Claremont Development Co.

National Labor Relations Board - Board DecisionsAug 6, 1953

106 N.L.R.B. 611 (N.L.R.B. 1953)

CLAREMONT DEVELOPMENT CO 611 CLAREMONT DEVELOPMENT CO.; JAMES A. WILSON; TRAVIS KLEEFELD and PETER T. PETERS INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 12, A. F. OF L. and PETER T. PETERS INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 36, A. F. OF L. and PETER T. PETERS. Cases Nos. 21-CA-1575, 21-CB-455, and 21-CB-456. August 6, 1953 DECISION AND ORDER On May 29, 1953, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled consolidated proceeding, a copy of which is attached hereto, finding that the Respondent Company, Claremont Development Co., James A. Wilson, and Travis Kleefeld, had not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and that the Respondent Unions, International Union of Operating Engineers, Local Union No. 12, A. F. of L., and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 36, A. F. of L., had not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, as alleged in the com- plaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 [Members Houston, Murdock, and Styles]. 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions and modifications noted below. We agree with the Trial Examiner that the complaint in this case must be dismissed. As the Trial Examiner found, a preponderance of the evidence will not support a finding that Peter T. Peters, the charging party, was an employee of the Respondent Company within the meaning of the Act. On the contrary, the evidence reveals, and we find, that Peters was an independent contractor and therefore not protected under Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the Act. In so finding, however, we do not adopt the Trial Ex- aminer's general statements to the effect that independent contractors are excluded from the protection of the Act. 106 NLRB No. 98. 322615 0-54 -40 - 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 2 (3) of the Act merely defines "employee" to specif- ically exclude an independent contractor. While the latter is not entitled to the rights accorded employees, Section 8 (k) (4) (A), in particular, provides certain protection for self-employed persons in which category independent contractors may be included. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the com- plaint against the Respondent Company, Claremont Development Co., James A. Wilson, and Travis Kleefeld, and the Respond- ent Unions, International Union of Operating Engineers, Local Union No. 12, A. F. of L., and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 36, A. F. of L., be, and it hereby is, dis- missed. Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, is based upon charges duly filed by Peter T. Peters, an individual, against Claremont Development Co., James A. Wilson, and Travis Kleefeld, herein jointly called Respondent Company, against International Union of Operating Engineers, Local Union No 12, A. F . of L , herein called Respondent Engineers , and against International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 36, A. F. of L , herein called Respondent Teamsters. Pursuant to said charges, the General Counsel of the National Labor Relations Board issued a consolidated complaint dated March 6, 1953, against Respondents, alleging that they had engaged in unfair labor practices, Re- spondent Company within the meaning of Section 8(a) (1) and (3) and Respondent Unions within the meaning of Section 8 (b) (1) (A) and (2) of the Act. Copies of the charges, the consolidated complaint, and notice of hearing thereon were duly served upon Respondents Specifically, the complaint alleged that Respondents had entered into and given effect to illegal and invalid collective-bargaining agreements, that on and after August 27, 1952, Respondent Teamsters attempted to cause Respondent Employer to discharge Peter T. Peters, and that Respondent Unions did cause Respondent Employer to discharge Peters on or about December 22, 1952, because he was not a member of Respondent Unions or of a labor organiza- tion affiliated with the San Diego Building and Construction Trades Council In their respective answers, Respondent Engineers and Respondent Company denied the commission of any un- fair labor practices; Respondent Teamsters denied the commission of any unfair labor practices, denied the existence of any illegal collective-bargaining agreement, and alleged affirmatively that Peters had been expelled from Teamsters because of his assistance in the conduct of certain litigation brought against this labor organization by another former member, as a result of which Teamsters concluded that Peters had subscribed to the doc- trines of the Communist Party and therefore expelled him from membership. The General Counsel moved, prior to hearing, to strike the last-stated portion of the answer filed by Teamsters and the motion, having been duly referred to Trial Examiner Maurice M. Miller, was granted by him on April 1, 1953 Pursuant to notice, a hearing