "General Motors Corporation" as the correct name
of the Company and that the designation "Frigidaire Division" be included for descriptive
purposes The Trial Examiner also granted a motion that the title of the proceeding and
the formal papers herein be amended to show the above title as the correct name of the
Union.
22 N. L. R. B, No. 85.
1036
GENERAL MOTORS SALES CORPORATION 1037
the Regional Director for the Second Region (New York City) a peti-
tition alleging that a question affecting commerce had arisen concern-
ing the representation of employees of General Motors Sales Corpora-
tion, herein called the Company, at its Frigidaire Division, New York
City, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On January 23, 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-Series 2, ordered an investi-
gation and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing on due notice.
On February 2, 1940, the Regional Director issued a notice of
hearing, copies of which, and annexed copies of the petition, were
duly served upon'the Company and upon the Union. Pursuant to
notice a hearing was held on February 13, 15, 17, and 23, 1940, before
Joseph L. McGuire, the Trial Examiner duly designated by the
Board. The Board and the Company appeared and were represented
by counsel. The Union appeared by its representative. All of said
parties participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. A motion of the Board
to amend the petition in certain respects was granted by the Trial
Examiner. During the course of the hearing, the Trial Examiner
made various rulings on motions and on the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
no prejudicial errors were committed. These 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
General Motors Sales Corporation, the Company herein, is a Dela-
ware corporation with its principal office in Detroit, Michigan. It
is a wholly owned subsidiary of General Motors Corporation, a
Delaware corporation. The Company is engaged in the sale, distri-
bution, and servicing of various products, including electric-refrig-
eration machines, manufactured by General Motors Corporation. It
has 17 principal divisions, one of which, the so-called Frigidaire
Division, maintains 22 branches in 17 States of the United States,
where it engages in the sale, distribution, servicing, and repair of
electric-refrigeration machines. In connection with its Frigidaire
Division the Company operates a branch herein called the Long
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Island City shop, where it engages in the business of servicing
refrigeration machines and selling refrigeration-machine parts.
This proceeding is concerned solely with employees of the Com-
pany's Frigidaire Division employed in the Long Island City shop.
Substantially all the parts used and sold in the Long Island City
shop are shipped there from points outside the State of New York.
Sales of the parts and shipments of the parts sold are to dealers and
service stations located in the States of New York and New Jersey.
During the first 8 months of 1939, the total volume of sales of such
parts was $227,171, of which parts valued at $47,093 were sold and
shipped from the Long Island City shop to places located within,
the State of New Jersey. The Long Island City shop services re-
frigeration-machine units which are shipped to it for such pur-
pose from points inside and outside the State of New York. During
the first 8 months of 1939, 6,404• such units were teceived for servic-
ing in the Long Island City shop, of which 4,385 units were received
upon shipments from Massachusetts, Pennsylvania, Maryland, and
the District of Columbia. After these units were serviced, they were
then reshipped to their places of origin.
The Company admits that it is engaged in interstate commerce,
within the meaning of the Act.
Approximately 100 persons are employed at the Long Island City
shop.
II. THE ORGANIZATION INVOLVED
Enterprise Association of Steam, Hot Water, Hydraulic, Piping,
Sprinkler, Pneumatic Tube, Ice Machine, Air Conditioning, and
General Pipefitters of New York and Vicinity, Local No. 638,
United Association of Journeymen, Plumbers and Steamfitters of
the United States and Canada, affiliated with the American Feder-
ation of Labor, Branch C, is a branch of a local, herein called Local
638, of United Association of Journeymen, Plumbers and Steam-
fitters of the United States and Canada, a labor organization affili-
ated with the American Federation of Labor. It admits to mem-
bership supply-house employees, shop men, fabricators, receiving
clerks, shipping clerks, stock men, and other persons employed in
shops servicing refrigeration, air conditioning, bottling, laundry,
and other types of machinery.
III. THE QUESTION CONCERNING REPRESENTATION
On or about August 25, 1939, the Union requested that the Com-
pany meet and negotiate with it as the sole collective bargaining
agent for all employees of the Company at its Long Island City
shop in an alleged appropriate collective bargaining unit. The
GENERAL MOTORS SALES CORPORATION 1039
Company refused and refuses to negotiate with the Union as the
exclusive bargaining agency of any of its employees until the status
of the Union is so determined by the Board.
We find that a question has arisen concerning 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 petition, as amended, -alleges that "All employees in the pro-
duction shop,2 all the shipping, receiving, and stock department
employees - of the Company's ,,Long island City shop, excluding
supervisors, employees in the maintenance department, clerical and
field service employees, dealer-contacting men and service sales-
men" constitute a unit appropriate for the purposes of collective
bargaining. The Company contends that 32 field-service employees
attached to the Long Island City shop should be included in the
unit, and that three named employees who work within the shop
should be excluded as supervisors. The Union argues to the
contrary. _
The 32 field-service employees answer retail-service calls from
users of the Company's refrigeration machines, and make repairs
on such machines at the homes of the users. They do no repair
work' at' the shop and -the small section of the building set aside
for their use is devoted solely to receiving service calls and to
handling administrative detail. The production-shop employees
work in the shop regularly repairing and overhauling refrigeration
machines. The shipping, receiving, and stock-department em-
ployees also work in the shop performing duties related to receiving,
shipping, and handling refrigeration machines and parts.
