Radcliff Silo Co.

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claim stenographers are office clerical employees, and we shall therefore exclude them from the unit. We find that a unit of all drivers , driver -helpers, and ware- housemen at the Employer ' s 11 terminals in North Carolina, including the day dispatcher at the Charlotte terminal and the rate and billing clerk at the Greensboro terminal, but excluding mechanics , the head warehousemen at the Raleigh and Golds- boro terminals, the night dispatcher at the Charlotte terminal, the billing and filing clerks at the Charlotte, Troy, and Raleigh terminals , the rate clerks at the Charlotte terminal, the janitor at the Albermarle terminal, the general office clerks, file clerk , and claim stenographers at the Albermarle terminal , professional employees , guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. As the unit found appropriate is broader than the unit sought by the Petitioner, the Petitioner may, if it does not desire to proceed with an election in such a unit , withdraw its petitions in this proceeding , provided that it notifies the Regional Director for the Eleventh Region to that effect within ten ( 10) days from the date of issuance of this Decision and Direction of Election. [Text of Direction of Election omitted from publication.] RADCLIFF SILO COMPANY and INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS, LOCAL 883, INDEPENDENT, Petitioner. Case No. 14-RC-2339. Novem- ber 20, 1953 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 Walter A. Werner, hearing 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 engaged in commerce within the meaning of the 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. 'Quarry Workers , Local 829, affiliated with International Hod Carriers and Common Laborers, AFL, was permitted to intervene on the basis of a card showing. 107 NLRB No. 41. RADCLIFF SILO COMPANY 137 4. The parties are in general agreement that a unit of production and maintenance employees, excluding office cleri- cals, professional employees , guards, and supervisors as defined in the Act is appropriate. The Petitioner, however, would exclude Clinton Thomson as a supervisor and Vincent Weiler, Charles Govieau, and Oscar Doza as independent contractors. The Employer and the Intervenor contend that the named individuals should be included in the unit. The Employer is engaged in the manufacture, sale, and erection of concrete stave silos . It has plants in Kansas and Missouri, but only the Ste. Genevieve, Missouri, plant is here involved. This plant was first put into operation on or about March or April 1953. The Employer's operations are seasonal in nature beginning sometime in the spring and terminating with the approach of cold weather. The Employer's practice is to manufacture sufficient staves to fulfill its contractual requirements and then to shut down its plants. At peak produc- tion, the Employer has 11 production and maintenance em- ployees in the Ste. Genevieve plant. The employees work under the supervision of the plant manager who is also the supervisor of the building program. Overall supervision is also exercised by the sales manager who substitutes for the plant manager when the latter, during a 3-month period, is frequently absent from the plant training the builders or supervising the erection of silos. Clinton Thomson, whom the Petitioner would exclude, is classified as acting foreman and checker. His principal duties are to maintain the single production machine in the plant, perform general repair work , and check material being shipped. When not so engaged, he works along with the pro- duction employees manufacturing staves. In the absence of the plant manager , Thomson serves as acting foreman subject to the supervision of the sales manager . As acting foreman, he directs the work of the production employees but is not responsible for the quality of their work. He has no authority to hire, discharge , or effect any changes in the status of other employees, or to make effective recommendations in that regard. As a relatively skilled employee, he receives an hourly rate which is 10 cents higher than that paid other pro- duction employees . However his weekly earnings are less than those of some of the production employees because the latter are also paid on a piecework basis . In these circumstances, and upon the basis of the record before us, we find that Clinton Thomson does not possess the authority of a super- visor as defined in Section 2 (11) of the Act and therefore is not a supervisor within the meaning of the Act. We shall therefore , contrary to the Petitioner ' s contentions , include him in the unit. As indicated above , the Petitioner also seeks the exclusion of three individuals on the ground that they are independent contractors. The Employer classifies them as "worker and builder"; that is to say, they serve in a dual capacity as pro- 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duction employees during part of the year and as erectors or builders of concrete stave silos at other times . The record does not indicate the proportion of time devoted to each activity but, as these individuals are regardedbythe Employer as its "key" employees , they receive preference inproduction work when there are no silos to be erected . When engaged in production work they receive the same hourly and piecework pay as do other production workers. However, when erecting a silo the builder works pursuant to the terms of a written agreement with the Employer. According to his agreement , the builder undertakes to erect a silo in accordance with the instructions and specifications set forth therein. He agrees to account for all material, equipment , and tools furnished by the Employer and to be responsible for any damage thereto, ordinary wear and tear excepted. The builder also undertakes to collect the contract price from the purchaser upon the completion of the silo and to forward the same to the Employer together with a report of labor and expenses. The Employer on its part, agrees to pay the builder a specified lump sum for the erection of the silo , depending on the size and type, together with a stipulated year-end bonus based on the dollar value of the labor expended in the erection of the silos , provided the builder is still in the Employer's employ at the end of the calendar year. In addition, the Employer agrees to compensate the builder on the basis of stipulated hourly rates for all repair and tank work and for the time necessarily spent in traveling to the plant for materials. The builder is under no obligation to furnish any labor other than his own . Helpers are supplied by the Employer from its production force or by the purchaser of the silo , in accordance with the provisions of the purchase and sale contract. The helpers are paid on an hourly basis by the Employer or the purchaser . In either case , however, the Employer, and not the builder , assumes responsibility for their workmen's com- pensation . The Employer also withholds social-security and income taxes from all sums paid to the builder. The record also discloses that the Employer exercises substantial supervision over the manner in which the work of constructing the silo is performed by the builder and that, as a practical matter , the builder accepts the control and super- vision of the Employer notwithstanding the existence of a written agreement. As the Employer exercises substantial and responsible control over the builders with respect to the manner and means of performing their work, we find , contrary to the Petitioner ' s contention , that the builders are not independent contractors but employees of the Employer. ' In view of the 'See Steinberg & Company, 78 NLRB 211, for discussion of the applicable right- of- control test. See also Vaughn Brothers, 94 NLRB 382. YORK TRANSFER & STORAGE CO. 139 substantial amount of work performed by the builders in the production of staves and the related and interdependent character of their work as builders , we further find that they have a sufficient community of interest with the other em- ployees to be included in a unit of production and maintenance employees . Accordingly , we shall include them in the unit. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer ' s Ste. Genevieve, Missouri , plant, including the acting foreman and checker, and the builders , but excluding office clericals , professional employees , guards ,. and supervisors as defined in the Act. 5. As indicated above, the Employer's operations are seasonal in nature . During the peak of its operations it employs approximately 11 employees . At the time of the hear- ing in August , the Employer estimated that its operations, which had already then been curtailed , would come to a halt in about 6 weeks and would not be resumed until about March or April of next year . Under the circumstances, and in accordance with our policy in seasonal industry cases, we shall direct that the election herein be held at or about the approximate seasonal peak on a date to be determined by the Regional Director among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issuance of the notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] YORK TRANSFER & STORAGE CO., Petitioner and LOCAL 193, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , AFL. Case No . 35-RM-57. November 20, 1953 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 Harry Berns, hearing 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 engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the 107 NLRB No. 47.