John W. Galbreath Co.

National Labor Relations Board - Board Decisions

May 18, 1953

104 N.L.R.B. 1038 (N.L.R.B. 1953)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall at this time direct that separate
elections be held among the following voting groups of employees
at the Employer's Camden, New Jersey, plant, excluding from
each group guards, professional employees, all other em-
ployees, and all supervisors as defined in the Act:
1. All carpenters.
2. All painters.
3. All pipefitters.
If a majority of the employees in any of the voting groups vote
for the Petitioner, they will be taken to have indicated their
desire to be represented in a separate unit, and the Regional
Director conducting the elections directed herein is instructed,
in that event, to issue a certification of representatives to the
Petitioner for such unit or units, which the Board, under such
circumstances, finds to be appropriate for the purposes of
collective bargaining. If, however, a majority of the employees
in any of the voting groups vote for the Intervenor, they will be
taken to have indicated their desire to remain part of the
existing production and maintenance unit, and the Regional
Director is instructed to issue a certification of results to
such effect.
ORDER
IT IS HEREBY ORDERED that the petitions filed in Cases
Nos. 4-RC-1857, 4-RC-1861, and 4-RC-1862, be, and they
hereby are, dismissed.
[Text of Direction of Elections omitted from publication in
this volume.]
Chairman Herzog and Member Peterson took no part in the
consideration of the above Decision, Order, and Direction of
Elections.
BASIC MANAGEMENT, INC., and JOHN W. GALBREATH,
d/b/a JOHN W. GALBREATH CO. and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, LOCAL 631, AFL,
Petitioner . Case No. 20 -RC-2148. May 18, 1953
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 Clement W.
Miller, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
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 [Members Houston, Murdock, and Peter-
son].
104 NLRB No. 133.
BASIC MANAGEMENT. INC. 1039
Upon the entire record in this case the Board finds:
1. The " Basic Magnesium " plant located in Henderson,
Clark County , Nevada , otherwise known as the Hendersonplant
site, and the surrounding housing and accessary establishments
located in Henderson , Clark County , Nevada, otherwise'' known
as the Henderson town site, were formerly Government owned
and were operated by the Colorado River Commission , a State
of Nevada government agency. The plant site is now occupied
and operated by a number of large companies such as Stauffer
Chemical Company , Western Electro-Chemical Corp ., Titanium
Corporation of America , and United States Lime Pioducts
Company. These companies have branches operating the
facilities of the plant site. Basic Management, Inc., herein
called Basic , is a Nevada corporation organized by the various
plant- site operating companies , and embracing representatives
of each operating company, to solve problems common to those
companies relative to the plant site. Thereafter , the Colorado
River Commission sold to Basic the plant site and town site of
Henderson , including all facilities such as utilities , sewers,
etc., and Basic assumed responsibility for the operation of
those facilities.
The principal business of John W. Galbreath , an individual,
d/b/a John W. Galbreath Co., hereinafter referred to as
Galbreath , is the sale to individuals of what was once a war
project consisting of some 992 homes in the Henderson town
site. Under Galbreath ' s agreement with Basic covering the
town site , Basic retained the privilege to allot a certain num-
ber of houses for employees of each of the operating com-
panies. The number of houses to be withheld from the market
fluctuated , depending upon the number of additional employees
anticipated by the various companies . Following the sale of
such houses made at cost to employees certified by Basic,
payment for such houses was guaranteed by the respective
companies . Galbreath ' s agreement with Basic requires that
Galbreath maintain the houses and grounds of all unsold
houses.
When Galbreath entered into negotiations with Basic for the
purchase of Henderson town-site homes , he orally agreed to
take over the responsibility for the fire protection of the area,
including the plant-site area. Under this verbal agreement,
Galbreath pays the fire department employees with Galbreath
checks for which Basic pays Galbreath an approximate $ 10,000
per month, calculated at over $ 100 , 000 annually. The fire
department provides fire protection for the plant site, the
town site , and the surrounding area for about 8 miles.' The
fire department is necessary to the operations of the plant
occupied by the various companies , all of which the parties
stipulate are engaged in national defense work . The fire
i The fire department also performs regular fire- prevention duties, such as periodic
washing of the walls of the plant. There is some indication that fire department employees
also drive the ambulances for the hospital. There is no indication in the record as to how the
payments made to Galbreath by Basic compare with the expenses entailed in operating the
fire department. Nor does the record reflect any other financial information regarding
Galbreath's operations.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
station and equipment is located in the plant site and is owned
by Basic. As noted above , however , Galbreath has orally
agreed to assume the responsibility for the fire protection of
the area and is the party from whom the fire department
employees receive checks for their services as firemen.
