California Electric Power Co.

National Labor Relations Board - Board Decisions

Jun 4, 1943

50 N.L.R.B. 106 (N.L.R.B. 1943)

In the Matter Of IMPERIAL ICE DIVISION OF CALIFORNIA ELECTRIC
,PowER COMPANY and INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL UNION No. 63 "d TRUCK DRIVERS, WAREHOUSEMEN &
HELPERS UNION, LOCAL 898, AFL
Case No. R-5121.Decided June 4,1943
Mr. H. M. Hammack, of Riverside, Calif., for the Company.
Messrs. Ed Achstetter and Albert Harris, of El Centro, Calif., for
the A. F. of L.
Whitelaw c Whitelaw, by Mr. R. B. Whitelaw, of El Centro, Calif.,
for the Association.
Mr. Wallace E. Royster, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION.
STATEMENT OF THE CASE
Upon an amended joint petition duly filed by International Union
of Operating Engineers, Local Union No: 63 and Truck Drivers,
Warehousemen & Helpers Union, Local 898, AFL, herein called the
A. F. of L., alleging that a question affecting commerce had arisen
concerning the representation of employees -of Imperial Ice Division
of California Electric Power Company, Riverside, California, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before George H. O'Brien,,
Trial Examiner. Said hearing was held at El Centro, California, on
March 30, 1943. The Company, the A. F. of L., and Employees' Asso-
ciation of Imperial Ice Division of California Electric Power Com-
pany, herein called the Association, appeared, participated, and were
afforded full opportunity to be heard, to exanmine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All the parties have filed briefs which
the Board has considered.
Upon the entire record in the case, the Board makes the following
50 N. L. R. B , No. 24.
106
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IMPERIAL ICE DIVISQON
FINDINGS OF FACT
,I. THE BUSINESS OF THE COMPANY
107
California Electric Power Company is a Deleware corporation with
its principal offices in Riverside, California. We are here concerned
only with the employees of the Company's Imperial Ice Division which
is engaged in the manufacture, distribution, and sale of ice at plants
located in El Centro,.Coachella, Brawley, Holtville, and Calipatria,
California. During 1942, the ice division of the Company produced
more than 140,000 tons of ice having a value in excess of $480,000. In
such manufacture, the Company used electrical energy valued at more
than $80,000, of which a substantial amount was generated at points
outside the State of California. Pacific Fruit Express Company, a
subsidiary of the Southern Pacific and Union Pacific railroads, oper-
ating large numbers of refrigerator cars in interstate commerce, is
one of the principal customers of the Company's ice division. During
1942, the Company's ice division iced or precooled more than 1,200
railroad refrigerator cars for Pacific Fruit- Express Company and
others. The Company is informed and believes, that more than 50
percent of such refrigerator cars were carried in interstate commerce.
While jurisdiction of the Board is not cohceded by the Company,
we find that through its ice division the Company is engaged in com-
merce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local Union No. 63,
and Truck Drivers, Warehousemen & Helpers Union, Local 898, are
labor organizations affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
Employees' Association of Imperial Ice Division of California Elec-
tric Power Company is an unaffiliated, incorporated labor organiza-
tion, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 26, 1943, the A. F. of L. requested recognition as the
bargaining representative of the Company's ice division production
and maintenance employees. The Company refused on the ground
that its contract with the Association constituted a bar to such recog-
nition. The contract became effective October 9, 1941, and is to run
from year to year terminable by notice of either party 90 days prior
to any anniversary date. Since no such notice was given prior to July,
9, 1942, the contract was renewed from October 9 of that year. The
A. F. of L. contends that the Association was moribund at the time
108 DEOISQONS OF NATIONAL LABOR. RELATIONS BOARD
the contract was renewed and that, under prior decisions of the Board
in such circumstances, -the contract -is 'not a bar to a present
investigation.
The record does not,disclose with certainty that the Association had
ceased to function effectively, as alleged. We note, however, that the
contract between the Company and the Association is subject to termi-
nation on written notice to be given not later than July 9, 1943. Since
an election held at this time in accordance with our usual procedure
would result in a certification shortly before the time fixed by the con-
tract for notice of termination, we find that the contract is not a bar_
to a present determination of represenatives for the purpose of nego-
tiating a new contract to succeed the contract now in effect."
A statement of the Field Examiner introduced into evidence at
-the hearing, and a statement of the Trial Examiner submitted after
the hearing, indicate that the A. F., of L. and the Association each
represents a substantial number of employees in the unit hereinafter
found appropriate .2
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
In its petition the A. F. 'of L requests a unit embracing "all em
ployees, exclusive of clerical and supervisory employees with the power
to hire and fire." At the hearing the A. F. of L. indicated clearly
that the unit was intended to include temporary and seasonal em-
ployees. The Association is in agreement with the position of the
A. F. of L.3 but would expand the unit to include the three clerical
employees who are employed at the Company's ice plants. The Com-
pany agrees to the unit desired by the Association but would permit
to vote only those employees who have at least 4 months of employment.
