Building Construction Employers Association

National Labor Relations Board - Board Decisions

Jun 2, 1964

147 N.L.R.B. 222 (N.L.R.B. 1964)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building Construction Employers Association i and Independent
Iron Workers Union , Lincoln, Nebraska ,2 Petitioner
A.B.C. Construction Co., et al3 and International Association
of Bridge, Structural & Ornamental Iron Workers, Local No.
21, AFL-CIO,' Petitioner. Cases Nos. 17-RC-4252 and 17-RC-
4315. June 2, 1964
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Hearing Officer Harold L. Hudson. The Hearing Officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire record 5 in these cases, the Board finds :
1. Lincoln Association is an Employer engaged in commerce within
the meaning of the Act.'
2.' At the hearing the parties stipulated that Local 21 is a labor or-
ganization within the meaning of Section 2 (5) of the Act. However,
the parties were unable to agree upon the Independent's status as a
labor organization. The record shows that the Independent exists for
the purpose of dealing with employers concerning employees' wages,
hours, and conditions of employment. Accordingly, we find Local 21
and the Independent to be labor organizations within the meaning of
the Act.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Lincoln Association within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Independent, the Petitioner in Case No. 17-RC-4252, has re-
quested a unit of employees engaged in the ironworking trade and em-
ployed by the individual contractor members of the Lincoln Associa-
i Hereinafter referred to as Lincoln Association.
2 Hereinafter referred to as the Independent.
3 Hereinafter referred to as ABC.
4 Hereinafter referred to as Local 21.
5 Because , in our opinion , the record and briefs adequately set forth the issues and posi-
tions of the parties, Local 21's request for oral argument is hereby denied.
9 For reasons hereinafter discussed in section 4, infra, we make no jurisdictional finding
with respect to ABC.
7 Cf. Courtaulds ( Alabama ) Inc., 109 NLRB 571.
147 NLRB No. 29.
BUILDING CONSTRUCTION EMPLOYERS ASSOCIATION 223
tion.8 Local 21 contends that such a unit is inappropriate, and, in
turn, has petitioned in Case No. 17-RC-4315 for a unit of ironworkers
employed by some 165 employers at locations within its territorial
jurisdiction. Collectively, this group of employers is referred to as
ABC, and includes employers located throughout the State of Ne-
braska and in nine Iowa counties. ABC did not enter an appearance
at the hearing; however, Associated General Contractors Employers
Association of Omaha, Nebraska, Inc.,9 which represents some of the
employers included in Local 21's petition, was granted permission to
intervene in these proceedings. At the hearing and in their joint
brief, Lincoln Association and Omaha Association contend that the
unit sought by Local 21 is inappropriate because it is based solely upon
the territorial jurisdiction of Local 21. Neither the Lincoln Associa-
tion nor the Omaha Association took any position with respect to the
unit requested by the Independent.
For several years prior to August 1961, the member contractors of
the Lincoln Association employed by Local 21 members to perform
their ironwork, although there was no contract in effect between Local
21 and the Lincoln Association or its individual members. Since
August 1961, the individual members of the Lincoln Association have
been using their own employees to perform ironwork. In October
1961, these employees formed the Independent, which thereafter re-
quested that the Lincoln Association bargain with it as the representa-
tive of employees performing ironwork for the member-contractors.
The Lincoln Association has refused to recognize the Independent until
such time as it is certified.
Local 21 is the contractual representative of the ironworkers em-
ployed by the member-contractors of the.Omaha Association. In
addition, several nonmember employers and employer associations
located through Nebraska and portions of Iowa employ Local 21
members to perform their ironwork, and Local 21 would also include
these ironworkers in its unit.
We find that the unit requested by Local 21 is inappropriate. This
unit would include some 165 separate employers who in the past 3
years have had occasion to use Local 21 members. While it is true
that in most instances the employer utilizing Local 21 members will
agree to abide by the terms of the contract in force between Local 21
and the Omaha Association, there is no evidence that any of these
employers, with the exception of the Omaha Association members,
$ The Lincoln Association is composed of the following members: M. W. Anderson Con-
struction Co., John Bordogna , Decorator , Bowen Meyers Construction Co., Bud Irons
Excavating Co., Carveth Construction Co., Geo. Cook Construction Co., Dale Eaton Co.,
Alfred Henricksen , Paul L. Kress Inc., Kingery Construction Co., Korshoj Construction,
The Ray Martin Co., Morrissey 's Plumbing & Heating, Inc., Natkin & Co., Olson Con-
struction Co., Reinhardt Bros. Plumbing & Heating, and S & S'Excavating Co.
O Hereinafter called Omaha Association.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have authorized the Omaha Association to bargain with.Local 21 on
