Cannon Air Conditioning & Heating Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cannon Air Conditioning and Heating Co., Inc. and Yor-Tex, Inc. and Local Union No. 46, Sheet Metal Workers Association, affiliated with the Sheet Metal Workers' International Associ- ation, AFL-CIO. Case 3-CA-9095 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 14, 1980, Administrative Law Judge Stephen J. Gross issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i We agree with the Administrative Law Judge that this case should not be deferred to arbitration because the issue presented involves ques- lions of accretion, representation, and appropriate unit. all of which are matters for decision by the Board rather than an arbitrator. See, e.g . Wi- liums Iransportarlon Comnpany, 233 NLRB 837, 838 (1977). DECISION STATEMENT OF THE CASE AND INTRODUCTION SF1-PHFIN J. GROSS, Administrative Law Judge: Cannon Air Conditioning and Heating Company is wholly owned and managed by Jack Cannon. (Hereafter Cannon Air Conditioning and Heating Company will be referred to as C.A.C.) C.A.C is located in Rochester, New York, and, as its name suggests, is primarily in the business of installing and servicing air-conditioning and heating systems. Yor-Tex, Inc., is affiliated with C.A.C. in that Cannon manages and partially owns Yor-Tex. Yor-Tex was no more than a corporate shell until early April 1979. At that time C.A.C. entered into a contract with the Roch- ester Products Division of General Motors under which C.A.C. undertook to repair portable metal bins used by General Motors in its manufacturing processes.' C.A.C., in turn, entered into an arrangement with Yor-Tex by which Yor-Tex would do the repair work on the bins with the work to be done at C.A.C.'s facilities. In keep- ing with that arrangement, on April 3, 1979, Yor-Tex began repair work on the bins, hiring employees and renting or buying equipment necessary for the job. C.A.C. employs sheet metal workers, and those sheet metal workers are members of a multiemployer unit rep- resented by Local 46 of the Sheet metal Workers Inter- national Association (hereafter Local 46). Shortly after Yor-Tex began its bin repair Work, an official of Local 46 told Cannon that the Work fell within the scope of the collective-bargaining agreement between local 46 and the employer association of which C.A.C. is a member. According to Local 46, therefore, Yor-Tex and its em- ployees (all of whom do bin repair work) would have to comply with the various requirements of the collective- bargaining agreement, including the union-security provi- sion. When Cannon disagreed, Local 46 at first looked to the grievance provisions of the collective-bargaining agreement as a way of compelling C.A.C. to comply with the collective-bargaining agreement in respect to Yor-Tex's employees. But then Local 46 opted to end its efforts in that direction and, on May 11, 1979, filed a charge With the Board alleging that C.A.C. "[r]efused to bargain or comply with the . . . Collective-Bargaining Agreement." The Board's Regional Director for Region 3 issued a complaint against C.A.C. and Yor-Tex on June 21, 1979, based on Local 46's charge. The complaint alleges that C.A.C. and Yor-Tex violated Section 8(a)(5) and (I) of the National Labor Relations Act, as amended. Respond- ents admitted the complaint's jurisdictional claims re- garding C.A.C., but denied any wrongdoing. I heard the case in Rochester on November 29 and 30 and on De- cember 17 and 18, 1979.2 THE ISSUES This proceeding presents three major issues. First, should the Board defer to the grievance settling machin- ery provided by the collective-bargaining agreement? See Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). For the reasons discussed in section I of this Decision, my conclusion is that the Col- lyer line of cases is not applicable here and that the Board should consider this case on its merits. A second issue is whether Yor-Tex and C.A.C. are a single employer for purposes of the Act. My conclusion is that they are. See section II, below. Finally there is the principal issue presented by this proceeding-do the Yor-Tex employees who are en- gaged in the bin repair work have a sufficient communi- ' A drawing of such a bin is set out in Appendix A omitted from pub- licatlton 2 Respondents jointly filed a brief, as did the General Counsel. Local 46 advised that, in the main, it joined in the General Counsel's brief Re- spondents filed a reply brief which General Counsel moved to strike. The General Counsel's motion is granted for the reasons stated therein (I ac- cordingl) did no read the reply brief ) 252 NLRB No. 91 556 CANNON AIR CONDITIONING ty of interest with the sheet metal workers represented by Local 46 to be considered an accretion to that mul- tiemployer unit? Section III of this Decision examines the various crite- ria that the Board uses to determine the extent of the community of interest between groups of employees and concludes that there is insufficient community of interest between the