Local 236

National Labor Relations Board - Board Decisions

Dec 15, 1971

194 N.L.R.B. 594 (N.L.R.B. 1971)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 236, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Maxon Construction
Company. Case 9-CD-241
December 15, 1971
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Maxon Construction Company on
August 13, 1971, alleging that Local 236, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
violated Section 8(b)(4)(D) of the Act by picketing
with the object of forcing or requiring the assignment
of work to its members rather than the job superin-
tendent and Emil Bushey. A hearing was held on
September 23, 1971, before Hearing Officer Francis
A. Keenan. All parties appeared at the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing upon the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed. All parties filed briefs which have been duly
considered.
Upon the entire record in this case, the Board makes
the following findings:
I. THE BUSINESS OF THE COMPANY
Maxon is an Ohio corporation with its principal
offices in Dayton, Ohio, and is a general contractor in
the construction industry at various locations
throughout the United States. In the course and
conduct of its business operations Maxon annually
purchases and receives supplies and materials valued
in excess of $50,000, directly from locations outside
the State of Ohio. Maxon has, at all times material
herein, had a contract to perform services valued in
excess of $1 million for the Kentucky highway
1 Section 8(b)(4)(D) in material part prohibits picketing with the object
of "forcing or requiring any employer to assign work to employees in a
particular labor organization or in a particular trade, craft, or class rather
than to employees in another labor organization or in another trade, craft,
department at its Smithland, Kentucky, operation.
We find that Maxon is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 236, affiliated with the International Brother-
hood of Teamsters, Chauffeurs,'Warehousemen and
Helpers of America, is a labor organization within the
meaning of the Act.
III. THE DISPUTE
Respondent claims that it is entitled to work
currently being performed by Emil Bushey which
involves hauling ice and water to and from the jobsite.
In addition it claims that the job superintendent has
hauled materials on the jobsite and that such work
should be performed by a teamster.
Emil Bushey is paid $6 per day out of the petty cash
fund for his services. The Employer makes no
deduction for FICA or tax purposes and does not
carry him on the payroll. Bushey receives no fringe
benefits. In addition he owns his own truck and has
his own supply of ice and water. In these circum-
stances, as it does not appear that Maxon in any sense
controls the manner and means by which Bushey
performs his work, it it clear that Bushey is not an
employee but rather an independent contractor.
Likewise, the job superintendent, would appear to be
a supervisor rather than an employee under the
statute.
Section 10(k) of the Act, which directs the Board to
hear and determine disputes out of which Section
8(b)(4)(D) 1 charges have arisen, limits the Board's
authority in this respect to situations in which there is
a dispute between competing groups of employees
over an employer's work assignment. In this case no
such dispute exists because the work sought by
Respondent is being performed by a supervisor and
an independent contractor and not by employees.
Accordingly, as no dispute exists within the meaning
of Section 10(k) of the Act, we shall quash the notice
of hearing issued herein.2
ORDER
It is hereby ordered that the notice of hearing issued
in this proceeding be, and it hereby is, quashed.
or class
2 In view of this disposition , we do not reach the other issues raised by
the parties
194 NLRB No. 104