Allen Services Co.

National Labor Relations Board - Board Decisions

Sep 9, 1994

314 N.L.R.B. 1060 (N.L.R.B. 1994)

1060
314 NLRB No. 176
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The petition was filed on February 18, 1993, and was subse-
quently amended at the hearing held on March 11, 1993.
2 The Petitioner refers to the Employer as Allen Services—
Peatross. Emp. Exh. 10, which is the bid application for the Amtrak
contract, shows the Employer’s name at one point as Peatross Serv-
ice Co. and at another point as the Allen Services Company Corp.
d/b/a Peatross Service Co. The bid was signed by an individual iden-
tifying herself as vice president of the Allen Service Corp. Buddy
Allen, the president of both Peatross Service Co. and Allen Services
Company, testified that it was his understanding that they are two
separate companies. Allen further stated that he did not know who
the officers are in each of the two companies or if they are identical.
He testified that the employees involved here are employed under a
contract that Peatross Service Company has with Amtrak, that Am-
trak makes payments to Peatross Service Company, and that some
portion of the funds are directed to Allen Services Company. The
employees are paid from funds drawn on the account of Allen Serv-
ices Company. The National Mediation Board, which considered the
jurisdictional issue (see infra), determined that Peatross employs the
individuals at issue. In our view, the relationship between the com-
panies cannot be determined on the basis of the record. Nevertheless,
for purposes of this decision, we will refer to Peatross as the Em-
ployer.
3 The Petitioner had also filed a petition with the NMB. The dis-
missal is cited as Peatross Services Co., 21 NMB 148 (1994).
4 The parties stipulated that both the Employer and Allen Services
are engaged in interstate commerce within the meaning of the Act.
Allen Services Company, Inc. and Peatross Service
Company, Inc. and International Brotherhood
of Electrical Workers, Local 362, AFL–CIO,
Petitioner. Case 5–RC–13853
September 9, 1994
DECISION, ORDER REMANDING, AND
DIRECTION OF ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On a petition filed under Section 9(c) of the Na-
tional Labor Relations Act, a hearing was held before
Hearing Officer John O’Donnell. Following the hear-
ing, and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, the Re-
gional Director for Region 5 on March 18, 1993,1
transferred this case to the Board for decision. There-
after, the Petitioner filed a brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three member
panel.
The Board has reviewed the hearing officer’s rulings
made at the hearing and finds that they are free from
prejudicial error. They are affirmed.
On the entire record in the case, the Board finds:
1. Allen Services Company, Inc. is a Georgia cor-
poration with offices in Atlanta, Georgia, and work-
sites in Manassas and Fredericksburg, Virginia, and
elsewhere. Allen Services is engaged in providing full
service maintenance to businesses including res-
taurants, buildings, and railroads. In the course and
conduct of its business operations during 1993, it pur-
chased and received materials, goods, and services val-
ued in excess of $50,000 directly from points outside
the State of Georgia.
Peatross Service Company is a Georgia corporation
with an office in Atlanta, Georgia, and worksites in
Manassas and Fredericksburg, Virginia, and other
States engaged in providing full maintenance, repair,
and janitorial services to businesses and railroads. Spe-
cifically in this matter, Peatross has the contract with
Amtrak for the provision of certain services at Manas-
sas and Fredericksburg, Virginia, for the Virginia Rail-
road Express (VRE). During the past 12 months, a rep-
resentative period, Peatross purchased and received at
its Georgia location, materials, goods, and services val-
ued in excess of $50,000 from points directly outside
of the State of Georgia.
The Employer2 contended at the hearing that juris-
diction over its operation should be with the National
Mediation Board under the Railway Labor Act and that
the petition should be dismissed. The Petitioner, on the
other hand, contends that jurisdiction is properly with
the National Labor Relations Board.
Section 2(2) of the National Labor Relations Act
provides in pertinent part that the term ‘‘employer’’ as
used in the National Labor Relations Act should ex-
clude any person subject to the Railway Labor Act.
