Burnup & Sims, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1951

95 N.L.R.B. 1130 (N.L.R.B. 1951)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire procedure by which Local 1083 came into existence was tainted
by fraud. On the record before us, however, we find no convincing
evidence to substantiate these assertions.
The E. I. U. further contends that it would be inequitable to hold
an election while Local 1083 is still holding funds belonging to the
E. I. U. As noted above, however, the question of the ownership of
these funds is now pending before the courts. We are not convinced
that an election should be delayed pending its determination.
Accordingly, we find 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 parties agree, and we find, that the following employees
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Eulployer's
plant at West Allis, Wisconsin, excluding officers of the corpo-
ration, department heads, time study men, foremen, assistant fore-
men, office employees, safety men, students, pattern makers,
pattern maker apprentices, professional employees, guards, and
all supervisors as defined in the Act.
[Text of Direction of Election omitted from pubhcatiqa in this
volume.]
BURNUP & SIMs, INC. and INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL 925 , 925-A, 925-B, AND 925-C, AFL, PN;rrrioNl.R.
Case No. 10-RC-1209. August 15, 1951
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before John C.
Carey, Jr., hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.'
'At the hearing the Employer moved to dismiss the petition on the following grounds :
(1) That the amended petition was filed without notice to the Employer, and the Employer
was not aware of it in sufficient time properly to prepare for the hearing; (2) no evidence
of the Petitioner 's compliance with Section 9 (f), (g), and (h) of the Act was adduced
at the hearing, although the Employer requested that such evidence be furnished ;
(3) the Petitioner 's International was not made a party to this proceeding , although
the record indicates that the International would be required to approve any contract
entered into by the Petitioner ; (4) the hearing officer, improperly and without authority
to do so, revoked subpoenas issued at the Employer's request , ( a) for a union organizer,
who procured authorization cards from the Employer 's employees , to receive his testimony
as to the nature and extent of his authority to obtain the cards , and whether he was
licensed as an organizer under the Florida statute, and ( b) to the Petitioner 's representa-
tive at the hearing requiring him to produce records of compliance with the filing
95 NLRB No. 150.
BURNDP & SIMS, INC. 1131
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-mem-
ber panel [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer, a Florida corporation with its principal office
in West Palm Beach, manufactures and sells concrete, concrete blocks,
pumice, and other building materials, and renders construction serv-
ices. During the year 1950, the Employer purchased and received in
excess of $616,000 worth of building materials and other merchandise
from points outside the State. During the same period, the Employer
sold goods and rendered construction services valued in excess of
$1,000,000, of which more than $500,000 worth were to the Southern
Bell Telephone and Telegraph Company, an instrumentality or chan-
nel of interstate commerce. The Employer sold $713 worth of mer-
chandise outside the State and received $13,000 for construction serv-
ices performed outside the State.2
We find, contrary to the Employer's contention, that it is engaged
in commerce within the meaning of the National Labor Relations Act,
and that it will effectuate the policies of the Act to assert jurisdiction
in this case.3
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A 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) of the Act.
4. The Petitioner seeks to represent a unit of all the Employer's
employees at its four West Palm Beach operations, including those
who are sent out to construction jobs from West Palm Beach, with
certain specified exclusions. In the alternative, and if the Board
requirements of the- Act and other data ; and (5 ) the unit described in the petition is
vague and indefinite.
As to ( 1), the record discloses that the Employer received a notice of hearing and
a copy of the amended petition 14 days before the date set for the hearing, and that
it was afforded full opportunity to, and did , fully litigate all issues at the hearing. (2) .
The fact of compliance by a labor organization which is required to 'comply , is a matter
for administrative determination and is not litigable by the parties . Moreover , the Board
is administratively satisfied that the Petitioner is in compliance . See Sunbeam Corpora-
tion, 94 NLRB 844; Swift & Co., 94 NLRB 917 ; cf. Highland Park Mfg. Co.,
71 S. Ct. 489. (3) The Petitioner 's International is nof a necessary party to the
proceeding. If the Petitioner should receive certification as the result of any election
which might , be conducted in this case , the Employer would not be required to bargain
with ;-any. organization other than that certified as representative. (4) The hearing
officer correctly ruled that the evidence sought to be adduced was either not competent
or not material to the issues of this representation proceeding. The Board has held that.
the hearing officer has authority to grant or deny petitions to revoke subpoenas. Bill
Heath, Ino., 89 NLRB 67. (5) For reasons appearing in paragraph numbered 4, infra,
we find no merit in the Employer's contention that the unit described in the petition is
. vague and indefinite . The Employer ' s notice to dismiss Is ' hereby denied.
