Commercial Equipment Co., Inc.

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate 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 these 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 constitute a separate appropriate unit. [Text of Direction of Election omitted from publication in tlu volume.] COMMERCIAL EQUIPMENT COMPANY, INC., AND MONTY L.,kRs AND RUDY LARSEN, CO-PARTNERS D/B/A INDUSTRIAL TRUCK AND T RAILER SERVICE COMPANY, PETITIONER and LODGE 1525, DISTRICT 114, IN- TERNATIONAL ASSOCIATION OF MACHINISTS. Case No. 20-RM-69. July 20, 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 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 toa three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds: 1. Commercial Equipment Company, Inc., herein called the Corpo- ration, is a Utah corporation with its principal office and place of business in Salt Lake City, Utah. The Corporation is engaged in manufacturing, modifying, and repairing trucks and trailers, and selling parts and equipment for trucks and trailers. During 1950, the Corporation purchased materials, consisting of new trucks, trailers, truck parts, metal, and hardware, valued in excess of $500,000, of which 92 percent represented shipments from points outside the State of Utah. During the same period, the Corporation sold finished products and provided services valued in excess of $500,000, of which over $200,000 represented shipments to, and services performed for, Inland Freight Lines, an interstate carrier, and approximately $100,- 000 represented shipments to, and services performed for, other customers located outside the State. 'At the hearing and in its brief, the Union moved to dismiss the instant petition on various grounds relating in substance to the existence of the question concerning representation and the appropriateness of the unit Ruling on this motion was referred to the Board For the reasons stated in paragraphs numbered 3 and 4, infra, the motion is hereby denied 95 NLRB No 51. COMMERCIAL EQUIPMENT COMPANY, INC. 355 Monty Larsen and Rudy Larsen, co-partners d/b/a Industrial Truck and 'f'railer Service Company, herein called the Partnership,2 has its principal office and place of business also in Salt Lake City, Utah. The Partnership is engaged in making repairs to trucks, and in manu- facturing and servicing refrigeration equipment used in industrial trucks and trailers. During 1950, the Partnership purchased ma- terial, parts, and equipment valued in excess of $10,000, all of which represented shipments from points located outside the State. During the same period, its sale of services, materials, and finished' products were valued in excess of $30,000, of which $1,200 represented ship- ments to customers located outside the State. The Corporation and the Partnership occupy the same building at the same address in Salt Lake City. The two members of the Partner- ship.serve as vice president and treasurer, respectively, of the Corpora- tion. Although separate books and records are maintained for each concern, the same public accountant keeps the books, and the same office. girl, whose salary is paid solely by the Corporation, handles the office and clerical work for both the Corporation and Partner- ship. The Partnership pays no rent for its space in the Corporation's machine shop and when the Partnership needs parts or equipment, it generally requests the parts man of the Corporation to make the pur- chases 3 The Corporation performs all the sales work for the Partnership. Wages, hours, and working conditions for employees of the Corpo- ration and those of the Partnership are the same and are established by L. R. Larsen, vice president of the Corporation and one of the partners, together with one of the directors of the Corporation, Ultimate authority to hire and discharge employees of both concerns is vested in L. R. Larsen. Employees and supervisors of the Corpo- ration and Partnership are frequently inte'rchanged' In. such in- stances, no charge is made against the borrowing concern.5 The bor- rowed personnel remain on their original payrolls and their vacations continue to accrue. Under all these circumstances, we are of the opinion and find that the Corporation and Partnership constitute a single Employer within the meaning of Section 2 (2) of the Act.' We also find; in view of the totality of its operations, that the Employer is engaged in commerce 3 The name of the Partnership appears in the caption as amended at the hearing. 3 Any purchases of supplies by the Partnership from the Corporation are handled by bookkeeping entries. The time for which men are borrowed varies from 2 hours to 2 days. The foremen of the Corporation and of the Partnership attempt to balance out the borrowing of personnel. Cf. Florida Jafra Steel Co., et al., 94 NLRB 386; L. W. Hayes, Inc., and Hayes Transit ltix, 91 NLRB 1408. 951974-52-vol. 95-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of the Act, and that it would effectuate the pur- poses of the Act to assert jurisdiction in this case? 2. The labor organization involved claims to represent certain employees of the Employer. 3. For several years, the Corporation recognized the Union as. the collective bargaining representative of its shop employees s involved herein, The most recent contract between these parties was executed on January 22, 1950, to be effective from March 1, 1950, to March 1, 1951, and'containing a 60-day automatic renewal clause. On Decem- ber 12, 1950, the Corporation timely notified the Union that it was terminating their agreement as of March 1, 1951 . Although the Union, on December 29, 1950, requested a meeting to negotiate modifi- cations of the existing contract , the Corporation refused to recognize the Union on the ground that it doubted the latter 's majority status.9 On January 8, 1951, the Corporation filed its original petition in this case. On February 28, 1951, the Union also requested recognition as bargaining agent for the employees of the Partnership . The Part- nership refused to grant such recognition unless the Union was cer- tified by the Board. On March 12, 1951, the petition herein was amended to include the name of the Partnership. The Union contends that, with respect to the Corporation , there is no question concerning representation because ( 1) the only request for recognition was by the previously recognized bargaining repre- sentative and the filing of the petition , under these conditions, was not in good faith ; (2) the Corporation failed to comply with the requirements of Section 8 (d) of the Act; and (3) the Union has maintained its majority status. We find no merit in these contentions. As to ( 1), the Board has previously held in like cases that an em- ployer's refusal to recognize a claim for continued recognition by a bargaining agent is sufficient , in itself, to raise a question concerning representation 10 As to (2), although Section 8 (d) defines certain, aspects of the obligation to bargain collectively , an alleged failure to fulfill such obligations does not bar a representation proceeding."' ' Stanislaus Implement and Hardware Co., Ltd., 91 NLRB 618; Hollow Tree Lumber Company, 91 NLRB 635; Florida Jafra Steel Co., supra. 