Brown & Root Braun

National Labor Relations Board - Board Decisions

Mar 9, 1993

310 N.L.R.B. 632 (N.L.R.B. 1993)

632
310 NLRB No. 98
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Daniel’s Construction Co., 167 NLRB 1078 (1967), as modified
by S. K. Whitty & Co., 304 NLRB 776 (1991).
4 The record reveals that the ARCO jobsite occupies an area which
is approximately 2 square miles.
Brown & Root Braun and International Association
of Bridge, Structural and Ornamental Iron
Workers, Local 433, AFL–CIO. Case 21–RC–
18989
March 9, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Petitioner’s request for
review of the Regional Director’s Decision and Order
(pertinent portions are attached). The request for re-
view is denied as it raises no substantial issues war-
ranting review.
APPENDIX
REGIONAL DIRECTORS DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a hearing was held before a hear-
ing officer of the National Labor Relations Board. Pursuant
to the provisions of Section 3(b) of the Act, the Board has
delegated its authority in this proceeding to me. Upon the en-
tire record in this proceeding, the I finds:
1. The hearing officer’s rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9(c)(1) of the Act, for the following rea-
sons:
Petitioner seeks to represent a unit of employees, as
amended at the hearing, comprised of all full-time and reg-
ular part-time construction ironworkers, including structural
ironworkers, structural welders, riggers and iron worker help-
ers, employed by the Employer in its structural rigging de-
partment at the ARCO Refinery facility in Carson, Cali-
fornia; excluding all other employees, office clerical employ-
ees, professional employees, guards and supervisors as de-
fined in the Act.
If the petitioned-for unit is not found appropriate, in the
alternative, Petitioner would proceed to an election in a unit
composed of all employees in the rigging/structural depart-
ment. Petitioner contends that the structural rigging depart-
ment is composed only of structural ironworkers, structural
welders, riggers, ironworker helpers and operators. The Em-
ployer, however, submits that its structural rigging depart-
ment is composed of structural ironworkers, structural weld-
ers, riggers, ironworker helpers, operators, millwrights and
mechanics. The Petitioner would not participate in an elec-
tion if it is concluded that the structural rigging department
includes the millwrights and mechanics.
The Employer further argues that both of the proposed
units submitted by Petitioner are inappropriate for the pur-
poses of collective bargaining, and that the only appropriate
unit is a unit composed of all hourly direct-cost employees.
Thus, the Employer avers that the instant petition should be
dismissed. The Employer also argues that if either of the Pe-
titioner’s units is found appropriate, the petition should still
be dismissed because there is presently not a substantial and
representative complement of employees employed in light
of the Employer’s cyclical business. Finally, the Petitioner
argues that if an election is directed, eligibility to vote should
be established pursuant to the Board’s Daniel’s3 formula,
while the Employer contends that the formula is not appro-
priate. The Employer is a Delaware corporation engaged in
the engineering and construction industry, with operations all
over the world. Among its varied operations, the Employer
contracts with customers for the construction and/or modi-
fication of petroleum refineries. The instant petition concerns
those employees of the Employer employed at the Atlantic
Richfield Company Refinery in Carson, California (herein-
after called the ARCO refinery). The parties stipulated that
there has been no history of collective-bargaining among the
unit of petitioned-for employees.
The record reveals that at the ARCO refinery, the Em-
ployer has been contracted to perform the work of installing
new structures and systems, as well as modifying existing
systems. The record also reveals that the Employer has had
a long history of contracts with the Atlantic Richfield Com-
pany to perform work at the Carson refinery. Since the work
performed by the Employer for the Atlantic Richfield Com-
pany is in fulfillment of specific contracts, the work force at
the ARCO refinery varies. Thus, the record demonstrates that
in around October 1990, the Employer completed a construc-
tion contract at the ARCO refinery which resulted in a com-
plete cessation of operations by the Employer’s construction
department. Thereafter, pursuant to new contracts, the Em-
ployer began anew work at the ARCO refinery around June
or July, 1991. The work force which is the subject of the in-
stant petition is part of the work force hired under the
present contracts between the Employer and ARCO. Accord-
ing to the Employer’s projections, its present contracts will
require it to maintain a construction work crew at the ARCO
refinery through at least June 1993. The record reveals that
the work performed by the Employer is subject to various
peaks and valleys which results in periodic layoffs and new
hiring as different aspects of the contracts are completed.
