K and D Industries

National Labor Relations Board - Board Decisions

May 31, 1945

61 N.L.R.B. 1652 (N.L.R.B. 1945)

In the Matter- of` E. W. KOLL AND F. J.^ DowLING; co-PARTNERS'
D/B/A K AND D INDUSTRIES and SACRAMENTO BUILDING AND CON-
STRUCTION TRADES COUNCIL, ACTING ON BEHALF OF CONSTRUCTION AND
GENERAL LABORERS UNION, LOCAL No. 185; INTERNATIONAL AssocIA-
TION OF MACHINISTS, LOCAL No. 33; AND SACRAMENTO-YOLO DISTRICT
COUNCIL OF CARPENTERS AFFILIATED WITH UNITED .BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, ALL AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR* and INTERNATIONAL LONGSIIORE-
MENIS & WAREHOUSEMEN'S UNION, LOCAL 1-17, AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATION*
Case No. 20-RE-43.-Decided May 31, 191f5
Messrs. F. J. Dowling and M. J. Heller, of Sacramento, Calif., for
the Company.
Mr. Charles J. Janigian, of Sacramento, Calif., for the AFL.
Gladstein, Grossman, Sawyer ct Edises, by Mr. Bertram Edises, of
Oakland, Calif., for the CIO.
Mr. Harold M. Humphreys, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by E. W. Koll and F. J. Dowling, co-
partners d/b/a K and D Industries, Sacramento, California, 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 hearing upon due
notice before John Paul Jennings, Trial Examiner. Said hearing
was held at San Francisco, California, on March 1, 1945. The Com-
pany, the Sacramento Building Trades Council, AFL, acting on be-
half of Construction and General Laborers Union, Local No. 185;
International Association of Machinists, Local No. 33; and Sacra-
mento-Yolo District Council of Carpenters affiliated with United
•It appears from the record that these are the names of the labor organizations
actually interested in this proceeding, although the petition filed merely -designated
"American Federation of Labor" and "Congress of Industrial Organizations."
61 N. L. R. B., No. 259.,
1652
K AND D INDUSTRIES 1653
Brotherhood of Carpenters and Joiners of -America, all affiliated with
the American Federation of Labor, herein collectively called the AFL,
and International Longshoremen's & Warehousemen's Union, Local
1-17f. CIO; -herein called- the-. CIO; , appeared and participated. All
parties, were afforded full` opportunity, to be heard, to examine,, and
cross-examine witnesses, and to introduce evidence bearing on the
issues. At the hearing, the CIO moved to dismiss the petition and the
Trial Examiner referred the motion to the Board for determination.'
The motion is denied.2 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:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
E. W. Koll and F. J. Dowling, co-partners d/b/a K and D Indus-
tries, are engaged in Sacramento, California, in the job contracting
business, under contracts let to them by the Ordnance Department
and Signal Corps of the United States Army. The Company is
presently engaged in the repair and crating of motor-driven trailers.
All materials worked on by the Company are furnished by the United
States Government, with the exception of packing material which is
supplied by the Company itself. A majority of the material fur-
nished by the Government is shipped to the Company from points
outside the State of California. The materials worked on by the
Company are valued in excess of $1,000,000 annually, and all are ulti-
mately delivered to the Army. The annual value of the Company's
contracts is in excess of $100,000.
- The Company stipulates, for the purpose of this proceeding, that
it is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
Sacramento Building and Construction Trades Council; Construc-
tion and General Laborers Union, Local No. 185; International Asso-
1 The CIO's appearance was special, having been entered solely for the purpose of
enabling it to move for dismissal. It made its motion at the outset of the hearing and
thereafter withdrew from the proceeding.
2 The CIO predicated its motion upon two grounds. One is discussed in Section III,
infra. Alleged unfair labor practices on the part of the Company which would preclude
the employees from registering a free choice in any election is the other. It appears
that the CIO filed an unfair labor practice charge on March 1, 1945, Case No 20-C-1311 ;
that a settlement agreement was later executed ; and that, on or about May 23, 1945, the
CIO waived the right to protest, "on any ground set forth in Case No. (20-C-1311),"
any election which might be directed-herein. Thug, the Thotion'is now an academic.matter
insofar as It is predicated upon the Company's alleged unfair labor practices.
1654 DECISIONS OF ' NATIONAL- LABOR RELATIONS BOARD
