Radcliff Silo Co.

National Labor Relations Board - Board Decisions

Nov 20, 1953

107 N.L.R.B. 136 (N.L.R.B. 1953)

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claim stenographers are office clerical employees, and we
shall therefore exclude them from the unit.
We find that a unit of all drivers , driver -helpers, and ware-
housemen at the Employer ' s 11 terminals in North Carolina,
including the day dispatcher at the Charlotte terminal and the
rate and billing clerk at the Greensboro terminal, but excluding
mechanics , the head warehousemen at the Raleigh and Golds-
boro terminals, the night dispatcher at the Charlotte terminal,
the billing and filing clerks at the Charlotte, Troy, and
Raleigh terminals , the rate clerks at the Charlotte terminal,
the janitor at the Albermarle terminal, the general office
clerks, file clerk , and claim stenographers at the Albermarle
terminal , professional employees , guards, and supervisors as
defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9 (b) of the Act.
As the unit found appropriate is broader than the unit
sought by the Petitioner, the Petitioner may, if it does not
desire to proceed with an election in such a unit , withdraw its
petitions in this proceeding , provided that it notifies the
Regional Director for the Eleventh Region to that effect
within ten ( 10) days from the date of issuance of this Decision
and Direction of Election.
[Text of Direction of Election omitted from publication.]
RADCLIFF SILO COMPANY and INTERNATIONAL UNION OF
MINE, MILL AND SMELTER WORKERS, LOCAL 883,
INDEPENDENT, Petitioner. Case No. 14-RC-2339. Novem-
ber 20, 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 Walter A.
Werner, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act.
2. The labor organizations involved claim 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.
'Quarry Workers , Local 829, affiliated with International Hod Carriers and Common
Laborers , AFL, was permitted to intervene on the basis of a card showing.
107 NLRB No. 41.
RADCLIFF SILO COMPANY 137
4. The parties are in general agreement that a unit of
production and maintenance employees, excluding office cleri-
cals, professional employees , guards, and supervisors as
defined in the Act is appropriate. The Petitioner, however,
would exclude Clinton Thomson as a supervisor and Vincent
Weiler, Charles Govieau, and Oscar Doza as independent
contractors. The Employer and the Intervenor contend that
the named individuals should be included in the unit.
The Employer is engaged in the manufacture, sale, and
erection of concrete stave silos . It has plants in Kansas and
Missouri, but only the Ste. Genevieve, Missouri, plant is here
involved. This plant was first put into operation on or about
March or April 1953. The Employer's operations are seasonal
in nature beginning sometime in the spring and terminating
with the approach of cold weather. The Employer's practice
is to manufacture sufficient staves to fulfill its contractual
requirements and then to shut down its plants. At peak produc-
tion, the Employer has 11 production and maintenance em-
ployees in the Ste. Genevieve plant. The employees work
under the supervision of the plant manager who is also the
supervisor of the building program. Overall supervision is
also exercised by the sales manager who substitutes for the
plant manager when the latter, during a 3-month period, is
frequently absent from the plant training the builders or
supervising the erection of silos.
Clinton Thomson, whom the Petitioner would exclude, is
classified as acting foreman and checker. His principal duties
are to maintain the single production machine in the plant,
perform general repair work , and check material being
shipped. When not so engaged, he works along with the pro-
duction employees manufacturing staves. In the absence of the
plant manager , Thomson serves as acting foreman subject to
the supervision of the sales manager . As acting foreman, he
directs the work of the production employees but is not
responsible for the quality of their work. He has no authority
to hire, discharge , or effect any changes in the status of other
employees, or to make effective recommendations in that
regard. As a relatively skilled employee, he receives an
hourly rate which is 10 cents higher than that paid other pro-
duction employees . However his weekly earnings are less than
those of some of the production employees because the latter
are also paid on a piecework basis . In these circumstances,
and upon the basis of the record before us, we find that
Clinton Thomson does not possess the authority of a super-
visor as defined in Section 2 (11) of the Act and therefore is
not a supervisor within the meaning of the Act. We shall
therefore , contrary to the Petitioner ' s contentions , include
him in the unit.
As indicated above , the Petitioner also seeks the exclusion
of three individuals on the ground that they are independent
contractors. The Employer classifies them as "worker and
