Brown and Root, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1948

77 N.L.R.B. 1136 (N.L.R.B. 1948)

In the Matter of BROWN AND ROOT, INC., WUNDERLICIi CONTRACTING
COMPANY, PETER KIEWIT SONS COMPANY, WINSTON BROS. COMPANY,
DAVID G. GORDON, CONDON CUNNINGHAM CO., MORRISON-KNUDSON
COMPANY, INC., J. C. MAGUIRE & COMPANY, AND CHARLES H. TO_lIP-
KINS CO., DOING BUSINESS AS A JOINT VENTURE UNDER THE NAME
OF OZARK DAM CONSTRUCTORS,' EMPLOYER and LITTLE ROCK, FORT
SMITH & SPRINGFIELD JOINT COUNCIL, A. F. L., PETITIONER
Case No. 32-RC-33.-Decided June 11, 1948
Mr. William Alexander, of New Orleans, La., for the Board.
Messrs. A. J. Wirtz and Ben H. Powell, both of Austin, Tex., for the
Employer.
Messrs. T. J. Gentry and Frank H. Cox, both of Little Rock, Ark.,
for the Petitioner.
Mr. L. M. Fagan, of Fort Worth, Tex., for the Intervenor.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Little
Rock, Arkansas, on April 9, 1948, before Richard C. Keenan, 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 the case, the National Labor Relations
Board 2 makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Ozark Dam Constructors of Houston, Texas, is a joint venture
organized to build Bull Shoals Dam and works appurtenant thereto
on the White River Watershed in Marion and Baxter Counties,
1 The name of the Employer appears as amended at the hearing.
z Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection 'with this case to a three -man panel consisting of the undersigned
Board Members [ Houston, Murdock , and Gray].
77 N. L. R. B., No. 180.
1136
OZARK DAM CONSTRUCTORS 1137
Arkansas. The participants in this venture are Brown and Root, Inc.,
of Houston , Texas; Wunderlich Contracting Company of Jefferson
City, Missouri ; Peter Kiewit Sons Company of Omaha, Nebraska;
Winston Bros. Company of Minneapolis, Minnesota; David G. Gordon
of Denver, Colorado; Condon-Cunningham Co. of Omaha, Nebraska;
Morrison-Knudson Company, Inc., of Boise, Idaho; J. C. Maguire &
Company of Los Angeles, California; and Charles H. Tompkins
Company of Washington, District of Columbia. The total contract
price of this project is $22,146,444. The total cost of the dam, includ-
ing materials furnished by the United States Government, will be
$37,000,000.
At the time of the hearing, Ozark Dam Constructors, hereinafter
called the Employer, had purchased materials and services in the
amount of $3,247,471.21, of which $1,966,912..17 had been purchased
outside the State of Arkansas. It had placed further orders having a
total value of $3,242,514.07, of which orders valued at $3,154,904.81
were placed outside the State of Arkansas. The Employer was not
prepared to estimate the total value of materials which will go into
the dam, but the United States Engineers estimate the total to be
$19,410,640, of which $9,929,603 will come from outside the State of
Arkansas. The Government will furnish materials worth $16,348,700,
of which materials with an estimated value of $6,901,700 will come
from without the State of Arkansas.
The dam is part of a flood control and electrical power development
project of the War Department. The cost of the entire project is
estimated at over $69,000,000. Under existing law 3 the Secretary of
War must deliver all electricity not required to operate the project to
the Secretary of the Interior, who is required to transmit and dispose
of the same in such manner as to encourage the most widespread use
thereof at the lowest possible rates to consumers consistent with sound
business principles. At the time of the hearing no contracts had as
yet been let to dispose of this power.
Despite the great value and amount of interstate shipments neces-
sitated by the construction of the dam, the Employer claims that it
is not engaged in interstate commerce within the meaning of the Na-
tional Labor Relations Act, basing its contention on the fact that
the Board has in the past refused to exercise jurisdiction in construc-
tion cases. Aside from the fact that construction of a dam for pur-
poses of flood control and generation of electrical power has a greater
impact upon coma-erce than construction of buildings, we have re-
15S Stat 887, 890
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peatedly stated that our jurisdiction extends over construction proj-
ects if their interruption would affect interstate commerce, and that
our abstention from exercising our jurisdiction in construction cases
vas a matter of administrative choice and not of legal necessity 4 The
law gives us jurisdiction in all situations where stoppage of production
due to a labor dispute would affect interstate commerce. It has been
held immaterial whether that stoppage occurs at the beginning or the
end of the interstate shipment of goods in commerce s Inasmuch as
stoppage of work on the Bull Shoals Dam would affect shipments of
several million dollars' worth of materials into the State of Arkansas
from other States, and would delay the production of electricity which
will probably be sold in interstate conmmerce,° we find, contrary to the
contentions of the Employer, that it is engaged in commerce within
the meaning of the National Labor Relations Act, and that the pur-
poses of the Act will best be served if we assume jurisdiction in this
case.' The Employer's motion to dismiss the petition on jurisdictional
grounds, made at the hearing and referred by the hearing officer to
the Board, is therefore denied."
