Daniel Construction Co., Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1961

133 N.L.R.B. 264 (N.L.R.B. 1961)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees exclusive of office clerical
employees , watchmen , watchmen-firemen , engineering personnel, pro-
fessional employees , and all supervisors as defined by the Act.
WE WILL NOT effectuate unilateral changes in working conditions or in any
other manner refuse to bargain collectively with the above-named labor
organization.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form , join, or
assist any labor organization , to bargain collectively through representatives
of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a) (3) of the Act.
WE WILL make whole all employees in the appropriate unit for any loss of
pay they may have suffered by reason of our withholding their holiday pay for
May 30 and July 4, 1960.
THE CRESTLINE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
.altered , defaced, or covered by any other material.
Daniel Construction Company, Inc. and United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL -CIO, Peti-
tioner. Case No. 11-RC-1453. September 21, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Jerry B. Stone, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer I is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer contends that no election should be held because :
(1) its employees are scattered throughout the entire southeastern
United States, their work is highly seasonal in nature, and they are
hired on a temporary basis at the jobsite; and (2) the unit sought by
the Petitioner is inappropriate.
Daniel Construction Company, Inc., is engaged in the construction
of industrial and commercial plants in the southeastern United States.
1 Reference to "Employer" means the Greenville division of Daniel Construction Company.
133 NLRB No. 46.
DANIEL CONSTRUCTION COMPANY, INC. 265
It operates through five divisions, with four of these divisions sub-
contracting the plumbing and pipefitting work for their projects. The
other division, at Greenville, South Carolina, performs all its own
pipefitting and plumbing duties on projects under its jurisdiction,
located in the States of Florida, Georgia, Alabama, Tennessee, North
Carolina, and South Carolina. Accordingly, it hires plumbers and
pipefitters at the various jobsites. There is no prior history of collec-
tive bargaining for these plumbers and pipefitters.
While the various projects of the Greenville divisions vary in size
and duration, there is a nucleus of pipefitters and plumbers employed
at all times. These are hired at the jobsites and terminated at the
completion of the project. The project manager and superintendent
are assigned by the Greenville office, and they in turn hire foremen
and pipefitters and supervise their work on the job. Despite the con-
siderable degree of autonomy exercised by supervisors at each project,
the overall personnel policies are set forth by the Greenville office.
The working conditions, skills, and nature of employment at all
the construction locations throughout the six State area are very
similar, even though the wage rates may vary from one project to.
another. Because of the nature of the construction industry, wherein
projects are continually being started and completed, there is a mini-
mum amount of interchange of employees in the sense of transfer of
employees between permanent industrial establishments. However,
preference is given to former Daniel pipefitters and plumbers in estab-
lishing the work force for new projects. It is common practice for
foremen to take with them plumbers and pipefitters when they trans-
fer from one project to another. These men act as a nucleus of the
work force on each construction project.
At the time of the petition the Employer had 68 projects in opera-
tion, employing 600 or more plumbers and pipefitters. There is no
indication that the Employer will not continue to employ a substantial
force of plumbers and pipefitters in the future. The Petitioner seeks.
to represent the Employer's plumbers and pipefitters at the Employ-
er's current and future projects.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer
within Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer contends that if any unit of plumbers and pipe-
fitters would be appropriate, it would only be a unit limited to a
specific project.
While many of the Employer's projects may be under construction
for 18 months or longer, a great number of these are of much shorter
duration. To recognize the Employer's contention and direct an elec-
tion only in a single-project unit would in many instances be a
meaningless ritual and serve no useful purpose.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the centralized control of labor relations,' similarity of
skills, functions, and working conditions at all projects,3 along with
the employee transfer between projects,' we find that the following
employees of the Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act: All journeymen plumbers and pipefitters, pipefitter weld-
ers, and pipefitter helpers employed by the Company in building and
construction work in the States of North Carolina, South Carolina,
Tennessee, Alabama, Georgia, and Florida (Greenville division), ex-
cluding all other building trades craftsmen, engineers, draftsmen,
foremen (working and nonworking), general foremen, clerical em-
ployees, professional employees, watchmen, guards, and supervisors
as defined in the Act.
5. The Petitioner contends that all employees in the unit whose
names appear on any payroll from January 1, 1960, to the date of the
Direction of Election should be permitted to vote. During the hearing
the Petitioner took the view that an employee on layoff who had
worked 5 days for the Company in the year preceding the election
should be eligible to vote.
The Employer contends that only employees employed on a constant
and continual basis for a period of 6 months immediately prior to the
Direction of Election should be allowed to vote.5
To adopt the Petitioner's contention as an eligibility formula would
allow laid-off employees with no expectation of future employment
to vote. Conversely, to adopt the Employer's contention would ex-
clude a great number of employees with substantial periods of em-
ployment, albeit intermittent, and who were employed during the
usual eligibility period. The record indicates that for various reasons,
the Employer had experienced early in 1961 a temporary restriction
in the number of plumbers and pipefitters employed. Accordingly,
many such employees with otherwise continuous employment records
for 6 months or more may have been laid off for periods of no more
than a few days. This in no way detracts from their continuing
interest in working conditions which would warrant their participa-
tion in an election to determine a representative for collective bargain-
ing concerning the tenure and conditions of their employment. Fur-
thermore, Congress has indicated an awareness of the peculiarly
intermittent nature of working conditions in the construction industry,
in enacting Section 8(f) of the Act wherein it has permitted the
2 McAllister's Dairy Farms, Inc., 118 NLRB 1117.
8 Cavendish Record Manufacturing Company, et at., 124 NLRB 1161.
4 Trammell Construction Company, incorporated , 126 NLRB 1365.
8 The Employer offered no evidence at the hearing to support this contention , and has
refused to supply information on the matter requested by the Board.
DANIEL CONSTRUCTION COMPANY, INC. 267
making of prehire contracts covering employees in that industry, and
which require membership in a union after a period of only 7 days
of employment rather than the period of 30 days applicable to em-
ployees in other industries.
Because of the nature of this industry, many employees experience
intermittent employment, and may work for short periods of time
on different projects. Furthermore, they may be employed by several
different employers during the course of a year. As indicated by the
record in the instant case, a plumber or pipefitter on a given job may
not work every consecutive working day, but rather may experience
short layoffs due to material shortages or because the pipefitting work
is dependent on the work of various other crafts. In consideration of
these facts, we find that all employees in the unit who have been
employed by Daniel for at least 30 days in the 12-month period pre-
ceding the eligibility date for the election hereinafter directed have
a continuing interest in their working conditions which would warrant
their participation in an election to determine a representative for
collective bargaining with the Employer concerning the tenure and
the conditions of their employment.
Furthermore, it may well be that there are pipefitters who have not
worked 30 days for Daniel in the past 12 months, but because of their
employment in preceding years and expectancy of future employment
have a substantial continuing interest in the conditions of employment
by the Employer. We believe it is reasonable to conclude therefore,
that pipefitters employed by Daniel, who, although having failed to
receive 30 days of employment in the year immediately preceding
the eligibility date for the election nevertheless have had some em-
ployment in that year and have worked at least 45 days in the past 2
years, have a sufficient continuing interest in their working conditions
which would warrant their participating in a current election to
determine a collective-bargaining representative. Accordingly, we
direct that in addition to those in the unit who were employed during
the payroll period immediately preceding the date of the Decision and
Direction of Election, all employees in the unit who have been em-
ployed for a total of 30 days or more within the period of 12 months,
or who have had some employment in that period and who have been
employed 45 or more days within the period of 24 months, immediately
preceding the eligibility date for the election hereinafter directed,
shall be eligible to vote.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.