In charge of the Employer’s work at the ARCO refinery
is its project construction manager, P. Pribyl. Below Pribyl
is an assistant project manager, Marvin Rogers, who gen-
erally oversees all construction activities that take place at
the ARCO refinery jobsite.4 Below Rogers, the Employer has
divided the ARCO refinery jobsite into two geographic areas:
the north end and the south end. Work is performed by em-
ployees which are the subject of the instant petition, in both
ends of the ARCO refinery jobsite. The north end is under
the direction of General Superintendent Dale Sparks and the
south end is under the direction of General Superintendent
Gene Gotcher.
Under Sparks and Gotcher, the Employer has organized its
operation into five departments, each headed by a super-
633BROWN & ROOT BRAUN
5 The record reveals that previously, the millwrights/boilermaker
department was headed by Superintendent Bill Holmes. Around
March 1992, Holmes resigned. Instead of hiring a new super-
intendent, the Employer shifted the supervision of the millwrights/
boilermakers department, to the rigging/structural department under
Wiggins. The record further reveals that the Employer does not em-
ploy any boilermakers at the ARCO refinery jobsite.
There was no evidence presented with regard to the permanency
of the change in supervision of the millwrights/boilermaker depart-
ment employees. It appears, however, that in light of the expectation
that this job will last only until around June 1993, the realignment
of the departments is permanent.
6 At the hearing, the parties stipulated that the foremen have the
authority to effectively recommend the hiring and firing of workers
and that they are supervisors within the meaning of the Act.
7 The record does not reveal the number of employees employed
as of the date of the hearing. The classifications noted reflect the
elimination of the millwrights/boilermaker department, and the place-
ment of those employees in the rigging/structural department. The
record reveals that employees in each department, and/or classifica-
tion within each department, wear hard hats that are colored accord-
ing to their classification.
intendent. Thus, the five departments are the building depart-
ment, headed by Superintendent Vic DeSautel; the
electrical/instrumentation department, headed by Super-
intendent Robert Wall; the rigging/structural department,
headed by Superintendent Vernon Wiggins; the pipe depart-
ment, headed by Superintendent Butch Todd; and the
millwrights/boiler- maker department, also headed by Super-
intendent Vernon Wiggins.5
Below each of the above-noted departmental superintend-
ents, the Employer utilizes foremen who oversee the daily
work of the construction employees.6 The record reflects that
all of the construction employees maintain the same work
schedule, starting work at 6:30 a.m. and ending work at 3
p.m. Prior to the 6:30 a.m. starting time, assistant project
manager Rogers conducts a meeting for all of the depart-
mental superintendents and the general superintendents. At
that time, progress on the contracts is assessed and the daily
‘‘game plan’’ is reviewed. Thereafter, the superintendents
meet with the foremen and in turn, the foremen meet with
the employees assigned to their crews. It is at these meetings
between the foremen and the crews that the day’s work is
reviewed and specific job assignments are made. The record
also reveals that all construction workers receive the same
break and lunch periods, and that all employees take their
breaks and lunch periods at the same time. According to em-
ployee witnesses, the breaks and lunches are taken wherever
the work is taking place. According to these same witnesses,
the work performed by the crews is done in close proximity
to the other crews and as a result, there is regular and fre-
quent contact among the various departmental crews both
during worktime and during the breaks and lunch periods.