Accordingly, because of the nature of the jurisdic-
tional question, we requested that the National Medi-
ation Board (NMB) determine the applicability of the
Railway Labor Act to the Employer. In reply, the
Board was advised by the NMB that it had concluded
as follows:
The Board [National Mediation Board] declines to
assert jurisdiction over Peatross. The Board’s
analysis of the record in terms of its jurisdictional
standards reveals that Peatross is not a carrier nor
is it directly or indirectly controlled by, or under
common control with, a carrier. Therefore,
Peatross Services Co., Inc. is not subject to the ju-
risdiction of the Railway Labor Act.3
In view of the foregoing, this Board will assert juris-
diction over the Employer if its operations satisfy this
Board’s jurisdictional standards. The Employer’s an-
nual out-of-state purchases in excess of $50,000 satisfy
the relevant inflow standard for the assertion of juris-
diction over entities providing ancillary services to pas-
senger transit systems. Accordingly, we deny the mo-
tion to dismiss the petition and find that the Employer
is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to as-
sert jurisdiction.4
2. The Petitioner is a labor organization within the
meaning of the Act and claims to represent certain em-
ployees of the Employer.
1061ALLEN SERVICES COMPANY
5 Also referred to in the Employer’s contract as Spotsylvania.
6 Electricians, carmen, mechanics, and machinists are considered
craft employees.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
In May 1992, the Employer was awarded a contract
by Amtrak to provide train maintenance services for
the VRE at the Manassas and Fredericksburg rail
yards.5 These services include cleaning of the train
cars, inspection, electrical and mechanical maintenance
including minor repairs of the locomotives and railcars,
and providing round-the-clock security for equipment
at the service sites when not in use.
The record reveals that at the Fredericksburg site,
the Employer employs one carman, one cleaner, two
electricians, and three security people. At the Fred-
ericksburg site, the Employer employs one carman,
one machinist, one cleaner, and three security people.
The Petitioner seeks a unit composed of all mainte-
nance and cleaning employees, cleaners, electricians,
mechanics, and carmen working at the Employer’s Ma-
nassas and Fredericksburg, Virginia rail yards. The Pe-
titioner did not state any exclusions but contends that
Paul Hudson and Dairl Sluss are leadmen and not su-
pervisors, and thus are unit employees. The Employer
contended at the hearing that Hudson and Sluss are su-
pervisors, that certain other employees should be ex-
cluded as guards, and that four other employees should
be excluded because they are relatives of a supervisor.
A. Supervisors. The Employer seeks to exclude
Hudson and Sluss as supervisors on the basis that each
of them is in charge of one of the Employer’s sites.
The Petitioner contends that Hudson and Sluss are not
supervisors because, for a significant portion of their
worktime, they perform bargaining unit mechanical
work alone, leaving them little time to supervise the
few other employees. Further, it argues that all super-
vising is accomplished by fax from the general man-
ager in Atlanta, Fred Lovette, or the Amtrak super-
visor, who is on the premises. The Petitioner further
contends that because Hudson receives $14 per hour
and Sluss $10 per hour, their salaries indicate not that
they are supervisors, but that they are leadmen.
Having carefully reviewed the entire record, we find,
for the reasons discussed below, that Hudson and Sluss
are statutory supervisors. Therefore, we shall exclude
them from the unit found appropriate.
Section 2(11) of the Act sets forth the indicia of su-
pervisory status as follows:
The term ‘‘supervisor’’ means any individual hav-
ing authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine
or clerical nature, but requires the use of inde-
pendent judgment.
The statutory indicia set forth above are in the dis-
junctive and only one need exist to confer supervisory
status on an individual. Opelika Foundry, 281 NLRB
897, 899 (1986). The burden of proving supervisory
status rests on the party asserting that such status ex-
ists. Bowne of Houston, 280 NLRB 1222 (1986).
