NLRB v. Fidelity Maintenance & Construction Company
| Decision Date | 20 April 1970 |
| Docket Number | No. 27767 Summary Calendar.,27767 Summary Calendar. |
| Citation | 424 F.2d 707 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FIDELITY MAINTENANCE & CONSTRUCTION COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. General Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Director, Region 10, N. L. R. B., Atlanta, Ga., for petitioner.
William H. Smith, Jr., Ellison D. Smith, Jr., Columbia, S. C., for respondent.
Before THORNBERRY, CARSWELL and CLARK, Circuit Judges.
This case is before this Court upon the petition of the National Labor Relations Board for enforcement of its order issued against the Company, directing the Company to bargain with the International Brotherhood of Electrical Workers, Local 1579.1 The employer has refused to bargain with the Union in order to test the appropriateness of the bargaining unit certified by the Board.
The Company furnishes maintenance and construction personnel on a contractual basis to various industrial firms located in the Augusta, Georgia area. At all times material to this case, the Company had annual contracts to provide maintenance work to Columbia Nitrogen Corporation, Columbia Nipro Corporation, Tennessee Corporation, and Hamberg Industries, Inc., and performed similar work for other firms on a job basis. The Company's headquarters are in Augusta, Georgia. Of the Company's 190 employees, approximately 110 are stationed at the Columbia Nitrogen liquid fertilizer plant located about two miles from the Company's office. About 40 of the Company's employees are employed refurbishing railroad cars at the Hamberg Industries plant, situated in South Carolina, approximately one mile from the Company's office. The Company also furnished approximately six employees for the operation of Tennessee Corporation's automated sulphuric acid and alum plant, located adjacent to the Columbia Nipro plants. The Company provides such maintenance employees as are required at the Tennessee plant on a temporary basis from its Columbia maintenance group.
The Company's central office hires employees, maintains payroll records for all employees, pays them on a single payroll, and exercises overall control of their employment. All employees are covered by the same job classification and wage rate policy, and enjoy uniform fringe benefits. The Company's fourteen supervisors, who are divided between the Company's various plant operations, have authority to hire and fire employees, and exercise immediate and responsible direction of the employees working with them.
On occasion, the Company transfers employees from the Columbia plant to other locations on a temporary basis. The Company contends that this ability to provide its contractors promptly with needed personnel is essential to the success of its business. There is no evidence in the record, however, that employees are transferred from one plant to another with any frequency. During the period from January 1, 1967 to September 8, 1967, the date of the hearing in the representation proceeding, approximately twenty-five of the Company's 190 employees were transferred between Company job sites; no more than fifteen of those transferees were transferred from the Columbia plant.
On October 27, 1967 the Regional Director issued a decision in which he found that a unit consisting of all of the Company's employees at the Columbia plant was appropriate for purposes of collective bargaining. On November 3, 1967 the Company requested the Board to review the Regional Director's unit determination, contending that the functional integration of its operations required a finding that a unit of all of the Company's hourly employees was the only appropriate unit, and that the Regional Director's unit determination violated section 9(c) (5) of the Act because it was controlled by the extent of the Union's organization. On November 27, 1967 the Board denied the request on the ground that it raised "no substantial issues...
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...is insufficient, for a choice among appropriate units is within the discretion of the Board." N.L. R.B. v. Fidelity Maintenance & Construction Co., 424 F.2d 707 (5th Cir. 1970). (emphasis This Court thus concludes that adoption of plaintiffs' assertion that Farnsworth and Halmar are a singl......
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