Jerry Fairbanks, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1951

96 N.L.R.B. 1140 (N.L.R.B. 1951)

1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.JERRY FAIRBANKS, INC. and MOVING PICTURE PAINTERS AND SCENIC
ARTISTS, LOCAL 644, AFFILIATED WITH BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS OF AMERICA, PETITIONER. Case No.
21-RC-1718. October 30, 1951
Supplemental Decision and Direction
Pursuant to the Decision and Direction of Election I issued on
March 22,1951, an election was conducted in this proceeding on April
20, 1951, under the direction and supervision of the Regional Director
-for the Twenty-first Region , among employees in the unit heretofore
found appropriate. The tally of ballots shows that five valid.ballots
were cast for the Petitioner; that three valid ballots were cast for the
Intervenor; 2 and that five ballots were challenged. No objections to
the conduct of the election or conduct affecting the results of the
election were filed within the time provided therefor.
As the challenged ballots were sufficient in number to affect the
-results of the election, the Regional Director, acting pursuant to the
Board's Rules and Regulations, investigated the issues raised by the
challenges, and on May 1, 1951, issued his report on challenged ballots,
recommending that the challenges to all five ballots be sustained and
that the ballots be not opened and counted. On May 22, 1951, the
Intervenor filed exceptions to the Regional Director's report on chal-
lenges and requested a hearing. Because no exception was taken to
the Regional Director's finding and recommendation with respect to
George Schmorleitz within the time provided therefor, we 3 adopt
his findings and recommendations in this respect and sustain the chal-
lenge to the ballot of Schmorleitz.
Thereafter the Board ordered that a hearing be held before a hear-
ing officer for the purpose of taking testimony on the following issues :
^(1) Whether David Wirt and Arthur Hutchinson were temporarily
-laid off within the meaning of the direction of election; and (2)
whether Ralph T. Jester and George J. Rendahl were employees of
the Employer and therefore eligible, or employees of an independent
.contractor and not eligible to vote. The Board further directed that
the hearing officer prepare and cause to be served upon the parties a
report containing resolutions of the credibility of witnesses, findings
.of fact, conclusions, and -recommendations.
Pursuant to notice, a hearing was held before William M. Pate,
1 93 NLRB 898
2 International Alliance of Theatrical Stage Employees of the United States and
Canada, AFL
3 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 [ Chairman Herzog and
Members Reynolds and Styles].
96 NLRB No. 182. -
JERRY FAIRBANKS, INC. 1141
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudical error and are hereby affirmed.
In accordance with the Board's order, the hearing officer issued and
duly served on the parties his report on challenged ballots, in which
he found that Wirt and Hutchinson were not "temporarily laid off"
within the meaning of the direction of election; and recommended
that the challenges to their ballots be sustained. He further found
that Jester and Rendahl were employees of the Employer and not
employees of an independent contractor, and recommended that the
challenges to their ballots be overruled and that their ballots be opened
and counted. Thereafter the Petitioner 4 and the Intervenor filed ex-
ceptions to the hearing officer's report.
Challenges to the Ballots of Wirt and Hutchinson
The record shows that neither man actually worked for the Em-
ployer during the 120-day eligibility period. The Intervenor alleges
that because both men worked just before the eligibility period, were
on call during the eligibility period, and at least one of them actually
worked for the Employer after the Board election, the disputed em-
ployees necessarily had a reasonable expectancy of employment during
the eligibility period and occupied a temporarily laid-off status during
that time.
As we have stated on numerous occasions, the pertinent issue in these
cases is whether laid-off employees have a reasonable expectancy of
reemployment with the Employer in the near future. Under all the
circumstances of employment in this case, especially the fact that
during the entire 120-day eligibility period neither of the disputed
employees was recalled and that the prospect of any recall of these
two employees in the immediate future was speculative in character,
we find, contrary to the contentions of the Intervenor, that Wirt and
Hutchinson were not eligible to vote in the election. We .therefore
sustain the challenges to their ballots, and find the ballots invalid.
Challenges to the Ballots of Jester and Rendahl
The Regional Director recommended that the challenges to the
ballots of Jester and Rendahl be sustained on the ground that Jester
and Rendahl were employees of Kemp, who was an independent con-
tractor and not employees of the Employer. The hearing officer,
after further hearing, found that Kemp was a supervisor hired by the
Employer and that Jester and Rendahl were employees of the Em-
ployer and not employees of Kemp, and recommended that the chal-
lenges to their ballots be overruled and that the ballots be opened and
* We do not consider the belated contentions of the Petitioner with respect to the
challenge to the ballot of Schmorleltz.
974176-52-vol. 96-73
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counted. The Petitioner, excepted to this finding and recommenda-
tion.
Kemp, the alleged independent contractor, estimates the cost of
construction work on sets for the Employer, recruits and hires workers,
and supervises the work done. If the cost of construction exceeds his
estimate, the Employer is responsible for the difference in cost. The
costs of materials and the wages of the workers employed by Kemp
are billed to the Employer. Kemp receives a fixed fee to cover the
value of his services for the Employer and does not stand to gain or
lose if the actual cost of the construction is below or above the amount
specified in the estimate. The Employer pays him by check covering
his fee, the cost of materials purchased, and the wages of the workers.
Kemp pays the wages in cash. Neither the Employer nor Kemp makes,
deductions for withholding tax or social security or unemployment
compensation from the wages paid to employees for their services,
nor does the Employer make such deductions for Kemp. The Em-
ployer's art director exercises direct substantial control over the man-
ner in which the work is performed by workmen under Kemp's im-
mediate supervision. Kemp does not have the license required by
State law for contracting work.
Under these circumstances, we agree with the hearing officer and
find, contrary to the contention of the Petitioner, that Jester and Ren-
dahl are employees of the Employer and as such are eligible to vote in
the election. We therefore overrule the challenges to the ballots
of Jester and Rendahl and shall direct that their ballots be opened and
counted.
Direction
IT IS HEREBY DIRECTED that the Regional Director for the Twenty-
first Region shall, pursuant to the Rules and Regulation of the Board,
within ten (10) days from the date of this Direction, open and count
the ballots cast by Ralph T. Jester and George A. Rendahl, and
thereafter prepare and serve upon the parties to this proceeding a
supplemental tally of ballots.
MUNDET CORK CORPORATION AND INSULATION CONTRACTORS OF SOUTH-
ERN CALIFORNIA, INC. and MRS. EDWIN SELvIN
MARINE ENGINEERING & SUPPLY COMPANY and FREDERICK M. D.
TURNER
INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, INC., AND ITS
MEMBERS : MARINE ENGINEERING & SUPPLY COMPANY, MUNDET CORK
CORPORATION, J. T. THORPE COMPANY, PLANT INSULATION COMPANY,