Gifford-Hill & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1950

90 N.L.R.B. 428 (N.L.R.B. 1950)

In the Matter of GIFEORD-HILL & COMPANY, INC., EVANGELINE RAIL-
WAY COMPANY, AND GRAND PRAIRIE CONSTRUCTION COMPANY, Eb[-
PLOYERS 1 and LOCAL 406, 406-A, 406-B, 406-C, INTERNATIONAL
UNION OF OPERATING ENGINEERS, AFL, PETITIONER
Case No. 15-RC-341.-Decided June 19, 1950
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed, a hearing was held before Richard C.
Keenan, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.2
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds :
1. Gifford-Hill is a Texas corporation with principal offices in
Dallas, Texas, Which directly operates several plants in Texas and
Louisiana producing and selling sand, gravel, and crushed rock. In
addition, this corporation has interests in several other corporations
in Texas and Louisiana, which are engaged in the production and sale
of sand, gravel, crushed rock, concrete pipe and culverts, ready-mixed
concrete, and building supplies.3
1 These corporations are herein respectively called Gifford-Hill, Evangeline, and Grand
Prairie. They are sometimes herein collectively called the Employers.
2 The motions by the Employers to dismiss the petition on the grounds : (a) that they
are not engaged in interstate commerce within the meaning of the Act, and (b) that the
unit sought is inappropriate, were reserved by the bearing officer for the Board's ruling.
These motions are denied as to (a) for the reasons stated in paragraph numbered 1, infra
and as to (b) for the reasons stated in paragraph numbered 4, infra. The motion by
Gifford-Hill to dismiss the petition as to it alone, on the ground that it is not an employer
of the employees involved in this proceeding is granted for the reasons stated in paragraph
numbered 3, infra.
a These corporations are : Southwest Construction Materials Company, Dallas, Texas,
(sand and gravel) ; Central Texas Gravel Co., Waco, Texas, (sand and gravel) ; Dallas Con-
crete Co., Carthage, Texas, (ready-mixed concrete) ; Tru-Mix Concrete Co., Carthage,
Texas, (ready-mixed concrete) ; Coastal Plains Supply Co., Shreveport, Louisiana, (ready-
mixed concrete and building supplies) ; Gifford-Hill Pipe Co., Grand Prairie, Texas, (con-
crete pipes and culverts) ; Gifford-Hill American, Inc., Grand Prairie, Texas, (concrete
pressure pipes). J. Rutledge Hill, president of Gifford-Hill is also president of each of
these corporations except Gifford-Hill American, Inc., of whose board of directors he is the
90 NLRB No. 71.
428
GIFFORD-HILL & COMPANY, INC. 429
Before November 25, 1948, Gifford-Hill had owned and operated a
sand and gravel plant at Turkey Creek, Louisiana. On that date it
entered into a 5-year contract with Grand Prairie whereby the latter
corporation took over the operation of this plant in return for a
tonnage royalty for all sand and gravel produced and sold. Gifford-
Hill retains title to the premises and the equipment and itself sells
and markets the sand and gravel. Grand Prairie is responsible for
maintenance of the equipment and provides the necessary working
force. Under the terms of the contract, Grand Prairie agreed to re-
tain the Gifford-Hill employees then employed and, generally, these
same employees still work at the plant. J. W. Higgs, vice president of
Grand Prairie, is general manager of the plant. In addition to his
duties for Grand Prairie, Higgs also functions as chief engineer for
Gifford-Hill and presently spends almost all his time at the Texas
and Louisiana plants of this corporation as well as at the plants of
some of the other corporations in which Gifford-Hill holds interests.'
In his absence J. Howard Wilson, the former manager of the Gifford-
Hill operation at Turkey Creek and now vice president of Gifford-Hill
in charge of all Louisiana operations, acts as manager.
Gifford-Hill owns no shares of stock in Grand Prairie, but more than
50 percent of the comon stock is owned by a group consisting of officers
and directors of Gifford-Hill and the son of J. Rutledge Hill. Six of
the seven members of the board of directors of Grand Prairie are di-
rectors of Gifford-Hill, and five of its six executive officers are also
officers of Gifford-Hill. While Grand Prairie has an office at its plant,
some of its records are kept at the Gifford-Hill offices at Alexandria,
Louisiana, and Dallas, Texas. Grand Prairie's payroll checks are
prepared at the Gifford-Hill office in Alexandria and are signed by
Higgs and two employees of Gifford-Hill. Wilson is also authorized
to sign checks.
