Clark Concrete Construction Corp.

National Labor Relations Board - Board Decisions

Jul 27, 1956

116 N.L.R.B. 321 (N.L.R.B. 1956)

CLARK -CONCRETE CONSTRUCTION CORPORATION 321
actually engaged in selling, and their duties are not primarily a part
of the sales function. Neither do their essential skills seem to be those
required of salesmen as evidenced in part by their method of payment.
On the record as a whole, we find that the terms and sales employees
and the telephone operators are not sales personnel and shall exclude
them from the unit of sales personnel which we find appropriate for
collective-bargaining purposes.
Accordingly, we find that all sales employees in the Employer's de-
partment store located at 19 West Genesee Street, Buffalo, New York,
excluding all 'other employees (including the term and sales em-
ployees, the telephone operators, the office clerical employees, ware-
house employees, guards, and professional employees) and super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con-
sideration of the above Decision and Direction of Election.
Clark Concrete Construction Corporation and Teamsters, Chauf-
feurs, Warehousemen and Helpers Union No . 983 and Interna-
tional Union of Operating Engineers , Local 370, AFL-CIO,
Petitioner
Clark Concrete Construction Corporation , Idaho Concrete Prod-
ucts, Incorporated , and Concrete Products , Incorporated and
Local 1227, International Hod Carriers , Building and Common,
Laborers Union of America, AFL-CIO, and Idaho State District
Council of Laborers, Petitioner . Cases Nos. 19-RC-1791 and
19-RC-1797. July 27,1956
DECISION AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9 (c) of the.Na-
tional Labor Relations Act, -a hearing was held in these consolidated
cases before Orville W. Turnbaugh, hearing officer.' The hearing
i The names of the three Employers involved in this proceeding appear herein as cor-
rected at the hearing.
Before the hearing , the Petitioner in Case No. 19-RC-1797 , hereinafter called the
Laborers , withdrew its petition in Case No . 19-RC-1800 , relating to the plant of one of
the Employers involved herein , and also filed an amended petition in Case No . 19-RC-1797.
At the hearing , the Petitioner in Case No . 19-RC-1791 , hereinafter called the Teamsters,
alleging that it had received no notice of such withdrawal and amendment , moved in
effect that the withdrawn petition be reinstated and the amended petition dismissed, and
that the hearing proceed on the basis of the petition in Case No . 19-RC-1800 and the
116 NLRB No. 42.
405448-57-vol. 116-22
322 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. There are three Idaho corporations, each operating a plant lo-
cated in that State, involved in this proceeding: (1) Clark Concrete
Construction Corporation, operating a plant at Idaho Falls; . (2)
Idaho Concrete Products, Incorporated, operating a plant at Poca-
tello; and (3) Concrete Products, Incorporated, operating a plant at
Rupert. Merland Clark, his wife, Opal Clark, and Bill Holden, are.
respectively, president and majority stockholder, secretary-treasurer,
and a director of each corporation.. The Idaho Falls plant, with ap-
proximately 47 employees, principally manufactures cinder blocks
and concrete products, including building blocks, sewer or culvert
pipe, slabs, headgates, and prestressed beams. The Pocatello plant,
with approximately eight employees, principally manufactures con-
crete pipe, headgates, and septic tanks. The Rupert plant, with ap-
proximately 12 employees, principally makes concrete headgates and
farm irrigation pipe, some of which it also installs.2 The Idaho Falls
plant sells blocks at wholesale to the other two plants, for resale to
their customers . Each plant makes some retail sales. The Idaho Falls
plant is about 50 miles from the Pocatello plant and about 120 miles
from the Rupert plant, and the last two plants are about 72 miles
apart.
President Clark maintains his office at the Idaho Falls plant, and
such supervision as he exercises is confined to that plant "practically
all of the time." Generally, however, each plant is under the separate
supervision of its own general manager, who hires and discharges em-
ployees, either directly or through his working foremen, and controls
labor policy at his particular plant. There is little or no interchange
of employees among the three plants. The general managers and Mr.
Clark occasionally have business meetings together, generally in Idaho
Falls, and occasionally one plant will rent equipment, such as manu-
facturing parts, to another, for which a charge is made. Advertising
is on a single-plant basis, except television advertising, which men-
tions, and is paid for by, all three corporations. The office manager
of the Idaho Falls plant audits the books of the other 2 corporations
from once every month to once every 3 months.- He may suggest better
accounting methods or be consulted as to price changes, but has no
supervision over office employees at the other plants. The Idaho Falls
original petition in Case No . 19-RC-1797. The hearing officer referred ruling on the
motion to the Board As all parties were afforded full opportunity to litigate all issues
raised herein , the Teamsters was in no way prejudiced by the alleged lack of notice of
the withdrawal and the amendment Accordingly , the motion is hereby denied. Paragine
Companies , Inc., ,85 NLRB 325, footnote 3.