their behalf or that they have in any other way relinquished their
right to bargain individually, or as members of other associations.
To support its petition, Local 21 relies solely upon the fact that its
unit is coextensive with its territorial. jurisdiction. However, such
a factor is insufficient to establish the appropriateness of a unit. The
Board does not give effect to a union's territorial jurisdiction in deter-
mining what constitutes an appropriate unit," and where, as here, no
other basis is offered to support the grouping of what appears to be
separate individual employers, the unit cannot be found appropriate.
Accordingly, we shall dismiss the, petition in Case No. 17-RC-4315.11
As to the Independent's unit request, the record discloses that the
member contractors of the Lincoln Association perform a substantial
amount of ironwork in and around the Lincoln, Nebraska, area. Since
August 1961, this work has been performed exclusively by member-
contractors' own employees. These employees were formerly classi-
fied as laborers and carpenters, and even now they retain these clas-
sifications when they are not performing ironwork. However, the
greater part of their time is spent performing ironwork and in such
instances they are considered by their employers to be ironworkers,
rather than laborers or carpenters.
The Lincoln Association has for many years bargained with several
craft unions and at present it has collective-bargaining agreements
with nine separate unions. None of the parties disputes the fact than
the Lincoln Association may constitute a proper bargaining unit.
However, Local 21 contends that there is no legitimate basis for find-
ing appropriate for purposes of collective bargaining, a unit of the
ironworking employees here involved.
We disagree. As noted, most of the employees of the member-
contractors are engaged in construction work and are represented by
some labor organization. In fact, from the record, it would appear
that the only such employees not presently represented by a labor
organization are those classified as ironworkers, the category which
the Independent seeks in its petition. Hence, we shall treat the In-
dependent's petition as a request for a residual unit of all unrepre-
sented employees employed by the Lincoln Association members and
direct that an election be held in the unit below which we find to be
appropriate : 12
10 Cf. Mayhee Stove Company, 129 NLRB 487.
n At the hearing, a stipulation was received that APC is engaged in commerce within
the meaning of the Act . In view of our finding that there is no valid reason for grouping
the employers referred to as ABC, we cannot assert jurisdiction over ABC. Moreover,
the ABC employers were not parties to the stipulation . The record is insufficient to make
jurisdictional findings with respect to the individual employers who comprise ABC.
12 Metropolitan Imprinters Corporation , . 133 NLRB 1433.
THE ZIA COMPANY 225
All employees engaged in the structural, reinforcing, and orna-
mental ironworking trade employed by the member contractors of the
Lincoln Association of Lincoln, Nebraska, but excluding all other
employees, guards, and all supervisors within the meaning of the Act.
[The Board dismissed the petition in Case No. 17-RC-4315.]
[Text of Direction of Election omitted from publication.]
The Zia Company, Petitioner and United Brotherhood of Car-
penters and Joiners of America , Local Union # 1353, AFL-
CIO and United Slate , Tile and Composition Roofers, Damp
& Waterproof Workers Association, Local Union #226, AFL-
CIO.' Cases Nos. 33-UA-97 and 28-RMVI-108. June 2, 1964
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Fred W.
Davis. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Prior to the filing of said petition, the Carpenters had filed a
motion seeking a clarification of an uncertified bargaining unit?
In view of the relationship between the issues raised between the
motion and the petition, these matters were consolidated for the pur-
poses of hearing.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
' The caption Is hereby amended to Include the United Slate , Tile and Composition
Roofers, Damp & Waterproof Workers Association, Local Union #22G, AFL-CIO, because
they presented the representation claim that led to the petition in Case No. 28-R;11-108.
The Brotherhood of Painters, Decorators and Paperhangers of America, Local Union
#8G9, AFL-CIO, was permitted to intervene in Case No. 33-UA-97 on the basis of the
bargaining history set forth below, but it disclaimed any interest in Case No. 28-MM-108.
For convenience , the parties are referred to herein as the Employer , the Carpenters, the
Roofers , and the Painters , respectively.
In Case No. 33-UA-97 the Carpenters received a certification following a union-shop
election in a unit of journeymen carpenters and apprentices . Solely for convenience the
case number In that proceeding Is used for designating the notion in this case.
3 We find no merit in the Painters ' contention that its motion to vacate the order con-
solidating the cases involved herein was Improperly denied by the Hearing Officer , or that
the Regional Director erroneously denied Its request for special permission to appeal from
the Hearing Officer's ruling.
147 NLRB No. 28.
756-236-65-vol. 147--16