was held at San Diego, California, from April 22 through April 24, 1953, before the undersigned Trial Examiner, Martin S. Bennett. All parties were rep- resented by counsel who participated in the hearing and were afforded full opportunity to be CLAREMONT DEVELOPMENT CO. 613 heard , to examine and cross -examine witnesses , and to introduce evidence bearing on the issues At the outset of the hearing, Respondent Company moved that the General Counsel produce from his files copies of certain affidavits obtained by agents of the General Counsel from employees of the Company. The General Counsel refused and I declined to order him to do so. Goldman v. United States, 316 U. S. 129, and N. L. R. B. v General Armature and Manufactures o., 192 F. 2d 316 (C. A. 3), cert. denied 343 U. S. 957. At the close of the earing, the parties were afforded an opportunity to argue orally and to file briefs and/or proposed findings and conclusions Oral argument was presented by the General Counsel and Respondent Company; a brief has been received from Respondent Unions. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF RESPONDENT COMPANY Claremont Development Co. is the duly registered fictitious name under the California Fictitious Names Act pursuant to which 8 corporations and individuals have banded together as joint adventurers to construct 1 defensehousing subdivision in San Diego County, California. The value of this housing when complete will be approximately $4,000,000. The active mem- bers of this combine are James A. Wilson and Travis Kleefeld, each of whom is president of 2 of the participating corporations. This housing is being constructed under FHA Title 9. The builders have also received cer- tain certificates of approval from the Housing and Home Finance Agency, pursuant to which priority rights to purchase these houses must be and have been afforded to qualified defense workers in a specified list of defense plants, including aircraft manufacturing plants in the San Diego area . I find, therefore, that the operations of Claremont Development Co. affect the national defense effort and commerce within the meaning of the Act. N. L. R. B. v. Swinerton and Walberg Co,, 202 F. 2d 511 (C. A. 9), Machine Products Co., 94 NLRB 68; Camp Cab Company, 104 NLRB 159, and Westport Moving and Storage Co., 91 NLRB 902. IL THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers , Local Union No. 12, A. F. of L., and Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemenand Helpers of America, Local 36, A. F. of L., are labor organizations admitting to membership employees of Respondent Company. Ill. THE UNFAIR LABOR PRACTICES A. Introduction Presented for decision is the issue whether Peter T. Peters lost his employment with Respondent Company pursuant to the requirement by the latter , as the result of union pressure, that Peters obtain a clearance from either or both of Respondent Unions, this allegedly con- stituting a hiring arrangement not sanctioned under the Act, in the absence of any union- security agreement among Respondents. See e.g., N. L. B. v. Pappas and Co., 203 F. 2d 569 (C. A. 9); Haffenreffer and Co , Inc , 104 NLRB 206R.; and The Lummus Co., 101 NLRB 1628. The record also discloses that Peters, shortly after the incidents complained of, filed charges with the Board; was then reinstated by General Superintendent Pearson of Respondent Company; but his employment was terminated several days later by Travis Kleefeld, one of the joint adventurers of Respondent Company, because Respondent Company refused to retain in its employ one who had filed charges against it with the Board However, the complaint does not allege a violation of Section 8 (a) (4) of the Act and the General Counsel does not press for such a finding. A primary issue, however, is whether Peters was an employee or an independent con- tractor, for Section 2 (3) of the Act specifically excludes from the protection of the Act "any individual having the status of an independent contractor." I am of the belief that this primary issue, on the facts presented herein, is indeed a close one. And as is the case with respect to the other evidentiary issues herein, the burden of proof is upon the General Counsel to 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establish by a preponderance of the evidence on the entire record that Peters was an em- ployee within the meaning of the Act B. Sequence of events Peters became a member of Teamsters in 1948 and was expelled in 1949 as the result of his participation in certain litigation brought by a previously expelled member against Teamsters Apparently he lost his employment with his then employer and filed charges with the Board but no complaint issued He later went to work for Safeway Stores, lost his em- ployment there, and filed charges in 1951 against that company and the Retail Clerks Union, the latter case was settled informally His personal relationship with the business agent of Respondent Teamsters, one Wernsman, has been strained since his expulsion from