bin repair employees, on the one hand, and the members of Local 46, on the other, to warrant in- eluding the bin repair workers in the unit that Local 46 represents. I. HE COlI YER ISSUE The collective-bargaining agreement between Local 46 and the employer association of which C.A.C. is a member provides machinery for resolving disputes. Local 46 first turned to that machinery as a way of deal- ing with the Yor-Tex problem, and Respondents here argue that the Board should defer to the contractually provided grievance resolving mechanisms. The General Counsel and Local 46 vigorously dispute that contention. For several reasons deferral would be inappropriate here. For one thing, the object of the contractual grievance procedures would be to resolve the ambiguities in the ju- risdictional provision of the collective-bargaining agree- ment. But the unit question that lies at the heart of this proceeding can only be determined on the basis of the extent of the community of interest between the two groups of employees involved, not on the basis of the Union's jurisdictional claims written into a collective-bar- gaining agreement: The Scrantonian Publishing Co., Inc., et al., 215 NLRB 296, 298, fn. 6 (1974); Patterson-Sargent Division of Textron, Inc., 173 NLRB 1290 (1968). In fact, unit questions are simply outside the scope of the Collyer doctrine. "The Board has consistently declined to leave to an arbitrator the responsibility for determining unit questions such as whether a newly acquired plant is an accretion to an existing bargaining unit covered by a col- lective-bargaining agreement." Massachusetts Electric Co., 248 NLRB 155, 156 (1980). Secondly, even if this might otherwise have been a proper case for deferral under the Collyer doctrine, de- ferral would be improper here since the record does not tell us how the grievance machinery in fact works. The procedures set out in the applicable collective-bargaining agreement could easily lead to deadlock. The agreement provides that in the case of such deadlock the grievance may be appealed to the National Joint Adjustment Board. See General Counsel's Exhibit 3 at pp. 12-14. The problem is that the procedures to be used by the National Joint Adjustment Board are not part of the record, a problem noted by the parties. 11. C.A.C. AND YOR-TrEX AS A SINGLE EMPI.OYER C.A.C. and Yor-Tex are separate legal entities, but they are nonetheless a single employer for purposes of the Act. Respondents stipulated to that effect at the hearing, and, while Respondents later sought to withdraw from that stipulation, they do not seriously argue on brief that C.A.C. and Yor-Tex are separate employers. In any case the facts show that the two companies ought to be considered one employer for purposes of the Act. I. C.A.C. and Yor-Tex have a common owner: Cannon wholly owns C.A.C., and is the owner of a one- third interest in Yor-Tex. 2. Cannon manages both C.A.C. and Yor-Tex. 3. All of Yor-Tex's business is derived from an ar- rangement with C.A.C. whereby Yor-Tex performs the work that C.A.C. contracted to do under C.A.C.'s con- tract with General Motors. 4. Cannon, alone, sets labor relations policy for C.A.C., and with only minor input from Yor-Tex's two other owners also does so for Yor-Tex. 5. Yor-Tex uses C.A.C.'s building, and depends upon C.A.C.'s clerical help. The arrangements by which Yor- Tex is to pay for its use of the building and the clerical staff are unwritten and nebulous. 6. Yor-Tex's lone foreman transferred into that posi- tion from C.A.C.; and, at the start of Yor-Tex's bin repair work, Yor-Tex employees used some of C.A.C.'s tools and equipment, and C.A.C. transferred one of its employees to Yor-Tex to work temporarily (for several weeks on the bins). A few factors point toward finding C.A.C. and Yor- Tex to be separate employers for purposes of the Act. For example the nature of the work done by Yor-Tex is very different from that done by C.A.C., pay scales for the Yor-Tex employees are much lower than those of the C.A.C. employees, and the two companies use different payroll services. Nevertheless, Board precedent makes it clear that the two companies are a single employer for the purposes of the Act. See, e.g., Numrich Arms Corpo- ration, Auto-Ordnance Corporation, 237 NLRB 313 (1978); Don Burgess Construction Corporation d/b/a Burgess Con- struction, et al., 227 NLRB 765 (1977). III. THE EXTENT OF COMMUNITY OF INTEREST BETWEEN THE SHEET META. WORKERS AND YOR- TEX'S EMPI.OYEES While C.A.C. and Yor-Tex are a single employer for purposes of the Act, that does not necessarily establish that Yor-Tex's and C.A.C.'s employees together make up an appropriate unit. South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO, et al., 425 U.S. 800 (1976); Central New Mex.ico Chapter, National Electrical Contractors Associ- ation, Inc., et al,, 152 NLRB 1604, 1608 (1965). Rather, the question of whether Yor-Tex's bin repair employees and C.A.C.'s sheet metal workers belong in the same unit hinges on the degree of the community of