F. H. McGraw and Co.

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.