II. TIIE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization composed of the various build-
ing trades unions in Little Rock and Fort Smith, Arkansas, and
Springfield, Missouri, affiliated with the Building Trades Department
of the American Federation of Labor, claiming to represent employees
of the Employer. Inasmuch as the Petitioner exists for the purpose of
collective bargaining and apparently has been designated to that effect,
by the employees, we find no merit in the contention of the Employer
i Matter of Johns-Ma ni ille Coipoiat ion, 61 N L R B 1
5Newport News Shipbuilding and Drydoc k Co v N L R B , 101 F (2d) 841 (C C
4, 1939) , Matter of Liddon 117hite Truck Company, 76 N L R B 1181, and cases cited
thei em.
Bull Shoals Dam will be located very close to the Missouri-Arkansas bonder It is
therefore unlikely that the sale of electrical possci produced at the Bull Shoals project
will be limited to the St,,te of Aikansas The Emplo3ei s objection to testimony by an
engineer employed by the United States Coips of Engineers was referred by the healing
officer to the Board. The objection is hereby overruled We have considered such testi-
mony, but it is, of course, not doterm;natiN e of the jurisdictional issue
'Matter of Starrett Brothers and Eken, Inc, 77 N L R B. 275
6 The Employer also moved to dismiss the petition on the ground that it did not state
that the Employer declined to recognize the Petitioner as a bargaining representative The
Employer has declined to do so We find the failure of the Petitioner so to state inmate ml,
and accoidingly deny the motion to dismiss
The Employer also contended that the Petitioner's constitution prevented it from operat-
ing as a bargaining representative without violating the Act We find no merit in this.
contention . We will not inqune into a union's constitution in the absence of proof that
such union will not accord effecti v e representation. Matter of The Baldwin Locomotim,e
Works, 76 N L It B 922
OZARK DAM CONSTRUCTORS 1139
that the Petitioner is not a labor organization within the meaning of
the Act.9
International Association of Machinists, herein called the Inter-
venor, is a labor organization claiming to represent employees of the
Employer.10
III. TIIE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner or the Intervenor
as the exclusive bargaining agent of the employees in the unit claimed
by each to be appropriate until certified by the Board.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
1V. THE APPROPRIATE UNIT
The Petitioner desires a unit composed of all employees of the
Employer excluding office and clerical employees, guards, professional
employees, supervisors, and machinists. The Intervenor desires to
represent the machinists in a craft unit, in which it would include mill-
wrights and welders, who are also sought by the Petitioner. The
Intervenor also wishes to represent, in a separate unit, all mechanics,
auto mechanics, truck mechanics, heavy duty equipment mechanics,
and mechanic welders now classified on the Employer's pay roll as
mechanic repairmen and helpers. With the afore-mentioned excep-
tions, the Intervenor agrees to the unit sought by the Petitioner. The
Employer takes no position on the question of the appropriate units.
The employees sought by the Petitioner comprise the various craft
groups customarily associated with the building trades, plus the un-
skilled laborers employed at the project. As far as can be ascertained
from the record, the employees in each job classification work under
separate supervision and have separate rates of pay. There was no
evidence of transfer from one group to another, and, while the various
groups work alc,ngside each other, each seems to be confined to its own
job along craft lines. The unit sought by the Petitioner thus is not
the usual highly integrated production and maintenance unit, but a
collection of skilled trades which, for the purpose of avoiding juris-
dictional disputes, have been joined together by the Petitioner.
Matter of Cleieianit Cliffs Iron Co, 63 N L R B 674
The Employer ' s opposition to the motion to intervene and its motion to dismiss the
petition on the gi ound that neither the Intei venor not the Petitioner had affirmatively
shown then compliance with Section 9 (f), (g), and (h) of the Act is without meat, as the
question of compliance with that section is a matter of administrative determination not
litigable by the parties Matter of Lion Oil Company, 76 N L R B 565
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The machinists sought by the Intervenor work under separate super-
vision in a separate room on metal machinery with such tools of
the trade as lathes , drillers, and shapers. While no apprentice train-
ing program was in effect at the time of the hearing , the Employer
contemplated the hiring of apprentices in the future . All the parties
agree that the machinists working in the machine room constitute
an appropriate craft unit . The Intervenor , however, wishes to in-
clude millwrights and welders in this unit. At the time of the hear-
ing, the Employer had not yet engaged any millwrights. It planned
to do so, and , by the time of the election ordered herein , will prob-
ably have about 10 millwrights in its employ . They will not work in
the same room or under the same supervision as the machinists, but
will set up metal machinery on wooden frames under their own fore-
man. They will receive the same pay as the machinists and work
with some of the same machinery . The Petitioner seeks to represent
them by virtue of the fact that their work is closely allied with that
of the carpenters , who are included in the unit sought by the Peti-
tioner. In view of the inconclusive state of the evidence, and the
fact that apparently both the unit sought by the Petitioner and that
sought by the Intervenor may appropriately include millwrights, we
shall let the millwrights themselves decide, in the election hereinafter
directed, whether they wish to be represented by the Intervenor or the
Petitioner . Pending the outcome of this election we shall make no
unit determination concerning the millwrights.