The record discloses that as of the week ending January
24, 1992 (which was described as a period where peak em-
ployment was experienced by the Employer), each depart-
ment employed the following numbers and classifications of
employees:7
The rigging/structural department employed 1 mechanic
and 3 mechanics’ helpers; 3 millwrights and 2 millwrights’
helpers; 15 operators and 8 rig operators; 12 riggers; 10
structural ironworkers and 12 structural iron worker’s help-
ers; and 13 structural iron welders. The building department
employed 59 laborers, 25 carpenters and 18 carpenters’ help-
ers; 6 cement finishers and 3 cement finishers’ helpers; 5 re-
bar ironworkers (also known as reinforcement ironworkers)
and 5 re-bar ironworkers’ helpers; 2 painters and 2 painters’
helpers; 11 insulators and 12 insulators’ helpers; and scaffold
builders.
The pipe department employed 52 pipe fitters and 84 pipe
fitters’ helpers; 34 pipe welders. The electrical instrumenta-
tion department employed 15 electricians and 19 electricians’
helpers; 3 instrumentation fitters and 3 instrumentation fit-
ters’ helpers; and 1 instrumentation technician. The record
reveals that all electricians, instrument fitters, insulators,
structural ironworkers, mechanics, millwrights, pipefitters,
plumbers, riggers, and pipe welders are paid from $14.10 to
$16.50 per hour. Carpenters, cement finishers, reinforcing
ironworkers and structural welders, are paid from $14.10 to
$16.25 per hour. Painters are paid from $14.10 to $16 per
hour. Instrument technicians are paid from $14.75 to $20.50
per hour. Operators are paid from $8.75 to $16.50 per hour.
Laborers are paid from $6.70 to $13.45 per hour. Instrument
technicians are paid from $14 to $16.50 per hour.
In addition, the record reveals that among the above-noted
‘‘helper’’ positions, the Employer maintains a grade III, a
grade II, and a grade I position. Thus, grade III helpers, de-
pending on the department in which they work, are paid up
to $9.10 per hour; grade II helpers are paid from $9 to
$11.55 per hour; and grade I helpers are paid from $11.45
to $14.05 per hour.
The record reveals that the grade III helper position is an
entry level position in each of the classifications of employ-
ment which utilize helper positions. Further, the record re-
veals that no prior experience is required in order to attain
the position of helper grade III, and that in its history, the
Employer has transferred laborers who have displayed initia-
tive to helper positions and that there have been instances of
employees progressing from a helper position up to a jour-
neyman position.
The record, however, does not disclose whether the Em-
ployer utilizes any sort of formal apprenticeship program or
system that would establish a definite line of progression
from the helper position up to a journeyman position. To the
contrary, the record appears to reveal that the Employer does
not have a formal system, and that it makes its decisions re-
garding the progression of workers from one level to another,
based on its individual assessment of each worker.
Because the helper classifications are primarily unskilled
classifications, the record reveals that the Employer has regu-
larly and frequently interchanged helper employees among its
various departments. Thus, the record reveals that when work
diminishes in a particular department, the Employer will fre-
quently reassign the helpers to another department where
more work is available.
The record discloses that all employees are subject to the
same hiring procedures. Thus, all employees (including those
that have worked for the Employer on prior occasions), are
required to fill out an employment application. Thereafter, all
newly hired employees are required to go through the same
safety training. At the time of hire, the Employer gives to
all employees a copy of its employee protection policy which
sets forth the Employer’s safety policies at the jobsite.
With regard to qualification requirements, the record re-
veals that pipe welders are required by ARCO to possess
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The record discloses that eligibility for the Employer’s health and
welfare benefits is based on length of time employed by the Em-
ployer. The same criteria for eligibility is applied to all construction
employees.
9 The record discloses that whenever a welder, either a pipe welder
or a structural iron welder, performs work, the safety polices at the
ARCO jobsite require employees to perform ‘‘fire watch.’’ Thus, the
Employer utilizes helpers and on occasion, laborers, who have been
trained by the Employer to perform this function. When this function
is utilized, there is close and regular contact among the
laborers/helpers and the welders and/or the structural ironworkers.
county of Los Angeles certification, and that all other weld-
ers are required to pass the Employer’s certification test. No
other classifications are required to possess any type of offi-
cial certification. The record reveals that the Employer deter-
mines whether an applicant is qualified to fill the position
based on his list of prior experience. In addition, the per-
sonnel employees who perform the initial applicant screening
may ask additional questions to determine the applicant’s
qualifications for the job in question.
