Charles H. Tompkins Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 195 (N.L.R.B. 1970)

CHARLES H TOMPKINS CO
Charles H. Tompkins Co. and Local 77, International
Union of Operating Engineers , AFL-CIO, Peti-
tioner
Head Construction Company and Local 77,
International Union of Operating Engineers,
AFL-CIO, Petitioner . Cases 5-RC-7055 and
5-RC-7059
August 27, 1970
DECISION AND DIRECTION OF ELECTIONS
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
Upon petitions duly filed under Section 9(c) of
the National Labor Relations Act, as amended, and
pursuant to an order consolidating cases issued by
the Regional Director for Region 5 a hearing was
held before Hearing Officer William I. Shooer, of
the National Labor Relations Board. All parties
appeared at the hearing and were given full opportuni-
ty to participate therein. On February 12, 1970, the
Regional Director issued an order transferring the
case to the National Labor Relations Board. There-
after, the Petitioner filed a brief with the Board;
and the Employer and Construction Contractors
Council of Washington, D.C. (hereafter Contractors
Council), filed a point brief.
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-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they were
free from prejudicial error. They are hereby affirmed.
Upon the entire record in these cases the Board
finds:
1. The Employers are engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner claims to represent certain employ-
ees of the Employers.
3. A question affecting commerce exists in each
case concerning the representation of certain employ-
ees of the Employers within the meaning of Section
9(c) and Section 2(6) and (7) of the Act.
4. In the Tompkins case, Case 5-RC-7055, the
Petitioner requests an election in a unit of all field
engineers and instrument men employed by the
Employer in the Washington, D.C., metropolitan
' Carpenters District Council of Washington, D C (hereafter Carpen-
ters), also intervened
195
area.2 In the Head case, 5-RC-7059, the Petitioner
requests an election in a unit of all engineers and
assistant engineers employed by the Employer in the
Washington, D.C., metropolitan area.
The Employers, the Carpenters, and the Contractors
Council seek dismissal of the petitions on the grounds
that the requested units are inappropriate, as the
employees described in the petitions have no communi-
ty of interest separate from that of other employees
doing similar work, and as a multiemployer bargaining
history of other employees requires a multiemployer
bargaining unit of the requested employees.
Tompkins, a District of Columbia corporation, and
Head, a Maryland corporation, are engaged in the
construction of industrial buildings. They are members
of the Contractors Council, composed of some 75
construction firms, which negotiates and executes mul-
tiemployer contracts binding them with six unions,
including the Petitioner, the Carpenters, and the area
local of the Laborers, covering employees in six build-
ing trades in the Washington, D.C., metropolitan
area. The Contractors Council's 1969-72 contract
with the Carpenters incorporates by reference the
Carpenters' constitution as it relates to work jurisdic-
tion; and the Carpenters' constitution provides for
inclusion of "the use of any instrument or tool for
layout work, incidental to the trade." The Contractors
Council's 1969-72 contract with the Laborers as it
relates to work jurisdiction provides for inclusion
of "chainmen, rodmen."
Field engineering, or field survey, parties in the
construction industry are usually made up of field
engineers, instrument men, and rod and chain men.
Such parties make initial job layouts before construc-
tion begins, and during construction they establish
the placement of various elements of the building.
Their tools consist of the transit, level chains, markers,
and tapes.
Tompkins' field engineers generally have special
training and education in mathematics, are able to
read drawings proficiently, and have substantial job
experience. Several hold college degrees.' Its instru-
ment men are also able to read drawings, have substan-
tial facility with mathematics, and perform the same
kinds of tasks as field engineers on a simpler level.
These two classifications spend all their time perform-
ing the full gamut of this work. They are salaried,
and unrepresented by any labor organization.
' The Petitioner originally requested that rodmen and chammen be
included in the unit, but withdrew the request when it developed at
the hearing that the Employer has no such classification for employees
' They are not alleged to be professional employees within the meaning
of Sec 2(12) of the Act and the record does not establish that they
are
185 NLRB No. 38
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tompkins assigns Laborers and Carpenters to
perform its rod and chain work, which requires no
special skill or training, and compensates them under
the Laborers and Carpenters contracts. Some of
these carpenters and laborers perform some
instrument work; but the amount of time such
employees spend performing that kind of work is very
small. Carpenters, expecially carpenter foremen, use
many of the same tools in laying out work for
carpenters to perform However, this does not appear
to be field engineering work, but rather, in the
language of the Carpenters' constitution, "the use of
any instrument or tool for layout work, incidental to
the trade."
Head employs a job classification called engineers.
