Local 236

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 236, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Maxon Construction Company. Case 9-CD-241 December 15, 1971 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Maxon Construction Company on August 13, 1971, alleging that Local 236, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, violated Section 8(b)(4)(D) of the Act by picketing with the object of forcing or requiring the assignment of work to its members rather than the job superin- tendent and Emil Bushey. A hearing was held on September 23, 1971, before Hearing Officer Francis A. Keenan. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. All parties filed briefs which have been duly considered. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE COMPANY Maxon is an Ohio corporation with its principal offices in Dayton, Ohio, and is a general contractor in the construction industry at various locations throughout the United States. In the course and conduct of its business operations Maxon annually purchases and receives supplies and materials valued in excess of $50,000, directly from locations outside the State of Ohio. Maxon has, at all times material herein, had a contract to perform services valued in excess of $1 million for the Kentucky highway 1 Section 8(b)(4)(D) in material part prohibits picketing with the object of "forcing or requiring any employer to assign work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, department at its Smithland, Kentucky, operation. We find that Maxon is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 236, affiliated with the International Brother- hood of Teamsters, Chauffeurs,'Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. III. THE DISPUTE Respondent claims that it is entitled to work currently being performed by Emil Bushey which involves hauling ice and water to and from the jobsite. In addition it claims that the job superintendent has hauled materials on the jobsite and that such work should be performed by a teamster. Emil Bushey is paid $6 per day out of the petty cash fund for his services. The Employer makes no deduction for FICA or tax purposes and does not carry him on the payroll. Bushey receives no fringe benefits. In addition he owns his own truck and has his own supply of ice and water. In these circum- stances, as it does not appear that Maxon in any sense controls the manner and means by which Bushey performs his work, it it clear that Bushey is not an employee but rather an independent contractor. Likewise, the job superintendent, would appear to be a supervisor rather than an employee under the statute. Section 10(k) of the Act, which directs the Board to hear and determine disputes out of which Section 8(b)(4)(D) 1 charges have arisen, limits the Board's authority in this respect to situations in which there is a dispute between competing groups of employees over an employer's work assignment. In this case no such dispute exists because the work sought by Respondent is being performed by a supervisor and an independent contractor and not by employees. Accordingly, as no dispute exists within the meaning of Section 10(k) of the Act, we shall quash the notice of hearing issued herein.2 ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. or class 2 In view of this disposition , we do not reach the other issues raised by the parties 194 NLRB No. 104