San Jose Builders Co.

National Labor Relations Board - Board Decisions

Dec 31, 1952

101 N.L.R.B. 1772 (N.L.R.B. 1952)

1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the challenged ballots will affect the outcome of the election, a
further investigation will be conducted to determine their super-
visory status.
Accordingly, we find that a unit consisting of all production and
maintenance employees at the Employer's Trenton, Missouri, plant,
including in-town truck drivers, night watchmen,7 and part-time
departmental foremen,8 but excluding office and clerical employees,
confidential employees, over-the-road truck drivers, professional
employees; guards, the general foreman, departmental foremen, and
all other supervisors within the meaning of the Act, is a unit appro-
priate for the purposes of collective bargaining within the mean4ng
of Section 9 (b) of the Act.
5. The Petitioner contends that voting eligibility should be deter-
mined as of the time of the filing of the petition, when there were 64
employees working. The Employer contends that all 225 employees
who are employed during peak periods are regular employees entitled
to vote. The Employer keeps a list of laid-off employees, and in the
past, when production increased, these employees were called back ac-
cording to seniority. The Employer testified that it intended to con-
tinue this practice as soon as the expected increase in business material-
ized. Under these circumstances, we find that the laid-off employees
have a reasonable expectation of reemployment by the Employer, and
therefore are entitled to participate in the election herein directed. 10
[Text of Direction of Election omitted from publication in this
volume.]
T The parties agreed to include the night watchmen in the unit . As the record establishes
that the primary duty of these employees is to operate the boilers at the Employer 's plant,
that they have no authority to report or discipline employees of the Employer , and that
their watchman duties consist mainly in reporting fires and broken windows and in checking
licks at the Employer 's plant, we find that the night watchmen are not guards within the
meaning of the Act. Accordingly, we have included them in the unit.
8 For the reasons set forth above, the inclusion of the part -time departmental foremen
is solely for the purpose of permitting them to vote , and is not to be taken as a final
determination of their status as supervis-rs.
O The parties agreed to the exclusion of the chemist as a professional employee within
the meaning of the Act. Accordingly , he is excluded from the unit.
10 Cherry Brook Worsted Mills, 86 NLRB 1321.
SAN JOSE BUILDERS COMPANY 1 and UNION DE TRABAJADORES DE LA
CONSTRUCCION Y RAMAS ANEXAS DE PUERTO RICO (UGT), PETI-
TIONER. Case No. d4-RC-446. December 31, 1952
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 Roy J. Cohen, hearing officer.
1 Herein called the Company.
101 NLRB No. 168.
SAN JOSE BUILDERS COMPANY 1773
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
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 [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. The Company and Local 1801 offer as a bar to this proceeding
their current amended contract. That contract contains a provision
that employees must become members of the Union within 10 days
from the execution of the agreement .3 Under well-established Board
policy a contract containing such a provision is ineffective as a bar in a
representation proceeding.' Nor is the defect in the contract cured by
a subsequent oral agreement between the parties to refrain from en-
forcing that clause 5
A question affecting commerce exists concerning 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 Petitioner seeks a unit composed of all the construction and
maintenance employees working for the Company at the San Jose
Housing Development at Hato Rey, Puerto Rico, including the em-
ployees of 'subcontractors for masonry finishing, cement-block wall
erection and plastering, and carpentry. The Company, conceding this
unit to be appropriate in the main, contends that the masonry, plas-
tering, and carpentry subcontractors are independent contractors
within the meaning of the Act and that their employees should there-
fore be excluded from the unit.
The Company has contracted with the Puerto Rico Housing Au-
thority to construct 851 living units at the San Jose Housing Develop-
ment. The Company has subcontracted some of the electrical, paint-
ing, and plumbing work at the project and, more recently, certain
2 The hearing officer granted motions to intervene at the hearing by Unl n de Trabajadores
de la Construccion, Local 1801 , Amalgamated Trade Unions' Council (ILA-AFL), herein
referred to as Local 1801 on the basis of a current contractual interest, and by Union
Insular de Trabajadores de la Construccion , Federacion Libre de 1^s Trabajadores de
Puerto Rico, herein referred to as Union Insular, on the basis of an adequate showing of
interest.
3 Although the parties ' original c,ntract provided for a 30-day grace period as required
under Section 8 (a) (3) of the Act, that contract was otherwise unlawful in that Local
1801 was not at the time of its execution in compliance with Section 9 (f), (g), and (h)
of;lhe Act.
"Charles A. Krause Milling Co., 97 NLRB 536; Kress Dairy, Inc., 98 NLRB 369.
