Air Conditioning Co. of Southern California, et al.

National Labor Relations Board - Board Decisions

Feb 23, 1949

81 N.L.R.B. 946 (N.L.R.B. 1949)

In the Matter of AIR CONDITIONING COMPANY OF SOUTHERN CALIFORNIA,
ET AL. , EMPLOYERS and REFRIGERATION FITTERS PROTECTIVE ASSOCIA-
TION, ALSO KNOWN AS LOCAL 508, PETITIONER
Case No. 01-RC-38
SUPPLEMENTAL DECISION
DIRECTION OF ELECTIONS
AND
ORDER
February R3,1949
On October 15, 1948, the National Labor Relations Board issued its
Decision and Order in this case,' holding that a multiple-employer
unit of 50 Employers, including Employer-members of the Refrigera-
tion Contractors Association, Inc. and non-member Employers, was
inappropriate. On October 23, 1948, the Petitioner filed a motion to
reopen the record, urging the Board to consider alternative unit re-
quests which the Petitioner states it inadvertently failed to make at
the hearing in this matter. The Board, having duly considered the
Petitioner's motion and the entire record in this case, hereby grants the
motion. The Petitioner's request for oral argument is hereby denied
because the record and briefs, in our opinoin, adequately present
the issues and the positions of the parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
I. THE BUSINESS OF TILE EMPLOYERS
The Refrigeration Contractors Association, Inc., herein called the
Association is a corporate organization admitting to membership firms
engaged in the air conditioning and refrigeration business in Southern
California. Of the 50 Employers involved in this proceeding, 31 are
members of the Association.' These 31 Employers, hereinafter col-
79 N L R . B. 1396.
The following 31 Employers are members of the Association :
Air Conditioning Company of Southern California ; Baker Ice Machine Company, Inc
Cooling and Refrigeration Company ; Hal Crumbly Company ; Hieatt Engineering Company ;
Ralph E Manus Company ; National Refrigeration Company ; Pacific Refrigeration Com-
81 N. L. R. B., No. 144.
946
AIR CONDITIONING COMPANY OF SOUTHERN CALIFORNIA 947
lectively referred to as the Members, are grouped together in the
Union Employer's Section of the Association for purposes of col-
lective bargaining.3 The remaining 19 Employers are hereinafter
referred to collectively as the Non-Members.4
During 1947, the total purchases made by the Members amounted to
approximately $8,449,505, of which in excess of $5,998,000 in value
represented purchases made outside the State of California . During
this same period, the total sales and services rendered by the Members
amounted in value to approximately $15,162,944, of which in excess
of $2,203,900 represented sales made and services rendered outside the
State of California. The record indicates that 80 percent of the air
conditioning and refrigeration work in the Los Angeles, California,
area is performed by the Members and that this work includes work in
connection with firms engaged in interstate commerce within the mean-
ing of the Act.
While the evidence is incomplete as to the exact interstate character
,of the purchases, sales, and services of certain individual Members,
the impact on interstate commerce of the totality of all the Members'
operations is apparent. Without determining whether or not the
Board would assert jurisdiction as to each Member were it before the
Board individually, we find for purposes of this proceeding and con-
trary to the contention of the Intervenors that the Members, through
their participation in the Association group, are jointly engaged in
commerce within the meaning of the National Labor Relations Act.-'
Upon the entire record, we find that the following Non-Members,--
Hokanson Company Inc., Vernon Refrigeration & Electric Co., John
Rogers & Son, McWhinnie Electric Corp., Inc., Jim Dandy's Markets,
pany ; Perfecold Refrigeration Company ; Temperature Engineering Company ; Independent
Refrigeration Company ; Viking Sales Corporation ; George M. Cox Company ; Associated
Refrigeration Engineers ; Western Air and Refrigeration Co. Inc. ; Gay Engineering Com-
pany ; W. S. Kilpatrick Company ; Parsons Refrigeration Service ; Elsters Commercial Re-
frigeration Company ; Commerfords Refrigeration Company ; Hugh Robinson and Sons ;
Dell Smith Company, Inc . ; Kohlenberger Refrigeration Corp. ; Black and Patteson ; Neilson
Equipment Company ; Cook & Price Refrigeration ; Jennings Refrigeration Company ; Cooles
Incorporated Organization and Valley Temperature Control Co.; H. H. Newton Company ;
and York Corporation.
"As hereinafter set forth , the Association has for some years bargained collectively as
the joint bargaining representative of these Members in matters concerning labor relations.