Evangeline is a 3-mile short-line railway chartered by the State of
Louisiana as an intrastate carrier.5 This railway exists principally
to provide a rail link for the transportation of sand and gravel from
chairman . A majority of the members of the boards of directors and executive officers
of these corporations , with the exception of Gifford -Hill American , Inc., are also directors
and officers of Gifford -Hill . Gifford - Hill owns a major share of the stock of two of these
corporations and a substantial part of the stock in three others. In one other corporation
a controlling interest in the common stock is owned by a combination consisting of Gifford-
Hill and its directors and officers.
* Although during 1949 Higgs spent an average of 5 days weekly at Turkey Creek, he now
is there only 1 day per week. Approximately two-thirds of his salary is paid by Grand
Prairie and one - third by Gifford -Hill. Gifford -Hill charges the other corporations for the
engineering services rendered by Higgs.
As this railway is not regulated by the Interstate Commerce Commission, neither it
nor its employees are subject to the Railway Labor Act. Accordingly, they are not, con-
trary to the Employer's contention, exempted from the Board's jurisdiction under the
provisions of Section 2 (2) and (3) of the Act.
430 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
the Turkey Creek operations to the Rock Island Railroad. Approxi-
mately 98 percent of all its freight consists of sand and gravel from
Turkey Creek. It also carries freight for an asphalt plant located
along its route whose shipments are destined to customers within the
State for local use.
Approximately two-thirds of the common stock of Evangeline is
owned by directors and officers of Gifford-Hill. J. -Rutledge Hill
is also president of Evangeline and J. Howard Wilson is its operating
head. As in the case of Grand Prairie, payroll checks for Evangeline
are prepared at the Gifford-Hill Alexandria office and are signed
by an Evangeline employee and by the same Gifford-Hill employee
who signs Grand Prairie payroll checks.
The record indicates that in the ordinary course of events Higgs
and Wilson direct the business operations and labor policies of Grand
Prairie and Evangeline without interference or control by Gifford-
Hill. However, it is conceded by the Employers that Higgs and
Wilson have consulted with and sought advice and concurrence from
Hill on "top-level" decisions. Such instances were the granting of a
wage increase to Grand Prairie employees, the rejection of the demand
for recognition by the Petitioner in this proceeding, and the temporary
curtailment of operations at one of the Turkey Creek sand and
gravel pits.
During 1948 total purchases of equipment and electric power for
the Turkey Creek operations amounted to $329,737 of which $30,819
represents purchases outside the State. For the same period income
from the sale of sand and gravel amounted to $1,216,927 all of which
was derived from customers within the State. The Employers con-
cede that approximately 4 percent of these products were sold to
customers for use in interstate commerce, but assert that the balance
was sold for local use only. The record shows that the bulk of these
products was purchased by the Louisiana Department of Highways,
county governing bodies, and independent contractors for use in the
building and repair of secondary public roads' and connecting high-
ways. The balance of the sales was to retail building and supply
dealers, ready-mixed concrete plants, local manufacturing concerns,
and farmers.
Total purchases by Evangeline during 1948 amounted to $81,538 of
which $720 represents purchases made outside the State. Total income
during this period amounted to $126,049 all of which was derived from
hauling freight in intrastate commerce.
° This period covers the operations of this plant by both Gifford-Hill and Grand Prairie.
a Rural "farm -to-market" and school bus roads.
G'IFFORD-HILL & COMPANY, INC. 431:.
During 1948, total purchases by all directly operated Gifford-Hill
plants, excluding the Turkey Creek operations, amounted to approxi-
mately $304,517 of which $36,024 represents purchases outside the,
States where these plants are located. Total sales during this period.
amounted to approximately $1,885,756 of which $110,617 represents,,
out-of-State sales and $188,875 represents sales of crushed rock to an
interstate railroad for use on its roadbed. Also during the same,
period, purchases by various corporations previously noted in which
Gifford-Hill has an interest totalled $3,185,592 of which $880,315
represents out-of-State purchases. Total sales by these corporations
in 1948 amounted to $7,807,147. The record does not include complete,
information as to the 1948 out-of-State sales by these corporations.
Data with respect to three of these corporations shows that of totat
sales in the amount of $2,117,121 the sum of $48,881 represents out-of-
State sales.
