I.B. of T.

National Labor Relations Board - Board Decisions

Jul 13, 1977

230 N.L.R.B. 834 (N.L.R.B. 1977)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nichols Sanitation, Inc. and General Sales Drivers deemed an employer within the definition of Section
and Allied Employees Union Local No. 198 (I.B. of 2(2) of the Act, but should share the exemption of a
T.), Petitioner. Case 12-RC-5 1 16 political subdivision of the State of Florida. We find
no merit in the Employer's position.
July 13, 1977 Whether operating pursuant to exclusive franchise.
nonexclusive franchise, or an ordinance, the relation-
DECISION AND DIRECTION OF ship between the Employer and the various counties
ELECTION and munici~alities is essentially a contractual one,"
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Anthony J.
DiSalvo. Following the hearing, and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director for Region 12 transferred this case to the
National Labor Relations Board for decision.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no
prejudicial error was committed. They are hereby
affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is a Florida corporation en-
gaged in the provision of garbage and trash removal
services to several communities on the east coast of
Florida. Pursuant to contract or franchise, the
Employer has the exclusive right to provide its
services for District 9 of Palm Beach County and the
Village of Tequesta.1 Operating under ordinances,
the Employer also services the towns of Jupiter and
Juno Beach and Jupiter Inlet Colony. These ordi-
nances took effect only upon the written agreement
of the Employer and their provisions are very similar
to those contained in the franchises. In addition, the
Employer works under a nonexclusive franchise with
Martin County by which it is entitled to operate its
business and perform services directly for commer-
cial establishments and residents within that county.2
The Employer contends that the Board does not
have jurisdiction in this proceeding because of the
substantial degree of control exercised by the various
governmental bodies. Alternatively, the Employer
asserts that the collection of solid waste is so
intimately connected to the purpose of the political
subdivisions that the Employer should not be
The Emplo er has two separate agreements with Tequesta, one for the
collection ofgariage from residences, businesses, and commercial establish-
ments within the Village, and another for the collection of yard and house
trash from the residences within said Village.
2 Under this nonexclusive franchise, the Employer has separate agree-
ments with commercial establishments and private individuals within
Martin County. The Employer services approximately 400 people a month
within the county.
" The ordinance of Jupiter Inlet Colony terns the Enplcyer a
' contractor and states: 'The contract herem created shall become effective
as to the contractor . . . on [October 1, 19741, provided that the Contractor
accepts the same in wr~ting prior to October 1, 1974." The Jupiter and Juno
Beach ordmances contain sim~lar language.
and their 'respective rights i n d obligations are
specified by written agreement. Although the con-
tracts and ordinances involved here prescribe neces-
sary guidelines and standards under which the
Employer is to supply its service, it is our view that
the Employer's control over employees on a day-to-
day basis is not thereby affected.
The Employer owns its own business headquarters
and equipment. It alone has the authority to hire,
fire, discipline, and direct the employees who drive
and maintain its trucks.4 The Employer, moreover,
sets wages which are paid out of the lump sums
received pursuant to exclusive franchise agreements
and contracts based on ordinances and from fees
received directly from commercial customers. For
services provided under the nonexclusive franchise
with Martin County, the Employer is directly
compensated by both individuals and commercial
establishments. Fringe benefits provided by the
Employer are greater than those provided to compa-
rable government employees and the Employer has
its own grievance procedure. Subject, of course, to
the days and times specified for customer service, the
Employer sets working hours for its employees. In
addition, uniforms worn by the labor force sought to
be represented here bear the Employer's name and
not that of the municipality or county being served.
In light of the foregoing, we conclude that the
limited role of the county and municipal govern-
ments in the Employer's operations does not relieve
the Employer of its effective control over employ-
ment conditions. Rather, it is apparent that the
Employer has retained virtually full control over
matters affecting wages, hours of employment, and
working conditions, so that it is capable of engaging
in meaningful collective bargaining5
In addition, Member Walther concludes that the
services performed by the Employer here are not so
The ordinances of Juno Beach and Jupiter Inlet Colony provide that
the municipality "may request the dismissal of any employee of the
Contractor who violates any provision hereof or who 1s wanton, negligent or
discourteous in the performance of his duties." None of the other
ordinances or franchises contains a similar provision. The Employer's
president, Lloyd Brown, indicated, moreover, that he could no1 recall any
governmental body requesting the dismissal of an employee. Brown further
Icslifid h i ihe dec;;!sr, Id terminate an t n ~ p L , - ~ A< ;ot h e x .L\ be
cleared with any of the governmental bodies serviced.
See Mental Health Services-Erie County South East Corp. V, 220
NLRB 96 (1975); JA-CE Company, Inc.. 205 NLRB 578 (1973).
