Rheinstein Construction Co., Inc.

In the Matter of RHEINSTEIN CONSTRUCTION COMPANY, INC., EM- PLOYER and LOCAL 56, INTERNATIONAL BROTHERHOOD OF FIREMEN, OILERS AND MAINTENANCE MECHANICS, AFL, PETITIONER Case No. 2-RC-1064.-Decided January 11, 1950 DECISION AND ORDER Upon a petition duly filed, hearings in the above-entitled proceed- ing were held on September 20, September 29, and November 25, 1949, before I. L. Broadwin, hearing officer. The hearing officer's rulings made at the hearings 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 [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds : 1. This proceeding involves employees of the Employer who work in the buildings occupied by Abraham & Straus, Incorporated, a large department store in Brooklyn, New York. In 1945, the Employer entered into a contract with Abraham & Straus, Incorporated, where- under the former agreed to perform all maintenance services in the buildings occupied by Abraham & Straus, Incorporated. Mainte- nance of the said buildings involves a gross annual expenditure of approximately $250,000. Abraham & Straus, Incorporated, is a sub- sidiary of Federated Stores, Inc., which operates department stores in six States. During the past year the purchases of supplies and commodities by Abraham & Straus, Incorporated, exceeded $1,000,000, of which approximately 25 percent was shipped from points outside the State of New York. During the same period, the store's sales of merchandise exceeded $1,000,000, of which approximately 5 percent was shipped to points outside the State of New York. The parties stipulated, and we agree, that Abraham & Straus, Incorporated, is engaged in commerce within the meaning of the Act. 88 NLRB No. 16. 46 RHEINSTEIN CONSTRUCTION COMPANY, INC. 47 The record shows that the functions of the Employer are essential to the operations of Abraham & Straus, Incorporated. Under these circumstances, we find, contrary to the contention of the Employer and the Intervenor, that the Employer with respect to its building maintenance operations is engaged in commerce within the meaning of the Act,' and further that, because of the relationship of these operations of the Employer to those of Abraham & Straus, Incor- it would effectuate the policies of the Act for the Board to exercise jurisdiction. 2. The Petitioner and the Intervenor, New York Building and Construction Trades Council's Maintenance Division, AFL, are labor organizations claiming to represent certain employees of the Em- ployer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons:' The Petitioner wishes to sever a group of four firemen from the unit of all maintenance employees currently represented by the In- tervenor. The Intervenor and Employer oppose the proposed unit, contending that the smallest appropriate unit would be one composed of both the firemen and the engineers. The record discloses that there are four firemen and six engineers employed in the Abraham & Straus stores by the Employer. The engineers are responsible for the proper operation of the high pressure boilers in the buildings. New York City ordinances require that a licensed engineer be on duty at all times when the high pressure boilers are in. operation. The engineers also do certain repair work throughout the buildings. The firemen, who do not have engineers' licenses, work principally in the boiler room and work in close contact with the engineers. Occasion- ally, the firemen assist the engineers in effecting general repairs in the buildings. Although the Employer does not have any apprentice- ship program, the firemen in effect are being trained to become licensed engineers. New York City ordinances require these employees to work for a period of 5 years under the direction of licensed engineers in order to qualify for an engineer's license. I Lee E. Stine, d/b/a Fairchild Cafeteria, et ano ., 87 NLRB 667 ; Butler Brothers v. N. L. R. B., 134 P. 2d 981 (C. A. 7, 1943), cert. den. 320 U. S. 789. 2 The Employer and the Intervenor contend that their current 4-year bargaining agree- ment, dated September 4, 1946 , is a bar to this proceeding . Apart from other considera- tions. the contract has already been in force for more than 2 years and there is no indication that 4-year contracts are customary among companies engaged in building maintenance work in the New York area . In accordance with our established custom, we find that the 1946 contract is for an unreasonable term and does not constitute a bar to this proceeding. Paraffins Companies, Inc., 85 NLRB 325; General Aniline & Film Cor- poration, Ansco Division , 79 NLRB 79; Puritan Ice Company, 74 NLRB 1311. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It further appears from the record that the firemen and engineers enjoy the same employee benefits, report to work in the same area, and work under the supervision of the same foreman. There is no inter- change of duties and functions between the firemen and the engineers and the other maintenance employees. Consequently, we do not find that the duties and interests of the firemen are sufficiently distinct and separate from those of the engineers to justify establishing a separate unit for the firemen apart from the engineers, as requested by the Petitioner .3 Although we believe that the firemen and the engineers together constitute a distinct and homogeneous group of the type which we have in the past held may constitute a separate appropriate bargaining unit, notwithstanding a history of collective bargaining on a more comprehensive basis,' the Petitioner does not seek to represent such grouping of employees, We therefore find that the proposed unit is inappropriate. We shall therefore dismiss the petition. ORDER IT IS ORDERED that the petition filed by Local 56, International Brotherhood of Firemen, Oilers and Maintenance Mechanics, AFL,, in the above entitled proceeding be, and it hereby is, dismissed. "Washburn Wire Company, Inc., 79 NLRB 1479. 4 Buffalo Weaving and Belting Company, 85 NLRB 1178; Baugh and Sons Company, 82 NLRB 1399; Bloomingdale Brothers, Inc., 81 NLRB 1252 ; Collins Manufacturing Company, 81 NLRB 267 ; Swift and Company, 81 NLRB 333 ; Wilson cE Co., Inc., 80 NLRB 1463 ; United States Gypsum Company, 80 NLRB 779.