F. H. McGraw and Co.

National Labor Relations Board - Board Decisions

Oct 15, 1951

96 N.L.R.B. 821 (N.L.R.B. 1951)

F. H. McGRAW AND COMPANY 821
over the employees of the lessee. 8 Those decisions are predicated on
the premise that absent the power to control there is no area for
collective bargaining between the lessor and employees of the lessee.
Unit II meets the employer-employee test inasmuch as Columbia,
the named Employer, has the sole right of control over the employees
included therein. As to Unit I, however, the named Employers do
not, so far as the record shows, exercise or have the right to exercise
any control over the majority of the employees who constitute that
unit. That right is possessed by other unnamed employers. Because,
the record fails to contain any evidence which may reasonably be
construed as establishing the existence of an employer-employee rela-
tionship between the Employers and a majority of the persons included
in Unit I, that unit, in my opinion, is fundamentally defective despite
the agreement of the parties. I know of no warrant in the Act, nor
does the majority point one out, which authorizes this Board to hold
an election and then issue a certificate conferring a right upon a union
and imposing an obligation upon named employers to bargain about
the conditions of employment of workers who are not their employees
but who are employees of other employers. I would therefore dismiss
the petition as to Unit I on the ground that the unit sought is inappro-
priate.
8 See Lee E Stine d/bra Fairchild Cafeteria, 87 NLRB 667 ; Montgomery Steel Products
Corp., 94 NLRB 225; J. M. High Company, 78 NLRB 876, Taylor's Oak Ridge Corporation,
74 NLRB 930 ; Consolidation Coal Company , 63 NLRB 169 , 173; Mahoning Mining Com-
pany, 61 NLRB 792 ; Consolidated Vultee Aircraft Corporation, 57 NLRB 1680 ; Firesafe
Builders Products Corporation, 57 NLRB 1803.
F. H. MCGRAW AND COMPANY and LODGE #1157, INTERNATIONAL
ASSOCIATION OF MACHINISTS , PETITIONER . Case No. 9-RC-1280.
October 15, 1951
Decision , and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Seymour Goldstein, 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is a New Jersey corporation engaged in the
business of general construction throughout the United States and
maintaining offices in several States. Annual purchases by the
Employer exceed 1 million dollars of which more than 50 percent
96 NLRB No. 117.
974176-52-vol. 96-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crosses State lines. Annual sales of the-Employer are in excess of
$10,000,000, representing const "ruction, in a number of States. The
Employer's operation at Paducah, Kentucky, which is alone involved
in this case, consists of the construction of a plant for the Atomic
Energy Commission. We find that the Employer is engaged in com-
merce within the meaning of the Act 1 and that it will effectuate the
policies of the Act to assert jurisdiction in this case 2
2. The labor organizations involved claim to represent certain
employees3 of the Employer.
3. The Petitioner seeks a unit of employees;'engaged, in the' mainte-
nance and repair of automotive vehicles. The Employer and Inter-
venor contend that these employees are covered (1) by a written,
Nation-wide agreement executed in the summer of 1948 by the
Employer and the Intervenor's International, and (2) by a local area
agreement between the Intervenor and the Employer, which was
orally adopted by the Employer.' Contrary to the contentions of
the Intervenor and the Employer, we find that neither of these agree-
ments bars the instant 'petition for the reason, among others, that
they contain illegal union-security clauses, requiring the Employer
to hire only union members, if available .4
Accordingly, we find that a question affecting , commerce exists
concerning the representation bf employees of the Employer within
the meaning of Section 9 (c) (1) and Section (6) and (7) of the Act.
4. The Petitioner requests a unit of employees engaged in the main-
tenance and repair of trucks and automobiles, referred to below as
"light-duty" equipment. The Employer and Intervenor contend,
however, that such a unit is not sufficiently comprehensive, and should
include, in addition, employees working on certain "heavy-duty"
equipment, such as bulldozers, steamshovels, tractors, and cranes.
The maintenance and repair work on light-duty equipment is cen-
tered in a grouping of buildings entirely separate from the heavy-duty
equipment depot, which is, about 800 feet away. Since the iiiception of
the Employer's Paducah operation in January 1951, the Employer
had recognized the Intervenor as representative of the employees at
.the heavy-duty equipment depot, and Teamsters as the representative
of the employees at the light-duty equipment depot .5 Although there
IN. L. if. B. v. Denver Bldg. Trades Council, 341 U. S 675.
2 The Borden Company, 91 NLRB 628; Westport Moving and Storage Company , 91 NLRB
902
Local 181 , International Union of Operating Engineers , AFL, was permitted to inter-
vene at the hearing.
There was evidence that the Employer and Local 236 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, had entered into
oral agreements covering the proposed unit. However, at the hearing , the Teamsters dis-
claimed any interest in the unit , and these agreements were not urged as a bar to this
proceeding.
5 However , 3 days before the hearing , the Employer , with the consent of the Teamsters,
recognized the Intervenor as representative of both groups.
GLADDING, MCBEAN & Co. 823
had been , until the day of the hearing, no interchange of employees
between the two maintenance and repair depots, on that date the Diesel
truck mechanics were permanently transferred from the light-duty
equipment depot along with the Diesel trucks to the heavy-duty equip-
ment depots Separate payrolls are kept for each group of employees.
Although supervision for the two depots culminates in one equipment
repair supervisor, each depot has its own separate supervisor and
foremen, with authority to hire, discharge, and discipline other
employees.
In view of the foregoing, we find that either a two-depot unit or the
single-depot unit sought by the Petitioner may be appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act. However, we shall make no final unit determination at
this time, but shall first ascertain the desires of the employees as
expressed in the election hereinafter directed. If a majority vote for
the Petitioner, they will be taken to have indicated their desire to con-
stitute a separate appropriate unit. If they select the Intervenor as
their bargaining agent, they will be taken to have indicated their
desire to be added to the existing unit of heavy-duty equipment em-
ployees currently represented by the Intervenor.
We will, therefore, direct an election in the following voting group :
All automobile and truck maintenance and repair employees at the
automobile and truck maintenance and repair facilities of the Em-
ployer's Paducah, Keutucky, operation, including mechanics, tire
repairmen, grease and wash rack operators, gas station attendants,
bodymen, front-end men, and radiator repairmen, but excluding all
office and clerical employees, guards, and supervisors.'
[Text of Direction of Election omitted from publication in this
volume.]
6 The Employer stated at the hearing that this action was taken because of the desira-
bility of placing the Diesel trucks in the same depot with other Diesel equipment.
7 At the hearing, a question was raised as to the supervisory status of the automobile-
and-truck maintenance -and-repair foremen . However , as these foremen may effectively
recommend the discharge or transfer of an employee , may discharge in certain cases, and
may discipline and reprimand , they are clearly supervisors within the meaning of the Act
and are, thus , excluded.
CLADDING, MCBEAN & Co.' and UNITED STEELWORKERS OF AMERICA,
CIO, PETITIONER. Case No. 20-RC-1335. October 15, 1951.
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before David Karasick, hearing
I The name of the Employer appears as amended at the hearing.
96 NLRB No. 126.