L & S Construction Co., Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1965

155 N.L.R.B. 524 (N.L.R.B. 1965)

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572.
L & S Construction Company, Inc. and Metropolitan D. C. Paving,
Highway and Construction Materials Council , Petitioner. Case
No. 5-RC-5194. November 2,1965
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
M. Louise Felton. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. Thereafter,
the Employer filed a brief in support of its position.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
Upon the entire record in this case, the Board finds :
1. The Employer contends that it does not meet the Board's stand-
ards for assertion of jurisdiction. L & S Construction Company is a
Maryland corporation wholly owned by A. H. Smith. Its headquarters
and place of business are located, together with other A. H. Smith
enterprises, in a large complex of facilities at Branchville, Maryland.
The Company is engaged in the construction and installation of curbs
and gutters, and the performance of grading operations and similar
tasks in the construction of roads. During the past year, the Com-
pany's purchases from outside the State of Maryland amounted to less
than $50,000. Work performed outside the State was minimal, but
during the past year L & S received in excess of $50,000 for services
performed in the construction of several Federal, State, and county
highways within the State of Maryland. The Board has long held that
construction of intrastate and State highways affects commerce within
the meaning of the Act, and services so rendered are considered as hav-
ing been performed for an instrumentality of interstate commerce.'
Under these circumstances, we find that the Employer's operations
satisfy the Board's nonretail jurisdictional requirements and it will
effectuate the policies of the Act to assert jurisdiction herein.2
'International Hod Carriers', Building and Common Laborers ' Union of America, Lo-
cal 894, AFL-CIO, (Thorpe Construction Company and Lomelo Construction Company),
148 NLRB 55; Spears -Dehner, Inc., 139 NLRB 922, 923; Mohican Trucking Company,
131 NLRB 1174, 1175; Madison County Construction Co., 115 NLRB 701.
2 See Siemons Mailing Service, 122 NLRB 81.
155 NLRB No. 49.
L & S CONSTRUCTION COMPANY, INC. 525
2. The labor organization involved claims to represent employees of
the Employer .3
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
Petitioner is seeking a unit of production and maintenance employ-
ees, including truckdrivers, limited to the L & S employees. Employer
contends that the sole appropriate unit is a single unit of all the employ-
ees employed by the several A. H. Smith operations working within
the Branchville installations. L & S shares the Branchville location
with A. H. Smith Company, liquid asphalt division; A. H. Smith Com-
pany, sand and gravel division; and the Patuxent Sand Company,
Inc. A. H. Smith is the sole owner of A. H. Smith Company and the
sole shareholder of Patuxent Sand Company, Inc., and L & S. The
Petitioner's proposed unit would be composed of roughly 100 employ-
ees while that suggested by the Employer has over 400 employees.4
Each company maintains separate offices, storage buildings, and
other facilities on the grounds. A. H. Smith has an office within the
compound from which he exercises control over the entire operation,
including the setting of labor relations policy. Although each com-
pany has a separate telephone number, there is a central telephone
switchboard for the entire installation. There is a radio dispatcher
and two-way radio communications serving all the operations. Each
company has its own office located near its own facilities, but there is
one office manager who supervises all the clerical operations. A credit
manager is located in the L & S office and is on the L & S payroll;
however, he serves all the other companies. All checks are signed by
A. H. Smith and all mail comes to Smith's office for distribution to
the other companies. Guards and watchmen on the A. H. Smith pay-
roll serve the entire installation. A. H. Smith's approval is required
on major purchase orders.
L & S is separately incorporated. It maintains its own records and
its own office on the grounds and pays its own separate income tax. It
has its own equipment which is periodically used on projects for some
of the other Smith companies. However, in such cases or when the
equipment is used for repair work on the Branchville yards, L & S bills
8 We note that we have found Petitioner to be a labor organization under the Act in a
prior matter. Contee Sand and Gravel Company, Inc., Case No. 5-RC-3446 (not pub-
lished in NLRB volumes). The employer has objected to the Hearing Officer's rejection
of its offer of proof regarding certain evidence that it claimed would tend to reflect on
Petitioner's status as a labor organization under the Act. In view of our dismissal of
the Petition, we find it unnecessary to pass on this ruling.