interest be- tween the two groups. This part of the decision will con- sider factors relating to the presence, or absence, of that community of interest. A. Nature of the Work of Bin Repair Employees The bin repair work: Yor-Tex receives, repairs, and then delivers to General Motors about 200 bins per week In broad outline, the bin repair work involves off- 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loading the bins from a flatbed truck using a forklift, cleaning any trash out of the bins, straightening any bent parts, replacing broken hinges. welding as necessary, painting (using a dip tank), weighing the bins, and then using a forklift to load the bins back onto a flatbed truck. Off-Loading and trash removal: The bins arrive at C.A.C.'s yard on a flatbed truck. A forklift driver, assist- ed by the flatbed truckdriver, offloads the bins into the yard. (The forklift driver may spend the day operating the forklift, or also help out with the various hand labor described below.) One or more Yor-Tex employees then turn the bins on their sides (heavy work given the 360- pound weight of the bins) and remove the scrap paper, metal, and plastic inevitably in each bin when it arrives at C.A.C. Straightening and final cleaning: After the trash is re- moved from the bins they are carried by forklift into the shop. (See Appendix B for a diagram of C.A.C.'s facili- ties [omitted from publication].) Two classes of employ- ees then begin work on the bins-common laborers, who may at other times be assigned to the trash removal work, and one or more employees using oxyacetylene torches. Any parts of the bin that need straightening have that done at this time. Bent corner posts are straightened using a tool specifically designed for that purpose. All other parts of the bin are straightened with a sledge hammer. Where necessary the bent metal is first heated with a torch to make it more amenable to straightening. The torch operators are responsible for cleaning the bins of any paper or tape that may be stuck to the bottom and sides. The bins have a hinged gate or door on their sides. If the hinges to a gate are broken, one of Yor-Tex's labor- ers repairs them by replacing the broken hinges with hinges taken from scrapped bins. The final product of this stage of the work must be a bin free of scrap and conforming in all dimensions to specifications set by General Motors. Welding: After the straightening process the bins are put on a hand truck and brought to welding stations. Ninety to ninety-five percent of all of the bins need to be welded. Most of the welding work involves reconnecting any rods that may have come loose from the frame or from other rods. The work involves the simplest kind of tack welding. Nonetheless, the welders must assure that the welds are reasonably strong. The persons who do the welding do nothing but weld bins unless a bottleneck develops elsewhere in the bin repair work, in which case they may be assigned to any other work involving the bins. Final work on the bins: After the welding is completed a laborer moves the bins to a scale, and, after weighing them, paints them, using an electric chain hoist and a dip tank. The last part of the repair process involves using a forklift to load the repaired and painted bins onto a flat- bed truck for transport back to General Motors. Task-by task analysis: For laborers working on the bins, their work involves one or more of the following tasks: Driving a forklift truck, manhandling 360-pound bins, cleaning trash from the bins and disposing of the trash, using sledge hammers and a special post-straight- ening tool to straighten bent metal, replacing broken hinges with hinges taken from scrapped bins, weighing the bins, and using an electric hoist to dip the bins into a dip tank. The employees assigned to the oxyacetylene torch- work use their torches to assist in the straightening of bent metal on the bins, and to remove paper and tape from the bins. When called for by the nature of the workload, the torch workers do one or more of the la- borers' tasks. As discussed above, the welders make tack-welding re- pairs to the bins throughout their working day unless bottlenecks appear elsewhere in the bin repair work. B. The A'ature of the Work of Sheet Metal Workers The members of Local 46 who work for C.A.C. work on heating and air-condition systems exclusively. By and large that means fabricating and erecting ductwork for commercial or Government buildings. That work, in turn, involves laying out, in drawings, the nature of the ductwork to be installed (based on inspection of the building by the sheet metal workers and/or on blue- prints, drawings, and parts lists); taking sheets of metal, angle iron, and the like, and fabricating those materials into the various required shapes; installing the ductwork; and then testing and balancing the system. In addition to that kind of job, in at least one case, members of Local 46 employed by C.A.C. fabricated ra- diator covers out of sheet metal and other materials in accordance with a sketch supplied to C.A.C., and then installed the covers. Members of Local 46 employed by contractors other than C.A.C. perform a great variety of work (in addition to fabricating and installing heating and air-conditioning systems). Examples include the following: 1. Doing the sheet metal work involved in the fabrica- tion of huge commercial dishwashers. 