Employees in that classification use the transit and
level, have special training in higher mathematics,
and spend all their time laying down and measuring
reference lines used to position the building and its
parts. The Employer also has a job classification
known as assistant engineers, some of whom are
skilled and others unskilled. Skilled assistant engineers
use the transit and level, have special training in
mathematics, and spend all their time performing
work the engineers do at a simpler level. Unskilled
assistant engineers do not have special knowledge
or skills, and spend all their time performing rod
and chain work in connection with the activities
of engineers and skilled assistant engineers. All these
employees are salaried, receive no overtime pay except
on Saturday, and receive no health or welfare or
pension benefits. None of these employees are repre-
sented by a labor organization.
Other Head employees who are covered by the
Carpenters and Laborers contracts also spend up
to 20 percent of their time as helpers to field survey
crews.
The Board has held that "a clearly identifiable
and homogeneous group of employees with a commu-
nity of interest separate and apart from other employ-
ees" may constitute an appropriate unit in the con-
struction industry; and the fact that other employees
perform some of the same tasks is not sufficient
in itself to render the requested unit inappropriate.4
Applying these principles to the present case, we
are satisfied that the units sought by the Petitioner
are appropriate.'
The Tompkins field engineers, and the Head engi-
neers here involved possess identifiable skills also
possessed to a lesser extent by instrument men and
Htcchent Constructors Inc 169 NLRB No 38 R B Butler, Inc 160
NLRB 1595, 1600
' They are essentially units of surveying parties performing technical
work which the Board has long found appropriate SeeGeorgeA Fuller
Company, 78 NLRB 207, 208, and fn 1, Starrett Bros & Eken, Inc,
77 NLRB 275, 279
assistant engineers. They spend their entire time work-
ing together to perform the functions of field engineer-
ing surveys and layouts in building construction. Their
method of pay and benefits are different from those
of laborers and carpenters, and they are unrepresented.
Moreover, the similar work performed by other
employees amounts to significantly less than half the
time of such employees or is performed as an incident
to carpentry and not as field engineenng survey work.'
In these circumstances, we find that the units request-
ed are readily identifiable and homogeneous groupings
of field survey employees with a community of interest
separate and apart from construction tradesmen.
We find no merit in the contention that only a
Contractors Council multiemployer unit is
appropriate. Under the Board's policy, an established
multiemployer bargaining history as to other employ-
ees is not controlling as to the scope of the unit
if the unrepresented employees constitute a homogene-
ous, separately identifiable group.' Moreover, a single-
employer unit is presumptively appropriate, and the
scope of the metropolitan areawide units requested
is consistent with construction industry practices and
not otherwise objected to.
Therefore, as there is no bargaining history and
no other labor organization seeks to represent these
employees on any other basis, we conclude that they
constitute appropriate units for collective bargaining.'
Accordingly, we find that the following employees
constitute units appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
(1) All field engineers and instrument men
employed by Charles H. Tompkins Co. within
the greater Washington Metropolitan Area, but
excluding all other employees, professional
employees, guards, and supervisors as defined
in the Act.
(2) All field engineers and assistant engineers
employed by the Head Construction Company
within the greater Washington Metropolitan
Area, but excluding all other employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
' Tompkins employs no one classified as rodmen or chammen, and
the Petitioner does not request the inclusion of such classifications in
the Tompkins unit As no party requests inclusion of laborers covered
by the Contractors Council-Laborers contract who perform rod and chain
work, they are excluded As the record is not complete with regard
to the nature of the duties performed by Head employee Hunt, a member
of the Carpenters apparently devoting substantial time to layout work
which may be field in type, he may vote subject to challenge
'San Jose Motel d/b/a Hyatt House Motel, 174 NLRB No 148
See R B Butler, Inc, supra, 1601 As noted above, the Contractors
Council's contracts with six construction industry unions cover the Wash-
ington, D C , metropolitan area
' John McShain, Inc, 185 NLRB No 39, issued today
CHARLES H TOMPKINS CO 197
[Direction of Elections10 i' omitted from
publication.]
'° In order to insure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote , all parties to the elections should have access to a list of
voters and their addresses which may be used to communicate with
them Excelsior Underwear Inc, 156 NLRB 1236, Wyman-Gordon Compa-
ni, 394 U S 759 Accordingly, it is hereby directed that election eligibility
lists, containing the names and addresses of all the eligible voters, must
be filed by the Employers with the Regional Director for Region 5
within 7 days after the date of this Decision and Direction of Elections
The Regional Director shall make the lists available to all parties to
the elections No extension of time to file these lists shall be granted
by the Regional Director except in extraordinary circumstances Failure
to comply with this requirement shall be grounds for setting aside the
elections whenever proper objections are filed
i i Carpenters may secure a place on either ballot by producing a
showing of interest therein