Willcox Construction Co., Inc.

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.