Standard Business And Professional Exchange

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Commercial & Professional Exchange, Inc., d/b/a Standard Business and Professional Ex- change and Teamsters Automotive Workers Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case 31-RC-2397 February 19, 1974 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 2, 1973, the Regional Director for Region 31 issued a Decision and Order in the above-entitled proceeding in which he dismissed the petition for a unit of employees at the Employer's Sherman Oaks, California, telephone-answering facility, finding, despite the Employer's refusal to comply with a subpoena ad lestificandum et duces tecum, that on the basis of uncontradicted record evidence no single- employer relationship exists between the Employer and three other commonly owned telephone-answer- ing services, i and that the Employer, neither by itself nor in conjunction with Available, which has the same manager as the Employer, met the National Labor Relations Board's discretionary jurisdictional standards. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Petitioner filed a timely request for review of the Regional Director's Decision, on the ground, inter alia, that the Regional Director erred in not applying the Board's Tropicana2 doc- trine and therefore jurisdiction should be asserted over the Employer's operations herein. The Employ- er filed opposition thereto. The Board, by telegraphic order dated August 20, 1973, granted the request for review, remanded the case to the Regional Director for further hearing on the jurisdictional issues raised, and directed him, in the event the Employer failed to cooperate, to take such further action as he deemed appropriate. On October 2. 1973, the Regional Director for Region 31 issued a Supplemental Decision and Order, which is attached hereto, in which he found, on the basis of the supplemented record, that the test for determining a single-employer relationship be- tween the Employer and the three other answering services has not been met; he rejected the Petitioner's contention that the Employer should be treated as a communications system or link, citing Stanger's Telephone Answering Service, Inc., 51 LRRM 1584; and he reaffirmed his earlier decision to dismiss the petition. The Petitioner filed a request for review of the Regional Director's Supplemental Decision, in which it referred to its earlier request for review, 209 NLRB No. 25 noted that Stanger's did not involve "a multi- branched operation as is here the case," and urged, in any event, that the Board reconsider its jurisdic- tional standard as applied to the telephone-answer- ing industry. The Board, by telegraphic order dated November 1, 1973, granted the request for review as it raised substantial issues warranting review. 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. Having considered the entire record in this pro- ceeding with respect to' the issues under review, the Board is satisfied that the record supports the Regional Director's findings and conclusions.3 Therefore, the Regional Director's Supplemental Decision and Order is hereby affirmed. i Available Answering Service, herein called Available. Pacific Answer- ing Service, and SOS Telephone Exchange 2 Tropicana Produces, Inc , 122 NLRB 121. e We have carefully examined the record in the instant case and we conclude that, despite the close family relationship between the managers of the telephone-answering services and two of the three owners of these companies, there is insufficient evidence to show common control over the labor relations policies of the four answering services involved herein We find, therefore, in agreement with the Regional Director, that these companies do not meet the test for determining that a single-employer relationship exists . We also adhere to our policy set forth in Stanger's that a telephone-answering service does not in and of itself constitute a communications system, or link, in commerce REGIONAL DIRECTOR'S SUPPLEMENTAL DECISION AND ORDER On July 2, 1973, 1 issued a decision and order in the above matter dismissing the petition. Thereafter, on August 21, 1973, upon Petitioner's request for review, the Board ordered that the record be reopened and remanded the matter to me for further hearing to receive additional evidence, including the testimony of Stanley Sacking, to resolve the jurisdictional issues involved, including whether a single-employer relationship exists between the Employ- er, Available Answering Service, Pacific Answering Serv- ice, and SOS Telephone Exchange. The record developed in the subsequent hearing does not alter any of the conclusions of fact or law which I made in the earlier proceeding. Thus, on rehearing it developed that the total gross dollar volume for all four services was in excess of $500,000, but no two services had a gross volume of sales in excess of $500,000 in 1972. The parties stipulated that the Employer earned approximately $9,000 from sales or services to customers who meet aJurisdiction- al standard of the Board. The evidence in the rehearing indicates that the four services do not have similar labor policies. In this regard, I note that the four services do not have the same starting wage rate, overtime pay, paid holidays, hiring policies, Christmas bonuses, or advertising policies. Although the four services have the same hospitalization and medical coverage for employees, such benefits are provided under separate insurance contracts for each company. STANDARD BUSINESS AND PROFESSIONAL EXCHANGE The Employer's three shareholders, Stanley Sackin, Lewis Sackin, and Ord Preston, have formed three partnerships which own Available Answering Service, Pacific Answering Service, and SOS Telephone Exchange. The record disclosed that the manager of the Employer and Available Answering Service is Ernest Sackin and the manager of the other two exchanges is Fanny Sackin. (Ernest and Fanny are the parents of Louis and Stanley Sackin). The two managers have a great deal of control and authority over their respective telephone answering services. The managers set the following policies: hiring and firing, hours of work, starting pay, Christmas bonuses, and advertising. The record also establishes that the two managers do not have management meetings between themselves or with the owners of the services. There is no transfer of personnel among the services and there is no customer referral among the exchanges. In addition, there are no written labor relations policies for the Employer and the other services. The test for determining whether two or more businesses will be considered a single employer for jurisdictional purposes is fourfold, no one of which is by itself controlling, but the first three of which are of more ' Under the provisions of Sec 102 67 of the Board's Rules and Regulations, a request for review of this decision may be filed with the 105 significance : interrelation of operations , centralized con- trol of labor relations : common management : and com- mon ownership or financial control . Sakrete of North California, Inc. v .N.L.R.B , 322 F.2d 902, 905-908 (C.A. 9), cert. denied 379 U.S. 961. Based upon the foregoing and the record as a whole, I conclude that the four answering services do not constitute a single employer for the purposes of jurisdiction . As already noted above , no two of the services, including the two managed by Ernest Sacktn, had a gross volume of sales in excess of $500 ,000 in 1972. The Petitioner contends the Employer performs services which affect commerce since they are a continuation or an extension of instrumentalities of communication. This contention is unmeritorious . The Board has ruled that an answering service does not in and of itself constitute a communications system or link within the meaning of the Board's jurisdictional standard for communications sys- tems. Stanger's Telephone Answering Service Inc., 51 LRRM 1584. The record discloses that the Employer does not satisfy any discretionary jurisdictional standard of the Board. Accordingly, as the Employer is not engaged in commerce within the meaning of the Act, I shall dismiss the petition.' Board in Washington. D C This request must be received by the Board in Washington by October 16, 1973