2. Building baskets for chickens and eggs in accord- ance with a rough sketch supplied by a farmer-a job that required the sheet metal worker to determine what materials would be best to use, the dimensions of each part to be used in fabricating each piece, and the like. 3. Building a glass and brass showcase. 4. Covering a bar (for serving drinks) with copper. 5. Restoring a statue. 6. Building and installing items such as racks, shelving, checkout counters, guardrails, boiler covers, and stove hoods. 7. Repairing things made from metal, including, in at least one case, supermarket shopping carts. Looking for similarities between the work of em- poyees in the unit to which C.A.C.'s sheet metal workers belong and the work of the Yor-Tex employees, sheet metal workers sometimes cut and shape the kinds of ma- terials from which the bins are made, sometimes use sledge hammers to shape metal (such as fabricating metal "into shapes other than round" as well as pounding bent metal back into shape), use welding equipment to join metal (although sheet metal workers who spend substan- tial periods of time doing only welding tend to be "top 558 CANNON AIR CONDITIONING welders" with special training).? sometimes use oxyacet- ylene torches to soften metal for bending or to cut metal, do clean up work (such as policing the areas around their workbenches or cleaning a shop when assigned to by their employer during slow periods), and occasionally use a forklift or other equipment to move large amounts or heavy pieces of metal. C. Experience and Training Required The bin repair workers: Yor-Tex employs three catego- ries of bin repair workers: Laborers, torch operators, and welders. Of the three catagories of workers, only the welders have to have any particular kind of background or training. Yor-Tex hires as welders only persons who have welding experience, but the welders do not have to have any particular educational background and they do not have to be certified welders. They do have to be "skilled as a tack welder." Neither the torch operators nor the laborers have to have any special background or experience whatsoever. In fact, Yor-Tex obtains employees in these catagories from New York State programs intended to find employ- ment for the unskilled and unemployed. On-the-job training for the bin repair workers is mini- mal. Persons designated to do the torchwork are trained for about an hour by a supervisor. Other employees re- ceive even less training. For instance, new bin repair em- ployees are given less than a half-hour's training on the use of forklift trucks. Finally, as far as health and physi- cal requirements are concerned, the bin repair employees have to be strong enough to manhandle 360-pound bins, but that is the only requirement. The sheet metal workers: The background and skills re- quired of the sheet metal workers are best defined by the sheet metal workers' apprentice program. To become an apprentice, an applicant has to be between the ages of 18 and 30 years old, be a high school graduate, pass a physi- cal examination, and pass a New York State aptitude test. Once the applicant is accepted into the program he must complete 2,000 hours of work as an apprentice and 144 hours of schooling in courses such as mathematics, blueprint reading, drafing, and welding, and pass the tests given in connection with those courses. As a sheet metal worker witness put it, sheet metal work demands a "very vast area of training." Not all members of Local 46 have gone through the apprentice program. In fact, one of the sheet metal workers employed by C.A.C. did not, but that employee had many years of experience doing sheet metal work and, in fact, at one point in his career had operated his own sheet metal shop. Thus, he was experienced in blue- print reading, drafting, and the various skills associated with fabrication and installation. Indeed, he would have been useless to C.A.C. had he not been. Sheet metal workers who work for C.A.C. have to have one other qualification: Their personnel history has to be such that they can get security clearance, since a 3 It seems that sheet metal workers sometimes do tack welding of the kind done by Yor-Tex's welders. but the welding done b C.A C.'s sheet metal workers is a more technically difficult kind "entirely different" from the welding used in repairing the bins. substantial portion of CA.C.'s work is at military instal- lations. D. Location C.A.C.'s sheet metal workers work in the "field," rather than at C.A.C.'s shop, "most of the time," but when the sheet metal workers are not working in the field they work in the same building as the bin repair workers. When York-Tex first