Local 450

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and better served if all eligible employees covered by this Agree- ment are willing to become members of the Union. The contract also contains the following language : Employees not in good standing with Union lose all rights and privileges under this Contract. On its face this agreement provides for exclusive recognition of the Intervenor as the representative of all employees in the unit. How- ever, the last-quoted clause either belies the exclusive recognition clause by providing, in effect, that the Intervenor will represent only its members, or seeks, notwithstanding the noncompliance of the Union, to simulate union-shop conditions by withholding from nonmembers all benefits under the contract. Accordingly, whether the contract be viewed as a "members-only" contract 1 or as containing an illegal union- security provision,2 it does not, in either event, constitute a bar to a present election among all production and maintenance employees.' 4. We find, in agreement with the stipulation of the parties, that the following employees of the Employer constitute a unit appro- priate for purposes of^ collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees of the Employer's metal fabricating division plant, 15843 Second Boulevard, Detroit 3, Michi- gan, excluding janitors, office clerical employees, shop clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER took no part in the consideration of the .above Decision and Direction of Election. 1 Associated Shoe Industries of Southeastern Mass., Inc., 81 NLRB 224, 226 footnote 6 ; accord : Hughes Tool Company, 104 NLRB 318. 2 See Ward Baking Company, 101 NLRB 419. ' In view of our determination herein, we find it unnecessary to decide whether the con- tract was properly executed of extended. Local 450, International Union of Operating Engineers ,'AFL and W. J. Hedrick and H. W. Marschall, Jr., d/b/a Industrial Painters and Sand Blasters. Case No. 39-CD-14. August 12, 1955 ORDER GRANTING MOTION AND REMANDING FOR FURTHER HEARING On April 25, 1955, the Board issued a Decision and Determination of Dispute in the instant case, finding that the Respondent was not 113 NLRB No. 66. LOCAL 450 619 lawfully entitled to require the Employer, by means proscribed by Section 8 (b) (4) (D), to assign work on the Employer's air compres- sors to the Respondent's members rather than to the Employer's own employees who were not members of that labor organization.' On May 5, 1955, the Respondent filed a motion to reconsider, con- tending, among other things, that the Board's determination exceeds the more limited issue posed in the notice of hearing, as issued by the Regional Director, and embraced within the scope of the hearing, as conducted by the hearing officer. The Board, having duly considered the motion and having reex- amined the entire record in this case, in the light of the motion, finds that the Regional Director's notice of hearing, by restricting the scope of the hearing to a consideration of the alleged "overtime" demand, and the hearing officer's rulings made at the hearing in pursuance of that notice, necessarily foreclosed full litigation of the matters charged by the Employer. To that extent, therefore, the notice and the rulings, in the Board's opinion, precluded consideration by the Board of mat- ters alleged in the charge and essential to a determination of the dis- pute. Accordingly, we find merit in the Respondent's motion insofar as it seeks a remand of the case for the purpose of taking evidence on the "work assignment" issue. We shall therefore remand the case to the Regional Director for a further hearing on all matters relevant to the dispute as embraced by the charge? ORDER IT IS HEREBY ORDERED that the instant case be, and the same hereby is, remanded to the Regional Director for the Sixteenth Region for further hearing for the purpose of receiving additional evidence rela- tive to all matters alleged in the charge heretofore filed herein and to the dispute which constitutes the basis of the charge. IT IS FURTHER ORDERED that the Regional Director shall, in accord- ance with the provisions of Section 102.71 of the Board's Rules and Regulations, Series 6, as amended, prepare and cause to be served on the parties an amended notice of hearing setting the case down for further hearing for the purpose of receiving evidence with respect to the matters alleged in the charge heretofore filed herein, i. e., alleged attempts by Local 450, International Union of Operating Engineers, AFL, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require the Employer to assign work on the Employer's air compressors to the Respondent's members rather than to the Em- 1112 NLRB 437. 2In view of our disposition herein , the Respondent's motion for oral argument is hereby denied. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer's own employees who were not members of that labor organi- zation. MEMBERS RODGERS and LEEDOM took no part in the consideration of the above Order Granting Motion and Remanding for Further Hearing. National Electronic Manufacturing Corporation and Mylsher Realty Corporation and International Union of Electrical Radio and Machine Workers, CIO and Amalgamated Workers Union, Local 130, AFL. Case No. 1-CA-1667. August 15, 1955 DECISION AND ORDER On October 27, 1954, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the exceptions, modifications, and additions noted below. 1. We find in,agreement with the Trial Examiner and our • col- leagues that the Respondents, National and Mylsher, should be con- sidered as constituting a single employer, particularly in light of the fact that: (a) The ownership and control of both Companies is sub- stantially identical; (b) when, National decided to leave New York and relocate in Manchester, New Hampshire, Mylsher acquired the premises into which it moved with National; (c) the nature of the op- erations of National and Mylsher are related-Mylsher functions much like a department of National; (d) more than half of the Myl- sher employees, upon termination of their services with that Com- pany, received employment with National; and (e) the same individ- ual is operating head and, in charge of the labor relations policies of both Companies.2 ' The Respondents' request for oral argument is hereby denied as the record and the exceptions and brief, in our opinion , adequately present the issues and the positions of the parties. 2 Sanitary Mattress Company, Rest Line of California, Inc., 109 NLRB 1010 ; Oregon Frozen Foods Co. and Ore-Ida Potato Products, Inc., 108 NLRB 1668; F. Hilgemeter eE Bro., Inc., 108 NLRB 352 ; Rushville Metal Products, Inc., 107 NLRB 1146. 113 NLRB No. 73.