Jerry Fairbanks, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 30, 195196 N.L.R.B. 1140 (N.L.R.B. 1951) Copy Citation 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .JERRY FAIRBANKS, INC. and MOVING PICTURE PAINTERS AND SCENIC ARTISTS, LOCAL 644, AFFILIATED WITH BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, PETITIONER. Case No. 21-RC-1718. October 30, 1951 Supplemental Decision and Direction Pursuant to the Decision and Direction of Election I issued on March 22,1951, an election was conducted in this proceeding on April 20, 1951, under the direction and supervision of the Regional Director -for the Twenty-first Region , among employees in the unit heretofore found appropriate. The tally of ballots shows that five valid.ballots were cast for the Petitioner; that three valid ballots were cast for the Intervenor; 2 and that five ballots were challenged. No objections to the conduct of the election or conduct affecting the results of the election were filed within the time provided therefor. As the challenged ballots were sufficient in number to affect the -results of the election, the Regional Director, acting pursuant to the Board's Rules and Regulations, investigated the issues raised by the challenges, and on May 1, 1951, issued his report on challenged ballots, recommending that the challenges to all five ballots be sustained and that the ballots be not opened and counted. On May 22, 1951, the Intervenor filed exceptions to the Regional Director's report on chal- lenges and requested a hearing. Because no exception was taken to the Regional Director's finding and recommendation with respect to George Schmorleitz within the time provided therefor, we 3 adopt his findings and recommendations in this respect and sustain the chal- lenge to the ballot of Schmorleitz. Thereafter the Board ordered that a hearing be held before a hear- ing officer for the purpose of taking testimony on the following issues : ^(1) Whether David Wirt and Arthur Hutchinson were temporarily -laid off within the meaning of the direction of election; and (2) whether Ralph T. Jester and George J. Rendahl were employees of the Employer and therefore eligible, or employees of an independent .contractor and not eligible to vote. The Board further directed that the hearing officer prepare and cause to be served upon the parties a report containing resolutions of the credibility of witnesses, findings .of fact, conclusions, and -recommendations. Pursuant to notice, a hearing was held before William M. Pate, 1 93 NLRB 898 2 International Alliance of Theatrical Stage Employees of the United States and Canada, AFL 3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Reynolds and Styles]. 96 NLRB No. 182. - JERRY FAIRBANKS, INC. 1141 hearing officer. The hearing officer's rulings made at the hearing are free from prejudical error and are hereby affirmed. In accordance with the Board's order, the hearing officer issued and duly served on the parties his report on challenged ballots, in which he found that Wirt and Hutchinson were not "temporarily laid off" within the meaning of the direction of election; and recommended that the challenges to their ballots be sustained. He further found that Jester and Rendahl were employees of the Employer and not employees of an independent contractor, and recommended that the challenges to their ballots be overruled and that their ballots be opened and counted. Thereafter the Petitioner 4 and the Intervenor filed ex- ceptions to the hearing officer's report. Challenges to the Ballots of Wirt and Hutchinson The record shows that neither man actually worked for the Em- ployer during the 120-day eligibility period. The Intervenor alleges that because both men worked just before the eligibility period, were on call during the eligibility period, and at least one of them actually worked for the Employer after the Board election, the disputed em- ployees necessarily had a reasonable expectancy of employment during the eligibility period and occupied a temporarily laid-off status during that time. As we have stated on numerous occasions, the pertinent issue in these cases is whether laid-off employees have a reasonable expectancy of reemployment with the Employer in the near future. Under all the circumstances of employment in this case, especially the fact that during the entire 120-day eligibility period neither of the disputed employees was recalled and that the prospect of any recall of these two employees in the immediate future was speculative in character, we find, contrary to the contentions of the Intervenor, that Wirt and Hutchinson were not eligible to vote in the election. We .therefore sustain the challenges to their ballots, and find the ballots invalid. Challenges to the Ballots of Jester and Rendahl The Regional Director recommended that the challenges to the ballots of Jester and Rendahl be sustained on the ground that Jester and Rendahl were employees of Kemp, who was an independent con- tractor and not employees of the Employer. The hearing officer, after further hearing, found that Kemp was a supervisor hired by the Employer and that Jester and Rendahl were employees of the Em- ployer and not employees of Kemp, and recommended that the chal- lenges to their ballots be overruled and that the ballots be opened and * We do not consider the belated contentions of the Petitioner with respect to the challenge to the ballot of Schmorleltz. 974176-52-vol. 96-73 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counted. The Petitioner, excepted to this finding and recommenda- tion. Kemp, the alleged independent contractor, estimates the cost of construction work on sets for the Employer, recruits and hires workers, and supervises the work done. If the cost of construction exceeds his estimate, the Employer is responsible for the difference in cost. The costs of materials and the wages of the workers employed by Kemp are billed to the Employer. Kemp receives a fixed fee to cover the value of his services for the Employer and does not stand to gain or lose if the actual cost of the construction is below or above the amount specified in the estimate. The Employer pays him by check covering his fee, the cost of materials purchased, and the wages of the workers. Kemp pays the wages in cash. Neither the Employer nor Kemp makes, deductions for withholding tax or social security or unemployment compensation from the wages paid to employees for their services, nor does the Employer make such deductions for Kemp. The Em- ployer's art director exercises direct substantial control over the man- ner in which the work is performed by workmen under Kemp's im- mediate supervision. Kemp does not have the license required by State law for contracting work. Under these circumstances, we agree with the hearing officer and find, contrary to the contention of the Petitioner, that Jester and Ren- dahl are employees of the Employer and as such are eligible to vote in the election. We therefore overrule the challenges to the ballots of Jester and Rendahl and shall direct that their ballots be opened and counted. Direction IT IS HEREBY DIRECTED that the Regional Director for the Twenty- first Region shall, pursuant to the Rules and Regulation of the Board, within ten (10) days from the date of this Direction, open and count the ballots cast by Ralph T. Jester and George A. Rendahl, and thereafter prepare and serve upon the parties to this proceeding a supplemental tally of ballots. MUNDET CORK CORPORATION AND INSULATION CONTRACTORS OF SOUTH- ERN CALIFORNIA, INC. and MRS. EDWIN SELvIN MARINE ENGINEERING & SUPPLY COMPANY and FREDERICK M. D. TURNER INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, INC., AND ITS MEMBERS : MARINE ENGINEERING & SUPPLY COMPANY, MUNDET CORK CORPORATION, J. T. THORPE COMPANY, PLANT INSULATION COMPANY, Copy with citationCopy as parenthetical citation