Brown & Root, Inc., W. S. Bellows, Anna W. Bellows, Elizabeth Bellows Williams, Warren S. Bellows, Jr., And Frank W. Bellows, a Co-partnership Doing Business As W. S. Bellows Construction Company And Columbia Construction Company A'nd James F. Hoffman And Paul J. Bristol, Individuals, 820 (1943)

Docket Number:C-2609
Party Name:834
 
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In the Matter of BROWN & ROOT, INC., W. S. BELLOWS, ANNA W. BELLOWS, ELIZABETH BELLOWS WILLIAMS, WARREN S. BELLOWS, Jr., AND FRANK W. BELLOWS, A CO-PARTNERSHIP DOING BUSINESS AS W. S. BELLOWS CONSTRUCTION COMPANY AND COLUMBIA CONSTRUCTION COMPANY a'nd JAMES F. HOFFMAN AND PAUL J. BRISTOL, INDIVIDUALS Case No. C-2609.--Decided July e8, 1943 DECISION AND ORDER On May 13, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and a brief in support of the exceptions, and requested permission to present oral argument before the Board. A brief was likewise filed by Local No. 450 of the International Union of Operating Engineers, whose motion to intervene was granted by the Board for the purpose of filing briefs and participating in oral argument. On July 1, 1943, pursuant to notice served upon all the parties, a hearing for the purpose of oral argument was held before the Board at Washington, D. C. The respondents and Local No. 450 appeared and participated therein.

The Board has considered the operations in which the respondents are engaged, and, contrary to the finding of the Trial Examiner, is of the opinion that the state of the evidence concerning commerce disclosed by the record does not warrant a finding that the operations of the respondents affect commerce within the meaning of the Act,' nor that the assertion of jurisdiction would effectuate the policies of the Act. We shall therefore dismiss the complaint in its entirety.

1 See Pedersen v. Delaware Lackawanna & Western Railroad Company, 299 U. S. 14G,

Raymond v. Chicago, Milwaukee c& St. Paul Railway Company, 243 UT. S. 43; Oregon Short Line R. Co. v. Gubler, 9 F. (2d) 494, cert. denied, 273 U. S. 709; Overstreet, et al. v.

North Shore Corporation, 63 S. Ct. 494.

820 ORDER Upon the basis of the foregoing findings and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against Brown & Root,

Inc., W. S. Bellows, Anna W. Bellows, Elizabeth Bellows Williams,

Warren S. Bellows, Jr., and Frank W. Bellows, a Co-partnership doing business as W. S. Bellows Construction Company and Columbia Construction Company, be and it hereby is, dismissed.

CHAIRMAN MILLIS took no part in the consideration of the above Decision and Order.

INTERMEDIATE REPORT Mr. Bliss Daffan, for the Board.

Mr. TV.. Arnold, Jr., of Houston, Texas, for the respondents.

Mr. Lloyd E. Stiernberg, of Harlingen, Texas, for Hoffman and Bristol.

STATEMENT OF THE CASE Upon an amended charge duly filed on November 21, 1942, by James F. Hottman and Paul J. Bristol, individuals, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated November 27, 1942, against Brown &

Root, Inc., W. S. Bellows, Anna W. Bellows, Elizabeth Bellows Williams, Warren S. Bellows, Jr., and Frank W. Bellows, a Co-partnership doing business as W. S. Bellows Construction Company and Columbia Construction Company, herein called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondents,

Hoffman, Bristol, and Commander A. C. Eberhard, U. S. N., officer in charge of construction of the Naval Air Training Center, Corpus Christi, Texas.

With respect to the unfair labor practices the complaint alleges in substance:

(1) that the respondents, from on or about January 14, 1942, to the date of the complaint, urged, persuaded, and warned their employees to refrain from becoming or remaining members of a union or engaging in concerted activities;

questioned their employees concerning union membership and other concerted activities; threatened their employees with discharge or other reprisals if they became members of a union or engaged in other concerted activities; and vilified, disparaged, and expressed disapproval of labor organizations and concerted activities by the employees; (2) that the respondents, on or about July 11, 1942, discharged Paul J. Bristol and James F. Hoffman, and at all times thereafter refused to reinstate them, because they engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; and (3) that the respondents, by the above stated conduct, discriminated in regard to the hire and tenure of employment of Bristol and Hoffman and interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act.

The respondents filed a motion, dated December 9, 1942, to dismiss the complaint for lack of jurisdiction. The respondents, without waiving their motion to dismiss, filed an answer dated December 9, 1942, denying that they are engaging in commerce within the meaning of the Act and denying that they engaged in the alleged unfair labor practices.

Pursuant to notice, a hearing was held at Corpus Christi, Texas, from December 11 to 17, 1942, before William F. Guffey, Jr., the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board, and the respondents were represented by counsel and participated in the hearing.' Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the respondents' motion to dismiss the complaint was referred to the Trial Examiner for appropriate action. The Trial Examiner reserved ruling thereon. The motion is hereby denied. The respondents refused to supply data with respect to their operations unless and until the United States Navy Department authorized the release of such data. On December 17, 1942, the hearing was indefinitely recessed pending the Navy Department's authorization to submit such data. On or about March 25, 1943, a stipulation with respect to the respondents' operations was filed with the Board. Pursuant to telegraphic notice issued on March 30, 1943, the Trial Examiner issued an order dated April 12, 1943, closing the hearing. At the beginning of the hearing counsel for all parties were advised that they might file briefs with the undersigned. No briefs have been filed.

Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following:

FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS The respondent Brown & Root, Inc., is a Texas corporation, having its principal office and place of business at Austin, Texas. The respondent W. S. Bellows Construction Company is a co-partnership having its principal office and place of business at Houston, Texas. The respondent Columbia Construction Company is a Nevada corporation authorized to do business in the State of Texas, having an office and place of business at Dallas, Texas.

At all material times the respondents were co-adventurers engaged, under a cost plus fixed-fee government contract, in the construction and erection of a Naval Air Training Center at Corpus Christi, Texas. The project involves the erection of a large number of buildings including barracks, hangers, utility shops, and recreation buildings, grading and paving runways, the building of seaplane hangars, and the dredging of a basin in Corpus Christi bay to provide a landing and take-off area for seaplane training purposes. This proceeding involves only the employees on the respondents' dredge boat, Temple, which was engaged in the dredging operations. The Naval Air Training Center is exclusively a Naval project to provide training facilities for aviation pilots and is not permitted to be used and is not used for commercial traffic. In the construction of the Naval Air Training Center, the respondents use equipment and material some of which is shipped to Corpus Christi from points located outside the State of Texas. For reasons of national security the record does not show the exact volume or dollar value of the materials used in the construction of the project. The parties stipulated, however, that a substantial amount of materials and equipment is used in 1Counsel for Hoffman and Bristol entered an appearance of record, but was present during the first session of the hearing.

823 the construction of the Center and that 25 percent, by dollar value, of the total amount is shipped to Corpus Christi from points outside the State of Texas.

The respondents contend that they are not subject to the jurisdiction of the Board because the materials purchased by the respondents are purchased exclusively for the use of a department of the United States Government and are used in a project under the supervision and control of a department of the United States Government. The respondents further contend that they are not employers but are either agents or personal servants of the United States Navy Department and that the employees who work on the project are hired, discharged, and paid subject to the supervision and approval of the United States Naval Officer in charge of the construction of the Naval Air Training Center.

The materials used in the construction of this project are purchased by tne respondents on purchase order forms bearing the respondents' names. These forms contain a provision that the materials are purchased 'for the sole account and use of the United States.' The materials, however, are consigned to the respondents and...

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