As is noted above, all construction employees are paid on
an hourly basis and all are subject to the same timecard pro-
cedures and rules. The record reveals that all construction
employees receive the same health and welfare benefits;8 all
construction employees work the same hourly schedule; all
construction employees park in the same parking lot; all con-
struction employees have the same absence policy applied to
them; all construction employees are subject to the same
safety rules and regulations; all construction employees have
the same grooming requirements applied to them (which pro-
hibit hair longer than shoulder length, which permit mus-
taches only to the lip line, and which do not permit beards);
all employees are subject to the same clothing rules (with the
exception of iron worker welders and pipefitter welders who
are permitted to walk with their shirt tails out, whereas all
other construction employees are required to keep their shirt
tails tucked in); and all employees are subject to the same
emergency medical procedures as well as the same hazard
communication policy.
The Employer utilizes the classification of ‘‘iron worker’’
to cover structural ironworkers and re-bar ironworkers. As of
the time of the hearing, there were only four structural iron-
workers employed at the ARCO jobsite. As is noted above,
the Employer has placed the structural ironworkers in the
structural/rigging department. This department, as is also
noted above, also has the structural iron welders, the riggers,
the operators, the millwrights, and the mechanics.
Because the Employer’s operation at the ARCO jobsite
varies, depending on the stage of completion of the contract
undertaken, the work duties of the structural ironworkers
vary. As an example, the record discloses that at the begin-
ning of the present contract, the Employer utilized structural
ironworkers to perform the task of erecting fencing around
various areas at the jobsite. At the peak employment period
of the present contract, the record reveals that the structural
ironworkers mainly worked erecting pipe supports and stair-
ways and structures. As of the date of the hearing, the struc-
tural ironworkers were erecting platforms.
The record reveals that in performing their work, the struc-
tural ironworkers will be on a regular basis, in close contact
with the pipefitters. Thus, the structures that are being erect-
ed by the structural ironworkers are intended, in part, as sup-
ports for the pipe that is being laid and connected by the
pipefitters. In addition, the record reveals that in performing
their work, the structural ironworkers will also come into
close contact with pipe welders, laborers and helpers in the
various departments.9
In addition, the record reveals that structural ironworkers
on occasion perform the same types of tasks that are per-
formed by pipefitters. Thus, on those occasions when it is
necessary to install temporary pipe supports, either the struc-
tural ironworkers or the pipefitters will be assigned to per-
form the tasks required. In performing this work, both classi-
fications of employees utilize the same types of tools and
equipment. The record discloses that on occasion, the struc-
tural iron welders will be assigned to work in other depart-
ments. For example, at the time of the hearing herein, struc-
tural iron welders were assigned to work in the pipefitting
department.
The record established that the work performed by the
structural iron welders assigned to the pipefitting department
was the same type of work that is being performed by the
structural iron welders assigned to the structural/rigging de-
partment.
The riggers perform the work of rigging items that are to
be lifted. Thus, the riggers will perform the work wherever
this task is needed. Necessarily, the riggers will work closely
with structural ironworkers, with pipefitters and with the op-
erators that operate the various cranes that perform the actual
lifting function. Similarly, the operators operate machinery
such as cranes and forklifts, and will work throughout the
jobsite, working in close contact with and in cooperation
with all of the other classifications of employees, both in the
structural/rigging department and in the other departments. In
addition, the record revealed that some of the operators are
assigned to work in the Employer’s building department’s
‘‘dirt department.’’
The re-bar ironworkers, as is noted above, are in the build-
ing department. The record discloses that re-bar ironworkers
tie re-bar which is used to reinforce poured concrete struc-
tures and supports. In performing this work, the re-bar iron-
workers work closely with the carpentry employees who are
constructing the concrete frames, and the concrete employees
who perform the work of pouring and finishing the concrete.