2 The Employer pointed out that the last two items were isolated ones.
2 Federal Dairy Company, Inc., 91 NLRB 638; Hollow Tree Lumber Company,
91 NLRB 635.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should so determine, the Petitioner would include in the unit all the
Employer's employees wherever located in the State of Florida. The
Employer declined to take any position on the unit, but contended
that the petition should be dismissed on the ground of vagueness and
indefiniteness of the unit description 4
Although the Employer operates four plants in West Palm Beach,
all of them are under the same general supervision and managed from
one central office located in the Employer's Park Street plant at West
Palm Beach. All the Employer's bookkeeping is performed and its
payrolls are kept in this central office. When the Employer under-
takes construction jobs outside West Palm Beach, it often sends out
some of its regular employees to work on construction crews. Other
employees are hired on the job location by the supervisor in charge.
In most instances, these newly hired employees leave the Employer
after the job is completed, although occasionally a few of them remain
with the Employer and go with the Employer's regular crews to other
jobs. Sometimes they are brought to work at West Palm Beach.
The regular employees of the West Palm Beach operations inter-
change frequently, going from plant. to plant as needed. A single
payroll covers all employees wherever employed, though working
hours and holiday work are scheduled in accordance with the practice
of the particular locality where the work is performed. Other- em-
ployee benefits and privileges are similar for all the employees.
In view of the foregoing and upon the entire record in this case, we
find that a unit of all the employees of the Employer's West Palm
Beach operations, including employees who are sent out from West
Palm Beach to work on construction jobs, is appropriate.5 However,
as most of the employees who are hired for specific jobs at places other.
-than West Palm Beach leave the Employer after their first assignment
is completed, we believe that they are essentially temporary employees,
who do not possess sufficient interests in common with the employer's
regular employees to justify their inclusion in the unit herein found
appropriate. We shall therefore exclude employees employed only
for the duration of specific jobs at points away from the Employer's
West Palm Beach plants .6
We find that all employees employed at the Employer's West- Palm
Beach, Florida, plants, including regular employees who are sent out
to jobs at other locations, but excluding employees only for the dura-
tion of specific projects at points away from the West Palm Beach
4 In its brief the Employer contends "that the unit should include all employees of
the Company wherever they may be working . ," and that the unit requested by the
Petitioner was inappropriate.
5 Cf. Witco Carbon Company , 92 NLRB No. 178; Pine Hall Brick and Pipe Company,
93 NLRB 375.
-e Lake Superior District Power Co., 87 NLRB 8 , and cases cited therein.
TARKE WAREHOUSE COMPANY 1133
plants,"office, clerical, and professional employees, watchmen, guards,
and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
TARKE WAREHOUSE COMPANY and AMERICAN FEDERATION OF GRAIN
MILLERS, AFL, PETITIONER . Case No. P20-RC-1369. August 15,
1951
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 V. Magor, 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 Act, the Board
has delegated its powersi,in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The, Employer is a California corporation engaged in the business
of storing and handling farm commodities, principally grain, beans,
rice, and milo maize. The Employer owns and operates warehouses
at Meridian, California; 2 Sutter, California; and Josephine, Califor-
nia; all of which are within a 7-mile radius. There is a railroad siding
at each of the three warehouses. The Employer is licensed by the
Public Utility Commission of California. This commission pre-
scribes certain operating procedures and fixes storage rates.
Local growers or farmers haul the commodities to the warehouses
where they are cleaned, packed into bags, stored, and handled. The
grower receives from the Employer a warehouse receipt which he
sells to a broker or other purchaser, or keeps the receipt himself.
When the possessor of the warehouse receipts surrenders it, together
with shipping instructions, to the Employer, the latter loads the
,commodities on trucksYor railroad cars for. shipment .3
2 The Employer moved to dismiss the petition on the ground that the operations of
the Employer did not affect commerce within the meaning of the Act. For the reasons
hereinafter stated , this motion to dismiss is denied.
This warehouse is also referred to in the record as the Tarke warehouse.
8 A large amount of the commodities is shipped from . the Employer 's warehouses to
various warehouses of the Commodity Credit Corporation which are located within the
State of California.
95 NLRB No. 147.