Shepherd Machinery Co.

4 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williard W. Shepherd and Norma D. Shepherd, d/b/a Shepherd Machinery Company, Petitioner and International Union of Operating Engineers, Local Union No. 12, AFL-CIO, and Team- sters' Automotive Workers Local Union No. 495, AFL-CIO. Gtase No. 01-RM-380. March 8,1956 DECISION AND DIRECTION OF ELECTION Upooi a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Paul J. Driscoll, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 2 1. The Employer is engaged in commerce within the meaning of the Act.' 2. The labor organizations involved claim to represent certain employees of the Employer.' 3. The Employer is engaged in the sale and servicing of heavy duty construction equipment. It seeks a determination of the bargaining representative of employees at its establishment in Los Angeles, Cali- fornia. The issue is whether the Unions have demanded recognition as bargaining representative, and, if so, whether they have effectively disclaimed such interest. The Engineers informed the Employer, in January 1955, that it was interested in negotiating a contract covering certain employees of the Employer. Thereafter, during March and April 1955, the Engineers made several attempts to discuss contract terms with the Employer, culminating in the Employer's suggestion that a Board election be held to determine the Engineers' majority status. The Engineers, however, stated that it did not desire to go to ,ari election, whereupon the Employer filed a petition with the Board on April 8,1955 e Three days later the Engineers filed a disclaimer with the, Board and, on April 15, 1955, the Regional Director dismissed the petition. Early in May, the Unions called a meeting of all "Non-Supervisory Employees of Equipment Dealers and Parts Houses" for the purpose We hereby take judicial notice of our decisions in Casey-Metcalf Machinery Co, et at, 114 NL1tB 1520, and Crook Company and Shepherd Machinery Company, 115 NLRB 23, and incorporate the records at those cases with the present record so fur is is pertinent to this Decision and Direction of Election - do motions wer e made to amend the names of the Einploy-ei and the Unions at the hearing hoeeeve, Ae haie amended them so as to reflect the correct designations of the pa rties An official of the Eurploo ei testified at the healing that, dnung the preceding calendar Neai, the Employer's direct out-ot-State puichases exceeded $500.000 and that its direct out-of-State sales were in excess o1. $50,000 Accoidnigly, we find that it will effectuate the purposes of the Act to asseit juiisdiction in this case Jon.esboio Grain Drying Coop- erative„ 110 NLRB 481 , Crool Company, supra <Although duly served edh notice, the Unions did not appeal at the hearing - r. Case No. 21-RM-347 (riot repoited in punted solumes of Board Decisions and Orders) 115 NLRB No. 107. SHEPHERD MACHINERY COMPANY 737- of ascertaining from the employees what they desired in union agi'ee- nteilts with their employers. Following this meeting, the Unions, on May 11; 1955, sent identical letters to eight employers engaged in the, sale and servicing of heavy duty construction equipment in the Los Angeles area, including the Employer in this proceeding,' requesting that representatives of each employer meet with the Unions on May 16, 1955 ". . . for the purpose of entering into negotiations with the Unions involved, to conclude a workable Agreement. ..." The Employer and the seven other employers sifnultaneously filed representation petitions' on May 16, 1955.' The Unions, however, im- mediately filed disclaimers with the Board relating to all eight peti- tions. In the face of these disclaimers, the Employer, on May 20,. 1955, requested permission to withdraw its petition, and this request was approved by the Regional Director on June 15, 1955. Shortly after the Employer's request to withdraw its petition, the Unions, oil about May 23, 1955, began to' picket the Employer. The Teamsters withdrew its pickets around October 10, 1955, but the Em- ployer was still being picketed by the Engineers at the time of the' hearing. The instant petition was filed on December 5, 1955; and on Deceiiiber 7'.1955; the Engineers; but not the Teamsters; filed another disclairiier of iiterest with the Board. With respect to the Engineers; that union; as shown above, filed dis- claimers on three occasions as soon as petitions were filed by the Em- ployer. After the first disclaimer, however, the Engineers made an express demand for a Contract,' and after the second disclaimer; en- gaged in picketing which was still being conducted at the date of the heating herein. In a 'recent unfair labor practice case involving the Eilgifieers and the Employer, the Board found that such picketing had; as an object, the forcing of the Employer to recognize the Engi- neers as bargaining representative of its employees e Accordingly; we find that the third disclaimer of interest, enteted by the Engineers 2 days after the p're'sent petition was filed, cannot be given credence. Such disclaimer stands on ho better footing than the Engineers' prior disclaimers, which the Board has; in effect, twice 0 These letters were signed by the Engineers and the Teamsters, jointly The other com- panies which received thetri are Casey-\ietcalf i\lachihery Conipany, Crook Company, Elec- tric Tool & Supply Company, George Al Philpott Company, Inc, Shaw Sales & Service Company, Smith-Booth-Usher Company, and Brown-Bevis-Industrial Equipiineni Company. The petition filed liy the I:nipldyei was Case No 21-RDi-350 The petitions filed by the employeis listed-iii footnote ,G, above, weie, Cases Nos 21-RM-351 to, 27-R11-357, inclusive (114 NLRB 1520) 9 The Board held this demand to be tantamount to a demand for iecognition in Casey- Ifetcalf, svlid Although the Uinons contended they nevei formally claimed to represent a majority of employees, the Board found that the Unions' May 11. 1955, letter requesting a meeting to " . conclude a workable Agreement . " was equivalent to a demand for iecognition , which, -hen denied by the eniplo56s; was sufficient to raise a question con- coining representation U Crook Company, 115 NLRB 23, wherein the Board also found that the first two dis- clanners filed by the Engineers were invalid in view of that union's inconsistent actions. 390609--56-vol. 115-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD held to be invalid because of the Engineers' inconsistent conduct.1° We further find, therefore, that the Engineers had presented the Employ- er with a claim to be recognized as bargaining representative for cer- tain of its employees, and that such claim has not been effectively withdrawn. As to the Teamsters, that union, as noted above, joined in the En- gineers' contract demand on May 11, 1955. Although subsequently disclaiming in the face of a petition by the Employer, the Teamsters joined with the Engineers in commencing to picket the Employer about a week after its disclaimer. As already stated, the Board found, in the Crook Company case, supra, that such picketing on the part of the Engineers was for the purpose of obtaining recognition. While the Teamsters was not a party to that case, there is no reason to be- lieve that its participation in such picketing was for any other pur- pose. We find, therefore, that such picketing was tantamount to a demand for recognition." Although the Teamsters discontinued its picketing activities last October, it did not appear at the hearing in this proceeding, although duly served with notice thereof. Nor has it in any other manner denied the allegation contained in the Em- ployer's petition that it is currently claiming to represent employees of the Employer. Accordingly, we find that the Teamsters has also made a claim for recognition as the bargaining representative for certain employees of the Employer, and that this claim has not been effectively withdrawn. We find, therefore, that a question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer amended the description of its requested unit at the hearing to conform with the units found appropriate by the Board in the Casey-Metcalf case. For the reasons given in that case, we find that the following employees of the Employer at its establish- ment located at 3400 South San Gabriel River Parkway, East Los An- geles, California, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act: All employees, including mechanics, welders, helpers, machine tool operators, painters, steam cleaners, janitors, outside servicemen, ship- ping and receiving clerks, partsmen, warehouse employees, equip- ment craters and truckdrivers, but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] w Crook Company, supra; Casey-Metcalf Machinery Co., supra. u Witmer Grocer Company, 111 NLRB 996 ; Swee-T-Shirts, Inc., 111 NLRB 377.