Truman Schlup

National Labor Relations Board - Board Decisions

Dec 31, 1963

145 N.L.R.B. 768 (N.L.R.B. 1963)

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."
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.
6 See Adam D . Goetti 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.
TRUMAN SCHLUP, CONSULTING ENGINEER 769
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 finds :
1. The Employer involved herein is an individual operating as a
consulting engineer in Kansas City, Kansas. His income is primarily
derived from surveying and engineering services rendered to the State
of Kansas and its political subdivisions. A considerable portion of
these services are rendered in connection with projects financed in
significant part by the Federal Government.
The Employer performed services from April 1, 1962, through
March 1963, valued at approximately $280,000, of which amount
$1,342 was for services outside the State of Kansas. The Employer
also received $30,916.15 from the Kansas State Highway Commission
for survey work performed in connection with the building of State
and interstate highways. We find on these facts that the Employer's
operations affect commerce, and that the Employer is subject to the
Board's statutory jurisdiction.
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 in the applicable period re-
ceived $1,342 for services in the nature of direct outflow. It also re-
ceived $30,916.15 from the Kansas State Highway Commission for
survey work connected with the building of State and interstate high-
ways, which sum, under Board decisions, may properly be considered
as indirect outflow.' The total of these two figures is in itself insuffi-
cient to satisfy the Board's $50,000 outflow test. However, it also
appears that the Employer received $25,139.05 for services rendered
to the Urban Renewal Agency of Kansas City, Kansas, and approxi-
mately $57,600 2 for a sewage extension plan drafted for Kansas City,
Kansas. Both the urban renewal and the sewage extension projects
are recipients of substantial Federal funds and are part of nationwide
Federal programs.
For the reasons stated in Browne and Buford, Engineers and Sur-
veyors,3 issued this same day, we consider services rendered to such
projects to be indirect outflow. Together with the Employer's other
aforementioned services, they are sufficient in this case to meet the
1 See Hawkins-Hawkins, Inc, 121 NLRB 740, 743.
2 The Employer 's total fee from Kansas City during the fiscal year was approximately
$96,000. Of this , he estimated that 60 percent was in connection with the sewer exten-
sion project.
s 145 NLRB 765.
734-070--64-vol. 145-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's outflow standard for nonretail enterprises 4 Accordingly, we
shall assert jurisdiction herein.5
2. The labor organization involved claims to represent certain em-
ployees 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 unit of "all field employees in survey par-
ties,' excluding office clerical employees, guards, all other employees,
professional employees, and all supervisors as defined in the Act."
The parties are in agreement that the above-described grouping con-
stitutes an appropriate bargaining unit. The Employer, however,
would exclude Carl Turner, chief of party, as a supervisor, while the
Petitioner would include him.
Turner, chief of party, is a licensed engineer, though such a license
is not a requirement of his position. His duties are to direct the work
of the other three members of the survey party, and to see that the
proper survey information is developed on each job. Though Turner
sometimes works alongside the other field employees, this is a matter
within his discretion. He has authority to transfer employees to pre-
serve crew harmony. The Employer testified without contradiction
that Turner's recommendations with respect to hiring and firing would
be given considerable weight. We find that Turner, chief of party,
is a supervisor, and we shall exclude him.
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 employees in survey parties in the Employer's Kansas City,
Kansas, operations, excluding office clerical employees, guards, all
other employees, professional employees, the chief of party, 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.
4 See Saemons Mailing Service, Inc., 122 NLRB 81.
e The Employer also performed approximately $40,000 worth of services in Kansas for
50 private firms, whose operations are not further described in the record. In view of our
finding herein , we deem it unnecessary to elicit further evidence to determine whether
such services may be included as indirect outflow.
6 The petition itself describes a unit of "all field employees," with the normal exclu-
sions. The record as transcribed makes reference to a unit of " survey parties ." We have
described the unit herein in accord with the obvious intent of the parties.