that labor organization It would appear, although the record does not disclose the precise date, that Peters then decided to engage in a different form of enterprise Peters and another, whose name is not disclosed, formed a partnership known as "Superior Topsoil" and, according to their billhead, were engaged in the business of"landscaping material" and "equipment rental " The partner- ship later split up and Peters purchased the name and carried on the business individually. Peters, at the time material herein, namely August through December 1952, was the owner of two pieces of equipment used in construction work, a tractor, also referred to as a skip loader, and a truck. In August 1952, he sought work with Respondent Company which was then engaged in the construction of its housing project near San Diego. According to Peters, he was hired by General Superintendent Bill Pearson as "skip load operator with my own skip loader as owner-operator " Pearson testified that he hired Peters "to level off around the lots so that the plasterers, stucco men, could stucco the outside of the houses." They agreed that Peters would be paid on an hourly basis of $ 5 per hour and, according to Pearson, "We bargained for the wage and that is what we came up with. It is not necessarily the customary wage of the job." Pearson, at the start of the employment relationship, explained to Peters what he wished done. In essence, he- instructed Peters to run the width of the scraper around the respective houses, thereby removing boulders and roughly leveling the ground, thus facilitating the setting up of scaffolds by the outside stucco men. Peters admitted that Pearson "more or less left it up to me." On reporting for work, Pearson would instruct Peters to report to either unit 6 or 7, the two units then under construction, and to clean up around a number of houses which were then ready for his services Peters drove the skip loader himself at a rate of $ 5 per hour; this included equipment rental as well as his services He worked for about 1 week in August, after which Respondent temporarily ran out of grading work and Peters was terminated. He then went to work for another builder in the same area and performed the same work for this other concern for a month or slightly longer. Late in September or early in October, this other work ended and Peters chanced to meet Pearson. He asked Pearson if the latter had any additional work for him and Pearson replied, according to Peters, "Take your equipment and park it on our lot and go to work in the morning I have got some work for you." Peters duly resumed work with Respondent Company and worked for it until late in December on an almost full-time basis, subject to weather con- ditions. His employment was terminated late in December of 1952, the precise date is not clear. Peters believed he was terminated on the 29th by Kleefeld; he later testified that it might have been several days earlier. According tojames Wilson, one of the joint adventurers, he and Kleefeld were at the project on December 23 and the conversation in which Kleefeld terminated Peters took place on that date However, Peters' bills for services, discussed hereinafter in more detail, disclose that he worked for Respondent Company as late as December 24 Peters actually performed some work for Respondent at a rate of $7.50 per hour, this in- cluding the use of both the skip loader and the truck. The bills he submitted to Respondent also show that on certain days he billed Respondent separately for these pieces of equipment. Thus, he billed Respondent for 8 hours of tractor rental at $ 5 per hour and 8 hours of truck rental at $2 50 per hour on December 11 Peters testified that he personally drove both pieces of equipment on such occasions According to Peters, he endeavored to bill Respondent Company for his services and equip- ment rental once a week but did not always succeed. Those bills admitted in evidence disclose CLAREMONT DEVELOPMENT CO. 615 that some of them actually covered periods several days in excess of 1 week. Peters was paid whenever Respondent Company decided to send him a check The time lag between submission of a bill and payment was not uniform and varied from days to weeks. Respondent Company, it may be noted, maintains 2 checking accounts, 1 for its own employees and 1 out of which it pays all subcontractors for services and materials Peters was paid by checks drawn on the latter account, no deductions were made for social security, taxes, disability insurance, etc. The record discloses that on the first day Peters worked for Respondent Company in August, Assistant Business Representative Dennis Boyle of Respondent Teamsters observed him operating the skip loader and asked Peters if he had obtained a clearance from or belonged to Respondent Engineers Peters protested that he was not subject to union control as this was his own equipment and that he set his own wage scale pursuant to an arrangement with Respondent Company Later that day, General Superintendent