The F. A. Bartlett Tree Expert Co.

National Labor Relations Board - Board Decisions

Jun 6, 1962

137 N.L.R.B. 501 (N.L.R.B. 1962)

THE F . A. BARTLETT TREE EXPERT CO. 501
mutual assent of Budd and the Union on June 29 to negotiate changes
in the old agreement clearly manifested their understanding that the
timekeepers agreement, as automatically renewed on May 30, would
remain in effect until modified, and nothing that the parties did before
or after June 29 indicates a contrary intention 3
Thus, in the absence of any showing that Budd and the Union had
terminated the timekeepers contract, we find that it was in effect on
July 1 when the timekeepers engaged in their strike. The Respondent
was therefore free under terms of the no-strike clause to discharge
these employees for their contract violation. We shall accordingly
dismiss the complaint.
[The Board dismissed the complaint.]
8 See New England Lead Burning Company, Inc., 133 NLRB 8C3, where the Board found
that a notice of termination may be revoked by a mutual oral agreement the effect of.
which was to permit automatic renewal of a contract.
The F. A. Bartlett Tree Expert Co., Petitioner and International
Hod Carriers, Building and Common Laborers Union of
America, AFL-CIO, Local No. 1353. Case No. 9-RM-251. June
6, 1962
SUPPLEMENTAL DECISION AND DIRECTION OF
SECOND ELECTION
Pursuant to a Decision and Order of the National Labor Relations
Board' dated July 27, 1961, a hearing was held on August 18, 1961,
before Cassius B. Gravitt, Jr., hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
In its petition, the Employer requests an election in a unit comprised
of all employees employed and working out of the Charleston, West
Virginia, office of the Employer and under the supervision and direc-
tion of the local supervisor of that office, excluding office clerical em-.
ployees, temporary employees, technical employees, professional, em-
ployees, guards, and supervisors as defined in the Act. The Union
agrees to the appropriateness of this unit, which is the unit certified
by the Board in August 1959 and covered by contract between the Em-
ployer and the Union, except that the Union, contrary to the Em-
ployer, would include temporary employees and exclude temporary
foremen.
The Employer, which is engaged chiefly in line clearance for a power
company within a 50-mile radius of Charleston, trims and fells trees,
1 Not published in NLRB volumes.
137 NLRB No. . 56.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuts brush, and sprays foliage along the power company's right-of-
way. Its 35 regular employees are classified as groundmen and
climbers. They work in crews of five to seven, each crew normally
headed by one of the six regular foremen, who have authority to hire
and discharge. These foremen are stipulated by the parties to be super-
visors within the meaning of the Act, and we so find.
Temporary employees: Spraying is done during 2 seasons: foliage
spraying from June through August, and dormant spraying from No-
vember until March. During these periods, the Employer hires extra
employees on a temporary basis. They work with regular employees,
chiefly on spraying and brush cutting. This work is routine and can
be learned in about 20 minutes. Extra hiring is heavier for the sum-
mer foliage spraying than for the winter dormant spraying, but the
number hired for each season varies from year to year. For example,
42 were hired during the summer of 1960, but only 13 during the sum-
mer of 1961. The temporary employees are drawn from the regular
labor force of the area. They are hired as temporaries, are told the ap-
proximate length of time they will be employed, are discharged at the
end of that time, and do not share in any of the fringe benefits of the
regular employees. Although no recall list is kept, most of the tem-
porary employees have worked for the Employer one or more previous
seasons. At the time of the hearing, there were three temporary em-
ployees on the payroll, all of whom had been hired in early June, and
were scheduled to be laid off on or before September 1. One of these
three was employed by the Employer for the first time in 1961; one
had worked for the Employer for 2 or 3 months 2 years previously and
also 6 or 8 years before his most recent employment; and the third had
worked for 2 or 3 months in both 1958 and 1959.
In view of the foregoing, particularly the fact that temporary em-
ployees are drawn from the same labor force, are employed every year
in substantial numbers for substantial periods of time, are composed
primarily of former employees, and work with and do the same kind
of work as the permanent employees, we find that they have sufficient
interests in employment conditions to warrant their inclusion in the
unit .2
Temporary foremen: Employees who are put in charge of crews dur-
ing spraying seasons and while regular foremen are on vacation are
designated as "temporary foremen." During the year prior to the
hearing, various employees served as temporary foremen for periods
ranging from 2 to 37 weeks. The contract between the Employer and
the Union provided that employees would not be covered by the con-
tract while serving as temporary foremen. They continue, however,
2 Knouse Foods Co-Operative, Inc., 131 NLRB 801.
Members Leedom and Brown do not agree with the inclusion of these employees in the
unit, but would exclude them as casuals under all the circumstances of this case.
THE F. A. BARTLETT TREE EXPERT CO. 503
to receive the employee benefits. The temporary foremen receive 30
cents an hour more than their regular rate, but do not receive the same
pay or benefits as the regular foremen.
Like regular foremen, temporary foremen work along with their
crews, which consist of both regular and temporary employees. Un-
like the regular foremen, however, temporary foremen have no au-
thority to discharge or to make effective recommendations regarding
the employment status of their crew members. While the Employer's
job description provides that temporary foremen may select men for
temporary employment when so directed by the area supervisor, and
one temporary foreman testified that he has hired temporary em-
ployees when so authorized, all the other temporary foremen who testi-
fied stated that the area supervisor had to approve those hired for
such temporary work. In addition, the area supervisor testified that
he designates the specific individuals to be hired for these temporary
jobs, that he sometimes requests the groundmen and climbers as well
as the temporary foremen to bring men in when needed for temporary
work, and that no temporary employees are hired without his approval.
The area supervisor designates one of the regular foremen to serve
as his assistant during periods when crews are added, and either the
area supervisor or his assistant visits each crew one or more times a
week. Temporary foremen keep time records and report irregularities
to the area supervisor or his assistant. The record also establishes that
the temporary foremen serve as conduits for the directions of the area
supervisor and his assistant, as well as the representative of the power
company for which this work is done.
Under all circumstances of this case, we find that the temporary
foremen are leadmen who direct the work of their crews, but that they
are not required to exercise independent judgment in doing so and do
not possess any of the other statutory indicia of supervisory authority.
We shall, therefore, include them in the unit?
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act: All employees em-
ployed and working out of the Charleston, West Virginia, office of
the Employer and under the supervision and direction of the local
supervisor of that office, including temporary employees and tempo-
rary foremen, but excluding office clerical employees, technical em-
ployees, professional employees, guards, and supervisors as defined in
the Act.
[Text of Direction of Second Election omitted from publication.]
3 Member Rodgers would find that the temporary foremen possess statutory supervisory
authority. As they spend a regular and substantial part of their time during the year
performing such supervisory duties, he would exclude them.