The record reveals that these employees, in conjunction with
helpers and laborers, perform their work as a ‘‘team,’’ all
working to get the job completed. Thus, on any particular
task, employees from one trade would assist the employees
in another trade in light of the fact that the work performed
by each trade is necessary for the completion of the overall
task assigned.
The Employer’s timekeeping and cost paperwork is main-
tained to reflect the time that each employee works in a par-
ticular department. Thus, each time an employee from one
department is assigned to work in another department, the
Employer’s records will indicate that the particular employee
spent certain time working for the other department. These
records are kept so as to determine the labor costs expended
by each department.
The Employer’s organizational structure, as described
above, permits superintendents to request that employees be
temporarily transferred from one department to another, de-
pending on the work demands. Thus, the Employer’s records
noted above reveal that there has been regular temporary re-
635BROWN & ROOT BRAUN
10 The Petitioner did not submit a brief in this matter. At the hear-
ing, the Petitioner’s counsel argued that the millwrights/boilermaker
department was never eliminated and that they continued to wear
hard hats which are a different color from those worn by the
rigging/structural department employees. The Petitioner ignores,
however, that the Employer transferred the overall supervision of the
millwrights/boilermaker department employees to the rigging/struc-
tural department superintendent. Accordingly, following the transfer,
the millwrights/boilermaker department employees were merged into
the rigging/structural department. Thus, while Petitioner’s counsel is
correct in noting that the millwrights/boilermaker employees kept the
same foremen, the record demonstrates that following the transfer,
the foremen reported to the rigging/structural superintendent.
assignment of employees, including temporary reassignment
of employees from the structural/rigging department to other
departments and vice versa.
The Board has long held that units in the construction in-
dustry may be appropriate on the basis of either a craft unit
(see Dick Kelchner Excavating Co., 236 NLRB 1414
(1978)); or departmental unit; or so long as the requested
employees are a clearly identifiable and homogeneous group
with a community of interest separate and apart from other
employees. R. B. Butler Inc., 160 NLRB 1595 (1966); Del
Mont Construction Co., 150 NLRB 85 (1964).
The record presented herein fails to establish that either of
the units proposed by the Petitioner constitute a craft unit.
Thus, the record fails to show that the employees in either
of the proposed units participated in or completed a tradi-
tional apprenticeship program or that they achieved journey-
man status in the craft. The only evidence of any certifi-
cations was the requirement imposed by ARCO that pipe
welders, who are not part of the petitioned-for units, be cer-
tified by the county of Los Angeles; and that structural iron
welders pass a test administered by itself.
In addition, the record reveals that the Employer does not
operate along strict traditional craft designations. For exam-
ple, the Employer classified ironworkers to include both
structural ironworkers as well as re-bar ironworkers. Also,
structural iron welders are assigned to both the
structural/rigging department and also to the pipefitting de-
partment. In addition, the record reveals that the Employer’s
operation is such that superintendents temporarily transfer
employees from one department to another department. I also
note that in both of the units proposed by the Petitioner, it
would include employees classified as helpers. The record re-
veals that these employees are not part of any formal appren-
ticeship program and that they are unskilled and are fre-
quently and regularly transferred from department to depart-
ment, dependent on the Employer’s needs. Thus, this further
demonstrates that the Petitioner’s proposed units do not con-
stitute craft units. Brown & Root, Inc., 258 NLRB 1002,
1003 (1981); Longcrier Co., 277 NLRB 570 (1985).
