Ready Mixed Concrete & Materials, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1958

122 N.L.R.B. 318 (N.L.R.B. 1958)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receive a higher rate of pay than the other female employees in the
department, but less than the male employees therein. Neither has
the power to hire or fire, or to make effective recommendations as to
personnel action. Both work along with the other employees in the
department. Their direction of these employees does not require the
use of independent judgment but involves merely the routine trans-
mission of orders from higher supervision and the making of routine
assignments. As Carboneau and Ablondi do not possess any of the
statutory indicia of supervisory authority, we hereby adopt the Re-
gional Director's finding that they are not supervisors and his recom-
mendation that the challenges to their ballots be overruled.
Smith is classified by the Employer as foreman of the roller room.
Smith works with the five other employees in this department and
also spends about half his time driving a truck. Smith receives a
higher hourly rate than other employees but is second in seniority.
Instructions from the superintendent are relayed by Smith to the
other employees. Smith exercises no independent judgment and does
not have the power to hire or fire or to make effective recommenda-
tions as to personnel action. Under the circumstances, we adopt the
Regional Director's finding that Smith is not a supervisor and his
recommendation that the challenge to Smith's ballot be overruled.
[The Board directed that the Regional Director for the First Re-
gion shall, within ten (10) days from the date of this Direction, open
and count the ballots of Catherine Carboneau, Florence Ablondi,
Clyde E. Smith, Jr., Ralph Piccirillo, and Edwin Rose, and cause to
be served upon the parties a supplemental tally of ballots, including
the count of the ballots described above.]
Ready Mixed Concrete & Materials , Inc.' and Local #669, Con-
crete Products and Material Yard Employees , Petitioner.
Case No. 11-RC-1169. December 4, 1958
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 Jerry B. Stone, hear-
ing 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 a South Carolina corporation which was
charted and commenced business operations on November 1, 1957.
'The Employer 's name appears as corrected at the hearing:
122 NLRB No. 43.
READY MIXED CONCRETE & MATERIALS, INC. 319
During the 11 months elapsing bet`veen that date and the date of the
hearing the Employer purchased sand, crushed stone, and cement
valued at approximately $154,000, all of which was purchased from
points within the State of South Carolina. During that same period
the Employer made sales within the State of South Carolina of ap-
proximately $70,000 to various governmental agencies not otherwise
identified, as well as sales in the amount of $2,492 to out-of-State
contractors performing construction work in South Carolina. During
this period the Employer was engaged in a joint venture with Van
Smith Building Materials Company, which joint venture was known
as Charleston Ready Mixed Concrete Company. The joint venture
supplied ready mixed concrete valued at approximately $154,000
to general contractors engaged in the construction of an Air Force
base near Charleston, South Carolina. The concrete had to meet
Government specifications. The Employer's share of the joint ven-
ture's revenues approximated $77,000. Its employees were engaged in
the joint venture's operations, but were carried on the Employer's
payroll. The Employer was reimbursed by the joint venture for the
cost of wages paid to such employees. The parties stipulated the fore-
going commerce facts are representative of the Employer's business
and its effect on commerce.
In these circumstances the Board has determined that it will effec-
tuate the policies of the Act to assert jurisdiction over the Employer.
Ever since the enactment of the National Labor Relations Act in
1935 the Board has consistently held to the position that it better
effectuates the policies of the Act and promotes the prompt handling
of cases not to exercise its jurisdiction to the fullest possible extent
under the authority delegated to it by Congress. For the first 15 years
the Board exercised its discretion in this area on a case-by-case basis.
