Maclobe Lumber Co. of Glen Cove, et al.

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under all the circumstances, the request for a hearing in this case is hereby denied. We shall accept the Regional Director's recom- mendation that the election herein be set aside, and shall direct a new election. [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] Maclobe Lumber Company of Glen Cove , et al., Petitioner and Local 1205, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Cases Nos. 2-RM-883 and 2-RM-885. April 7, 1958 DECISION AND ORDER Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before L. I. Broadwin, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in these cases, the Board finds : 1. Maclobe Lumber Company of Glen Cove, New York, and Mac- lobe Lumber Co., Inc., and Maclobe Millwork Corporation, both of Valley Stream, New York, contend that they constitute a single Employer within the meaning of the Act. The Union contends that the Employer is not engaged in commerce within the meaning of the Act. Maclobe Lumber Company of Glen Cove is a partnership con- sisting of two brothers, Harry and Jack Deutsch, and is engaged in the wholesale lumber business. Maclobe Lumber Co., Inc., and Maclobe Millwork Corporation are corporations located in the same building in Valley Stream, New York; the former is engaged in the wholesale lumber business and the latter is engaged in wholesale mill- work. Each of the 2 brothers owns a half interest in the partner- ship and each also owns 50 percent of the stock of the 2 corporations, 1 The hearing officer refused to permit the Union to introduce certain evidence and re- jected the Union's offer of proof therein . The offer related to contracts with other labor organizations , one of which was currently in effect and one of which recently expired, the former affecting yardmen at one of the companies and the latter affecting drivers. We find that the hearing officer erred and should have permitted the Union to introduce this evidence . However, in the view that we take of this case , we find that this error was not prejudicial. 120 NLRB No. 52. 0 MACLOBE LUMBER COMPANY OF GLEN COVE, ET AL. 321 and they are the sole officers of the latter. Jack Deutsch is mainly responsible for the operations at Glen Cove while Harry Deutsch is in charge of the two companies at Valley Stream. Purchases for the three companies are jointly made. Each of the 3 companies sells inventory to the other 2, and equipment and employees occasionally are interchanged among all 3. Any funds that are borrowed are jointly guaranteed by all three companies. The employees at the three companies receive the same wages, vacations, and other benefits. In view of the foregoing, and upon the record as a whole, we find that Maclobe Lumber Company of Glen Cove, New York, and Maclobe Lumber Co., Inc., and Maclobe Millwork Corporation of Valley Stream, New York, are a single Employer within the meaning of the Act? During the 12 months preceding the hearing, the Employer purchased $600,000 worth of materials directly from out of State and made sales totaling $59,550 to customers outside the State. We• accordingly find that the Employer is engaged in commerce and that it will effectuate the purposes of the Act to assert jurisdiction herein.-' 2. The Union is a labor organization within the meaning of the Act. 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) for the following reasons: The Employer asserts that the only appropriate unit here consists of all yardmen and chauffeurs at the three companies mentioned above.' The Union contends that it has never claimed to represent a majority of the employees in the above unit. The Union further contends that it. has represented, and only claims to represent, the yardmen of the Maclobe Lumber Co., Inc., of Valley Stream, and the drivers and chauffeurs of Maclobe Lumber Company of Glen Cove. The record shows that the Union and Maclobe Lumber Co., Inc., of Valley Stream, have entered into two successive contracts which ran from April 1, 1954, until June 30, 1957, covering the "yardmen" and not the drivers employed by that company .5 The Union has also en- tered into a contract with Maclobe Lumber Company of Glen Cove, which ran from April 19, 1956, until June 30, 1957, and covered the drivers and chauffeurs of that company,' and apparently not the yard- 8 Maloney-Chambers Lumber Co , et at, 104 NLRB 503 8 Jonesboro Gratin Drying Cooperative, 110 NLRB 481. 4 The Employer amended its petitions at the hearing to cover the single, overall unit described above. 6 The parties agree that "yardmen" includes the employees enuemrated in the contracts as "all employees engaged in the handling , manipulation, cutting, inspection , tallying, checking and processing of lumber and lumber products whether by hand or mechanical devices and men engaged in the maintenance of the establishments of the [company]." 9 The coverage provision of the Glen Cove contract is the same as that in the Valley Stream contract in the footnote above. However, the Employer did not contradict the assertion of the Union that, in practice, only the drivers and chauffeurs were covered by the Glen Cove contract. 483142-59-vol. 120-22 0 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men. Harry Deutsch testified that at its Valley Stream operations, the Union has represented only the yardmen of the Maclobe Lumber Co., Inc., and he did not deny that the Union has represented only the drivers and chauffeurs at the Maclobe Lumber Company of Glen Cove. After the expiration of the Maclobe Lumber Co., Inc., contract on June 30, 1957, the Employer refused to enter into a new agreement with the Union covering the yardmen on the ground that it believed that the Union no longer represented a majority of these employees. Subsequently, the Union began picketing Maclobe Lumber Co., Inc., on November 6, 1957, and continued to do so until the time of the hear- ing held on December 13, 1957, in order to induce the Employer to execute a new contract with it covering the yardmen.? In view of the foregoing, and upon the record as a whole, we find that no question concerning representation exists in the unit which the Employer alleges to be appropriate. It is clear that the Union has never sought to represent any employees of Maclobe Millwork Cor- poration but only certain of the employees at the other two com- panies. Further, at the hearing, the Union expressly disclaimed any desire to represent the overall unit claimed to be appropriate by the Employer. Nor is its conduct in picketing for a new contract covering the yardmen of Maclobe Lumber Co., Inc., inconsistent with such dis- claimer. While the two aforementioned contract units may be deemed appropriate,8 no party desires an election in either of such unit. Ac- cordingly, we shall dismiss the petition herein e - [The Board dismissed the petitions.] 7 The record does not reflect the status of any negotiations for renewal of the 1956-57 contract covering the drivers and chauffeurs at Glen Cove. 8 Housatonic Pubhc, Service Company, 111 NLRB 877. 9 Ibid Convair, a division of General Dynamics Corporation (Fort Worth ) 1 and Aeronautical Industrial District Lodge 776, International Association of Machinists,2 Petitioner. Case No. 16-1?-1724. April 7, 1958 SUPPLEMENTAL DECISION AND ORDER Pursuant to a Decision and Direction of Elections issued on Sep- tember 20, 1946,3 elections were directed in various units. On Decem- 1 The name of the Employer, which was designated as Consolidated Vultee Aircraft Corporation (Fort Worth Division ) when this proceeding arose in 1946 , appears as amended at the hearing. 8 The name of the Petitioner , which was designated as International Association of Machinists , Local No. 776, in the original proceeding, appears as designated in documents filed by the Petitioner in the current proceeding 8 70 NLRB 1357. 120 NLRB No. 51.