Standard Business And Professional Exchange

National Labor Relations Board - Board Decisions

Feb 19, 1974

209 N.L.R.B. 104 (N.L.R.B. 1974)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California Commercial & Professional Exchange, Inc.,
d/b/a Standard Business and Professional Ex-
change and Teamsters Automotive Workers Local
495, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Petitioner. Case 31-RC-2397
February 19, 1974
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 2, 1973, the Regional Director for Region
31 issued a Decision and Order in the above-entitled
proceeding in which he dismissed the petition for a
unit of employees at the Employer's Sherman Oaks,
California, telephone-answering facility, finding,
despite the Employer's refusal to comply with a
subpoena ad lestificandum et duces tecum, that on the
basis of uncontradicted record evidence no single-
employer relationship exists between the Employer
and three other commonly owned telephone-answer-
ing services, i and that the Employer, neither by itself
nor in conjunction with Available, which has the
same manager as the Employer, met the National
Labor Relations Board's discretionary jurisdictional
standards. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, the Petitioner filed a timely request
for review of the Regional Director's Decision, on
the ground, inter alia, that the Regional Director
erred in not applying the Board's Tropicana2 doc-
trine and therefore jurisdiction should be asserted
over the Employer's operations herein. The Employ-
er filed opposition thereto.
The Board, by telegraphic order dated August 20,
1973, granted the request for review, remanded the
case to the Regional Director for further hearing on
the jurisdictional issues raised, and directed him, in
the event the Employer failed to cooperate, to take
such further action as he deemed appropriate.
On October 2. 1973, the Regional Director for
Region 31 issued a Supplemental Decision and
Order, which is attached hereto, in which he found,
on the basis of the supplemented record, that the test
for determining a single-employer relationship be-
tween the Employer and the three other answering
services has not been met; he rejected the Petitioner's
contention that the Employer should be treated as a
communications system or link, citing Stanger's
Telephone Answering Service, Inc., 51 LRRM 1584;
and he reaffirmed his earlier decision to dismiss the
petition. The Petitioner filed a request for review of
the Regional Director's Supplemental Decision, in
which it referred to its earlier request for review,
209 NLRB No. 25
noted that Stanger's did not involve "a multi-
branched operation as is here the case," and urged,
in any event, that the Board reconsider its jurisdic-
tional standard as applied to the telephone-answer-
ing industry.
The Board, by telegraphic order dated November
1, 1973, granted the request for review as it raised
substantial issues warranting review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having considered the entire record in this pro-
ceeding with respect to' the issues under review, the
Board is satisfied that the record supports the
Regional Director's findings and conclusions.3
Therefore, the Regional Director's Supplemental
Decision and Order is hereby affirmed.
i Available Answering Service, herein called Available. Pacific Answer-
ing Service, and SOS Telephone Exchange
2 Tropicana Produces, Inc , 122 NLRB 121.
e We have carefully examined the record in the instant case and we
conclude that, despite the close family relationship between the managers of
the telephone-answering services and two of the three owners of these
companies, there is insufficient evidence to show common control over the
labor relations policies of the four answering services involved herein We
find, therefore, in agreement with the Regional Director, that these
companies do not meet the test for determining that a single-employer
relationship exists . We also adhere to our policy set forth in Stanger 's that a
telephone-answering service does not in and of itself constitute a
communications system, or link , in commerce
REGIONAL DIRECTOR'S SUPPLEMENTAL
DECISION AND ORDER
On July 2, 1973, 1 issued a decision and order in the
above matter dismissing the petition. Thereafter, on
August 21, 1973, upon Petitioner's request for review, the
Board ordered that the record be reopened and remanded
the matter to me for further hearing to receive additional
evidence, including the testimony of Stanley Sacking, to
resolve the jurisdictional issues involved, including whether
a single-employer relationship exists between the Employ-
er, Available Answering Service, Pacific Answering Serv-
ice, and SOS Telephone Exchange.
The record developed in the subsequent hearing does not
alter any of the conclusions of fact or law which I made in
the earlier proceeding. Thus, on rehearing it developed that
the total gross dollar volume for all four services was in
excess of $500,000, but no two services had a gross volume
of sales in excess of $500,000 in 1972. The parties
stipulated that the Employer earned approximately $9,000
from sales or services to customers who meet aJurisdiction-
al standard of the Board.
The evidence in the rehearing indicates that the four
services do not have similar labor policies. In this regard, I
note that the four services do not have the same starting
wage rate, overtime pay, paid holidays, hiring policies,
Christmas bonuses, or advertising policies. Although the
four services have the same hospitalization and medical
coverage for employees, such benefits are provided under
separate insurance contracts for each company.
STANDARD BUSINESS AND PROFESSIONAL EXCHANGE
The Employer's three shareholders, Stanley Sackin,
Lewis Sackin, and Ord Preston, have formed three
partnerships which own Available Answering Service,
Pacific Answering Service, and SOS Telephone Exchange.
The record disclosed that the manager of the Employer
and Available Answering Service is Ernest Sackin and the
manager of the other two exchanges is Fanny Sackin.
(Ernest and Fanny are the parents of Louis and Stanley
Sackin). The two managers have a great deal of control
and authority over their respective telephone answering
services. The managers set the following policies: hiring
and firing, hours of work, starting pay, Christmas bonuses,
and advertising. The record also establishes that the two
managers do not have management meetings between
themselves or with the owners of the services. There is no
transfer of personnel among the services and there is no
customer referral among the exchanges. In addition, there
are no written labor relations policies for the Employer and
the other services.
The test for determining whether two or more businesses
will be considered a single employer for jurisdictional
purposes is fourfold, no one of which is by itself
controlling, but the first three of which are of more
' Under the provisions of Sec 102 67 of the Board 's Rules and
Regulations, a request for review of this decision may be filed with the
105
significance : interrelation of operations , centralized con-
trol of labor relations : common management : and com-
mon ownership or financial control . Sakrete of North
California, Inc. v .N.L.R.B , 322 F.2d 902 , 905-908 (C.A. 9),
cert . denied 379 U.S. 961. Based upon the foregoing and
the record as a whole, I conclude that the four answering
services do not constitute a single employer for the
purposes of jurisdiction . As already noted above , no two of
the services , including the two managed by Ernest Sacktn,
had a gross volume of sales in excess of $500 ,000 in 1972.
The Petitioner contends the Employer performs services
which affect commerce since they are a continuation or an
extension of instrumentalities of communication. This
contention is unmeritorious . The Board has ruled that an
answering service does not in and of itself constitute a
communications system or link within the meaning of the
Board 's jurisdictional standard for communications sys-
tems. Stanger 's Telephone Answering Service Inc., 51
LRRM 1584.
The record discloses that the Employer does not satisfy
any discretionary jurisdictional standard of the Board.
Accordingly, as the Employer is not engaged in commerce
within the meaning of the Act , I shall dismiss the petition.'
Board in Washington. D C This request must be received by the Board in
Washington by October 16, 1973