Browne and Buford

National Labor Relations Board - Board Decisions

Dec 31, 1963

145 N.L.R.B. 765 (N.L.R.B. 1963)

BROWNE AND BUFORD, ENGINEERS AND SURVEYORS 765
doctrine depending on its own evaluation of the economic situation
of the parties and of their community. Were the Board to endow
itself with such powers over the substance of collective bargaining,
it would introduce uncharted instability into the application of a
doctrine, contract bar, basically designed to endow the agreements
made by the parties themselves with a reasonable, predictable stability.
The assumption or intrusion of governmental evaluation of the vital
content of agreements relating to wages, hours, and other terms and
conditions of employment would inevitably relieve the parties to a
substantial degree of that sense of responsibility for the various af-
fected interests, private and public, which is essential to successful
collective bargaining in a free system.
The interests invoked in behalf of, and against, the appeal for
Board action are important. But the parties to the contract can
also do something about them. And in our view the Board cannot
do so here, without undertaking determinations beyond the scope
of the record before it or the duties given to it and without endanger-
ing principles at the very foundation of our national employment
relations policies.
In view of all the foregoing, we find that no question concerning
representation of the Employer's employees exists at this time and
we shall accordingly dismiss the petitions.
[The Board dismissed the petitions.]
Browne and Buford , Engineers and Surveyors 1 and Inter-
national Union of Operating Engineers , Local 101, Petitioner.
Case No. 17-RC-41f25. December 31, 1963
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 Hearing Officer Harold L.
Hudson. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board fords :
1. The Employer involved herein is a partnership located in Kansas
City, Kansas, engaged in rendering surveying, design, and inspection
services. A considerable portion of these services are rendered to the
State of Kansas and its political subdivisions, in connection with
projects financed in significant part by the Federal Government.
'The Employer' s name appears as amended at the hearing.
145 NLRB No. 74.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For services performed outside the State of Kansas in 1962, the
Employer received $23,672.863 It is clear that the Employer on the
basis of such out-of-State services is subject to the Board's statutory
jurisdiction,' and we so find.
We also find that the Employer meets the Board's discretionary
standards for the assertion of jurisdiction over nonretail enterprises,
and that it will effectuate the policies of the Act to assert jurisdiction
herein. As noted above, the Employer received $23,672.86, as direct
outflow, for services rendered outside the State of Kansas. This figure
does not itself meet the Board's outflow test of $50,000. However,
as indicated above, it also appears that the Employer performed sub-
stantial services to political subdivisions of the State of Kansas in
connection with programs financed in large part by the Federal Gov-
ernment. Thus, the record indicates the Employer received $28,342.73
for services rendered to the Urban Renewal Agency of Kansas City,
Kansas, and $34,672.67 for services rendered to Wyandotte Township
in Kansas, the latter in connection with the construction of sewage
treatment facilities.
Both the urban renewal and sewage treatment projects are recipients
of substantial Federal funds and are part of nationwide Federal
programs. Federal assistance represents two-thirds to three-fourths of
the net cost of the Kansas City urban renewal project, and 30 per-
cent of the Wyandotte sewage treatment project. Since Federal aid
is to be used, the urban renewal project must meet the planning and
other requirements established by the Urban Renewal Administration.
Similar requirements exist for the receipt of Federal aid in the sew-
age treatment project.
It is clear that a labor dispute disrupting services to these projects
would have a serious and adverse impact on programs which are closely
bound to the national interest. The Employer's aforementioned
services rendered to Kansas political subdivisions are in our opinion
infused with at least as great a Federal interest as services rendered
to other, private concerns whose operations in other respects meet the
Board's jurisdictional standards. Accordingly, we consider the Em-
ployer's services rendered to such projects to be indirect outflow.
Together, the Employer's services directly out-of-State and to federally
financed projects are sufficient to meet the Board's $50,000 outflow
standard for nonretail enterprises, 'and we so find 3 We shall assert
jurisdiction herein.
2 Some of the Employer 's employees hold licenses which permit them to perform engineer-
ing and surveying services in Missouri as well as Kansas.
8 The Employer in 1962 also provided $31,115.42 worth of service in Kansas for approxi-
mately '89 private firms, whose operations are not further described in the record In view
of our findings herein, we deem it unnecessary to elicit further information to determine
whether such services may be included as indirect outflow.