The Employers assert that they are separate corporate entities whose,
business operations and labor relations are independently conducted,
and contend, therefore, that the Board should limit consideration of"
the pertinent commerce facts to the operations of each Employer in-
dividually. The Employers further submit that the activities of each..
of them, viewed apart from those of the others, are of such a local
character that they do not affect commerce within the meaning of the-
Act and that the petition should therefore be dismissed. We do not
agree. Although Grand Prairie and Evangeline may be considered'
as separate legal entities, we are satisfied from the evidence of inter-
locking directorates, common executive officers, stock ownership, and'
the other indicia of coordinate activity alluded to herein that they are-
so intimately related to Gifford-Hill as to warrant the conclusion that
they constitute an integral part of the multistate operations of that
corporation. Accordingly, as Gifford-Hill is clearly engaged in inter-
state commerce, we find that the operations of Grand Prairie and.
Evangeline affect commerce within the meaning of Section 2 (6) and
(7) of the Act, and also that it would effectuate the purposes and-
policies of the Act to assert jurisdiction in this case.9
2. The labor organization involved claims to represent certain em-
ployees of the Employers.
3. Gifford-Hill contends that it is not the Employer of any of the,
employees involved in this proceeding and that the petition should,
therefore, be dismissed as to it. As it appears from the record that
8 The Employers assert that of this sum $504,900 represents purchases of'steel on the'
"gray" market which would normally be obtained from a steel manufacturing plant within,
the State.
0 Tampa Sand & Material Company, 88 NLRB 861.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gifford-Hill does not control the internal affairs of Grand Prairie
or. Evangeline, we find that it is not an employer of the employees of
either of these corporationsl° No other employees are involved in this
proceeding. We shall, therefore dismiss the petition as to Gifford-
Hill.
A question affecting commerce exists concerning the representation
of employees of Grand Prairie and Evangeline within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The petition requests a single unit consisting of the production
and maintenance employees of Grand Prairie and Evangeline. At the
hearing the Petitioner stated its willingness to represent separate units
limited to the employees of each Employer. The Employers contend
that only separate units are appropriate. There is no history of col-
lective bargaining for any of these employees.
The employees of each Employer perform duties and possess skills
which are substantially different and distinct from those of the other.
Grand Prairie employees are engaged in the clearing, dredging, wash-
ing, sorting, loading, and maintenance functions peculiar to the opera-
tion of sand and gravel pits, whereas employees of Evangeline perform
the typical duties of railroad workers and include an engineer, fire-
man, switchman, conductor, brakeman, and track laborers. Under
these circumstances, and as the operations of each Employer are
separately and independently conducted, we find that units limited to
the employees of each Employer are appropriate. In view of the
Petitioner's willingness to represent such units, we shall deny the
Employer's motion to dismiss the petition on the ground that the
single unit requested therein is inappropriate.
There remain for consideration the following specific inclusions and
exclusions :
In accord with the agreement of the parties, we find that the fol-
lowing employees of Grand Prairie are supervisors and shall exclude
them from the appropriate unit : Virgil Deville, plant foreman; Clyde
Johnson, assistant superintendent; Jessie Richie, night foreman;
Dewitt Perry, shop foreman.
10 We interpret the instances of consultation , and the seeking of advice and concurrence
on "top-lever" decisions referred to herein merely as evidence of liaison and helpful coop-
eration between Gifford -Hill and the other corporations , and not as the exercise of man-
datory control over their self-governing powers. We disagree with our dissenting colleague
that our finding necessarily excludes Gifford -Hill from the possible scope of any future
bargaining relationship involving the employees of Grand Prairie and Evangeline. By our
holding herein we are merely indicating that the record in this proceeding does not warrant
a conclusion that Gifford-Hill is an employer of the employees of Grand Prairie and Evange-
line. Delco-Remy Division , General Motors Corporation or Delco-Remy Welfare Association,
89 NLRB 1334 ; The Press Co. Inc. v. N. L. R . B., 118 F. 2d 937 (C. A. D. C.).
GIFFORD-HILL & COMPANY, INC. 433
J. C. Causey: This employee is classified as a carpenter in the
Grand Prairie general repairs department where he acts as leader of It
group of three to five carpenters. He has authority to discharge the
employees under him. We find that he is a supervisor and shall
exclude him from the unit.