Paul Hudson testified without contradiction that he
is the supervisor at the Employer’s Manassas site and
that he also performs work as a carman (electrician).
Hudson testified that he hired Dairl Sluss, who is a su-
pervisor and carman at the Fredericksburg site. Hudson
also makes up the work schedules for the Manassas
site, signs off on the timesheets, and approves requests
for any overtime for both the Manassas and Fred-
ericksburg facilities. On November 3, 1992, he was ap-
pointed by the Employer as the regional supervisor
over both locations. His responsibilities include over-
seeing all service operations, coordinating all staff
schedules, and serving as the main contact with Am-
trak management and the Atlanta office. In this capac-
ity, he receives daily work reports and other commu-
nications. He communicates and reports directly to
Fred Lovette, the Employer’s general manager, who is
located in Atlanta. Lovette also testified that in hiring
casual employees, he only places the newspaper ads
and then refers the applicants to either Hudson or Sluss
for an interview and actual hiring decision. Lovette
further testified that with the craft employees,6 he does
the prequalification and background checks and that
the actual hiring decision may be made by either Hud-
son or Sluss, who would personally interview them, or
it may be a joint decision by him and the supervisor,
depending on his availability.
The record also shows that Sluss hired his wife as
a cleaner, and his two sons and brother-in-law as secu-
rity employees. Sluss also makes up the work sched-
ules, signs off on the employees’ timesheets, and
grants employees time off.
In view of the foregoing evidence, we find that
Hudson and Sluss are supervisors who not only have
apparent supervisory authority, but have also independ-
ently exercised that authority by hiring employees,
signing off on the hours they worked, and determining
the need for, and authorizing, employees to work over-
time, as well as independently scheduling employees
for work. Further, they are the only supervisors present
at the two sites on a day-to-day basis. Lovette’s testi-
mony was uncontradicted that while an Amtrak super-
visor is present, he does not supervise the Employer’s
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Sec. 9(b)(3) of the Act states that the Board shall not ‘‘decide
that any unit is appropriate . . . if it includes, together with other
employees, any individual employed as a guard to enforce against
employees and other persons rules to protect property of the em-
ployer or to protect the safety of persons on the employer’s prem-
ises.’’
8 It is unclear whether Jerry and Jonathan also perform or have
performed some cleaning functions.
9 See Cumberland Farms, 272 NLRB 336 (1984).
employees and if the Amtrak supervisor has a problem
or question, he will consult with either Hudson or
Sluss. They are therefore excluded from the unit as su-
pervisors under Section 2(11) of the Act.
B. Guards. The Employer identified certain employ-
ees as security personnel and seeks their exclusion as
guards.7 The Petitioner contends that they are not
guards because they do not enforce any rules for the
protection of property or safety. This is so, the Peti-
tioner argues, because no rules exist. The Petitioner as-
serts that these employees are cleaners who are as-
signed to work the weekends because of their low rate
of pay; that they have no authority; and that they do
not wear uniforms or have special security equipment
such as weapons, handcuffs, clubs, or a radio. More-
over, the Petitioner argues, all the employees watch out
for the security of the equipment whether it is during
the week or weekends, and that, to find specific em-
ployees to be guards because they carried out their re-
sponsibilities to protect their employer’s property
‘‘would make a mockery of the Act.’’
For the reasons discussed below, we find that those
employees identified by the Employer as security per-
sonnel are guards within the meaning of the Act. Ac-
cordingly, they shall be excluded from the unit.
The Employer is required by its contract with Am-
trak to provide around-the-clock security for the VRE
equipment. During the week, the trains leave the rail
yards each morning and return at 5 p.m. The craft em-
ployees and cleaners are then present throughout the
night and next morning, so the Employer does not
have a need for specific security employees to be
present. However, the security people work the week-
ends starting at 5:30 p.m. Friday to 7 p.m. Sunday.
Each person works a specific shift. They are required
to sit in the office and make sure no one comes onto
the premises, climbs on the trains, or vandalizes them.
