ARA Services, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1975

221 N.L.R.B. 64 (N.L.R.B. 1975)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARA Services , Inc. and District Lodge 67, Interna-
tional - Association of Machinists and ^ Aerospace
Workers, AFL-CIO, Petitioner. Case 5-RC-9243
October 23, 1975
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On_ April 10, 1975, the Regional Director for
Region 5 issued a Decision and Direction of Election
in the above-entitled proceeding, in which he found
that it would effectuate the purposes of the Act to
assert jurisdiction over the Employer herein. There-
after, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Employer filed a
timely request for review of the Regional Director's
decision on the grounds that, ` in asserting jurisdic-
tion, he departed -from officially reported Board
precedent and made findings of fact which are
clearly erroneous on the record.
By telegraphic order dated May 15, 1975, the
Board granted the request for review and stayed the
election pending decision on review. Thereafter, the
Employer filed a brief on 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.
The Board has considered the entire record in this
case with respect to the issues under review,
including the Employer's brief on review, and makes
the following findings:
The Employer, a Delaware corporation, is custom-
arily engaged in the nationwide distribution and sale
of food and related services. In October 1974, the
Employer contracted with Prince George's County,
Maryland, an exempt employer within the meaning
of Section 2(2) of the Act, to provide automotive fleet
maintenance services for approximately one-half of
the county's 3,300 to 3,400 vehicles.' To discharge its
contractual obligation, the Employer currently oper-
ates three maintenance facilities in Brentwood,
I
A separate unit of the Employer known as "Prince George's County
Fleet Management" performs the services provided for under the contract.
2 The Employer states in its brief on review that subsequent to the
Regional Director's Decision and Direction of Election herein, a fourth
facility has been opened, pursuant to a decision of the county, in College
Park, Maryland.
3 In view of our holding herein, we find it unnecessary to pass on the
issue of whether the services provided by the Employer are intimately
connected with the exempted operations of the county.
4 The contract, or operating agreement, consists of three separate
documents : the invitation to bid, the request for proposal; and the contract
for automotive fleet management and maintenance services. The latter
document incorporates by reference the former two documents.
5 The contract requires the Employer to operate two shifts from 7 a.m. to
221 NLRB No. 16
Forestville, and Marlow Heights, Maryland.2 The
Employer's maintenance functions range from gener-
al vehicle preventative maintenance to extensive
automotive mechanical repairs. The county also
maintains its own similar but separate garage
facilities in the county where it uses its own
employees.
The Regional Director, while noting that, through
the contract; the county had reserved a degree of
control over the Employer and its operations,
concluded that the Employer retained basic control
over the wages, hours, and working,conditions of its
employees and it could therefore negotiate a collec-
tive-bargaining agreement. The 'Regional Director
also concluded that the work of the Employer was
not intimately connected with the exempt operations
of the county.
The Employer contends that the Board should not
assert jurisdiction here because the Employer's
operations are intimately related to essential county
functions and because the county, through contract
and in practice, retains substantial control over the
Employer's operations and labor relations. For the
reasons stated hereinafter, we agree that the county
possesses and exercises substantial control over the
labor relations of the Employer, rendering it impossi-
ble for the Employer to bargain effectively with any
union concerning wages, hours, and other conditions
of employment.3
An examination of the contract 4 between the
Employer and the county clearly indicates the broad
control that the county maintains over the Employ-
er's labor relations. Thus, the contract dictates, inter
alia, the hours that the Employer must remain
open; 5 the various classifications of employees and
the number of employees in each classification; 6 the
wage rate applicable to each classification of employ-
ee; 7 the various records, reports, and insurance
which the Employer must maintain; the number of
facilities which the Employer must operate and
certain specifications thereof; 8 the manner in which
3:30 p.m. and 3.30 p.m. to 12 midnight and to provide certain off-hour
emergency services.
6 The contract provides that, once the initial staffing configuration has
been realized, the county must approve any reduction or additions.
4 The contract provides that "the wage rate paid by the contractor to
each employee shall be approved in advance by the contracting officer."
Further, the proposal submitted by the Employer provides a specific
maximum wage rate for each classification of employee The Employer may
not pay wages above this maximum limit without prior approval from the
county.
3 The contract provides that "site location, site configuration, and shop
layout" shall be subject to prior county approval. The facility specifications
provided for in the contract relate to size, lighting, storage space, etc.
ARA SERVICES, INC. 65
the Employer is to obtain parts and supplies; 9 the
various maintenance and repair programs that the
Employer, is required to establish; 10 the holidays,
vacations, and other benefits that the Employer may
give ;11 the method under which the Employer is to
be compensated; and, that "the extent and character
of the work to be done by the contractor shall be
subject to the general control and approval of the
contracting officer [county]." The contract further
requires that the Employer develop an affirmative
action program that meets county approval, and give
preferential treatment to county residents applying
for jobs;12 all subcontractors used by the Employer
must be previously approved by the county; the
county must be given access to all the Employer's
personnel , books, records, correspondence, receipts,
vouchers, etc.; the county approve all repairs costing
$100 or more; all overtime be previously approved
by the county;13 and all facilities be used exclusively
for county vehicle repair and maintenance. Finally,
pursuant to the contract, the county reserves the
following rights: to request the dismissal of employ-
ees "whose performance or actions are obviously
detrimental to the program";14 to approve employ-
ees before they are hired by the Employer; 1-9 to
purchase the equipment and vehicles of the Employ-
er upon termination of the contract by the county for
convenience or nonrenewal of the contract; and to
make unannounced on-site inspections of the Em-
ployer's facilities at such times and at such frequency
as the county deems necessary.