* Since the entire operation is primarily engaged in roadbuilding, the work is seasonal
and employment fluctuates in response to the requirements of the specific projects under
way at any given time.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other company for services rendered. L & S is under the immediate
control of A. Meyers, its president and general manager. Meyers is
compensated on the basis of a percentage of the Company's profit.
Consequently, L & S is also billed by Smith for any services it receives
for its share of the Branchville utilities. In this connection, L & S
purchases about 80 percent of its concrete and much of its sand and
gravel from A. H. Smith but obtains other materials elsewhere.
Fifty percent of the L & S work force is composed of workers in the
category of "laborers" and the balance of its employees include truck-
drivers, concrete form setters and finishers, bricklayers, pipelayers,
equipment operators, and mechanics. L & S employees are paid by
check from L & S and their time is kept by L & S foremen. The L & S
facilities at Branchville are located near those of liquid asphalt divi-
sion and the employees of both companies share the same parking lot .5
Mechanics from L & S work on certain equipment in the yard that
belongs to some of the other companies and L & S equipment is parked
in the same lot as that of some of the others.
There is some transfer of employees. Thus, on occasions when L & S
has been unable to meet Government qualifications as a subcontractor
on a Smith project, L & S employees have been transferred to the Smith
company payroll and performed their functions as employees of A. H.
Smith. A flexible method of seniority is employed which recognizes
an employee's prior service with other Smith companies in the event
of a layoff.
On the job, L & S works in close conjunction with the other Smith
companies. For example, on a given project, L & S would excavate,
grade, and place a gravel base for the road and install the curbs and
gutters. As noted, it would obtain much of its material from A. H.
Smith, sand and gravel division, or Patuxent Sand Company. On the
same project and within the same general area, A. H. Smith, liquid
asphalt division, or asphalt division would be putting down the vari-
ous road surfaces. Although many of liquid asphalt division's em-
ployees perform jobs peculiar to the material which is that company's
major product, about 50 percent of its employees are classified as
"laborers" and, when a road is being constructed, do work similar to
that performed by the L & S laborers on the same job. There is
common overall supervision on the job either by Meyers, one of the
other officers, or A. H. Smith himself. Although not frequently exer-
cised, it is recognized that any supervisor on any one of the Smith
projects has the authority to take any necessary disciplinary action
against an employee of another Smith company.
5 Although most of the L & S work is conducted at outlying jobsites, about 50 percent
of the employees report to Branchville in the morning either for duties at the Branchville
facility or for transportation to the job.
PEPSI COLA BOTTLERS OF MIAMI, INC. 527
There was testimony that, in addition to acting as subcontractor for
A. H. Smith Company, L & S has made contracts in its own name.
However, such contract bids were apparently made only after consulta-
tion with the other Smith companies and as part of a coordinated bid
subject to A. H. Smith's control.
On the basis of the entire record in this case, particularly the com-
mon ownership, centralized control of labor relations, and the inter-
relation of operations, we find that the Employer and the other A. H.
Smith enterprises at Branchville, Maryland, are a single employer for
unit purposes. We further find that employees of L & S share similar
working conditions and facilities with the employees of the other
Smith companies, particularly those of liquid asphalt division; are
under the same administrative control; and engage in intercompany
transfer. Accordingly, as L & S is so physically and functionally inte-
grated with the other Smith companies and as its employees have such
a substantial community of interest with the employees of the other
companies located at Branchville ,6 we find the unit of L & S employees
sought by Petitioner is inappropriate and hereby dismiss the petition.1
[The Board dismissed the petition.]
6 While we recognize that the record facts are incomplete in this respect, it is possible,
in view of what appears to be close coordination between their respective work crews on
construction projects and integration of their facilities at the Branchville site, that a
combined unit of employees of L & S and liquid asphalt division might be appropriate.
However , no party sought such a unit and this issue was therefore not litigated.
7 See Halstead & Mitchell Co., 151 NLRB 1460.
Pepsi Cola Bottlers of Miami , Inc. and General Sales Drivers &
Allied Employees Union , Local Union No. 198, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases Nos. 12-CA-2805 and
12-CA-2999. November 3,1965
DECISION AND ORDER
On May 26,1965, Trial Examiner Thomas S. Wilson issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it case and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and Respondent filed a brief in sup-
port of its exceptions.
155 NLRB No. 50.