* The Non -Members comprise the following Employers :
Ampreneer ; Alcan Refrigeration and Engineering Co. ; B. and M. Electric & Refrigeration
Company ; Coles Battery & Ignition Service ; Cold Kraft Company ; M. H. Fitch Company ;
Hokanson Company, Inc. ; Globe Ice Machine Company ; Port Refrigeration ; John Rogers &
Sons ; R. B Stevens ; Southwest Refrigeration Company ; Vernon Refrigeration & Electric
Co ; Ritz Plumbing Company ; Jim Dandy 's Markets , Inc. ; McWhinnie Electric Corp. ; Liq-
uid Carbonic Pacific Corporation , Ltd ; Neel Refrigeration Company ; and Thompson Refrig-
eration Service . The last three named Employers have at one time or another been members
of the Association . The record, while not absolutely clear, indicates that these three
Employers were not members at the time of the hearing . Accordingly , they shall be treated
as Non -Members for the purposes of this proceeding.
° Matter of Air Conditioning Company of Southern California , et al, 79 N L R B. 1396.
829595-50-vol. 81-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., Liquid Carbonic Pacific Corporation, Ltd., Neel Refrigeration
Company, and Thompson Refrigeration Service,-are individually
engaged in commerce or activities affecting commerce within the
meaning of the National Labor Relations Act.- However, with re-
spect to the remaining 11 Non-Members, while we do not find that
their operations are wholly unrelated to commerce, we are of the
opinion that the individual effect of their operations on interstate
commerce is so remote that to assert jurisdiction would not not ef-
fectuate the policies of the Act.7 So much of the petition involving
such Employers will, therefore, be dismissed.
II. ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization claiming to
represent employees of the Employers.
United Association of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and Canada, AFL,
and its Local 250, herein referred to individually as the United and
Local 250, respectively, and collectively as the Intervenors, are labor
organizations affiliated with the American Federation of Labor, claim-
ing to represent employees of the Employers.
III. THE QUESTION CONCERNING REPRESENTATION
For many years prior to 1947, Local 508 of the United was the
bargaining representative for refrigeration fitters and apprentices
employed by many of the Members and Non-Members. In more re-
cent years, and at least as early as 1946, Local 508 negotiated with
the Association acting in behalf of its Members.8 In that year, Local
508 and the Association executed a collective bargaining contract,
effective January 1, 1947. This contract, which contained an annual
O Although specific figures for the amount of business done by Liquid Carbonic Pacific
Corporation , Ltd., were not put in evidence , the record indicates that this Employer, is a
subsidiary of Liquid Carbonic Corporation , a concern which operates in various parts of
the country and which we have found on numerous occasions to be engaged in interstate
commerce. Accordingly, we find upon the basis of the present record, including the Em-
ployers integration with the aforesaid corporation , that this Employer is engaged in com-
merce to the extent that the effect of its operations upon interstate commerce is so im-
mediate and substantial that it will effectuate the policies of the Act to assert jurisdiction
over such Employer . See Matter of Pacific Airmotive Corporat ion, 75 N. L. R. B. 283, and
Matter o f Atlanta Brick and Tile Company , 79 N L. R. B. 756.
'The Non -Members over which we shall not assert jurisdiction comprise the following :
R B Stevens ; Alcan Refrigeration and Engineering Co. ; Ampreneer ; Cold Kraft Company ;
Coles Battery & Ignition Service ; Globe Ice Machine Company ; Port Refrigeration ; Ritz
Plumbing Co ; M. H . Pitch Company ; Southwest Refrigeration Co. ; and B. and M. Electric
& Refrigeration Company.
:Local 508 also negotiated individually with the Non -Members and executed , on or about
the same date , separate contracts covering the employees of such Non -Members similar to
the contract executed by the members . The contracts with both the Members and the
Non-Members are urged by the Intervenor as a bar to this proceeding.
AIR CONDITIONING COMPANY OF SOUTHERN CALIFORNIA 949
automatic renewal clause, was apparently an extension of the contract
in effect during the year 1946 , and governed the wages , hours, and
conditions of employment of the journeymen refrigeration fitters and
apprentices employed by the Members.