2 The Rupert plant is located in a more agricultural area than the other two plants,
which , in contrast , are located in industrial areas.
CLARK 'CONCRETE'CONSTRUCTION CORPORATION 323
plant pays his salary and traveling expenses, the latter of which, how-
ever, are advanced to him by the other plants. Each plant has its own
office and bookkeeper and keep s separate records and payrolls.
As noted above, the three corporations operating the plants have
the same majority stockholder' and common officers. However, in
view of the different products manufactured at the 3 plants, their
physical separation, the separate supervision and labor policies, the
lack of employee interchange, and the separate record-keeping and
payrolls, each of the 3 plants appears to be virtually autonomous. They
are therefore not so integrated as to constitute the three corporations
operating them a single employer for jurisdictional purposes.3 Ac-
cordingly, we shall not consider the jurisdictional question on the
basis of the combined inflow and outflow of the three plants, but on
an individual plant basis. During 1955, the Idaho Falls, Pocatello,
and Rupert plants bought merchandise valued at about $435,000,
$80,000, and $65,000, respectively. The record does not disclose
whether any or all of these purchases represents direct or indirect
inflow from other States. During 1955 the Idaho Falls plant sold
merchandise valued at about $1,042,000, of which about 8 percent,
or $83,000, represents merchandise delivered to customers outside
Idaho. During the same period, the Pocatello plant sold merchandise
valued at about $315,000, of which about $500 represents merchandise
delivered outside Idaho, and the Rupert plant' sold merchandise valued
at about $260,000, all of which was delivered within Idaho.
With respect to inflow, even if all the purchases of the individual
plants during 1955 are regarded as interstate purchases, none of the
plants had sufficient direct or indirect inflow to warrant assertion
of jurisdiction by the Board on this' basis.' With respect to outflow
of the three plants, only the Idaho Falls plant had sufficient outflow to
warrant assertion of jurisdiction.' We therefore find that the Clark
Concrete Construction Company, which operates only the Idaho Falls
plant, is engaged in comineice within the meaning of the Act, and
that it will effectuate'the policies of the Act to assert jurisdiction over
this corporation. We also find-that it will-not effectuate the policies
of the Act to assert jurisdiction over Idaho Concrete Products, In-
corporated, or' Concrete Products,' Incorporated, which operate the
Pocatello plant and the Rupert plant, respectively.6
2. The labor organizations involved claim to represent employees
of Clark Concrete Construction Company:
s Although no party contested the Board 's jurisdiction , this question is always before
the Board.
! Jonesboro Grain Drying Cooperative, 110 NLRB 481, 483, 484.
5 Jonesboro Grain Drying Cooperative , supra.
6 Contrary to our dissenting colleagues we make this finding independently of any unit
considerations.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question. affecting commerce exists concerning the representa=-
tion of employees of Clark Concrete Construction Company within the.
meaning of Section 9 (c) (1) and Section 2' (6) and (7) of the Act.
4. The Employers and the Teamsters contend that a separate unit at
each of the three plants involved herein, the Idaho Falls, Pocatello, and'
Rupert plants, is appropriate for the purposes of collective bargaining.
The Laborers contend that a single multiplant unit, including em-
ployees at all three plants, is appropriate, but wish to be on the bat=
lots, if the Board should direct elections among employees in single-
plant units. As indicated above, each of the 3 plants involved herein
appears to be virtually autonomous, and there is no basis for finding
appropriate a single multiplant unit, including employees at all a
plants. However, a production and maintenance unit limited to em-
ployees at the Idaho Falls plant is clearly appropriate. We there-
fore find that the following employees of Clark Concrete Construction,
Corporation at its plant at Idaho Falls, Idaho, constitute an appro-
priate unit within the meaning of Section 9 (b) of the Act:
All production, maintenance, and transportation employees, exclud-
ing outside salesmen , office clerical employees, professional employees,.
guards, and supervisors as defined in the Act .7
[Text of Direction of Election omitted from publication.]
MEMBERS MURDOCK and PETERSON, dissenting in part :
We disagree with our colleagues' conclusion that the three corpora-
tions named as the Employers herein, do not constitute a single em-
ployer. In our opinion such a conclusion can be supported only on
the highly unrealistic conclusion that Merland Clark, the majority
stockholder and president of each of the three corporations exercises
little or no control over the conduct of the operations of each of the-
corporations. Such a conclusion is clearly contrary to the record con-
sidered as a whole.