230 NLRB No. 1 16
NICHOLS SANITATION 835
~ ~ ~ l ~ m a t e l y connected with the exempted municipal
~ ~ ~ ~ ~ c t i o n s of the governmental entities so as to
\ t .,I-rant declination of juri~diction.~ As is true of all
I :l\es in which the Rural Fire Protection test is
,~pplied, the question before us is whether the services
I,I-ovided by the Employer are essential to a "munici-
1,;11" function of a governmental entity.' As we have
II;IJ occasion to note before,g governments in varying
I lc,grees often engage in activities parallel to employ-
(.I-\ in the private sector. However, we have refused to
11nd that a government's mere participation in an
i~c~ivity per se constitutes a basis for concluding that
\ t ~ c h activity is a municipal function. Rather, the sine
, / / in non for such finding is that the services provided
Ily the nonexempt employer be essential to the
I'urposes for which the exempted institution exists.9
In Member Walther's judgment, garbage collection
does not constitute an essential municipal function as
does. for example, fire prctection, police protection,
::nd the operation of a public school system. Rather,
he concludes that such services are akin to a public
utility enterprise and thus proprietary rather than
municipal in nature.10 Indeed, the lai-ge number of
private contractors engaged in the bisiness of trash
collection attests to the fact that such services are in
no way essential to the purposes for which the
governmental entities herein exist.
Nor, in Member Walther's judgment, is a different
result required merely became the Florida legislature
has seen fit to enact enabling legislation with respect
to municipal collection and disposal of refuse. It
should be noted that the legislation in question
mthorires-but does not compel-municipalities to
provide for refuse collection. The mere fact that
municipalities have the option not to provide refuse
services is a strong indication that even the Florida
legislature does not consider garbage collection to be
an "essential" municipal function. More importantly,
however, municipal functions are defined and delim-
ited not by the fact that legislation has been enacted,
but rather by the fact that they are-by their very
"ee. e.g.. Rirral Fire Prorecfion Conlpan.~, 216 NLRB 584 (1975). In
asserting jur~sdiction over this Employer. Chairman Fanning, unlike
Member Walther. is not relying on the Employer's lack of intimate
connection w ~ t h the municipalities and counties involved in this proceeding.
Rather. he relies only on the degree to which the Employer retains control
uver the working conditions of its employees. thus evidencing its capability
of engaging in meaningful collective bargaining. See Chairman Fanning's
dissenting opinions in Rural fire Prorecrion Con~pan): supra, and Currenr
Consrr~rcrion Corp. and Samuel M. Wagner, 209 YLRB 718 (1974).
Member Murphy finds that this Employer is neither subject to the
control of nor intimately related to the municipalities and counties. She
points out that her dissenting colleague's reliance on Transit S~lsrems, Inc.,
221 NLRB 299 (1975). is totally misplaced. That case 'IS factually
dis~inguishable from the instant one in that there the Metropolitan Transit
Comm~ssion exercised full control over the operations and owned all the
r q u i p m ~ n t and supplies I I ? ? ~ . In fx:. TSI merely hvnc!innrd as the
operatmg agent for MTC for which i t received a set monthly fee, all fares
heing removed on behalfof and deposited to the account of MTC. Here. ir.
clmlract. the control exercised by the municipalities is merely that normally
nature-essential to the purposes for which the
exempted institution exists.il -
Nor is the business of collecting and disposing of
garbage and refuse necessarily so-local in character
that it would not effectuate the purposes of the Act
to assert jurisdiction.12 During the past year, the
Employer has received in excess of $500,000 from
governmental bodies for the pickup and transporta-
tion of garbage to disposal areas. The parties also
stipulated that, during the same period, the Employer
purchased more than $50,000 worth of goods derived
from out-of-state sources. Based on the foregoing, we
find that it will effectuate the purposes of the Act to
assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(l) and
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all
drivers and helpers.13 excluding all office employees
and su~ervisors as ~rovided under the Act. At the
hearing, Petitioner asserted that it took no position
regarding the mechanics. Employer contend; that its
mechanics should be included in the unit. In
addition, Employer asserts that the lead mechanic,
Ron Arrowood, is not a supervisor within the
meaning of the Act and therefore should be included
in the unit.
At the time of hearing, Employer employed 13
drivers and 5 mechanics, including Ron Arrowood.
The record reflects that drivers, dumpers, and
mechanics receive similar wages,l4 share the same
fringe benefits, work approximately the same hours
and punch a timeclock, and work under the same
supervision.15 The mechanics, truckdrivers, and
dumpers also work very closely and, on occasion,
perform each other's jobs. When mechanics are
found in a subcontracting relationship, rhe Employer provides all necessary
equipment and supplies. and the ordinance providing for this function does
not mandate that it be performed by the governmental bodies nor does it
create a body for that purpose. Rather, it specifically permits the work,
which is, as noted above, frequently done by private firms, to be
subcontracted. Fla. Stat. Ann. 1 180.06(5) and 180.14.
"ee Grey Nuns of rheSacredHearr, 221 NLRB 1215.1216 (1975).
Cf. Herberr Harvey, Inc., 17 1 NLRB 238.240 (1968).
lo Cf. Hurronv. Marrin, 252 P.2d 581 (Wash.. 1953).
" Ibid.
l2 See, e.g., Carroll-Naslund Disposal, Inc., 152 NLRB 861 (1965).
l 3 The petition indicates that Petitioner seeks a unit of all drivers and
helpers. At the hearing, however, Petitioner amended the term "heipers" to
"dumpers."