During March 1947, at a meeting of its membership , Local 508 voted
to secede from the United. These members and officers of Local 508
who joined the secession movement , then organized "Refrigeration
Fitters Protective Association , also known as Local 508," the Petitioner
herein. In August 1947, as a result of charges filed against the erst-
while officers of Local 508, the United suspended Local 508, and trans-
ferred its jurisdiction to Local 250 , who together with the United,
are the Intervenors in this proceeding . Shortly thereafter, the Pe-
titioner by letter requested a meeting with the Association , claiming
rights under the January 1, 1947, contract .9 A similar request and
claim by the Intervenors was also received by the Association and
by the various Non-Members. Both requests were refused by the Asso-
ciation and the Non-Members , by reason of the conflicting claims made
upon them. On December 17, 1947, the Intervenors filed suit in the
Superior Court for the County of Los Angeles , State of California,
naming the Petitioner as defendant and praying for a determination as
to the rightful owner of the rights under the January 1, 1947, contracts.
The petition in this proceeding was filed on November 24, 1947, seek-
ing to represent employees of both Members and Non-Members.
The Intervenors moved to dismiss the petition on various grounds 10
Although in our opinion no jurisdictional dispute such as the Inter-
venors envision exists , such a dispute in any event would not bar a
determination of representatives ." The further contention of the
Intervenors that the determination in this proceeding must await
the outcome of the suit in the California State courts is without merit
as an action on a contract in a State court cannot affect the duty of
this Board to investigate and determine bargaining representatives 12
So far as the question of a contract bar is concerned , if it be assumed,
as the Intervenors contend, that the January 1, 1947, contract did
renew itself after the initial year period, and also that the contract
Z he Petitioner likewise requested on or about the same date bargaining rights for
similar employees of the Non-Members.
ii The Intervenors assert as basis for their motion to dismiss : (1) that this proceeding
is no more than a jurisdictional dispute between the Intervenors and the Petitioner; (2)
that a determination by this Board must await the outcome of the suit over the rights to
the contracts between the Intervenors and the Petitioner pending in the courts of the
State of California; (3) that the contract of January 1, 1947, and the similar contracts
with the Non-Members constitute a bar to this proceeding; and (4) that a contract which
renewed itself for a 1-year period on July 1, 1947, between A. F. L. Los Angeles Building
and Construction Trades Council, on the one hand, and certain of the Employers herein,
on the other hand, is a bar to this proceeding as to said Employers.
n Matter of Reynolds Metal Company, 73 N. L R B. 352, 354.
12 Matter of Libby, McNeill & Libby, 64 N L R. B. 30.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is still operative, that contract would nevertheless not constitute a
bar, for the petition in this case was timely filed in respect to any
1948 automatic renewal date.13 Moreover, assuming that the contract
between the A. F. L. Los Angeles Building and Construction Trades
Council and certain of the Employers is still operative, this contract
is likewise not a bar, for the petition in this case was again timely
filed in respect to any 1948 automatic renewal date.14 The motion is
hereby denied.
We find that a question affecting commerce exists concerning the
representation of employees of the Employers within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
TV. THE APPROPRIATE UNITS
In its Decision and Order in this matter, the Board found that an
area-wide multiple-employer unit, including the employees of the
Members and those of the Non-Members, as originally requested by
the Petitioner, was inappropriate. The Petitioner now requests a
single unit of refrigeration fitters and apprentices employed by the
Members, based upon past bargaining history of the Association, and
separate units of similar employees of each of the Non-Members.
Despite its ostensible show of neutrality made at the hearing and in
its brief, we construe the Association's position, as well as that of
the Members, as being substantially in accord with that taken by
the Petitioner. The Intervenors, on the other hand, contend that
the employees of each of the Members, as well as the employees of
each of the Non-Members, constitute separate appropriate units.
Although all the Non-Members were notified sufficiently in advance
of the date of the hearing and although all the Non-Members sup-
plied the Board with commerce and other data requested in question-
naire form, only three of the Non-Members appeared at the hear-
ing.15 These three Non-Members favored separate units for their
respective employees.
The record indicates that one of the main functions of the Associa-
tion is the establishment of sound labor relations policies for the
Members. To this end, the negotiating committee of the Association
has been authorized by the Members to represent them jointly in collec-
tive bargaining negotiations with the union representing their em-
ployees. As stated above, the Association has negotiated at least one
contract on behalf of the Members, and, but for the schism within the
13 Cf. Matter of Elder Manufacturing Company, 73 N. L. R. B. 230, 231.
14 Ibid. For similar reasons the contracts between Local 508 and the Non-Members are
not a bar to this proceeding.
1, The three are : Liquid Carbonic Pacific Corporation, Ltd, Neel Refrigeration Company,
and Thompson Refrigeration Service.