Pearson informed him that he, Pearson, was in difficulty because he was supposed to hire only union help and that Peters should obtain a clearance from Respondent Engineers. On the following day, apparently August 28, and after some difficulty, Peters was permitted to apply for membership in Respondent Engineers whose business agent, Turner, was familiar to some extent with Peters' prior difficulties with Teamsters. He paid the initiation fee and was given an agreement to sign which described him as an employer; it is referred to in the record as an "owner-operator" agreement Peters duly signed the agreement and was given a clearance slip He also signed application cards for membership in Respondent Engineers. He worked approximately 1 week longer for Respondent Company until work ran out and, as set forth above, he obtained similar work in the area. Peters returned to the employ of Respondent Company early in October In the interim, Peters was summoned to appear before a meeting of the advisory board of Respondent Engineers held late in September in San Diego, as was its custom. i He was advised that his application for membership in Respondent Engineers would have to be passed upon by the executive board in Respondent Engineers in Los Angeles, an unusual but not isolated circumstance, he was instructed to appear before that board on October 4 Due to a misunderstanding, Peters did not appear at the correct hour and, although he did appear at the union hall, he made no appearance before the board. On October 17, having since returned to the employ of Respondent Company, he was notified by Respondent Engineers that the executive board had voted to reject his application, his initiation fee was refunded. His work with Respondent Company continued thereafter without event until mid-December, when another assistant business agent of Teamsters, Robert Aust, noticed Peters at work with his truck. Thereafter, both Assistant Foreman Serbus and General Superintendent Pearson advised Peters that he needed a clearance, his protest that he had previously obtained one in August from Engineers did not suffice. On December 19, after attempting in vain to obtain a clearance from or membership in Engineers or Teamsters, Peters filed charges against Respondents with the Regional Office of the Board in Los Angeles. On or about December 22, he informed General Superintendent Pearson of his action and the latter decided to restore him to work According to Peters, Pearson stated "Let's operate the tractor and see what happens " Peters did return to work and worked several days until his services were dispensed with by Kleefeld because he had filed charges with the Regional Office. The representatives of Teamsters claim that they took no steps to procure the discharge of Peters but merely made inquiries, as was their customary function, to ascertain whether men were working on this project who had not been cleared by a union affiliated with the local Building Trades Council. The record does not direct disclose that representatives of Respondent Engineers contacted Respondent Company in connection with Peters' case The then business agent, Baker Turner, did however, on or about December 29, refuse to admit Peters to membership, basing his objection upon the earlier action of the executive board in refunding Peters' initiation fee on October 17. Thus, although Respondent Company's rep- resentatives in their discussions with Peters made references to both Engineers and Teamsters, there is direct evidence only of contacts of Respondent Company by Teamsters' representatives Cf. Haddock-Engineers, Limited et al , 104 NLRB 994. i Headquarters of Respondent Engineers is located at Los Angeles. Its territory is divided into districts of which the San Diego district is known as District 4. Each district also has an advisory board comprised of members who counsel and advise the business agent assigned to the district. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Analysis and conclusions The Restatement of Agency , in section 2 (3) thereof , defines an independent contractor as one "who contracts with another to do something for him , but who is not controlled by the other, nor subject to the other's right to control with respect to his physical conduct in the undertaking " The California Labor Code supplies a similar definition , stating in section 3353 thereof that an independent contractor is one "who renders services for a specified recom- pense for a specified result under the control of his principal as to the result of his work only, and not as to the means by which such result is accomplished." Section 220 (2) of the Restatement points out the following nine criteria " In determining whether one acting for another is a servant or an independent contractor." (a) The extent of control which , by the agreement, the master may exercise over the details of work; (b) Whether or not the one employed is engaged in a distinct occupation or business; (c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) The