ciation of Machinists, Local No. 33; and Sacramento-Yolo District
Council of Carpenters, affiliated with United Brotherhood of Car-
penters and Joiners of America, are labor organizations affiliated
with the American Federation of Labor, admitting to membership
employees of the Company.
International Longshoremen's & Warehousemen's Union, Local
1-17, is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company.
111. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the AFL or the
CIO as the exclusive bargaining representative of certain of its em-
ployees until the AFL or the CIO has been certified by the Board in
an appropriate unit. Although the CIO apparently contends that
the Company improperly initiated the instant proceeding, we are of
the opinion that the Company, faced with conflicting claims of repre-
sentation made by the AFL and CIO, properly filed the. petition
herein.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the AFL and the CIO represent a substantial num-
ber of employees in the unit hereinafter found appropriate 3
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.
IV. THE APPROPRIATE UNIT
The Company and the AFL agree that the appropriate unit should
consist of all production and maintenance employees, including leader-
men, watchmen, inspectors, and factory clerks, but excluding office and
office clerical employees, foremen and other supervisory personnel.4
They are in disagreement, however, concerning the automotive me-
chanic foreman. The Company would exclude this employee on the
ground that he is supervisory, while the AFL would include him.
The automotive mechanic foreman employed at the time of the hear-
ing has direct supervision over approximately 30 employees who re-
pair, assemble, and crate power driven reels and motors for export
shipment. Undisputed testimony of Company witnesses shows this
' The Field Examiner reported that the AFI, submitted 24 cards ; that the names of
22 persons appearing on the cards were listed on the Company ' s pay roll of February 10,
1945, which contained the names of 47 employees in the alleged appropriate unit; and
that the cards were dated during February . 1945 . He further reported that the CIO
submitted 11 cards ; that the names of 7 persons appearing on the cards were contained
In the aforesaid pay roll , and that the cards were dated December 1944 and February
1945.
4 The CIO took no position as to the appropriate unit.
K AND D - INDUSTRIES 1655
employee to have authority' effectively to hire and discharge employees:
We shall therefore, exclude the automotive mechanic foreman.5
We find that all production and maintenance employees of the Com-
pany, including leadermen, watchmen, inspectors,6 and factory clerks,
but excluding office and office clerical employees, automotive mechanic
foreman, other foremen, and all other 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 shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees 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 Direc-
tion.'
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,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of 'the investigation to ascertain representa-
tives for the purposes of collective bargaining with E. W. Koll and
F. J. Dowling, co-partners d/b/a K and D Industries, Sacramento,
California, 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, under the direction and supervision of the Regional Director
for the Twentieth Region, acting in this matter as agent for the Na-
tional 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 be-
cause they were ill or on vacation or temporarily laid off, and including
5 A company witness stated that the Company expected to employ additional foremen
within 30 days from the date of the hearing , all are to have similar supervisory authority.
6 On the day of hearing the Company did not employ watchmen and inspectors, but
stated that it would engage such employees within 30 days.
'' We hereby grant the AFL's request that it appear upon the ballot as its name is set
forth in the Direction of Election
We shall place the CIO upon the ballot with the option to withdraw therefrom upon
notice to the Regional Director to that effect given within 5 daye from the date of the
Decision and Direction of Election herein.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the armed forces of the United States who present them-
selves 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 Sacramento Building and Constructing Trades Council,
AFL, or by the International Longshoremen's & Warehousemen's
Union, Local 1-17, CIO, for the purposes of collective bargaining, or
by neither.