BROWNE AND BUFORD, ENGINEERS AND SURVEYORS 767
2. The labor organization involved claims to represent certain
employees 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 a bargaining unit of "All field survey
employees, excluding inspectors, professional employees, all other
employees, office clerical employees, guards, and supervisors as de-
fined in the Act." The parties are in substantial agreement as to the
appropriateness of the unit,4 but disagree as to the inspectors and
as to two relatives of Employer-Partner Robert L. Buford.
a. Inspectors : The Employer contends that inspectors should be
included in the bargaining unit. The duties of inspectors are to
interpret plans and specifications for contractors during construc-
tion operations, and to inspect the contractors' work to see that it
conforms to the plans. Inspectors also estimate job completion per-
centages for the purpose of computing moneys due the contractors.
Unlike the field survey employees who comprise the unit as sought
by the Petitioner, inspectors do not normally participate in the work
of measuring distances, operating survey instruments, or driving
stakes. They are not present during house or farm surveys, and, as
indicated above, ordinarily come on the work scene only at the con-
struction phase of the project. Their contacts with field survey
parties, even at these times, appear to be only incidental and sporadic.
Inspectors report to Lee Ruark, a supervising engineer, or directly
to Mr. Browne, one of the partners. The field survey employees
sought by the Petitioner report to the individual party chiefs, who
in turn report to McMullen, the senior party chief.
Although there are some similarities between the employment con-
ditions of inspectors and field survey employees, such as fringe bene-
fits and working hours, even these are not identical, since inspectors
on the average receive a higher rate of pay than employees in the field
survey parties.
We conclude from the above, and the entire record, that the in-
terests and duties of the inspectors are not such that the inspectors
are necessarily part of the unit of field survey employees sought by
Petitioner. Accordingly, we shall exclude the inspectors from the
unit.'
b. Relatives of Robert L. Buford: The Employer would include,
and the Petitioner exclude, two relatives of Robert L. Buford, at
one time a partner in the Employer's business. Both Robert L.
4 The parties stipulated that R. H McMullen, senior party chief, is a supervisor and
should be excluded , but that the other party chiefs are employees and are appropriately
within the unit The parties agreed to exclude Vincent J. McKinnell, Lee R. Ruark, and
Richard A. Roberts as professionals and/or supervisors.
5In view of this finding, we deem it unnecessary to decide the status of William C.
Branit, a licensed engineer employed as an inspector.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buford, Jr., and Murray Rhodes, the relatives referred to, were em-
ployed at the time of the hearing as members of field survey crews.
As to Rhodes, a son-in-law of alleged partner Buford, we shall
include him in the unit, as there is nothing in the Act requiring the
exclusion of sons-in-law, and there is no evidence that he enjoys
special status by virtue of his relationship to Buford .6
As for Robert L. Buford, Jr., son of Robert L. Buford, he would
ordinarily be excluded from the unit as an "individual employed by
his parents," under Section 2(3) of the Act. However, partner
Bruce Browne testified without contradiction that he was in the
process of purchasing Robert Buford, Sr.'s interest, and that the
deal would be formalized within a month of the date of the hearing.
According to Browne, the direction and control of the partnership
would pass immediately to Browne, although the money involved
would be paid over a longer period of time. As we are unable to
determine from this record what the precise interests of Robert
Buford, Sr., will be in the partnership on the eligibility date, we
shall permit Robert L. Buford, Jr., to vote subject to challenge?
In accordance with our findings herein, we find that the following
employees of the Employer constitute an appropriate unit within
the meaning of Section 9 (b) of the Act :
All field survey employees in the Employer's Kansas City, Kansas,
operations, including Murray Rhodes and including party chiefs, but
excluding inspectors, professional employees, office clerical employees,
all other employees , guards, the senior party chief, and all other
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS LEEDOM and JENKINS took no part in the consideration of
the above Decision and Direction of Election.
a See Adam D. Goettl and Gus Goettl, d/b/a International Metal Products Company,
107 NLRB 65, 67; The Colonial Craft, Inc., 117 NLRB 1833, 1834.
7 Member Brown would exclude Robert L . Buford , Jr., and Murray Rhodes from the
unit because of their family relationship. Chester County Beer Distributors Association,
133 NLRB 771 , footnote 12; P. A. Mueller and Sons, Inc., 105 NLRB 552.
Truman Schlup , Consulting Engineer and International Union
of Operating Engineers , Local 101, Petitioner. Case No. 17-RC-
4126. December 31, 1963
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 Hearing Officer Harold L.
145 NLRB No. 75.