The units proposed by the Petitioner also do not constitute
a departmental unit. Thus, as is noted above, the Employer
merged the millwrights/boilermaker department with the
rigging/structural department, so that the rigging/structural
department as of the date of the hearing herein is composed
of structural ironworkers, structural iron welders, riggers,
iron worker helpers, operators, riggers, millwrights, mill-
wrights’ helpers, mechanics and mechanics’ helpers. Thus,
the Petitioner’s proposed units do not correspond to any de-
partmental grouping utilized by the Employer.10
The units proposed by the Petitioner also do not constitute
functionally distinct groups with common interests separate
from the Employer’s other skilled employees. Initially it is
noted that the Petitioner’s two proposed units are identical
except that the unit described by the Petitioner as the
rigging/structural department, includes operators, structural
ironworkers, structural welders, riggers, and iron worker
helpers, while the proposed unit initially sought by the Peti-
tioner includes structural ironworkers, structural welders,
riggers, and iron worker helpers, but does not include opera-
tors.
It is noted that those employees in the Petitioner’s two
proposed units do not perform work which is distinct from
the work performed by the Employer’s other employees.
Thus, the record revealed that structural iron welders at times
perform the same work performed by pipe welders. In addi-
tion, the two proposed units would exclude the re-bar iron-
workers and the operators who are assigned to the building
department. The record also revealed that at times, the struc-
tural ironworkers perform the same work that the pipefitters
perform in erecting pipe supports. Moreover, the record dem-
onstrates that while the riggers perform work alongside the
structural ironworkers and the structural welders, the record
also demonstrates that they also work alongside and in sup-
port of tasks performed by re-bar ironworkers, pipe fitters,
and pipe welders.
The record demonstrates that in the Employer’s operation
at the ARCO jobsite, those employees in the Petitioner’s two
proposed units work alongside all other classifications of em-
ployees on a regular and frequent basis. Thus, the record
demonstrates that structural ironworkers may work alongside
pipe fitters and pipe welders, and that riggers (as noted
above) regularly work alongside pipe fitters, pipe welders,
and operators.
I also note that the employees in the Petitioner’s two pro-
posed units are not separately supervised. Thus, the mill-
wrights and mechanics enjoy the same supervision as those
employees in the proposed units. In addition, I note that the
helpers in the Petitioner’s two proposed units are regularly
re assigned to other departments depending on the Employ-
er’s operational needs.
Moreover, the record is replete with examples of com-
monalty in the terms and conditions of employees in all clas-
sifications, including those in the Petitioner’s proposed units,
as well as those classifications that it would exclude from ei-
ther unit. Thus, all employees are paid on an hourly basis;
all employees in skilled classifications are paid similar wage
rates; all construction employees work the same hours and
take the same break and lunch times; all employees enjoy
close and regular contact with other employees, without re-
gard to their departmental classification, both during
worktime and during lunch and breaktimes; all employees
are eligible for the same health and welfare benefits; all em-
ployees are subject to the same timekeeping procedures; and
all employees are subject to the same hair, dress, attendance,
parking, conduct, and safety rules and regulations.
Under these circumstances, I conclude that the record pre-
sented herein is insufficient to establish that the employees
in either of the two units proposed by the Petitioner perform
work that is distinct from the Employer’s other skilled em-
ployees so as to constitute in either case an appropriate unit
for the purposes of collective bargaining. Brown & Root,
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Based on this conclusion, and the Petitioner’s position that it
would not participate in an election in a unit other than the one it
seeks herein, I find it unnecessary to determine whether the only unit
appropriate is a unit composed of all hourly construction employees,
as proposed by the Employer. Moreover, in light of the action dis-
missing the petition herein, I find it unnecessary to determine wheth-
er an election is appropriate at this time, or to determine the appro-
priate eligibility formula.
Inc., supra; Longcrier Co., supra; Atlanta Division of S. J.
Groves & Sons Co., 267 NLRB 175 (1983).
As was the case in Atlanta Division of S. J. Groves, in the
present case, the Petitioner seeks to represent various classi-
fications of employees in arbitrary groupings which do not
meet the Board’s standards for appropriate collective-bar-
gaining units. Accordingly, based on the record presented
herein, I am unable to find that the groupings sought by the
Petitioner, in either of the proposed units, constitutes an ap-
propriate unit. Accordingly, I shall dismiss the instant peti-
tion.11
ORDER
IT IS HEREBY ORDERED that the petition filed herein be,
and it hereby is, dismissed.