As heretofore indicated the Union admits to membership only
those employees of the Company working in the shop. Another
branch of Local 638, known as Branch B, admits the field-service
employees ' of the Company although it does not appear that any
' By "All employees in the production" shop is meant all employees in the commercial
and standard repair shops.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field-service employee is a member of this organization at the
present time.
There are various considerations which lead us to exclude the field-
service men from the alleged appropriate unit. The only labor or-
ganization involved does not admit them to membership or desire
to represent them for collective bargaining. There is a labor organi-
zation available to these employees which they may join and through
which they may bargain if they so desire.3 The field-service employ-
ees do all their work away from the shop. In consequence their em-
ployment involves conditions in many respects different from the
working conditions of employees in the shop.4 There is little actual
contact between the two groups. Under all the circumstances we are
of the opinion that field-service employees are properly excluded
from the unit and we shall so direct.
All parties agree that supervisors, employees in the maintenance
department, clerical employees, dealer-contacting men, and service
salesmen should be excluded from the unit and we shall so direct.
There is a dispute concerning certain employees listed on the pay
roll under the heading "working foremen and strawbosses." The
Company asserts that the five employees 5 so listed are supervisory,
and hence should be excluded. The Union agrees that two of these
should be excluded as supervisory, but contends that the three re-
maining employees are not supervisory. The evidence fails to show
any material differences in the nature and character of the duties
performed by all five employees. Under the circumstances we are
of the opinion that all of them should be excluded from the unit, and
accordingly we shall so direct.
We find that all employees in the production shop,s all the ship-
ping, receiving, and stock-department employees, of the Company's
Long Island City shop, excluding supervisors, employees in the main-
tenance department, clerical and field-service employees, dealer-con-
tacting men, and service salesmen constitute a unit appropriate for
the purposes of collective bargaining and 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 effectuate
the policies of the Act.
$ See In the Matter of Century Biscuit Company and United Baking Workers L. I U,
No. 86, 9 N L. R B. 1257.
• See In the Matter of Century Biscuit Company and United Baking Workers L. I. U,
No 86, 9 N L R B 1257; In the Matter of Seattle Post-Intellagencer Department of
Uearst Publications, Inc., and Seattle Newspapei Guild, Local No. 82, 9 N L R B 1262;
In the Matter of Payne Furnace and Supply Co., Inc. and Stove Mounters International
Union of North America, Local No. 93, AFL, 21 N. L. R. B. 797
5 The names of these employees are : M Picarello, W. Weber, C Badger, W. Kilkullen,
and V. Miller.
6 See footnote 2, supra.
GENERAL MOTORS SALES CORPORATION 1041
VI. TEIE DETERMINATION OF REPRESENTATIVES
At the date of the hearing the Company employed approximately
35 men within the unit we have found to be appropriate. At the
hearing the Union claimed to have enrolled as members, and to have
been designated as the collective bargaining representative by, ap-
proximately 22 of these employees. The Company did not challenge
this claim. However, in view of the nature and quantity of proof
offered regarding representation, we believe, and find, that the ques-
tion which has arisen concerning representation can best be resolved
by holding an election by secret ballot among employees in the
appropriate bargaining unit to determine their choice of a bargain-
ing representative. Those employees in the appropriate unit who
were employed by the Company during the pay-roll period next pre-
ceding the date of the Direction of Election shall be eligible to vote
subject to such limitations and additions as are set forth in the
Direction. In accordance with a request made by the Union we shall
direct that the name of the Union appear on the ballot as "Steam-
fitters Local 638, Branch C."
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 re-
presentation of employees of General Motors Sales Corporation,
employed at the Long Island City shop of the Frigidaire Division
of said Company, New York City, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations
Act.
2., All employees in the production shop,7 all the shipping, receiv-
ing, and stock-department employees, of the Company's Long Island
City shop, excluding supervisors, employees in the maintenance de-
partment, clerical and field-service employees, dealer-contacting men,
and service salesmen constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 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 (d) of the National Labor Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
' See footnote 2, supra.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with General Motors Sales Corporation, New York City, an -elec-
tion by secret ballot shall be conducted as early as possible, but not
later than thirty (30) days from the date of this Direction of Elec-
tion, under the direction and supervision of the Regional Director
for the Second Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Section 9,
of said Rules and Regulations, among the following employees of
the Company employed at the Long Island City shop of the Frigi-
daire Division of said Company : all employees in the production
shops and all the shipping, receiving, and stock-department em-
ployees, whose names appear on the pay roll of the Company during
the pay-roll period next preceding the date of this Direction of
Election, including employees not on that pay roll because they
were ill or on vacation, but excluding those on said pay roll who
have since quit or been discharged for cause and further excluding
supervisors, employees in the maintenance department, clerical and
field-service employees, dealer-contacting men, and service salesmen,
to determine whether or not they desire to be represented by Enter-
prise Association of Steam, Hot Water, Hydraulic, Piping, Sprin-
kler, Pneumatic Tube, Ice Machine, Air Conditioning, and General
Pipefitters of New York and Vicinity, Local No. 638, United Asso-
ciation of Journeymen, Plumbers and Steamfitters of the United
States and Canada, affiliated with the American Federation of Labor,
Branch 3, for the purposes of collective bargaining; and it is ordered
that for the purposes of this Election the name of the Union shall
appear on the ballot as "Steamfitters Local 638, Branch C."
13 See footnote 2, supra.