American Television, Inc. of Missouri

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we grant Respondent Harlan's motion and dismiss the amended complaint in its entirety, without passing upon any other question raised by the exceptions and briefs filed herein. [The Board dismissed the amended complaint.] constituted a single multistate employer , Member Murdock , who concurred in part and dissented in part in The Ransom and Randolph Co., 110 NLRB 2204, and Member Peter- son, who expressed his disagreement in that respect in the Jonesboro case and Breeding Transfer Company, 110 NLRB 493, consider themselves bound by the majority decisions in those cases. AMERICAN TELEVISION , INC. OF MISSOURI' and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No. 1, AFL, PETITIONER. Case No. 14-RCi-2555. January 7, 1955 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Roy V. Hayden, 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 contends that its operations do not satisfy the Board's recently adopted jurisdictional standards, either as an indi- vidual retail operation or as part of an integrated, multistate opera- tion. We find no merit in this contention. The Employer, a Missouri corporation, operates a single retail store, in St. Louis, Missouri, where it is engaged in the sale of television sets manufactured principally by American Television, Inc., of Illinois,2 hereinafter called the Illinois Corporation. The Employer and several other corporations bearing similar names and located in several States were organized in the early part of 1954 as the sole retail outlets for the products of the Illinois Corporation 3 All shares of each of these corporations, except for some qualifying stock, are owned by a single individual, U. A. Sanabria. Sanabria is the president of each of the several corporations, including the Employer herein, and is also the chairman of the several boards of 1 The Employer's name appears as amended at the hearing. s The record indicates that the Employer also sells a few television sets and some special equipment purchased from one other manufacturer. S A California corporation of the same name is the only wholesale distributor for parts and picture tubes manufactured by the Illinois Corporation. Although the record indi- cates that there may be some sales made by the Illinois Corporation to other television set assemblers and manufacturers , it is apparent that almost the entire output of the Illi- nois Corporation is distributed either through the retail corporations or through the Cali- fornia distributor. 111 NLRB No. 19. AMERICAN TELEVISION, INC. OF MISSOURI 165 directors. Sanabria's wife is the secretary-treasurer and his brother is vice president of each of the corporations, with one exception. Although each of the retail corporations, including the Employer, has a local manager, Sanabria himself promulgates sales and labor rela- tions policies for all of the corporations and actively directs all their activities. In addition to this active control by Sanabria, it is evident that, at least in the case of the Employer herein, all auditing is done in the office of the Illinois Corporation. Moreover, Sanabria ad- mitted, at the hearing, that the separate corporate entities in the several States were created only for the purpose of possible tax savings and to limit the liability of the Illinois Corporation. In view of the foregoing, it is apparent that the Employer, the Illinois Corporation, and the other corporations are engaged in a single integrated enterprise and constitute a single multistate em- ployer within the meaning of the Act.4 The total gross business of all of the retail corporations, outside the State of Illinois, is approximately $30,000 per week. Uncontra- dicted evidence establishes that approximately $15,000 worth of tele- vision sets were shipped each week to the retail outlets by the Illinois Corporation. Without considering any other business done by the Illinois Corporation, this weekly figure projected for a period of 1 year, totals well in excess of $250,000. Inasmuch as the Employer herein is an integral part of the manufacturing business of the Illinois Corporation, and because the total out-of-State shipments of this integrated multistate operation is in excess of $250,000 per annum, we find that it will effectuate the policies of the Act to assert juris- diction over the operations of the Employers 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the representa- tion 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: The Petitioner seeks a unit comprising all of the Employer's tele- vision servicemen and repairmen. The Employer moves that the peti- tion be dismissed upon the ground that the employees sought by the Petitioner are not employees of the Employer but are employees of an independent contractor. We find merit in the Employer's contention. When the Employer commenced operations in March 1954, it re- cruited television repairmen to service the sets which the Employer sold and which were warranted pursuant to the Illinois Corporation's 4 Cf Red Rock Company, et al., 84 NLRB 521 at 522-523, enfd. as mod. 187 F. 2d 76 (C A. 5) ; North Memphis Lumber Company, 81 NLRB 745-746. 5 Jonesboro Crain Drying Cooperative, 110 NLRB 481. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warranty and service agreement. However, because of the difficulty of maintaining a good working crew, the Employer on or about June 1, 1954, turned over the service operations to one Martin C. Flynn. The Union contends that Flynn is not an independent contractor but is an employee of the Employer, inasmuch as he is also a sales director of the Illinois Corporation and because the service contract given by the Employer with the sale of each of its television sets limits the charges for service and repair to such an extent that the service operation could not possibly be conducted profitably as a separate enterprise. The record reveals that Flynn and the Employer entered into an informal agreement establishing a separate service unit. Pursuant to this agreement, Flynn took over physically the service department which had formerly been operated by the Employer, and retained the service personnel who had been employed by the Employer. On this occasion, a sign was posted on the door of the service depart- ment to the effect that Flynn was the owner and operator thereof. This changeover was made during the middle of a week, and the crew was paid for that week, half by check from the Employer and half in cash by Flynn. Although the trucks that are used by the servicemen continue to bear the name of the Employer, and are rented from a truck rental agency by the Employer, Flynn reimburses the Employer for their use. The hand tools used by the service crew are owned by the employees, although the testing equipment in the shop is loaned to Flynn by the Employer. Both Flynn and Sanabria testified, without contradiction, that the employees of the service crew are under the sole supervision of Flynn and one supervisor appointed by him, and that Flynn, alone, has complete discretion and authority to hire, discharge, promote, and act in all other respects with regard to the terms and conditions of employment of these employees. He also makes all deductions and remittances for taxes and social security. It was further testified, without contradiction, that although the fees which Flynn may charge for service and repair are limited by the Employer's agreements with the set owners, Flynn is guaranteed by the Employer a profit on a cost-plus basis. By reason of the foregoing, we find that Flynn is an independent contractor within the meaning of the Act and that the service depart- ment employees, whom the Petitioner seeks to represent, are employed by Flynn and not by the Employer.' Accordingly, we shall grant the Employer's motion to dismiss the petition herein. [The Board dismissed the petition.] 6 Cf. Hamner, Hamner & Rloberts, 107 NLRB 937.