skill required in the particular occupation; (e) Whether the employer or the workman supplies the instrumentalities , tools, and the place of work for the persons doing the work; (f) The length of time for which the person is employed; (g) The method of payment, whether by the time or by the job; (h) Whether or not the work is a part of the regular business of the employer; ( i) Whether or not the parties believe they are creating the relationship of master and servant As will appear , when consideration is given to these criteria , the evidence preponderates in favor of a finding that Peters is an independent contractor within the meaning of the Act. Thus, Peters is engaged in business for himself under the name of "Superior Topsoil." He provides a service to a building contractor like Respondent Company when ground leveling is required and, when work runs out, moves on, as he did here , to another builder . Although his enterprise is a modest one, the fact still remains that it is a business enterprise. Indeed , he so claimed in his conversation with representatives of Respondent Unions and Respondent Company, stressing his ownership of his equipment and his setting of wage scales. As stated in 27 American Jurisprudence , page 483, "One of the basic elements of the in- dependent contractor relationship is the fact that the contractor has an independent business or occupation " The foregoing is supported by the fact that at least one of the bills rendered to Respondent Company by Peters was in the name of Superior Topsoil See also Moody v. Industrial Accident Commission , 204 Cal 668 2 Again, Peters , rather than Respondent Company, owned and supplied the instrumentalities and equipment with which he performed his work . And this equipment is far removed from the tools of the ordinary workman His ownership of this equipment was unfettered , insofar as the record indicates , by any restrictions on its use . He was free to remove it and to use it when , where , and as he chose . Hence, the case of N. L. R B. v Nu Car Carriers . 189 F. 2d 756 (C. A. 3), cert. denied 342 U.S. 919, cited by the General Counsel , is not directly in point; there the situation was one of a palpable subterfuge to create the impression of an independent contractor relationship , and restrictions were imposed on the purported independent con- tractor which were more consistent with an employer -employee relationship. The General Counsel in this respect also stresses the Board decision in Pulitzer Publishing Co., 101 NLRB 1005, where the Board found that a cameraman who charged for his personal services and equipment rental was an employee but, unlike the present case, the cameraman there was not engaged in his own business enterprise . A more recent decision by the Board, Eldon Miller , Inc., 103 NLRB 1627, perhaps highlights this distinction in another approach. There the Board found one group of tractor drivers who operated tractors under conditional sales agreements to be employees, since control of the tractors and details of the work per- formed were in the employer and but limited possession of the tractors was reserved to the 2 The record does not disclose whether Peters is licensed as a contractor by the State of California. CLAREMONT DEVELOPMENT CO. 617 drivers. But, the Board further found , in the same decision , that a group of tractor drivers who operated tractors under owner - lease agreements were independent contractors since they owned their equipment outright and retained a substantial degree of independence in the operation of their vehicles and were subject to no limitations on use of their equipment See also Nelson-Ricks Creamery Co., 89 NLRB204 SpickelmierCo , 83 NLRB 452; and Oklahoma Trailer Co , 99 NLRB 1019 In addition , the hours worked by Peters were more consistent with an independent contractor status In the bills he rendered Respondent Company for his services, he billed for 8 hours work on some days and for lesser periods in others. And the very fact of his submission of bills at irregular intervals , with payment thereof made after even more irregular intervals, is also indicative of his independent contractor status It is noteworthy that the California Labor Code elsewhere provides, in section 204, that "All wages other than those mentioned in Section 201 or 202 [not germane herein]by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the reg- ular pay days." The record further shows that on at least 1 occasion Peters furnished the services of 2 workmen to perform laboring work in connection with his own operations He informed As- sistant Foreman Serbus that he required the services of 2 laborers to pick up rocks and asked Serbus to provide them . It appears , however , that Peters actually provided the 2 laborers himself and that each of them worked 8 hours on December 17, 1952. In his bill covering the period of December 9 through 15, inclusive , Peters billed Respondent Company for "extra labor, two men, 16 hrs (8 hrs each) " He was duly reimbursed