The Abstract & Title Co.

National Labor Relations Board - Board Decisions

Jun 18, 1953

105 N.L.R.B. 661 (N.L.R.B. 1953)

THE ABSTRACT & TITLE CO. 661
loss of pay suffered because of the discrimination against
him.
CARPET, LINOLEUM & SOFT TILE
WORKERS, LOCAL NO. 1235,
Labor Organization.
Dated ................ By.... ................................... ....... .
(Representative ) (Title).
This notice must remain posted for 60 days from the date
hereof , and must not be altered , defaced, or covered by any
other material.
THE ABSTRACT & TITLE CO.' and TITLE EXAMINERS
UNION NO. 19496 (AFL), Petitioner. Case No. 8-RC-1938.
June 18, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed , a hearing was held before John
Vincek , 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 National
Labor Relations Act, the Board has delegated its powers in
connection with this case to a three-member panel[Members
Houston, Murdock , and Peterson].
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the National Labor Relations 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.
4. Petitioner seeks to represent a unit of title examiners,
escrow men , reviewers , and mappers , excluding all clerical
and stenographic employees , bookkeepers , and supervisors. 2
The Employer agrees as to the appropriateness of the unit
except that it urges that some 13 part -time examiners out of a
total of 16 part-time and full-time examinerss are independent
contractors and should be excluded.
'The Employer 's name appears as amended at the hearing
2 The petition originally included court and tax searchers , but this was amended at the hear-
ing to exclude these categories on the ground that no such classification was used by the Em-
ployer
3There is no issue as to the inclusion of the 3 full-time examiners , whom both parties agree
should be included.
105 NLRB No. 92
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All applicants for title examiners , whether part -time or full-
time, are interviewed for employment by some official of the
Employer . The full-time examiners are required to give all
their time to the Employer and they work for a stipulated
weekly salary . When hired, the part -time examiners are told
orally they may engage in other work and do their title
searching at such times and places as maybe necessary. Their
practice is, however , to report to the office at certain hours
and to leave at a given time . Part -time examiners are expected
to inform the Employer ' s office whenever they leave earlier
than usual. They are also expected to report to the office at
least once a day to receive their assignments. Furthermore,
if they take any documents home, they are expected to notify
the office where such documents can be located at any given
time. Because of the nature of their work, part-time examiners
do most of their research in the courthouses or other official
buildings away from the premises of the Employer '4 When they
have completed their research , the examiners give their notes
to the Employer's clerical staff for typing. While in the office,
the examiners not only occupy their own desks and use all the
facilities of the Employer , but are also subject to the same
discipline as other employees.
The compensation of the part -time examiners is set by the
Employer , payment being on a commission basis, that is, a
percentage of the fee charged by the Employer . If a particular
job requires more than the usual amount of time, the Employer
charges the client withmore thanthe usual fee, and then divides
such additional amount with the examiner. S
All work of the examiners , whether full - or part-time, is
subject to review by the Employer ' s reviewers. If, upon exam-
ination , the reviewer raises questions which require further
checking, he returns the report to the examiner who is required
to do this additional work without extra compensation. If any
questions of policy arise in connection with the search, the
examiner is required to consult an officer of the Employer,
who makes the decision.
Because of the uncertainty of the availability of the work, the
part -time examiners , who work from 10 to 30 hours a week,
have as previously noted the privilege of engaging in work
either for themselves or for other employers . As stated above,
however , they are required to report at least once a day to
check on assignments . Although if they are busy, they may
suggest other examiners for the particular job, part-time
examiners ordinarily have no choice in their assignments.
4 The full- time examiners also work outside the Employer 's office whenever necessary but
are engaged in miscellaneous office jobs when not engaged in searching work.
$Ordinarily, the examiners do not contact the clients , as any questions arising in connection
with the search are discussed with officials of the Employer . In any event, the fee charged is
never set by the examiner.
THE ABSTRACT & TITLE CO 663
Moreover , they are not permitted to hire others to do their
work. Finally , although the part -time examiners , unlike the
full -time examiners , are not subject to deductions for with-
holding and social-security taxes, they participate in the annual
Christmas bonus, to which all employees are entitled.
On the basis of the foregoing , we find no merit in the
Employer ' s contention that the part -time examiners are inde-
pendent contractors . In essence , the only difference between
the part -time and full -time examiners is in the method of
payment and in the requirement to give full time to the Em-
ployer . Apart from these factors, there is nothing to distinguish
one group from the other . The Board has held that in deter-
mining the existence of the independent contractor relationship
the mode of payment is not controlling . 6 Nor is the fact that one
group must work full time for the Employer and the other
group part -time controlling .' On the other hand, the record
indicates that both groups of examiners have mutual interests.
Thus, both are hired in the same way and do exactly the same
type of work , which is an integral part , if not the primary work
of the Employer . Both , as noted above , are subject to review
by the reviewing staff and to discharge by the Employer. The
latter sets the rate of compensation for both groups and pays
all expenses connected with a given job. The fact that the part-
time examiners are not subject to supervision while working
is not controlling , as by the very nature of their work, which
is done away from the Employer ' s premises , they cannot be
supervised . I Nor is the fact that certain tax deductions have
not been made for the part -time examiners controlling, as the
Board has frequently held -9 We therefore find that the part-
time examiners are employees within the meaning of the
Act; tfi accordingly , we shall include them in the unit herein
found appropriate.
We find that all title examiners , including the part-time
examiners, escrow men , reviewers , and mappers , employed
at the Employer ' s establishment in Cleveland , Ohio , excluding
all clerical and stenographic employees , bookkeepers , and all
supervisors as defined in the Act , constitute aunt appropriate
for purposes of collective bargaining within the meaning of
Section 9 ( b) of the Act.
[Text of Direction of Election omitted from publication.]
6Plainfield Courier- News Co., 95 NLRB 532; Port Arthur College, 92 NLRB 152.
7 Port Arthur College , supr . It is well established in Board decisions that regular part-
time workers are included in a unit of employees with whom they have mutual interests
8See Golden State Agency , Inc., et al., 101 NLRB 1775; Plainfield Courier - News Co ., supra
Columbia Reporting Co., 88 NLRB 168.
9 Southwestern Associated Telephone Company , 76 NLRB 1105, 1115
t9 Golden State Agency , Inc., et al ., supra
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