i Cf. Matter of Dain Manufacturing Company and International Union, United Automo-
bile, Aircraft it Agricultural Implement Workers of America, CIO , 41 N. L. R. B 1056.
2 The Field Examiner stated that the A. F. of L submitted 55 application -for-member-
ship cards , all bearing apparently genuine, original signatures . Eleven cards were un-
dated and the remainder were dated in February and March 1943. Forty -seven cards
bore the names of persons whose names appear on the Company's pay roll of March 1, 1943,
which pay roll lists 93 employees in the appropriate unit
The Trial Examiner stated that the Association submitted 36 application -for-membership
slips, all dated in February and March 1943 and all bearing apparently genuine , original
signatures . Thirty slips bore the names of persons whose names appear on the Company's
pay roll of March 15, 1943 . Said pay roll contains the names of 95 employees within the
appropriate unit. The Trial Examiner further stated that the Company submitted 44
'authorizations directing the Company to deduct Association dues from pay -roll checks.
The authorizations were dated from October 1941 to July 1942, and all bore apparently
genuine original signatures Sixteen of the 19 unrevoked authorizations bore the names
of persons appearing on the Company 's March 15 pay roll.
3 However, the Association has made no apparent attempt to organize temporary-
employees.
i
k
IMPERIAL ICE DIVISION '109
Each new employee enters the service of the Company as a tempo-
rary employee and continues in this status until he has been employed
6 months in a 9 months' period. One new employee may be' hired to
replace a permanent worker and thus have the expectation and desire
to achieve permanent status. Another may be employed for seasonal
work without expectation of remaining on the pay roll longer than
a few weeks. On the pay-roll records of the Company, both are clas-
sified as temporary employees without distinction as to the probable
duration of their employment. During the months of January, Febru-
ary, and March, the business of the Company attains a peak and the
number of workers employed during this period is approximately
double that on the pay roll in the remaining months of the year. The
employees hired during this period in 1943, worked an average.of 151/2
days each and no more than 5 percent of them had previously been
employed by the Company. We recognize that employees whose
tenure of employment is measured by days or weeks and who have
no present intention or prospect of returning to such employment
in succeeding years, have not such substantial interest in conditions
' of employment as have permanent employees. However, the transient
or casual employees involved in this proceeding perform the same
duties under the same working conditions as do the permanent em-
ployees and may be reemployed in the 1944 season if they so desire.
For these reasons we are persuaded that temporary, transient, or casual
workers, employed in the normal operations of the Company, are prop-
erly within the appropriate unit and we so find.4
As stated above, the A. F. of L. would exclude clerical employees
from the unit. Since the work of these employees is purely clerical
and, that of other employees is manual, we shall exclude them from
the unit.
There is little evidence in the record as to supervisory employees
and the parties would exclude only those with the right to hire and
discharge. In accordance with our usual policy, we shall exclude in
-addition, supervisory employees who have the authority to hire,
discharge or recommend such action.5
In accordance with the foregoing, and the agreement of the parties,
we find that all employees of the Company's ice division at its ice
plants in El Centro, Brawley, Holtville, Coachella, and Calipatria,
California, including those listed on the Company's pay roll as tempo-
rary employees but excluding clerical employees and employees hav-
ing the authority to hire or discharge employees or to recommend
4 See Matter of B Hoberman and Amalgamated Meat Cutters and Butcher Workmen of
North America, Local No. 195, affiliated with the American Federation of Labor, 30 N. L.
R. B. 1241.
6 See Matter of The Maryland Drydock Company and Local No 31 of the Industrial Union
of Marine and Shtpbuildang Workers of America, 49 N. L R. B. 733.
I
-110 DDD'iCFSQONS i0F NATIONAL LABOR RELATIONS BOAtED
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
Directions
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 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with California Electric
Power Company, Imperial Ice Division, Riverside, 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 Twenty-
first Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Section 10, 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 those who have since quit or been discharged
for cause, to determine whether they desire to be represented by Inter-
national Union of Operating Engineers, Local Union No. 63 and Truck
Drivers, Warehousemen & Helpers Union, Local 898, A. F. L., or by
Employees' Association of Imperial Ice Division of California Electric
Power Company, for the purposes of collective bargaining, or by
neither.
9
The A. F of L. has requested that the pay roll of February 26, 1943, be used to deter-
mine eligibility to vote . Since a large percentage of those whose names appear on that
pay roll are no longer in the employ of the Company and presumably would not appear
at the polls , we do not regard the use of the requested pay-roll date as practicable. In
accordance with our usual policy, we shall restrict eligibility to vote to those employees,
temporary or permanent , whose names appear on a current pay roll or who are otherwise
eligible as described in the Direction . See Matter of The Schiff Company and Warehouse
& Distribution Workers Union, 36 N. L. R. B. 575.