began work on the bins, much of the work was done in the room in which C.A.C.'s sheet metal workers did their work. A month or two later construction on an expansion of C.A.C.'s building was completed, and from that time on bin repair work was done in an adjoining area, but separate from, the sheet metal shop. E. Functional Integration The bin repair work is not functionally related to C.A.C.'s sheet metal work. To put it another way, changes in the output of C.A.C.'s sheet metal workers would not affect Yor-Tex's bin repair work. And the same is true in reverse. F. Number of Employees Yor-Tex employs 12 to 14 bin repair workers. C.A.C. employss two or three sheet metal workers. (C.A.C. also employs plumbers and service personnel, plus a janitor and clerical employees. Thus sheet metal workers make up only a small minority of C.A.C.'s work force.) Look- ing beyond C.A.C. to the multiemployer unit, there are several hundred employees in the multiemployer sheet metal worker unit to which C.A.C.'s sheet metal workers belong. G. Management and Supervision As touched on earlier, Cannon manages both C.A.C. and Yor-Tex. It was Cannon who obtained the bin repair contract from General Motors, and it is Cannon who seeks out and obtains the construction work for C.A.C.'s sheet metal workers. Moreover, all labor policy decisions for both C.A.C. and Yor-Tex are made by Cannon. For example, Cannon decided wage levels for the various categories of bin repair employees. As far as first-line supervision is concerned, C.A.C.'s sheet metal workers by and large function without any such supervision. As for the bin repair employees, Cannon supervised them for the first month or so after C.A.C. had obtained the contract from General Motors. Then Cannon decided to transfer John Coley, who had been a C.A.C. employee, to Yor-Tex and Coley became the supervisor of the bin repair employees, and is in charge of hiring and firing them, disciplining them, and inspecting their work. Coley has no technical background and thus is in no position to supervise sheet metal workers even if Cannon had assigned him the job. However, apparently in one in- stance in Cannon's absence a sheet metal worker asked Coley if he (the sheet metal worker) had permission to 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceed with some work. Coley answered in the affirma- tive. H. Collective-Bargaining History The bin repair employees are not unionized. As for C.A.C.'s relationship with Local 96, which represents C.A.C.'s sheet metal workers, the relationship goes back to 1972. At that time C.A.C. joined the Building Trades Employers Association of Rochester, New york, and, as a sheet metal contractor, thereby became subject to the collective-bargaining agreement between the Association and Local 96. Article I of the agreement sets out its cov- erage see (G.C. Exh. 3 at pp. 3-9), but, as far as whether article I covers the kind of work involved in the bin work, about all that can be said is that there is no clear answer. As for other collective-bargaining agreements in- volving C.A.C. or Yor-Tex, C.A.C. is a member of em- ployer associations having collective-bargaining agree- ments with pipefitters and asbestos workers' unions (and with other sheet metal worker unions with jurisdiction in areas outside Rochester), but, apart from C.A.C.'s sheet metal workers, pipefitters and asbestos workers, its em- ployees and Yor-Tex's are not unionized. Thus, C.A.C.'s service personnel, its clerical personnel, and its one jani- torial employee are not represented by any unions. 1. Wages and Fringe Benefits The wages and major fringe benefits of sheet metal workers employed by C.A.C. and of the bin repair work- ers employed by Yor-Tex on a per-hour basis are as fol- lows: 1. Bin repair employee wages4 are $4 for laborers, ,$4.50 for torch workers, and approximately $75 for welder; they receive no pension payments, etc.; and they receive I week of vacation per year. 2. Sheet metal workers 6 wages are $15.15; 7 they re- ceive approximately $2.50 in pension payments, etc.; and they receive no vacations. 8 J. Hiring Procedures C.A.C. obtains sheet metal workers by contacting Local 46. As for the bin repair workers, as discussed ear- lier Yor-Tex obtains them through state programs de- signed to find employment for the unemployed and un- skilled. K. Interchange of Employees When the bins began arriving at C.A.C.'s facilities in early April, Cannon ordered Thomas Scott, one of C.A.C.'s two sheet metal workers, to work on the bins (with two newly hired Yor-Tex employees). A month or so later Scott was taken off the bin repair work and was 4 As of December 1979. 5 Yor-Tex's welders are paid $5 an hour plus 75 per bin completed. 