8 In October 1947, the Utah Labor Relations Board certified the Union as bargaining represenative of the employees in question of "Commercial Equipment Company." There- after , in May 1949 , the Corporation and Partnership came into existence as separate entities and bargaining ensued with the Union on behalf of the employees of the Corporation alone. ' On October 4, 1950, a decertification petition had been filed by the In$ependent Transportation Workers Association with respect to the employees of the Corporation (Case No. 20-RD-46). This petition was withdrawn op October 16, 1950. 30J. C. Penney Company-Store #1518, 86 NLRB 920; Continental Southern' Cor- poration, 83 NLRB 668 ; Whitney's, 81 NLRB 75. 11 Lone Star Producing Company , 85 NLRB 1137 ; Continental Southern Corporation,, supra. COMMERCIAL EQUIPMENT COMPANY, INC. 357 And, as to (3), the desires of the employees concerning representation are best determined by a secret election' The Union further contends that there is no question concerning representation with respect to the Partnership because the Partner- ship presently has no employees and so the Union "disclaims inter- est .:. at this time." However, this is clearly not an effective dis- claimer of interest in this proceeding as the Union maintains its representation claim concerning the entire existing complement of shop employees of the Employer. '3 Accordingly, we find that a question affecting commerce exists con- .cerning the representation of the employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit: The Employer contends that a unit. of all shop employees of the Corporation and Partnership, including journeymen mechanics, ap- prentices, and helpers, but excluding office and clerical employees, sales employees, janitor, inventory clerk-tool checker, comptroller, sales engineer, industrial engineer, construction man, sales manager, construction manager, salvage manager, parts department manager, shop manager, and all other supervisors, constitute an appropriate unit. The Union asserts that, principally in view of the past bar- gaining history and the fact that the Partnership has no employees at the present time, the unit is inappropriate and should be limited to the employees of the Corporation. The Corporation employs approximately 18 shop employees. The Partnership, until shortly before the hearing, employed 2 such em- ployees and, while none was employed at the time of the hearing,'' it was attempting to locate at least one qualified mechanic. Based on the circumstances detailed in paragraph numbered 1, above, we have found that the Corporation and Partnership constitute a single Em- ployer. For similar reasons, including the integrated operations, common determination of labor policies, same physical location, and frequent interchange of personnel, we find that a unit embracing both the Corporation and Partnership is appropriate. Contrary to the Union's contentions, neither the relatively short bargaining history covering the Corporation's employees alone, which was not predicated upon a prior Board certification,15 nor the Partnership's temporary ' Tyee Plywood Company, 88 NLRB 858. 13 Cf. Grossman. Department Store, Inc., 90 NLRB No. 275. 14 The Partnership , at the time of the hearing , consisted of the two partners and one foreman. 15 See Sa-Mor Quality Brass, Inc ., 93 NLRB 1225;. J. C. Penney Company-Store #1518, supra. I 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lack of employees at the time of the hearing,l" renders the unit in- appropriate. We find, therefore, that the following employees at the Employer's. Salt Lake City, Utah,• plant, constitute a unit appropriate for the, purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All shop employees, including journeymen mechanics, apprentices, and helpers, but excluding office and clerical employees, sales em- ployees, janitor, inventory clerk-tool checker, comptroller, sales engi- neer, industrial engineer, construction man, sales manager, construc- tion manager, salvage manager, parts department manager, shop manager, and all other supervisors as defined in the Act.17 5. The determination of representatives : The Employer would include among those eligible to vote, and the Union would exclude, two part-time students employed as apprentices by the Corporation. These two employees are studying for engineer- ing degrees at the State Uniyersity at Salt Lake City. They regularly work from 10 to 18 hours each week, depending on their class schedules. They have been working on this basis for over 4 months and will con- tinue .to do so until they graduate in about 3 years. They perform the same work as other employees in the unit, receive the same wages, and share in other employee benefits. We find that, as regular, part- time employees, they are eligible to vote in the election directed herein 18 - [Text of Direction of Election omitted from publication in this volume.] 16 See C. G. Mayrose, an Individual, d/b/a C. G. Mayrose Planing Mill , 89 NLRB 959; Armour & Co., d/b/a Armour Creameries, 63 NLRB 1214. 17 The parties are in disagreement as to whether certain part -time employees should be included in the unit . However , our unit finding is based upon functionally related occupational categories , and all employees working at jobs within the unit are necessarily included and entitled to representation , irrespective of the tenure of their employment. The separate issue of the voting eligibility of such employees will be discussed in paragraph numbered 5, infra. Gerber Products Company, 93 NLRB 1668. u Evening News Publishing Company; 93 NLRB 1355 ; Leedon Webbing Company, 81 NLRB 216 . While the Union asserts , in its brief , that the part-time employees have not been covered by the past bargaining contracts, the record fails to support this contention and, in any event , such circumstance is without controlling significance. Cf. Scranton Battery Corporation . 89 NLRB 608. CONTINENTAL OIL COMPANY and LOCAL UNION No. 193, INTERNA- TIONAL CHEMICAL WORKERS UNION, A. F. L. Case No. 15-CA-291. July 23, 1951 Decision and Order On February 13, 1951, Trial Examiner Eugene F. Frey issued his Intermediate Report in this proceeding, finding that the Respondent 95 NLRB No. 53.