Willcox Construction Co., Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1949

87 N.L.R.B. 371 (N.L.R.B. 1949)

In the Matter Of WILLCOX CONSTRUCTION CO., INC., EMPLOYER and
INDEPENDENT WATCHMEN'S AND GUARDS ASSOCIATION, LOCAL 1015,
AFFILIATED WITH THE INDEPENDENT WATCHMEN'S ASSOCIATION,'
PETITIONER
Case No. 2-RC-1338.-Decided December 5, 1949
DECISION
AND
ORDER
Upon a petition duly filed, a hearing was held before Warren H.
Leland and Daniel J. Sullivan, hearing officers. The hearing officers'
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 [Chairman Herzog and Members
Reynolds and Gray].
Upon the entire record in this case, the Board finds that no 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 for the following reasons :
1. The Petitioner seeks to be certified as representative of the guards
employed on the construction of the Alfred E. Smith and Lester Pat-
terson housing projects in New York City, now being built for the
New York City Housing Authority. Willcox Construction Co., Inc.,
'hereinafter called Willcox, the named "employer" in the petition,
contends that (a) it is not engaged in commerce and (b) is not an
"employer" of the employees involved herein, within the meaning of
the Act.
Willcox, a New York corporation with its principal office located
at Long Island City, New York, is engaged in the construction of all
types of buildings and in concrete contracting work. On August 22,
1949, the date of the hearing, its sole operations consisted of participa-
tion as an associate in a joint adventure for the construction of the
I The name of the Petitioner appears as amended at the hearing.
.87 NLRB No. M. 371
877359-50-vol. S7-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith and Patterson housing projects.2 In addition to Willcox, the
associates in the joint adventure are Nathan Fish, Inc., a New York
corporation, and James McHugh Sons, Inc., and Maurice L. Bein, Inc.,
Illinois corporations, all collectively referred to hereinafter as the
Joint Adventure. All contracts for the purchase of materials used
on the projects are executed.by each of the four associates. For the
purposes of sharing profit and loss, Willcox's participation in the Joint
Adventure amounts to 40 percent.
At the time of the hearing, the Joint Adventure employed approxi-
mately 800 employees in connection with the construction of the two
projects. These employees are supervised by a chief field man, who
is in charge of all construction work on the projects," and by two
project superintendents, all of whom are employed by the Joint
Adventure. All prospective employees, including applicants for posi-
tions within the unit sought by the Petitioner, execute forms bearing
the names of all the Joint Adventure associates and file their applica-
tions for employment at offices established at the projects by the Joint
Adventure. Although the record shows that certain hourly rated
employees receive their wages in Willcox pay-roll envelopes, it is clear
that the pay rolls for all such employees are prepared by a pay-roll
service firm engaged by the Joint Adventure. Likewise, the super-
visor of the guards sought herein testified that, although his check is
drawn by Willcox, he is employed by, and responsible solely to, the
Joint Adventure.4 His immediate superior is the chief field man in
charge of the projects. Both the Joint Adventure and Willcox carry
Workmen's Compensation Insurance on the workmen at the projects.
Although the record does not reveal whether the Joint Adventure
exercises control over general labor relations matters arising in con-
nection with the construction of the Smith and Patterson projects, it
is clear that it exercises the exclusive function of hiring and discharg-
ing personnel, and establishes their working hours. In these circum-
stances, we shall make no determination as to whether Willcox is
engaged in commerce within the meaning of the Act by virtue of its
participation as an associate in the Joint Adventure. However, we
find that it is not established by the record in the present proceeding
that Willcox is an employer, within the meaning of the Act, of the
employees here sought to be represented by the Petitioner.5
2 The Smith project is scheduled for completion about January 1950 and will cost
$6,890 ,000. The Patterson project is scheduled for completion in 9 to 12 months from
the date of the hearing , and will cost $10.887,000.
I The chief field man is a principal stockholder of Willcox.
4 The guard supervisor ' s check is signed by Lundgren , a Willcox official , who also serves
as office manager for the Joint Adventure.
5 Cf. Deep Oil Development Company , 74 NLRB 941 ; Binon Chocolates , Inc., 65 NLRB
591 ; and A. P . Steiner, et al., 43 NLRB 1384.