6 For the period May 1979 through April 1980 7 The employer deducts $1 20 from this amount for acation fund and work assessment purposes. See fn. 9. R The collectisve-bargaining agreement provides that employers will deduct $1 per hour from the wages of the sheet metal workers to he used to cover holiday and vacation pay for the sheet metal workers. never returned to it. Except for that one case, no C.A.C. sheet metal worker has done any bin repair work.' L. Turnover The turnover among bin repair workers is extremely rapid-one or two leave each week. That equates to a complete turnover of the Yor-Tex work force every 2 or 3 months. C.A.C.'s sheet metal workers, on the other hand, appear to stay with C.A.C. for months or years before moving on. Of the two sheet metal workers employed by C.A.C. at the time bins began arriving at C.A.C., for in- stance, one had been with C.A.C. for 7 years and the other for 1-1/2 years. C.A.C.'s experience is not atypical. Other members of the Association also retain their same sheet metal worker employees for long periods of time. On the other hand, there are some contractors who employ sheet metal workers on a short-term basis. M. Contact Between Employees There appears to be relatively little contact between C.A.C.'s sheet metal Workers and Yor-Tex's bin repair employees (except for the time that Scott worked on the bins). The most convenient route for bin repair workers to the office or to the one bathroom at C.A.C. Yor-Tex is through the sheet metal shop. But the sheet metal workers tend to be in the field most of the time. More- over, except for the initial few weeks, the work done by the bin repair workers is in a part of the building separat- ed by a wall from the sheet metal shop. N. Interchange of Equipment C.A.C. provided Yor-Tex with some welding equip- ment for use in the bin repair work, and initially the bin repair workers used a C.A.C. power hacksaw to cut angle iron used in the repair of the bins. However, apart from that, the bin repair employees use no tools used by C.A.C.'s sheet metal workers, and the sheet metal work- ers use no tools used by the bin repair employees. 0. Administration Yor-Tex has no clerical staff of its own. All of Yor- Tex's clerical work is done by C.A.C.'s clerical employ- ees. As far as payroll matters are concerned, the compu- tations for Yor-Tex's employees are done by one compa- ny and those, for C.A.C.'s employees are done by an- other company. P. Conclusion-Community of Interest There are unquestionably some similarities between the work done by Yor-Tex's bin repair employees and the work done by the sheet metal workers represented by Local 46. 9 Scott was at all times paid the wages specified by the collective-bar- gaining agreement with Local 46. That made his work on the bins very expensive. Cannon apparently chose this route because, while CA.C's sheet metal work was slow at that time, CA,C was going to need Scott soon for work at an Army depot (and in that connection Scott was in the process of getting the necessary security clearance). 560 CANNON AIR CONDITIO(NING 1. Some bin repair employees weld, and sheet metal workers can and do weld. 2. Some bin repair employees use sledge hammers to straighten bent metal, and sheet metal workers sometimes do that. 3. Some bin repair employees drive forklift trucks, and sheet metal workers sometimes do that. 4. Some bin repair employees use oxyacetylene torches to heat metal and sheet metal workers sometimes do that. 5. The job of the bin repair employees is to repair a kind of metal basket and in at least one case a member of Local 46 also repaired a kind of metal basket (shopping carts). ' o But comparing the work of Yor-Tex's bin repair em- ployees and the work of Local 46's sheet metal uworkers in that way obscures, rather that clarifies, the relation- ship between the two groups. In fact, there is almost no community of interest whatever between the sheet metal workers and the bin repair employees. The members of the multiemployer unit of which C.A.C.'s sheet metal workers are a part are all highly skilled craftmen. They can and do work largely without supervision, and practically all of their work involves technically difficult, nonrepetitive tasks. With minor ex- ceptions the job of the sheet metal worker is to deter- mine the precise nature of the often complex metal fabri- cation that is needed, create that fabrication from sheet metal and other materials, and then, if appropriate, install it. (Installation alone can, of course, be technically de- manding.) All of that, in turn, demands sound judgment, the ability to select the proper materials and tools, the skills necessary to fabricate selected materials into the necessary shapes, and the ability to install those fabrica- tions properly. Sheet metal workers from time to time do undertake less demanding work, such as removing the dents in an already fabricated item; but (a) even there a sheet metal worker will be expected to select tbe tools and tech- niques best suited for the job, and (b) that kind of work is a minor diversion for sheet metal workers. By back- ground, training, interest, and ability, the focus of a sheet metal worker's energy is on technically difficult work. and, in fact, the members of the multiemployer unit rep- resented by Local 46 spend most of their time on the kinds of work