If someone comes onto the grounds, the security per-
sonnel are required to call the police. They do not
carry guns or have dogs.
Hudson testified that at the Manassas facility em-
ployees Brenda Kline, James Mullins, and Matthew
Brown perform security functions. He also stated that
at the Fredericksburg facility employees Jerry and Jon-
athan Sluss and John Napier perform security func-
tions. The record reveals that Kline works from 9:30
p.m. Friday to 8 a.m. Saturday. Brown works from 8
a.m. to 8 p.m. on Saturdays and Mullins works from
midnight Saturday to 7 p.m. Sunday. Jerry and Jona-
than Sluss divide the weekend between them, and Na-
pier works part time about once per month. Although
these security employees have no special training as
guards and do not wear guard uniforms or carry fire-
arms, we conclude that these six part-time, weekend
security employees are employed for security pur-
poses.8 In performing their security functions, they en-
force against unauthorized persons rules to protect the
safety of the VRE equipment, keep unauthorized per-
sons off the property, and protect the premises. The
fact that they notify the police does not detract from
their guard status. Rather it is sufficient that they pos-
sess and exercise responsibility to observe and report
trespass infractions because this is an essential part of
the Employer’s procedures for protecting the premises
and equipment. The possibility that two of them may
also have other duties does not negate their status as
guards. Jakel Motors, 288 NLRB 730, 742–743
(1988).
C. Relatives of Management. The Employer con-
tends that beause Dairl Sluss is a supervisor, his wife,
two sons, and brother-in-law should be excluded be-
cause they enjoy special benefits as a result of their re-
lationship. The Petitioner contends that because Sluss
is neither an owner, partner, officer, nor stockholder of
the Company, Sluss’ relatives should not be excluded.
The definition of an employee in Section 2(3) of the
Act specifically excludes ‘‘any individual employed by
his parent or spouse.’’ It is also well established that
the Board will exclude from bargaining units the chil-
dren, spouses, and close relatives of individuals who
have substantial stock interests in the Company, espe-
cially if the employee enjoys ‘‘special status’’ and if
that special status aligns his interest more closely with
management than with unit employees. The special sta-
tus test is also applied to determine the eligibility of
relatives of nonowner managers.9
The record does not show, nor does the Employer
provide any evidence, that Sluss is an owner, stock-
holder, or close relative of the owners or substantial
stockholders. However, we have previously determined
that Dairl Sluss is a supervisor. We have also excluded
Sluss’ two sons, Jerry and Jonathan, and his brother-
in-law, John Napier, as guards. This leaves his wife
Janet for consideration under the ‘‘special status’’
standard for relatives of members of management.
Janet Sluss is employed as a cleaner responsible for
cleaning the trains Monday through Friday from 5:30
to 10:30 p.m., 5 days a week for 5 hours per day at
$5.50 per hour. Except for a period between May and
November 1992, when Sluss assigned the majority of
overtime to his family, it does not appear on this
record that Janet Sluss’ working conditions differed
from those of the other employees. Neither has the
1063ALLEN SERVICES COMPANY
Employer shown that Janet Sluss enjoys any other job-
related privileges by virtue of her marital status not ac-
corded to the other employees in the unit found appro-
priate.
We find that Janet Sluss’ family relationship has not
afforded her any other privileges not shared by other
employees in the unit and that she shares a sufficient
community of interest with the employees in the unit
found appropriate.
In accord with the above analysis, we find that the
unit appropriate for collective bargaining within the
meaning of Section 9(c) of the Act is as follows:
All full-time and regular part-time maintenance
and cleaning employees, all cleaners, electricians,
mechanics and carmen working at the Employer’s
Manassas and Fredericksburg, Virginia rail yards;
excluding all other employees, guards and super-
visors as defined in the Act.
ORDER
It is ordered that the above-entitled matter is re-
manded to the Regional Director for Region 5 for fur-
ther processing consistent with this decision.
[Direction of Election omitted from publication.]