6 National Malleable and Steel Castings Company, 99 NLRB 737 ; Ketchum d Company,
Inc., 95 NLRB 43; cf . New Jersey Oyster Planters and Packers Association, Inc., 98 NLRB
1187.
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rriasoiry and carpentry work. All parties to this proceeding agree
that the employees of the subcontractors for the electrical, painting,
and plumbing work should be excluded from the unit, but the Peti-
tioner and Intervenors contend that all the remaining employees, in-
cluding those working under other subcontractors at this project,
should be included in the unit.
The 15 subcontractors in dispute have undertaken to furnish the
labor and supervision for the completion of certain construction jobs-
the laying and plastering of cement-block walls, the finishing of ma-
sonry work, and the construction of rough and false carpentry work
on stairs-in return for a fixed sum for each job completed. The
subcontracts and other evidence presented at the hearing show that
the subcontractors operate independently in the execution of their
work; they may engage as many or as few of their own employees
as they think necessary; they exclusively direct and supervise their
own employees; they do their own hiring and discharging; they alone
are expected to meet the wage claims of their employees e The con-
tracts require that the subcontractors perform stated work. As shown
by the subcontracts and the practices of the parties, no power to con-
trol or direct this work has been reserved to the Company. The only
authority to hire, fire, discipline, or direct the subcontractors' em-
ployees lies with the subcontractors. We find that the subcontractors
in question are independent contractors within the meaning of the
Act 7 and shall, therefore, exclude from the bargaining unit herein-
after found appropriate all employees of these subcontractors.
Accordingly, we find that the following employees constitute a
-unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act:
All construction and maintenance employees employed by the Com-
pany at the San Jose Housing Development, Project PR 3-16, at
Hato Rey, Puerto Rico, including crane operators, scoopmobile oper-
ators, bulldozer operators, mechanics, mechanics' helpers, pipefitters,
greasers, drivers, carpenters, carpenters' helpers, reinforcers, reinforc-
ers' helpers, masons, masons' helpers, transit- men, and laborers ; but
excluding employees employed by the painting, electrical, plumbing,
masonry finishing, cement-block wall erecting, cement-block wall plas-
tering, and carpentry subcontractors, office clerical employees, engi-
The Company makes deductions from its payments to the subcontractors for social
security taxes , Workmen 's Compensation Insurance , and public and property liability insur.
ance . These deductions correspond to the amounts for which the subcontractors are liable
as employers and for which the Company would he liable should the subcontractors fail to
make these payments
4 Oklahoma Trailer Convoy , Inc., 99 NLRB 1019 ; see N. L. R. B. v . Steinberg & Co.,
182 i•. 2d 850 (C. A. 5), setting aside 78 NLRB 211, In which the court adopted the
"control test" in deciding that persons working for the Respondent were independent
contractors.
GOLDEN STATE AGENCY, INC. 1775
neers, administrative , executive , and professional personnel, time4
keepers, storekeepers , janitors, watchmen, foremen, guards , and all
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
GOLDEN STATE AGENCY, INC., STATE FARM MUTUAL AUTOMOBILE INSUR-
ANCE COMPANY, STATE FARM FIRE AND CASUALTY COMPANY AND
STATE FARM LIFE INSURANCE COMPANY and INSURANCE AND ALLIED
WORKERS ORGANIZING COMMITTEE, CIO, PETITIONER . Case No. S-
RC-16 . December 31,1952
Amended Decision and Direction of Election
On March 20, 1952, the Board issued its Decision and Order in the
above-entitled case 1 finding that the insurance agents sought by the
Petitioner were independent contractors and dismissing the petition.
On April 29, 1952, the''Petitidner filed a motion to reopen the hearing
for the purpose of taking certain additional evidence relevant to the
status of the insurance agents. On May 14, 1952, the Employers filed
a memorandum in opposition thereto. On May 23, 1952, the Board
issued an Order granting the Petitioner's motion to reopen the record
subject to the right of the Employers to adduce additional evidence
bearing on the issue, and remanded the case to the Regional Director
for further hearing.
Pursuant to the Board's Order, a hearing was held before Jerome H.
Brooks, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon reconsideration of this case, and upon the entire record herein,
the Board makes the following findings of fact : 2
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employers.
3. The Petitioner seeks a unit of all insurance agents appointed by
and acting for the Employers in the State of California. The Em-
ployers contend that the agents sought are independent contractors.
The Employers write life, fire and casualty, and automobile insur-
ance in the United States and Canada. The California operations
involved herein are under the over-all supervision of a State director
2 88 NLRB 778.
2 As the entire recd d..and briefs adequately present the issues and the positions of the,
parties , the Employers',reqveatfox 'roml.argument is hereby denied.
101 NLRB No. 247.