The camp general: This employee makes the beds and cleans the
rooms of the.bunkhouse which is used by Grand Prairie employees
for dining and sleeping quarters and as a clubhouse. He also occa-
sionally transmits various papers between plant departments. The
Petitioner seeks to exclude him on the ground that his interests are
dissimilar from those of the other employees in the unit. We find
that his duties are not unlike these of cafeteria employees, or dressing
room matrons and custodians whom we have included in units of
production and maintenance employees, and shall therefore include
him in the unit 11
Atesco: This employee is classified by Evangeline as a watchman.
His duties, however, consist essentially of maintaining the fire in a
locomotive during the night. Although he makes occasional rounds
of the Employer's premises, this duty takes up only a small portion
of his time. He is neither armed, uniformed, nor deputized. We find
that he is not a guard within the meaning of the Act, and shall include
him in the appropriate unit.
Virgil Karnea: This employee works for Evangeline as the con-
ductor in its train crew. He works together with the other members
of the crew coupling cars and is responsible for the movement of the
train. He has no authority to hire or discharge any employees, but
the Employer alleges that his recommendation as to the discharge
of a member of the train crew would be investigated. There is no
evidence that any employee has ever been discharged pursuant to his
recommendation. We find that he is not a supervisor and shall include
him in the appropriate unit 12
Willie Powers (section boss) : In accordance with the agreement of
the parties, we find that this employee of Evangeline is a supervisor
and shall exclude him from the appropriate unit.
We find that the units described below are appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act, and shall direct that elections by secret ballot be held among
the employees in each of these units :
11 Standard Romper Co. Inc., 7R NLRB 421; Wilson S Co. Inc., 81 NLRB 504.
12 Chicago Mill and Lumber Company, 71 NLRB 280.
903847-51-vol. 90-29
434 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
(a) All production and maintenance employees of Grand Prairie
Construction Company at Turkey Creek, Louisiana, including the
camp general, but excluding watchmen, guards, professional em-
ployees, the plant foreman, the assistant superintendent, the night
foreman, the shop foreman , the lead carpenter 13 and all other super-
visors as defined in the Act.
(b) All production and maintenance employees of the Evangeline
Railway Company at Turkey Creek, Louisiana, including the watch-
man and the conductor, but excluding guards, professional employees,
the section boss, and all other supervisors as defined in the Act.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, elections by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations , among the employees in the
units found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Elections , including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the elections, and also excluding employees
on strike who are not entitled to reinstatement, to determine :
(1) Whether or not the employees in unit (a) desire to be repre-
sented for purposes of collective bargaining by Local 406, 406-A,
406-B, 406-C, International Union of Operating Engineers, AFL;
and
(2) Whether or not the employees in unit (b) desire to be repre-
sented for the purposes of collective bargaining by Local 406, 406-A,
406-B, 406-C, International Union of Operating Engineers, AFL.
MEMBER HOUSTON, dissenting in part :
I dissent from that portion of the decision which holds that Gifford-
Hill is not an employer of the employees at both Grand Prairie and
Evangeline. By its holding, the majority has excluded from the
possible scope of any bargaining relationship the corporate entity
which has hitherto had a part in determining such matters as the
granting of wage increases and the curtailment of operations at Grand
11 J. C. Causey.
GTFFORD-HILL & COMPANY, INC. 435
Prairie, and whose advice and concurrence were sought before the
rejection of the Petitioner 's demand for recognition in this very case.
The extent of Gifford-Hill's participation in the labor relations of
Grand Prairie and Evangeline is further emphasized by the fact that,
the individual in each corporation charged with directing its labor
policies, i. e. J. W . Higgs for Grand Prairie and J. Howard Wilson
for Evangeline, consults with Hill on "top -level" decisions . Further-
more, Wilson , who is also vice-president of Gifford-Hill, but holds
no official position in Grand Prairie, acts as manager of Grand Prairie
in Higgs' absence. In view of this marked integration among all
three corporations on labor relations matters , I would find that there
exists a common control of the labor policies of all three corporations
and that Gifford-Hill is, therefore , also the employer of the employees
involved 14 ,
14 The Red Rock Company, et at., 84 NLRB 521 and cases cited therein. N. L. R. B. v.
Long Lake Lumber Company, et al ., 138 F. 2d 363 (C. A. 9) enforcing 34 NLRB 700.