AIR CONDITIONING COMPANY OF SOUTHERN CALIFORNIA 951
membership of Local 508, was ready in 1947 to enter into further nego-
tiations looking forward either to revisions of the exis4ing contract or
to a new contract. The negotiating committee did not, however, have
authority to execute contracts binding upon the Members; instead the
draft of the proposed master contract was submitted to the Members
individually for their respective signatures, at which time the draft
assumed binding effect.
The Intervenors coptend that inasmuch as the Members have not
delegated to the Association negotiating committee power to bind the
Members in its negotiations, no true pattern of bargaining has been
established upon an association basis, and hence no ground exists for
finding appropriate a unit coextensive with the bargaining conducted
by the Association. However, the decided cases do not support the
Intervenors' contention. The Board has recently had occasion to
reexamine the question of the prerequisites for the establishment of
multiple-employer units.16 The Board therein affirmed its prior de-
cisions which held that participation in joint bargaining negotiations
and the uniform adoption of the agreement resulting from such nego-
tiations by the participants in the negotiations indicated a desire on the
part of said participants to be bound by joint rather than individual
action and therefore warranted the establishment of a multiple-em-
ployer unit.17 In the present case , the Members through having au-
thorized the negotiating committee to negotiate on their behalf, and
by their uniform acceptance of the agreement negotiated by the com-
mittee, have met the prerequisites which warrant the inclusion of their
employees in a multiple-employer unit. Accordingly, we shall find
appropriate a multiple-employer unit coextensive with the past col-
lective bargaining between the Association and Local 508.
The Association contends that the employees of Liquid Carbonic
Pacific Corporation, Ltd., Neel Refrigeration Company, and Thomp-
son Refrigeration Service, three Employers we have designated as
Non-Members,18 should be included in the multiple-employer unit.
The Association bases its contention on the ground that these three
Employers are still members of the Association. However, even if
we were to assume for purposes of argument that these Employers are
technically members of the Association, we are not persuaded that
their employees should be included in the multiple-employer unit.
These Employers not only oppose the inclusion of their employees in
18 Matter of Associated Shoe Industries of Southeastern Massachusetts , Inc, et al., 81
W .L. R. B., No. 38. ( Members Houston and Murdock dissenting.)
17Ibid. See Matter of Rayonier Incorporated , 52 N. L R . B. 1269 , 1274-1275 ; Matter
of Dolese d Shepard , 56 N. L. R. B. 532, 539 ; Matter of Advance Tanning Company, 60
N. L. R. B. 923, 931 ; Matter of Springfield Plywood Corporation, 61 N. L. R. B 1295,1299;
Matter of Rwhard Young Co., 64 N. L . R. B. 733, 737.
18 See footnote 4, supra.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such unit, but have given notice that they will not be bound by an
extension of the January 1, 1947, contract, and have stated at the
hearing and in their brief,19 that the negotiating committee of the
Association is no longer authorized to bargain on their behalf.20 The
desires of these Employers taken in conjunction with their affirmative
acts manifest an intent to pursue an individualistic course of action
with respect to labor relations sufficient to warrant the exclusion of
their employees from the unit 21 Accordingly, we shall exclude the
employees of these three Employers from the multiple-employer unit
hereinafter found appropriate. However, we shall find appropriate
separate individual bargaining units composed of refrigeration fitters
and apprentices employed by each of these three Employers, and also
of like employees of substantially all of the other Non-Members over
whom we have heretofore asserted jurisdiction.22
The petitioner seeks to increase the scope of the January 1, 1947, con-
tract unit by including therein operations of the Members in areas not
covered by that contract. However, as the past history of bargaining
has been conducted successfully in the unit already established by the
parties , and as the reasons proffered for altering that unit are not per-
suasive, we find no basis in the record before us for acceding to the Peti-
tioner's request that the unit should encompass a geographical area
greater than that described in Article I, Section (a) of the January 1,
1947, contract23
Upon the basis of the foregoing, we find that all refrigeration fitters
and apprentices 24 of the Members, employed in the area covered by
the January 1, 1947, contract, as set forth above, excluding supervisors
as defined in the Act, constitutes a single unit appropriate for the pur-
poses of collective bargaining within the meaning of the Act.
We further find that all refrigeration fitters and apprentices of
each of the following Non-Members : McWhinnie Electric Corp.,
Liquid Carbonic Pacific Corporation, Ltd., Neel Refrigeration Com-
pany, Thompson Refrigeration Service, Vernon Refrigeration & Elec-
29 Liquid Carbonic Pacific Corporation , Ltd., was not a party to the brief.
20 See Matter of California Metal Trades Association, 72 N. L . R. B. 624, 632 , where the
Board stated that by not authorizing the association to bargain in its behalf , a member
"has, in effect, withdrawn from the Association -wide unit."