In view of the oral understanding and responsibilities assumed
by Galbreath with respect to fire department employees, Basic
contends that not it but Galbreath is the employer of these
employees upon the basis that Galbreath is an independent
contractor having sole responsibility for such employees. As
a result thereof, Basic urges that the Board is without juris-
diction over this proceeding in that Galbreath , apart from
Basic , is not engaged in commerce within the meaning of the
Act.
The relationship between Basic and Galbreath is, to some
extent, reflected in the history of collective bargaining cov-
ering the employees in question . The record discloses that
several years ago the Petitioner , prior to the purchase by
Basic of the area from the Colorado River Commission, nego-
tiated and administered an oral agreement = with the commis-
sion covering the fire department employees . The administra-
tion of the labor agreement was accomplished through an
individual named Julian Moore, who later continued negotiations
with the Petitioner after Basic purchased the area . The parties
stipulated that Julian Moore's official position and title is
project manager of Basic . Although Galbreath denied that
Moore is in any respect its employee , it appears that since
taking over operation of the fire department , Galbreath has
frequently found it necessary to consult Moore regarding fire
department operations and personnel . The evidence reveals
that it has been the practice of Galbreath to acquiesce in any
recommendation by Moore regarding the fire department.
From this, it may be inferred that Moore has, in practice, an
effective voice in decisions taken by Galbreath in personnel
matters affecting fire department employees , while also
occupying a responsible managerial position with Basic. The
position of Moore as a common agent of Basic and Galbreath
is further emphasized by the fact that Moore has represented
both concerns in recent negotiations with the Clark County
commissioners concerning a proposed transfer of the fire
department operations from the Employers herein to the county
commissioners. 3
In view of the foregoing and upon the basis of the entire
record , we believe , contrary to Basic's contention, that
Galbreath is not an independent contractor . So far as the oral
agreement is concerned , we do not find therein the necessary
elements of an independent contractor relationship with respect
to the fire department employees. Although the operations of
= The Petitioner gives as a reason for an oral contract the fact that there was a question
whether the State could enter into a written labor agreement and the fact that the parties
regarded an oral agreement with the State as enforceable as a written contract.
3 The affect of the proposed transfer upon the direction of an election in this prooeeding is
considered under paragraph numbered 5 of this decision, infra.
BASIC MANAGEMENT, INC. 1041
the fire department are necessary to both the town site and
the plant site, the primary responsibility for such service 'was
conferred by the State upon Basic. The record does not indicate
that the effective control over the labor relations of the fire
department, given to Basic as part of its primary responsibil-
ity, has been completely relinquished by Basic through its oral
understanding with Galbreath. In view of the foregoing, par-
ticularly the control exercised by Julian Moore, an official of
Basic, over the labor relations of Galbreath in the operation of
the fire department, we are of the opinion that Galbreath and
Basic constitute joint employers of the fire department em-
ployees.5
We find that the fire department is an integral part of and
necessary to the operations of the plant by the companies
engaged in operations affecting national defense. We find,
accordingly, that the Employers are engaged in commerce
within the meaning of the Act.'
2. The labor organization involved claims to represent
employees of the Employers.
3. A question affecting commerce exists concerning the
representation of certain employees of the Employers within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.'
4. The parties stipulated that the appropriate unit should
consist of all firemen excluding all other employees, guards,
and supervisors,' as defined in the Act. The Petitioner, how-
ever, would include and the Employers would exclude the cap-
tain and the two lieutenants from the unit.
There are 26 firemen who are on duty 24 hours a day under
the immediate supervision of Chief Zink, 1 captain, and 2
Lieutenants. All firemen are paid on a monthly basis. As
indicated above, Chief Zink has the power to effectively
recommend hiring, firing, and disciplinary action. The captain
has the same powers as the chief in the chief's absence. Both
the chief and the captain direct and control the use of the
equipment, direct the manner in which the work is performed,
and determine which men perform specified duties. The lieu-
tenants have the power so to direct the use of the equipment
and the operations of the men in the absence of the chief and
the captain.9 In view of their responsibility to direct the per-
4As the record indicates that at any time Galbreath may choose to terminate this oral
agreement , Basic would automatically, and of necessity , become in such event solely re-
sponsible for the operations of the fire department.
SSee Norma Mining Corporation, et al., 101 NLRB 944; Otha Coburn, d/b/a Coburn Cater-
ing Company, et al., 100 NLRB 1133; Franklin Simon & Company, Inc., et al., 94 NLRB 576.
'See Richland Laundry & Dry Cleaners, 93 NLRB 680; General Electric Company, Kadlec
Hospital, 89 NLRB 1247. Also see Coburn Catering Company, et al., footnote 5, supra.
