Brown-Ely Co.

In the Matter of BROWN-ELY CO., EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 95, LODGE No. 238, PETITIONER Case No.20-RC-565.-Decided November 14,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Eugene K. Kennedy, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Reynolds, Murdock, and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer, a California corporation, with its principal office in El Cerrito, California, is a contractor engaged in the con- struction and paving of roads and performs such work for the United States Government, the State of California, and other political sub- divisions of the State, as well as for individual parties. All the Employer's operations are conducted within the State of California. During the year 1948, the Employer performed work on paving con- tracts in the approximate value of $225,000 and about 50 percent of this work was done for governmental agencies. During the same period, the Employer purchased raw materials consisting of road rock, paving asphalts, and oils in the approximate amount of $75,000. These materials were manufactured or processed within the State of California. The Employer also purchased equipment consisting of trucks and construction machinery having an approximate value of $60,000. This equipment was manufactured outside the State of California, although the record does not indicate that any of it was purchased by the Employer outside the State. We find, contrary to the Employer's contention, that the Em- ployer's operations affect , commerce within the meaning of the Na- tional Labor Relations Act; and moreover, as the Employer is ac- . 87 NLRB No. 5. 27 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tually engaged in constructing and repairing U. S. highways which are arteries essential to the flow of commerce among the States, we find that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding.' 2. The Petitioner and Operating Engineers, Local Union No. 3 of the International Union of Operating Engineers, AFL, herein- after called the Intervenor, are labor organizations claiming to rep- resent employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.2 4. The Petitioner seeks to represent a unit composed of two mechan- ics in the Employer's repair shop for which it has bargained over a period of about 21/2 years. The Intervenor contends that these two individuals more properly belong in the unit of operating engineers which it currently represents. J n its brief, the Intervenor urges the fact that its present contract with the Employer covers, inter alia, maintenance and repair shops as evidence of the inappropriateness of the separate unit sought by the Petitioner. As stated above, the Employer is a contractor engaged principally in the construction and maintenance of roads in the State of Cali- fornia. Its contract projects are often carried on at considerable dis- tances from El Cerrito, California, where it maintains its principal office and a general repair yard located at Corte Madera, California. The Employer's yard occupies approximately an acre and, in an area of about 30 feet by 80 feet, it has a building which contains a repair shop and is also used for the storage of equipment, principally, trucks. The Employer's field operations are seasonal in character, most of them being discontinued in the winter months. During this period, the Employer's only operations consist of the overhaul and repair of its equipment. The Employer has approximately 55 employees all of whom, with the exception of the 2 shop mechanics and a grease mechanic 3 are engaged primarily in construction work. The shop mechanics who are in effect automotive mechanics although not so designated by the 1 Strong Company, 86 NLRB 687. While Board Members Reynolds and Gray would not assert jurisdiction here and would dismiss the petition for the reasons set forth in their dissenting opinions in the Strong case, they consider themselves bound by the majority holding in that case and therefore join in this Decision. ' The Intervenor introduced in evidence its contract for the purpose of supporting its position that it had sufficient interest to be a party to the proceeding . Upon the basis of its alleged claim of contractual interest , the hearing officer properly permitted inter- vention. However, the Intervenor does not assert that its contract is a bar to a present determination of representatives. The grease mechanic as distinguished from the shop mechanics merely performs routine lubrication work and is presently represented by the Teamsters. BROWN-ELY CO. 29 Employer, spend about 80 percent of their time in the shop overhaul- ing and repairing trucks. Normally there is no interchange of func- tions or personnel between the mechanics and the other employees?' These mechanics are directly supervised by the superintendent in charge of the construction work and of the yard. The other employees. who work in the field are under the supervision of job site foremen who, in turn, are responsible to the superintendent. Between January 20, 1947, and June 30, 1949, the Petitioner rep- resented the two mechanics as a single unit. The Intervenor's current contract with the Employer which was executed July 15, 1949, ap- parently includes the mechanics with the operating engineers. In view of the separate bargaining history for the mechanics from Janu- ary 1947 to June 1949, we are of the opinion that the bargaining hi,.- tory of the Employer since July 1949, is not determinative of the present issue s The record reveals that the shop mechanics are skilled repairmen who perform work which is distinct from that of the other employees and that they are under separate immediate supervision. The Board has held that, in proper cases, such employees may constitute a unit appropriate for purposes of collective bargaining.e Accordingly, without deciding whether these mechanics constitute a true craft group, we find upon the present record that the two shop mechanics in the Employer's repair shop constitute a homogeneous group of skilled employees who may, if they so desire, constitute a separate unit. In view of the past bargaining history, we shall make no final unit determination at this time, but shall first ascertain the desires of these employees. We shall direct an election in the following voting group : All shop mechanics at the Employer's Corte Madera, California, repair shop, excluding all other employees and supervisors as defined in the Act. If the employees in the voting group select the Petitioner, they will be taken to have indicated a desire to constitute a separate bargaining unit. 4 The only exception to this rule is that when a piece of heavy duty equipment such as a. roller, shovel, tractor , blade or cat breaks down in the field , the shop mechanics help the operating engineers fix it at the job site or assist them in making the necessary repairs when the equipment is brought to the repair yard. The mechanics spend about 20 percent of their time doing this type of work. Texas Motor Transport Company, 77 NLRB 87. e Columbia Pictures, et al., 80 NLRB 1381; Wisconsin Public Service Corporation, 64 NLRB 15, 22. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION 7 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election.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 supervision 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, among the employees in the unit 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 rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by International Association of Machinists, District No. 95, Lodge No. 238, or by Operating Engineers, Local Union No. 3 of the Interna- tional Union of Operating Engineers, AFL, or by neither. 4 Any participant in the election herein may , upon its prompt request to , and approval thereof by, the Regional Director , have its name removed from the ballot.