21 Ibid. See Matter of Schmieg Industries , 62 N. L . R. B. 1474, 1476
E2 We shall not find an appropriate unit in the case of Jim Dandy's Markets, Inc., Inas-
much as the requested unit of refrigeration fitters and apprentices contains at most only one
eligible employee and is therefore inappropriate under established Board precedent. See
Matter of G . & D. Radiator Service and Terrill-Phelps Chevrolet Co. Inc., 80 N. L. R. B.
1308
23 Article I, Section (a) of the January 1, 1947 , contract defines the unit as Including
all refrigeration fitters and apprentices employed by the Members In 'the Counties of Los
Angeles, Orange and . . . portions of Ventura , San Bernardino , Riverdale , Imperial, Inyo
and Mono" counties.
N This classification includes apprentices as defined in Article III, Section ( b) of the
January 1, 1947, contract.
AIR CONDITIONING COMPANY OF SOUTHERN CALIFORNIA 953
tric Co., Hokanson Company, Inc., and John Rogers & Son employed
in the area defined in the foregoing paragraph, excluding supervisors
as defined in the Act, constitute separate individual units appropriate
for the purposes of collective bargaining within the meaning of the
Act.
DIRECTION OF ELECTIONS 26
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Members and with the seven
Non-Members, enumerated below '21 eight separate elections 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
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the units found appropriate in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily 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 em-
ployees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented, for purposes of collective bar-
gaining, by Refrigeration Fitters Protective Association, also known
as Local 508, or by United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and
Canada, and its Local 250, or by neither.
ORDER
IT IS HEREBY ORDERED that the petition for investigation and certifica-
tion of representatives insofar as it affects employees of Jim Dandy's
Markets Inc.; Ampreneer; Alcan Refrigeration and Engineering Co.;
B. and M. Electric & Refrigeration Company; Coles Battery & Ig-
nition Service; Cold Kraft Company; M. H. Fitch Company; Globe
Ice Machine Company; Port Refrigeration; R. B. Stevens; Southwest
Refrigeration Company; and Ritz Plumbing Company be, and it
hereby is, dismissed.
25 Any participant in the election herein directed may, upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from the ballot.
Re McWhinnie Electric Corp ; Liquid Carbonic Pacific Corporation, Ltd. ; Neel Refrigera-
tion Company ; Thompson Refrigeration Service ; Vernon Refrigeration & Electric Co. ;
Hokanson Company, Inc . ; and John Rogers & Son.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN HERZOG took no part in the consideration of the above
Supplemental Decision, Direction of Elections, and Order.
MEMBERS HOUSTON and MURDOCK, concurring in the result :
In Matter of Associated Shoe Industries of Southeastern Mass.,
Inc., et al., 81 N. L. R. B. 224, we have recently expressed disagree-
ment with the Board's policy with respect to multiple-employer units
involving association members and non-members, set forth in Matter of
Advance Tanning Company, 60 N. L. R. B. 923. Here, no less than
in the Associated Shoe case, we disagree with so much of the rationale
of our colleagues as makes participation in preliminary negotiations
of collective bargaining agreements a prerequisite for a multiple-em-
ployer unit. The record before us, however, does not disclose the ex.
istence of such other facts as impelled us to find appropriate a unit
including the non-members in the Associated Shoe case.27 We are not
persuaded, on the basis of the present record, that the non-members
have truly manifested a desire to be bound by group action to such
an extent that they should be included with the Association members in
order to "assure to the employees the fullest freedom in exercising the
rights guaranteed" by the Act.28 In these circumstances, we concur
in the result reached by our colleagues 28
27 E. g., geographic area covered, stabilization of labor relations within the area through
the group action by the requested unit, frequent interchange of laborers, known similarity
of working conditions and employee problems, and even the agreement between the rival
unions and the majority of the competing employers on the propriety of the unit.
28 Section 9 (b) of the amended Act.
b We agree that the excluded Association members have manifested their Intention to
pursue Individualistic courses of action and are properly excluded . They have manifested
this intention by something more than a bare desire to be excluded from an association-
wide unit . They are thus distinguishable from the Sportwelt Co. In Matter of Associated
Shoe Industries of Southeastern Maas., Inc., et al., 81 N. L . R. B. 224, see fn. 36 of
that decision and cases cited therein.