that do call upon their special skills, abili- ties, and training. The contrast between the sheet metal workers and Yor-Tex's bin repair employees is considerable. To begin with, most of the bin repair employees (all but the weld- ers) need have no skills whatever. Further, in keeping with that background, their work is highly repetitive and involves only the simplest chores (cleaning trash out of the bins, moving the bins with a forklift truck, straight- ening bent metal with sledge hammers, and dipping the bins into a paint tank using an electric hoist). Yor-Tex's torch operators cannot be wholly deficient in the ability to learn a technique, since oxyacetylene torches must be handled with care and since the application of too much heat could damage part of a bin. Nonetheless, the kind of " While the sheet metal worker was a member of Local 46. t Is un- clear A\hether at Ihe time of such work he as a member of the multiem- ployer unit of which CA Cs' sheet metal "orkers are members torchwork used on the bins is a job that can be learned in an hour or so. As far as Yor-Tex's welders are con- cerned, the welding skills needed for the bin repair work are of a much lower level than those demanded of sheet metal workers, and, in any case. it is clear that the com- munity of interest of Yor-Tex's welders lies with the other bin repair employees. In sum, looking no further than the nature of the work performed, there is simply no community of interest be- tween sheet metal workers and Yor-Tex's bin repair em- ployees. One group is a group of highly skilled craftmen, most of whose work demands the use of their skills. The other group, the bin repair employees, are unskilled la- borers doing unskilled, repetitive, closely supervised chores Beyond that are the following considations: 1. There is almost no contact whatever between C.A.C.'s sheet metal workers and Yor-Tex's bin repair employees. Even when the sheet metal workers have work to do at C.A.C's facilities, they work in a separate area, and most of the time the sheet metal workers are in the field, not at C.A.C.'s facilities. 2. C.A.C. hires its sheet metal workers via Local 46. Yor-Tex hires its bin repair-employees through state pro- grams designed to assist the unemployed and unskilled. 3. There is no functional relationship between the work of the sheet metal workers and that of the bin repair employees. 4. The bin repair employees have their own foreman who, with but one minor past exception, in no way su- pervises C.A.C.'s sheet metal workers. 5. C.A.C.'s sheet metal workers are paid more than three times the wage of Yor-Tex's lowest paid workers and double Yor-Tex's highest paid workers. 6. The turnover rate for the bin repair employees is very high, while sheet metal workers tend to stay with the same employer for long periods of time. 7. Except for a brief period when the bin repair work was just getting started, there has been no interchange of employees or equipment between Yor-Text and its bin repair work, on the one hand, and C.A.C., on the other. Since community of interest is the ultimate test for de- termining whether two groups of employees belong in the same unit, my conclusion is that, because of the lack of the community of interest between Yor-Tex's bin repair employees and the sheet metal workers represent- ed by Local 46, the two groups do not properly belong in the same unit. Since they do not-and since, accord- ingly, the bin repair employees are not an accretion to the multiemployer unit of which C.A.C.'s sheet metal workers are members-neither C.A.C. nor Yor-Tex was under any obligation to bargain With Local 46 about the terms and conditions of employment of the bin repair employees or to comply with the collective-bargaining agreement between the employer association and Local 46 in respect to the bin repair employees. CONCLUSIONS OI LAW 1. Cannon Air Conditioning and Heating Company, Inc., and Yor-Tex, Inc., are a single "employer" within the meaning of Section 2(2) of the Act. 5hl1 DECISIONS OF NATI()NAL LAB()OR RELATIONS BOARD 2. Yor-Tex's employees are not properly includable in the bargaining unit of which the sheet metal workers em- ployed by C.A.C. are a part. 3. Accordingly, neither C.A.C. nor Yor-Tex violated Section 8(a)(l) or Section 8(a)(5) of the Act by failing to bargain with the representative of C.A.C.'s sheet metal workers concerning Yor-Tex's employees or by refusing to apply to those employees the terms of the collective- bargaining agreement applicable to C.A.C.'s sheet metal workers. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER ' The complaint is dismissed in its entirety. I In the event no exceptions are filed as provided by Sec. 10246b of the Rules and Regulations of the Natinnal Labor Relations Board. the findings. conclusions, and recommended Order herein hall, as provided in Sec 12.48 of the Rules and Regulations, be adopted by the Board and hecomce ils findinlgs, conclusions, and Order, and all objections hereto ,hall he deemed waived fior all purpolses 562