7 The Petitioner claimed to be currently recognized by the Employers, through the indi-
vidual, Julian Moore, and indicated it was seeking certification benefits. However, both
Employers denied that the Petitioner was the currently recognized bargaining representative
and refused at the hearing to so recognize it.
8 The parties agree that the chief is a supervisor.
9Directions always come from the superior officer on duty. If lieutenants wish to make
recommendations on hiring, such recommendations have to be made through channels
according to rank.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance of the firemen , we find that the captain and the lieu-
tenants are supervisors within the meaning of the Act.
We find that all firemen excluding all other employees,
guards , and supervisors to as defined in the Act , constitute an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. The Employers urge dismissal of the petition on the
ground that the matter is now moot . They base this contention
upon the allegation that the Clark County commissioners are
about to take over the operations of the fire department. 11 The
Petitioner contends that a contract for the transfer of control
has not been signed; that the plan is too indefinite to warrant
deferring an election ; that such plan is a ruse to avoid collec-
tive bargaining ; and that , in any event , there is no showing
that the identity and responsibility of Basic , one of the joint
employers , would be changed in its relation to the fire depart-
ment.
As the county commissioner ' s letter is ambiguous as to
whether the intention of the commissioners was to take over
the fire department on April 1 , 1953, or whether negotiations
with that end in mind were to begin on April 1 , 1953, we
consider the background of similar negotiations in the past as
pertinent to the probable intention of the commissioners in the
present instance . Thus , the chairman of the Clark County
Board of Commissioners testified that at the time the Colorado
River Commission sold the development to Basic and before
the oral agreement with Galbreath , Basic approached the
county commissioners to take over the responsibility for the
fire department . He further testified that, because the com-
missioners regarded fire protection as a government function,
they would have been willing to take over the operations of the
fire department but for the legal restrictions against such
action called to their attention by the State ' s attorney." The
commission chairman testified that the commissioners ascer-
tained that they could contract to protect industry only if the
moneys for such protection were reimbursed to the county
commissioners by such industry ; that therefore it was deter-
mined that the commissioners had the right to enter into
contracts with private enterprise or an individual ; and that as
a result thereof the commissioners did, in fact , execute with
the Colorado River commission an agreement , later extended
to Basic , for police control and police protection in the plant-
site area for which service the sum of $ 1,000 per month was
agreed to be paid to Clark County general fund in direct
subsidy by Basic . It further appears that negotiations for a
similar agreement covering the fire department have continued
1o Excluded under this category are the chief, the captain, and the lieutenants.
11 In support of this contention, the Employers introduced in evidence a letter from the
chairman of the Clark County Board of Commissioners dated March 16, 1953 , stating that
"The Board of Commissioners of Clark County , after due consideration , has agreed to enter
into negotiations to take over and operate the fire protection facilities in the unincorporated
town of Henderson as of April 1. 1953."
12 The chairman testified that such legal restrictions included lack of authority to finance
such operations from county funds and lack of auhority to assess taxes for that purpose.
OLIVER IRON AND STEEL CORPORATION, BERRY DIVISION 1043
periodically since Basic assumed responsibility for the fire
protection. The commissioner indicated that it is quite possible
that within a year Henderson may incorporate and in such
event, after the township has elected its own governing bodies,
the fire department will then become the city government
responsibility, thereby eliminating both the county commis-
sioners and Basic from the picture. Because, however, this
contingency is uncertain, the commissioners and Basic have
continued to discuss the possibility of a contract under which
the county commissioners may operate the fire department
until Henderson: is incorporated. With this in mind, 2 weeks
before, and on the Thursday preceeding the hearing in this
proceeding, and again on the night before the hearing, the
commissioners met with Moore, representing both Basic and
Galbreath, to discuss the question of contracting for the opera-
tion of the fire department. Notwithstanding these negotiations,
no formal agreement was worked out and another meeting was
scheduled for the Thursday following the date of the hearing.
As such or similar meetings and discussions have continued
for some 3 years without a resulting contract, we do not find
that the current discussions for that purpose indicate the
probability of a change in control that would warrant deferring.,
an election in this proceeding.
[Text of Direction of Election omitted from publication.]
OLIVER IRON AND STEEL CORPORATION, BERRY DIVISION
and INTERNATIONAL ASSOCIATION OF MACHINISTS,
LODGE NO. 952, AFL, Petitioner. Case No. 32-RC-607.
May 18, 1953
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 Caso March,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed. The Petitioner's request for ora, argument is denied
because in our opinion the record and briefs adequately
present the issues and position of the parties.
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 [Members Houston, Murdock, and
Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent
certain employees of the -Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.
104 NLRB No. 132.