builder"; that is to say, they serve in a dual capacity as pro-
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction employees during part of the year and as erectors
or builders of concrete stave silos at other times . The record
does not indicate the proportion of time devoted to each
activity but, as these individuals are regardedbythe Employer
as its "key" employees , they receive preference inproduction
work when there are no silos to be erected . When engaged in
production work they receive the same hourly and piecework
pay as do other production workers. However, when erecting
a silo the builder works pursuant to the terms of a written
agreement with the Employer.
According to his agreement , the builder undertakes to erect
a silo in accordance with the instructions and specifications
set forth therein . He agrees to account for all material,
equipment , and tools furnished by the Employer and to be
responsible for any damage thereto, ordinary wear and tear
excepted . The builder also undertakes to collect the contract
price from the purchaser upon the completion of the silo and
to forward the same to the Employer together with a report
of labor and expenses.
The Employer on its part, agrees to pay the builder a
specified lump sum for the erection of the silo , depending on
the size and type, together with a stipulated year-end bonus
based on the dollar value of the labor expended in the erection
of the silos , provided the builder is still in the Employer's
employ at the end of the calendar year. In addition, the
Employer agrees to compensate the builder on the basis of
stipulated hourly rates for all repair and tank work and for
the time necessarily spent in traveling to the plant for
materials.
The builder is under no obligation to furnish any labor other
than his own . Helpers are supplied by the Employer from its
production force or by the purchaser of the silo , in accordance
with the provisions of the purchase and sale contract. The
helpers are paid on an hourly basis by the Employer or the
purchaser . In either case , however, the Employer, and not
the builder , assumes responsibility for their workmen's com-
pensation . The Employer also withholds social-security and
income taxes from all sums paid to the builder.
The record also discloses that the Employer exercises
substantial supervision over the manner in which the work of
constructing the silo is performed by the builder and that, as
a practical matter , the builder accepts the control and super-
vision of the Employer notwithstanding the existence of a
written agreement.
As the Employer exercises substantial and responsible
control over the builders with respect to the manner and
means of performing their work, we find , contrary to the
Petitioner ' s contention , that the builders are not independent
contractors but employees of the Employer. ' In view of the
'See Steinberg & Company, 78 NLRB 211, for discussion of the applicable right- of- control
test . See also Vaughn Brothers, 94 NLRB 382.
YORK TRANSFER & STORAGE CO. 139
substantial amount of work performed by the builders in the
production of staves and the related and interdependent
character of their work as builders , we further find that they
have a sufficient community of interest with the other em-
ployees to be included in a unit of production and maintenance
employees . Accordingly , we shall include them in the unit.
The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act : All production and
maintenance employees at the Employer ' s Ste. Genevieve,
Missouri , plant, including the acting foreman and checker,
and the builders , but excluding office clericals , professional
employees , guards ,. and supervisors as defined in the Act.
5. As indicated above, the Employer's operations are
seasonal in nature . During the peak of its operations it
employs approximately 11 employees . At the time of the hear-
ing in August , the Employer estimated that its operations,
which had already then been curtailed , would come to a halt
in about 6 weeks and would not be resumed until about March
or April of next year . Under the circumstances, and in
accordance with our policy in seasonal industry cases, we
shall direct that the election herein be held at or about the
approximate seasonal peak on a date to be determined by the
Regional Director among the employees in the appropriate
unit who are employed during the payroll period immediately
preceding the date of the issuance of the notice of election
by the Regional Director.
[Text of Direction of Election omitted from publication.]
YORK TRANSFER & STORAGE CO., Petitioner and LOCAL
193, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA , AFL. Case No . 35-RM-57. November 20, 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 Harry Berns,
hearing officer . The hearing officer ' s rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the
meaning 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
107 NLRB No. 47.