In addition to the foregoing, there are several other
factors which reveal the broad extent to which the
county is involved in the Employer's operations. The
telephones at the Employer's facilities are tied into
the county switchboard and the Employer, like
county offices, has a designated extension number.
The record also reveals that the Employer's facilities
9 The contract provides that, where possible, the Employer must
requisition parts or supplies from the county . Where this cannot be done,
the Employer is required to obtain parts or supplies from suppliers which
have been approved by the county.
10 For example, the contract specifies the different services which must
be included under the preventative maintenance program required under
the contract . The contract also requires the Employer to establish, subject to
county approval , a system of, priorities for servicing public safety vehicles.
11 The Employer's district manager , Eshelman, testified that the county
and the Employer had agreed upon a benefits plan and that the Employer
could not change its' holidays , vacations, or other benefits without prior
approval from the county. With respect to holidays, the contract provides.
"no holidays may be' observed by the contractor which do not conform to
the County 's designated holiday schedule ."
12 The contract states that the county 's goal is to have 80 percent of the
work force comprised of local labor.
13 Eshelman described , anemergency situation where he was required to
seek authorization from the county 's chief of vehicle maintenance and
management, William Banwarth, before he could authorize 2 hours of
overtime for two employees.
14 Eshelman testified that one employee and a supervisor were
discharged,at the direction of the county.
15 The ' contract provides that "prior to assigning any contractor
employee to perform services for the County, the contractor shall obtain the
are held out to the public as county facilities.16 The
Employer, like county offices, uses the county's mail
courier service and receives county memorandums
and newsletters.
In practice, the county provides direct supervision
of the Employer's operations through its chief of
vehicle maintenance and management, William
Banwarth: Banwarth, who maintains a desk at one of
the Employer's facilities, testified that he spends
approximately 15-18 hours per week at the Employ-
er's facilities. In addition, he stated that he visits the
facilities during the evenings and weekends. Ban-
warth testified that he is responsible for making sure
that there is absolute contract compliance and that
he checks the Employer's payroll records to make
sure that the county is getting every "nickles worth"
of service that it is paying for. In this regard,
Banwarth testified that if he observed an excess of
manpower over available work at any of the
Employer's facilities he would inform the Employer's
project manager to correct the situation.17 Banwarth
stated that, while the county had no other inspectors
on the job, he received feedback from county
agencies whose vehicles were serviced by the Em-
ployer. Banwarth stated that on the basis of this
feedback he would direct the Employer to either
implement or change operating procedures. For
instance, the record reveals that Banwarth has
directed the Employer, pursuant to written memo-
randums, to implement procedures regarding off-
hour repairs for emergency vehicles, security of
county assets, inspections of finished repairs, installa-
tion of service stickers on serviced vehicles, and the
installation of new rather than used tires on certain
vehicles.'8
In sum, there is no doubt from this record that the
county exercises substantial and extensive control
over the labor relations of the Employer, and is a
contracting officer's [county ] approval of such employee to be so assigned.
Similarly, the continuing assignment of such employees shall be subject to
County approval ." Eshelman explained that the Employer may initially hire
the full complement of employees provided for under the contract subject
only to county approval within a 30-day probationary period. However,
once the full complement has been hired, the county is required to give prior
approval to either replacements or additional employees. Eshelman also
stated that, pursuant to the county's request, the county is now involved in
the interviewing and hiring process for supervisors and managerial
personnel.
16 An exhibit in the record reveals that the Employer's service vehicles
and facilities are marked with the county' s seal . The signs on the facilities
read "Prince George's County Central Vehicle Maintenance Facility-
Managed by Office of Central Services-Division of Vehicle Maintenance
and Management."
17 In a letter to the Employer's project manager , Banwarth explained
that on one evening he had observed certain mechanics standing around
while a shop foreman was sitting at a desk reading a book . He further
explained that he told the foreman to direct the mechanic 's activities to
more productive endeavors even though there were no vehicles to work on
at that time.
18 These memorandums also provide methods for implementing these
procedures.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joint employer with it of the Employer's employees.
We conclude that the Employer shares the statutory
exemption enjoyed by Prince George's County,
Maryland, and that we are precluded from asserting
jurisdiction here.19 Accordingly, we shall dismiss the
petition.
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
19 Herbert Harvey, Inc., 171 NLRB 238 (1968). Compare: Current
Conrtrucpon Corp., 209 NLRB 718 (1974).