The welders do all the welding jobs on the project. They have
their own supervisors and work wherever welding jobs are needed,
alongside employees belonging to any of the other classifications.
Their rate of pay is the same as that of the classification of employees
with whom they are working at the moment. They are not perma-
nently attached to any one group. There is no evidence as to the
respective amount of time spent with each group . From what facts
are available , we conclude that their interests seem to be more closely
tied up with the- employees sought by the Petitioner, and we shall
accordingly include them in the first voting group hereinafter
established.
The mechanic repairmen , whom the intervenor wishes to represent
in a separate unit, repair any broken machinery on the job. They
are skilled employees with special training . They work under sepa-
rate supervision , and are the only employees of the Employer who are
paid on a sliding scale. In view of these facts , the mechanic repair-
men may, if they so desire , constitute a separate bargaining unit.
Accordingly, we shall make no unit determination as to these em-
ployees pending the outcome of the elections hereinafter directed. If
OZARK DAM CONSTRUCTORS 1141
the mechanics select the Intervenor, they will be taken to have indi-
cated their desire to constitute a separate bargaining unit.
We shall direct- separate elections by secret ballot among the em-
ployees at the Employer's Bull Shoals Dam construction project who
were employed during the pay-roll period immediately preceding the
date of the Direction of Elections herein, subject to the limitations
and additions set forth in the Direction, in each of the voting groups
described below.
Group 1. All employees at the Employer's Bull Shoals Dam con-
struction project, including welders but excluding machinists," mill-
v7rights, mechanic repairmen and their helpers,12 office and clerical
employees, guards, professional employees, and supervisors as de-
fined by the Act.
Group 2. All machinists, being those employees of the Employer
who operate lathes, shapers, billing machines, drill presses, planers,
boring machines, and any other machines used in the manufacture of
metal products within a shop, excluding supervisors as defined by the
Act.
Group 3. All millwrights excluding supervisors as defined by the
Act.
Group 4. All mechanics, auto mechanics, truck mechanics, and
heavy duty equipment mechanics 13 now classified on the Employer's
pay-roll as mechanic repairmen, and their helpers, excluding super-
visors as defined by the Act.
As indicated above, there will be no final determination of the appro-
priate unit or units pending the results of the elections.
V. THE DETERMINATION OF REPRESENTATIVES
Due to the nature of the Employer's operations, the number of em-
ployees varies considerably. At the time of the elections ordered
herein, employment will be near its seasonal peak. The Employer's
policy is to retain on the pay-roll those employees for whom there is
no work for a few days due to weather conditions or material short-
ages, and to lay off those whose period of unemployment is expected
i o last longer. The Employer, however, keeps the addresses and tele-
phone numbers of the employees in this latter group, and offers them
reemployment when it is able to do so. In view of these facts, we find
1' The definition of machinists is fully set forth in the description of Voting Group 2
ss The definition of mechanic repairmen and their helpers is fully set forth in the descrip-
tion of Voting Group 4
13 The Intervenor wishes to include mechanic welders in this group. As the Employer
does not at present employ mechanic welders, however, and does not plan to do so, we
shall not include them in the voting group
788886-49-vol. 77-73
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that all employees of the Employer who were laid off and whose;
addresses and/or telephone numbers were retained by the Employer
have a 'reasonable expectation of reemployment and are entitled to
vote unless they have obtained permanent employment elsewhere or,
have failed to respond to an offer of reemployment by the Employer.";
.DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur-'
poses of collective bargaining with Ozark Dam Constructors, Houston,
Texas, separate elections by secret ballot shall be conducted as early as'
possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Fifteenth Region, and subject to Sections 203.61 and 203.62,
of National Labor Relations Board Rules and Regulations-Series 5,
among the employees in the voting groups described in Section IV,
above, who are employed during the pay-roll period immediately pre-
ceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rem-
stated prior to the date of the election, and also excluding employees,
on strike who are not entitled to reinstatement to determine : (1)
whether or not the employees in Voting Group 1 desire to be repre-
sented by Little Rock, Fort Smith, and Springfield Joint Council,
A. F. L., for the purposes of collective bargaining; (2) whether or not
the employees in Voting Group 2 desire to be represented by Interna-
tional Association of Machinists for the purposes of collective bar-
gaining; (3) whether the employees in Voting Group 3 desire to be
represented by Little Rock, Fort Smith, or Springfield Joint Council,
A. F. L., or by the International Association of Machinists, for the
purposes of collective bargaining, or by neither; and (4) whether the
employees in Voting Group 4 desire to be represented by Little Rock,
Fort Smith, and Springfield Joint Council, A. F. L., or by Interna-
tional Association of Machinists, for purposes of collective bargaining,
or by neither.
14 Matter of"Glenn L Martin Company, 74 N L. R B 546 ; Matter of Scintilla Magneto
Division , Bendix Aviation Corporation, 61 N. L R B 520.
is Any participant in the elections herein may , upon its prompt request to, and approval
thereof b3 , the Regional Director , have its name i emoved fi om the ballot