by Respondent Company for this outlay. The record demonstrates that Peters worked pretty much on his own When he started with Respondent Company , Pearson explained the nature of the grading operations Peters was to perform . Thereafter , the only instructions he received were to grade in one or the other of the 2 units. Subforeman Kavanaugh , who was in charge of 1 of the 2 units , testified that he never instructed Peters what to do or how to perform his work In fact, when he did comment on one occasion to Peters on his work , being critical of the allegedly small number of sites that Peters was grading , the latter replied that he was carrying out General Foreman Pearson ' s instructions Kavanaugh also presented equivocal testimony that he supervised Peters in the same manner he supervised any craft ; that he exercised the same type of super- vision over the various subcontractors , and that he treated Peters as a subcontractor on the job. As noted above , Peters had repeatedly claimed that he owned and operated his own equip- ment, set his own wage rates , and was therefore not subject to union control . Respondent Company had so regarded Peters and this is demonstrated by the fact that bills presented by Peters were paid out of the checking account utilized for subcontractors and that no deductions were made. See Thomas Electronics, Inc., 104 NLRB No. 48. (Supplemental Decision). Although Respondent Engineers entertained Peters application for membership therein, it is significant that it actually regarded him as an employer for, on August 28, Peters, desig- nated as an employer in the name of Superior Topsoils , entered into an agreement with Engineers covering his employees , nonexistent though they were at the time. This agree- ment, also referred to in the transcript as an "owner-operator " agreement , provided that all work performed by the " employer" was subject to the agreement , that all services rendered "for the employers " by members of Engineers were to be subject to the agreement , and that if the employer subcontracted work the terms of the agreement would be adhered to. The agreement provided , inter alia , for a union shop, established wage rates in various operating engineer classifications , and specified recognized holidays and working rules . In fact, on one occasion when Peters asked Engineers to provide a workman to operate his equipment in Peters' absence and thendidnotusetheman, Peters paid Business Agent Turner of Engineers the sum of $4 50 as call- in pay, apparently for 2 hours' pay, as provided by the agreement. In sum , as stated , the factual issue presented here is a close one. However , I am con- strained to find that a preponderance of the evidence does not support a finding that Peters was an employee within the meaning of the Act Although this may leave Peters at the mercy of a labor organization and its unforgiving business representative , and as a result remove him from the protection of the Act , this result cannot be avoided in view of the definition of employee contained in the Act. The answer is that the Act regards Peters as an entrepreneur 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and does not extend its protection to him. It will accordingly be recommended that the com- plaint be dismissed in its entirety., Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent Company, Claremont Development Co., affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent Unions, International Union of Operating Engineers, Local Union No. 12, A. F. of L., and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 36, A. F. of L., are labor organizations within the meaning of Section 2 (5) of the Act. 3. Respondent Company, Claremont Development Co., has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 4. Respondent Unions, International Union of Operating Engineers, Local Union No. 12, A. F. of L., and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 36, A. F. of L., have not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. [Recommendations omitted from publication.] $Although the complaint did attack the contractual relationship between Respondent Com- pany and Respondent Unions on a broad basis, the only evidence presented related to the case of Peters. There is therefore no evidence before me with respect to an unlawful hiring arrangement insofar as it applied to employees under the Act. MACK MOTOR TRUCK CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA, CIO, Peti- tioner. Case No. 11-RC-533. August 6, 1953. 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 Robert Cohn, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. 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, Murdock, and Styles] . Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent em- ployees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner, which was certified after a consent election in May 1953 as the bargaining agent of all mechanics, mechanics' helpers, and drivers at the Employer's Charlotte, 106 NLRB No. 99.