The dumpers start a t $2.75 an hour, whereas the mechanics and
drivers start at IF3 and $?.V an hnur resportiv~lu
l5 The drivers and mechanics work under either President Brown or
John Willenbring. The parties st~pulated and we find that John Willenbring
is a supervisor within the meaning of Sec. 2(11) of the Act.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired, they are informed that driving is considered
part of their job.16 Conversely, part of the drivers'
and dumpers' responsibility is to assist the mechanics
and actually do minor mechanical work. Based on
the foregoing and absent any indication that the
mechanics do not share a community of interest with
drivers and dumpers, we shall include the mechanics
in the unit found appropriate.
Ron Arrowood is the lead mechanic at Employer's
Jupiter location. According to Employer's president,
Brown, Arrowood is listed as lead mechanic because
he is the best mechanic and understands the
equipment better than anyone else at the job. Almost
100 percent of Arrowood's time is devoted to
mechanical work.1' One mechanic is paid more than
Arrowood. Arrowood does not have the authority to
hire, to fire, or to effectively recommend such action.
If a problem does arise, Arrowood informs President
Brown or John Willenbring. Nor does Arrowood
direct or assign work himself. This responsibility also
reposes in Brown or Willenbring. We conclude
therefore that Arrowood is not a supervisor as
defined in the Act, and we shall include him in the
unit.
Based upon the foregoing and the entire record, we
find that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(c) of the Act:
All drivers. dumpers, and mechanics at Employ-
er's facility in Jupiter, Florida, excluding office
clerical employees and supervisors as defined in
the Act.
[Direction of Election omitted from publication.118
Member Penello, dissenting:
Unlike my colleagues, I would not assert jurisdic-
tion over this Employer, because it provides an
essential municipal service, i.e., the collection and
disposal of garbage, on behalf of six local govern-
ments in Florida, and thus shares their exemption
from the coverage of the Act. Further, because the
Employer performs a statutorily authorized function,
whether or not essential, for the municipalities it
serves. the Employer shares their exemption from our
jurisdiction for that reason alone.
In Rural Fire Protection Company, 216 NLRB 584
(1975), the Board decided that an employer which
furnished firefighting services to the city of Scotts-
dale, Arizona, shared the city's exemption from the
Act, stating at 586, "more than being a service which
!is merely intimately related to Scottsdale's municipal
functions . . . the firefighting service herein is itsell
an essential municipal function which Scottsdale,
instead of performing directly with its own employ-
ees, delegated to the Employer to perform on its
behalf . . . ." Sanitation, in my view, is no less an
essential municipal responsibility than fire protec-
tion, and it is apparently so recognized by Florida
law. Thus, Fla. Stat. Ann. §180.06(5), which applies
to all the local governments served by the Employer.
provides that Florida municipalities are authorized to
"provide for the collection and disposal of garbage."
Also, Florida law grants municipalities the authority
to delegate the collection and disposal of garbage to
private companies: "[a] municipality may grant to
said private company or corporation the privilege or
franchise of exercising its corporate powers for such
terms of years and upon such conditions and
limitations as may be deemed expedient and for the
best interest of said municipality for the accomplish-
ment of the purposes set forth in this chapter . . . ."
Fla. Stat. Ann. $180.14. Plainly, then, in this case as
in Rural Fire Protection, the municipalities have
delegated a vital funcf on, here sanitation rather than
firefighting services, to an independent contractor to
perform on their behalf, rather than providing the
service directly through their own emp1oyees.lg The
inescapable conclusion is therefore that the Employ-
er shares the municipalities' exemption from our
jurisdiction.
Apart from the essential nature of the service
provided by the Employer, it is obvious from the
foregoing that the Employer performs a statutorily
authorized function of the six local governments. In
Transit Systems, Inc., 221 NLRB 299 (1975), a private
company provided bus transportation services to
three cities in Minnesota on behalf of a transit
commission created by the state legislature. The
Board held that:
Where the services are intimately connected with
the exempted operations of the government
entity, the Board has found that the independent
contractor shares the exemption. . . . In this
case, the Employer is performing the exempt
function of the MTC [transit commission] as
mandated by the Minnesota legislature, i.e.,
public transportation by bus. Therefore, the
Employer with the MTC is exempt by the Act
from the Board's jurisdiction. 221 NLRB at 300.
- - -
I" Durine Ihe month precedmg the hearing. mechanics were called upnn 1-e ~ m ~ l ~ ~ ~ ~ provi+- i t e err;tatio" zenri- 1- In--1 r c . . - - - r -~ l t = ., a .,
10 urwe trucks or act as dumpers on three or tour occasions. pursuant to municipal ordinances granting it an exclusive franchise in the
He occas~onally drives a truck. community, or through exclusive or nonexclusive franchise agreements or
'" (E.vcel.riur footnote omitted from publication.] contracts with each government.
I NICHOLS SANITATION 837
(\nalogously, jurisdiction should not be asserted over In short, because today's decision conflicts with
I
1111s Employer, as it too provides a municipal service principles established both in Rural Fire Protection
,p~trsuant to state law. and in Transit Systems, I dissent.