As indicated, Merland Clark is the majority stockholder and presi-
dent of Clark Concrete Construction Corp., hereinafter referred to as
Clark Construction, Idaho Concrete Products, Incorporated, herein-
after referred to as Idaho, and Concrete Products, Incorporated, here-
in referred to as Concrete. He is also one of the three directors of each
corporation. His wife holds the remaining shares of stock in each
corporation, holds the only other office, that of secretary -treasurer, in
each corporation, and is a director in each corporation. Bill Holden is
the remaining director in each corporation but holds no office. Clark
Construction operates a plant at Idaho Falls, Idaho, and principally
manufactures cinder blocks and concrete products. Idaho operates a
7 At the hearing , the parties agreed as to the composition of the appropriate unit or
units, as the case might be. Our unit finding is in substantial conformity with this
agreement.
CLARK CONCRETE CONSTRUCTION CORPORATION 325
-plant at Pocatello, Idaho,- and principally manufactures concrete
-pipes, headgates, and prestressed, beams. Concrete operates a plant
.at Rupert, Idaho, and manufactures concrete headgates and farm irri-
gation pipes. Each of the plants is under the separate supervision
.of its own general manager, who is allowed wide latitude in controlling
the day-to-day operations of the plant, including control over the hir-
ing and firing of employees and the establishment of wage rates. The
general manager of Idaho's plant admitted, however, that there were
limits to his authority to establish wage rates. Similarly he testified
that in establishing prices for the products manufactured, he consulted
Amos Clements, the office manager of Clark Construction. Clements
does the accounting work for Clark Construction and as part of his
duties he runs a regular audit, once a month, sometimes once in 3
months, of the books of the other 2 corporations. In connection with
these ,duties he travels to the other plants and his travel expenses are
-paid by Clark Construction. In connection with his auditing respon-
sibilities, he makes suggestions for improvements in the bookkeeping
and accounting procedures. He is personally responsible for auditing
the books of the other corporations, and his is the only audit made of
those books. The purpose of the audit "of course, is to see that every-
thing is as it should be." Salesmen of both Idaho and Concrete
solicit orders for cinder blocks, even though those corporations do not
manufacture cinder blocks. Those corporations in filling such orders,
purchase cinder blocks from Clark Construction, at an agreed price
which is lower than that offered by Clark Construction to its wholesale
customers. Merland Clark maintains offices at Clark Construction's
plant, and when he is there, applicants for employment are sent to
him and he refers them to the plant manager. Merland Clark travels
to the other plants only a couple of times a year. However, the general
managers meet with Merland Clark in Idaho Falls for occasional
business meetings.
In view of the above circumstances it seems clear that the three cor-
porations are operated as a single business entity. Clark as presi-
dent, majority stockholder, and director of the corporations obviously
is in a position to control the policies of each of the corporations. The
fact that he has delegated to his general managers wide latitude in
the day-to-day operations of the plants does not establish that the
plants are so independent and free from control by the central and
paramount authority reposed in Clark as to justify a finding that they
-are separate distinct business entities as found by our colleagues s
This is especially so in view of the apparent supervision of their
policies, exercised by Clark personally through the "occasional busi-
ness meetings" and through the medium of Amos Clements, the office
8 McNody Mills, Inc., 103 NLRB 1202, 1204.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager of Clark Construction. Rather it appears that the general
managers are allowed this latitude as a matter of policy set by Clark
who has the power to change this policy at any time. This conclu-
sion is reinforced by the fact that the Employer does not contend that
the three corporations are other than a single employer, though it does
contend that only separate plant units are appropriate in view of the
authority of the general managers over wage rates, hiring and firing
of employees, and the lack of interchange among employees. Cer-
tainly, where, as here, there are numerous indications that three cor-
porations are operated as a single business entity, the Employer's own
view of the matter is a material and persuasive factor in determining
the final conclusion.
The difficulty with our colleagues' position is basically, that they
have confused unit considerations with jurisdictional considerations,
and determined the jurisdictional issue on the basis of considerations
which are more properly considered in determining the appropriate
unit. The Board does not require that, in order to find that one or
more corporations constitute a single employer, it must also be found
that only an employerwide unit is appropriate.' We admit that
the considerations cited by the majority as support for its separate
employer finding do indicate that a single plant rather than an em-
ployerwide unit is appropriate, and accordingly we concur in the
majority's unit finding with respect to Clark Construction. We do
not agree, however, that the three corporations are not a single
employer.
Accordingly, we would find that the three corporations involved
constitute a single employer, and as the Employer sells products
valued in excess of $50,000 outside the State of Idaho, we would assert
jurisdiction over all the plants involved herein.10
9 Vita Food Products, Incorporated, 103 NLRB 495; Frost Lumber Industries Division
of Olin Industries, Inc., Frost Hardwood Floors, Inc., and Frost Brand Furniture Com-
pany, Inc., 101 NLRB 659.
10 Jonesboro Grain Drying Cooperative, 110 NLRB 481; Texas Construction Material
Company, 114 NLRB 378.
Bausch and Lomb Optical Company and Paul J . Rea, Petitioner.
Case No. 13-RD-9282. July 30,1956
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 Frances P. Dom, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
116 NLRB No. 45.