In 1950 the Board first adopted certain jurisdictional standards de-
signed to aid it in determining where to draw the dividing line be-
tween exercised and unexercised jurisdiction. In 1954 the Board re-
examined its jurisdictional policies in the light of its experience
under the 1950 standards and revised its jurisdictional standards. At
that time the Board noted that "further changes in circumstances
may again require future alterations of our determinations one way
or another." 2 Consistent with this practice of periodic review of its
jurisdictional policies and as a direct consequence of the Supreme
Court's decision in Guss v. Utah Labor Relations Board 3 denying to
the States authority to assert jurisdiction over enterprises over which
the Board declines to. exercise its statutory jurisdiction, the Board
reexamined its existing jurisdictional policies and the standards
Edwin D. TVemgs8, an individual, d/b/a Coca - Cola Bottling Company of Stockton,
110 NLRB 840, 842.
3353 U.S. 1.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through which such policies were implemented. As a result the Board
has determined to revise its jurisdictional policies so that more indi-
viduals, labor organizations, and employers may invoke the rights
and protections afforded by the statute. In Siemens Hailing Service 4
the Board fully set forth the general considerations which persuaded
it that this could best be accomplished by the utilization of revised
jurisdictional standards as an administrative aid in making its juris-
dictional determinations. The Board has chosen this case to set forth
the conditions under which it will. assert jurisdiction on the basis of
the national defense operations of an enterprise.
The Board has determined that it best effectuates the policies of
the Act to assert jurisdiction over all enterprises, as to which the
Board has statutory jurisdiction, whose operations exert a substantial
impact on the national defense, irrespective of whether the enter-
prise's operations satisfy any of the Board's other jurisdictional
standards.
In adopting this standard the Board has eliminated the require-
ments that an enterprise's national defense operations must be di-
rectly related to national defense, must be performed pursuant to
contracts or subcontracts with the Government, and must amount at
least to $100,000, a year.,' It has done so because it believes that it
has a special responsibility as a Federal agency to reduce the number
of labor disputes which might have an adverse effect on the Nation's
defense effort. The Board believes that this responsibility can best
be carried out by the more flexible standard announced herein.
Application of this standard to the facts in this case warrants the
Board's assertion of jurisdiction herein over the Employer's opera-
tions which affect commerce within the meaning of the Act. Through
its participation in the joint venture, Charleston Ready Mixed Con-
crete Company, the Employer was instrumental in supplying sub-
stantial quantities of ready-mixed concrete for use in the construc-
tion of an Air Force base. The Board finds, therefore, that the
Employer's operations clearly exert a. substantial impact on national
defense.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act..
4. The parties stipulated that the following employees employed
at the Employer's Charleston, South Carolina, plant constitute a unit
* 122 NLRB 81.
5 Set forth in Maytag Aircraft Corp., 110 NLRB 594.
0 Compare Ready Mixed Concrete Company, 110 NLRB 12:51 ; F. If. Reeves and Son•e,
Inc., 112 NLRB 295.
A. O. SMITH CORPORATION 321
appropriate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees, including truckdrivers,
but excluding all office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.7
[Text of Direction of Election omitted from publication.]
T The parties stipulated that the dispatcher was the only supervisor outside of the
Employer's officers within the , meaning of the Act.
A. .O. Smith Corporation and United Electrical , Radio and
Machine Workers of America , Local 1004 and International
Brotherhood of Electrical Workers, Local 1710, AFL-CIO,
Party to the Contract. Case No. 21-CA-2851. December 5,1958
DECISION AND ORDER
On May 8, 1958, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices in violation of Section 8(a) (1), (2) and (3) of the
Act and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further recom-
mended that an allegation of an independent violation of Section
8 (a) (1) of the Act by the Respondent be dismissed. Thereafter the
Respondent and the General Counsel filed exceptions, and the Re-
spondent filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and the brief, and the entire record
in the case , and hereby adopts the findings, conclusions, and recom-
mendations 1 of the Trial Examiner.
'To the extent that the recommended remedy may be construed not to require re-
imbursement to the original four employees at Anaheim for sums paid the IBEW sub-
seduent to November 7, 1957 , pursuant to the contract , we do not adopt it, and those
employees will be reimbursed for such sums.
122 NLRB No. 49.
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