Martin Outdoor Advertising Co.

National Labor Relations Board - Board Decisions

Aug 30, 1972

198 N.L.R.B. 1136 (N.L.R.B. 1972)

1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin Outdoor Advertising Company and Sunad,
Inc., Outdoor Advertising and District Council No.
66, International Brotherhood of Painters and
Allied Trades, AFL-CIO , Petitioner. Case
12-RC-4076
August 30, 1972
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Robert L.
Lochner of the National Labor Relations Board.
Following the close of the hearing the Regional
Director for Region 12 transferred this proceeding to
the Board for decision. Thereafter the Employers
timely filed a brief as well as a supplemental brief.
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 Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:-
1. The Employers are engaged in commerce
within the meaning of the Act, and it will effectuate
the purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employers. At the
hearing, the Employers contested the status of the
Petitioner as a labor organization within the meaning
of the Act. The record reveals that the Petitioner
represents employees for the purpose of collective
bargaining for wages, hours, and other conditions of
employment and is presently a party to collective-
bargaining agreements with other employers. The
record further reveals that its members participate in
the affairs of the Union. Accordingly, we find that
the Petitioner is a labor organization within the
meaning of the Act.'
3. A question affecting commerce exists concern-
ing 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.2
4. The appropriate unit:
The Petitioner seeks a single unit of all employees
1 Mayfair Industries, Incorporated, 126 NLRB 223
2 The Employers moved to dismiss the petition on the ground the
Petitioner had made no demand for recognition as bargaining representa-
tive of the employees involved. We deny this motion. The Board has long
employed by Martin Outdoor Advertising Company
at its Tampa, Florida, facility and by Sunad, Inc.,
Outdoor Advertising at its St. Petersburg, Florida,
facility, but excluding office clerical employees,
salesmen, leasemen , artists, guards, and supervisors
as defined in the Act. The Employers claim that the
unit should be two separate single employer units,
whereas the Petitioner claims that a multiemployer
unit is appropriate. However, the Petitioner is willing
to represent all of the employees in the unit or units
found appropriate by the Board. The record reveals
that Sunad Inc., Outdoor Advertising, herein referred
to as Sunad, and Martin Outdoor Advertising
Company, herein referred to as Martin, are two
separate and distinct entities; that stock ownership is
different as is the geographical area serviced; that
Sunad is located in St. Petersburg, Florida, and
Martin is located in Tampa, Florida. The two
Employers maintain separate bank accounts. The
corporate officers are different for the two Employ-
ers, as are the labor policies and hiring and discharge
policies. The payroll records are maintained sepa-
rately and there is no interchange of employees
between the two Employers. The officers of Sunad
exercise no control over the operation or day-to-day
activities of Martin nor do the officers of Martin
exercise such control over Sunad's operations. There
is no interchange of equipment between the two
Employers. William Barber is chairman of the board
of directors of Martin and a stockholder and vice
president of Sunad. Although Barber has the
authority to sign Sunad checks, he does not do so,
and only visits Sunad apparently once every 15
months to 2 years. On the basis of the above record
evidence, we conclude that only single employer
units are appropriate.
As to the remaining classifications and individuals
in dispute we make the following findings:
Part-time employees of Martin: The Employer
employs four part-time employees, three of whom are
employed in construction, and the remaining em-
ployee is a janitor. One of these employees is a
retired former permanent employee and is now
working regularly for an undetermined number of
hours each week to supplement his Social Security
benefits. The remaining three employees were hired a
few weeks prior to the hearing and work from 12 to
20 hours per week. These three employees were not
hired for a specific length of time and it appears that
they may become permanent full-time employees in
the future. Indeed, the testimony indicates that part-
time employees in past years have since become
held that the filing of a petition in itself constitutes a sufficient demand to
support a representation petition . Tyree's Inc, 129 NLRB 1500 The
Employers further contended that the delegation of power , under Section 9,
to the Regional Director Is Improper . We find no ment in this contention
198 NLRB No. 156
MARTIN OUTDOOR ADVERTISING CO.
permanent full-time employees . From the above, it is
evident that these employees are regular part-time
employees and we shall therefore include them in the
unit.
Part-time employee of Sunad: Sunad has employed
the one part-time employee in issue for the past 5
years . He works each week on a work -as-needed
basis , usually from 12 to 40 hours each week. He
works as a utility employee on jobs within the unit. It
is clear that he is a regular part-time employee and
we shall therefore include him in the unit.
Doris Kentner: Doris Kentner is employed by
Martin as a clerical employee . She occupies an office
in the plant storage building which is physically
separate from the office clerical building . She has
daily contact with unit employees , distributes work
orders to their departments , and assists the unit
employees in filling out administrative forms. She
maintains a petty cash fund from which she
reimburses unit employees for out -of-pocket expen-
ses they may incur . From the above, it is clear that
Kentner functions as a plant clerical and we shall
include her in the unit.
In accordance with these findings , we conclude
that the following units are appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
(A) All employees employed by Martin Outdoor
Advertising Company at its Tampa, Florida, facility,
including part-time employees and plant clerical
employees , but excluding office clerical employees,
1137
salesmen , leasemen , artists , guards , and supervisors
as defined in the Act.
(B) All employees employed by Sunad, Inc.,
Outdoor Advertising at its St. Petersburg , Florida,
facility , including part -time employees , but excluding
office clerical employees , salesmen, leasemen , artists,
guards, and supervisors as defined in the Act.
5. During the course of the hearing , the Employ-
ers attempted to adduce evidence pertaining to the
necessity of producing the Excelsior3 list in this case.
The Hearing Officer refused to permit this line of
inquiry on the basis that the issue should not be
litigated in a representation hearing . The Employers
have herein renewed their contentions in this regard.
For the reasons fully set forth in Murphy Bonded
Warehouse, Inc., 180 NLRB 463, and for the further
reason that the Employers ' offer of proof of their
willingness (1) to arrange meetings between the
Union and their employees and (2) to distribute the
Union's literature to the employees , would not, if
accepted into evidence , have established that the
Union would thereby have had adequate access to
employees free of employer control and potential
interference , we find that the Hearing Officer's ruling
was not prejudicial error and we shall require the
furnishing in this case of an election eligibility list
containing the names and addresses of all the eligible
voters , to be provided by the Employers , in accord-
ance with the conditions set out below.
[Direction of Elections and Excelsior footnote
omitted from publication.]
3 Excelsior Underwear Inc, 156 NLRB 1236