WILLCOX CONSTRUCTION CO., INC. 373
2. Willcox further contends that the Petitioner is not eligible to
represent the watchmen, or guards," employed at the Smith and Pat-
terson projects, because of the proscription contained in Section 9 (b)
(3) of the amended Act.7
On July 1, 1948, the Watchmen's Union of the Port of New York
and Vicinity, Local 1456, affiliated with the International Longshore-
men's Association, A. F. L., herein called the I. L. A., was dissolved.
It is conceded that such dissolution was because the I. L. A. is a labor
organization admitting to membership employees other than guards,
within the meaning of Section 9 (b) (3). On the same date, the In-
dependent Watchmen's Association, herein called the I. W. A., was
organized for the exclusive purpose of representing guards, and on
October 15, 1948, granted a charter to the Petitioner, Local 1015.8
Thereafter, the Petitioner took over the guard membership of the
dissolved Local 1456, and renegotiated the contracts which had been
held by that Local. Apart from a division of Local 1456 funds,9 the
record reveals that neither the I. W. A. nor the Petitioner has received
any financial assistance from any other organization. The I. W. A.'s
representative asserted at the hearing that there is no connection
between the Petitioner, or the I. W. A., and any other labor organi-
zation.
The record further shows, however, that at the time of the hearing,
the president of the I. W. A. was also serving as president of the Port
of New York District Council, an I. L. A. affiliate, whose function is
to settle disputes arising among I. L. A. locals in the New York City
area. This officer receives, in addition to his salary from the I. W. A.,
an expense allowance from the I. L. A. Port of New York District
Council for services rendered in its behalf. In addition, one of the
1. W. A.'s vice presidents was serving, at the time of the hearing, as
secretary of Local 866, I. L. A., and delegate from that Local to the
1. L. A. District Council; another was serving as vice president of the
1. L. A.; and another as delegate from the Albany, New York, I. L. A.
membership to the I. L. A. convention. Since the I. W. A. was or-
ganized, more than a year ago, all these officers have participated in
formulating its policies and those prescribed for the Petitioner.
9 The record clearly shows that the watchmen sought to be represented in this proceed-
ing are employed as "guards" within the meaning of the Act.
' Section 9 (b) (3) provides, inter alia, that "no labor organization shall be certified as
the representative of . . . guards if such organization admits to membership, or is af-
filiated directly or indirectly with an organization which admits to membership, employees
other than guards." [Emphasis supplied.]
8 After their formation, both the I. W. A. and the Petitioner adopted their own consti-
tution and bylaws, elected their own officials, and established their own business office.
U Upon dissolution of Local 1456, its funds were divided equally between the I. L. A. and
the newly formed I. W. A. Under the circumstances of this case, we do not base our finding
that the Petitioner is ineligible to represent these guards upon such division of funds.
Cf. The tieie York & Porto Rico Steamship Company, et at ., 81 NLRB 1034.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have held that certain temporary assistance furnished a guards'
union during its infancy, by a union admitting to membership em-
ployees other than guards, does not establish affiliation between the
two unions.'° However, we believe that the continuous holding of
principal offices in the I. W. A., and participation in the formulation
of I. W. A. policies, by regular officers of the I. L. A. and its affiliate,
the Port of New York District Council, constitutes an indirect affilia-
tion between the I. W. A. and the I. L. A. of the sort which Congress
intended to proscribe by enacting Section 9 (b) (3) in 1947. As a
chartered local of the I. W. A., the Petitioner therefore is likewise
indirectly affiliated with organizations admitting to membership em-
ployees other than guards, and may not, in any event, be certified as
representative of the employees for whom it seeks certification in
this proceeding 11 In view of all the foregoing, and also for the reasons
stated in the paragraph numbered 1 above, we shall dismiss the
petition.12
ORDER
Upon the basis of the entire record in this case, the National Labor
Relations Board hereby orders that the petition filed in the instant
matter be, and it hereby is, dismissed.
10 See International Harvester Company, 81 NLRB 374, where the Board found that
evidence that an affiliated union had provided a spokesman for a guard union during con-
tract negotiations, and had collected union dues for that union, did not establish affiliation
between the two organizations.
11 See Schenley Distilleries , 77 NLRB 468. Cf. The New York & Porto Rico Steamship
Company, supra ; International Harvester Company, supra ; and Chrysler Corporation, 79
NLRB 462.
12 In view of our finding , we deem it unnecessary to pass upon the other grounds ad-
vanced by the Employer in opposing the petition.