Daniel Construction Co., Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1966

161 N.L.R.B. 52 (N.L.R.B. 1966)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record in this proceeding, the National Labor Relations Board
makes the following determination of dispute
1 Employees employed as laborers by Henderson Electric Co,
Inc, currently represented by Construction and General Laborers
Local Union #576, Laborers' International Union of North Amer
lea, AFL-CIO, are entitled to perform the work of operating walk
behind trenching machines when used for digging trenches in which
electrical cables, conduit, or conductors are to be laid
2 Electrical Workers Local 369, International Brotherhood of
Electrical Workers, AFL-CIO, and George F Wode, its agent, are
not and have not been entitled, by means proscribed by Section 8 (b)
(4) (D) of the Act, to force or require Henderson Electric Co, Inc,
to award the above work to members of Electrical Workers Local
369, International Brotherhood of Electrical Workers, AFL-CIO
3 Within 10 days from the date of this Decision and Determina
tion of Dispute, Electrical Workers Local 369, International Brother-
hood of Electrical Workers, AFL-CIO, and its agent, George F
Wode, shall notify the Regional Director for Region 9, in writing,
whether they will or will not refrain from forcing or requiring the
Employer, by means proscribed by Section 8(b) (4) (D) of the Act,
to award the work in dispute to its members rather than to members
of Construction and General Laborers Local Union #576, Laborers'
International Union of North America, "It-CIO
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 11-RC-1453 October 18,1966
SUPPLEMENTAL DECISION
Pursuant to a Decision and Direction of Election issued by the
National Labor Relations Board on September 21, 1961,1 as amended
on October 19, 1961, an election was conducted on November 16, 1961,
among the employees in the unit found appropriate by the Board'
The petitioner, having lost the election, filed objections to the elec
tion and unfair labor practice charges Upon the issuance of a corn
1 Daniel Construction Company Inc 133 NLRB 284
s All journeymen plumbers and pipefitters pipefitter welders and pipefitter helpers em
ployed by the Company in building and construction Work in the States of North Carolina
South Carolina Tennessee Alabama Georgia and Florida (Creenyille division) eaclud
lug all other building trades craftsmen engineers draftsmen foremen (working and non
working ) general foremen clerical employees professional employees watchmen guards
and supervisors as defined in the Act
161 NLRB No 13
DANIEL CONSTRUCTION COMPANY 53
plaint, the Regional Director consolidated the cases 3 for hearing On
July 18, 1963, the Trial Examiner issued his Intermediate Report,
finding that the Employer had engaged in and was engaging in cer
tarn unfair labor practices and recommending that the election held
in Case 11-RC-1453 be set aside and a new election be held
The Board, on January 31, 1964, adopted the Trial Examiner's
Decision with certain additions and modifications' The Respondent
Employer filed a Petition for Review of the Board's Order with the
United States Court of Appeals for the Fourth Circuit The court
enforced the Board's Order in the unfair labor practice case, but
declined to review the findings and order entered in the representa
tion case 5 The Employer's Petition for a Writ of Certiorari was
denied by the Supreme Court on October 11, 1965 6
Thereafter, on November 8, 1965, the Employer filed a motion with
the Board to reopen the record for the purpose of receiving evidence
as to the appropriateness of the unit and the formula utilized by
the Board in determining the voting eligibility of employees gener
ally, and of certain employees in particular who customarily transfer
between supervisory and nonsupervisory jobs The Employer con
tended that since the hearing it had made extensive changes in its
operational structure affecting the validity of the Board's appro
priate unit finding and that more accurate employment records pro-
vided a basis for a more realistic eligibility formula On Decem
her 13, 1965, the Board ordered the Employer to file a statement in
support of its motion, and, on January 24, 1966, the Employer filed
a bill of particulars in support of motion to reopen On February 8,
1966, the Board issued an Order Reopening Record and Remanding
Proceeding to Regional Director for Further Hearing in the above-
entitled proceeding, such hearing to be confined to the voting eligi
bility formula and the exact scope of the divisionwide unit In
response to a joint motion filed by the parties on April 28, 1966, the
Board, on May 6, 1966, amended the above Order to provide for a
separate hearing on the scope of the divisionwide unit and defer hear
mg on the standards for determining eligibility pending the Board's
determination of the unit issue On June 9, 1966, a hearing was held
before Hearing Officer Larry J Eubanks
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three member
panel [Chairman McCulloch and Members Fanning and Jenkins]
$ Cases 11-RC-1453 and 11-CA-1893
145 NLRB 1397 By such action the Board effectively remanded the representation
case to the Regional Director for the purpose of holding another election
5 Danael Construction Compamy v N L R B 341 F 2d 805 (C A 4)
e 382 U 8 831
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 'Employer's request to reopen the record for the purpose of
receiving evidence as to the appropriateness of the scope of the divi-
sionwide unit is based on its contention that since the original repre-
sentation hearing in 1961, it has made extensive changes in its opera-
tional structure which affect the validity of the Board's appropriate
unit finding. Testimony for the Employer indicated that it now oper-
ates with 10 geographical divisions instead of the 5 it had at the time
of the original hearing.? From the testimony it appears that each
division is a completely separate and distinct operation which does
its own estimating, contracting, and expediting; that with slight
exception each division maintains separate records regarding its pay-
roll, accounting, and work to be performed; that labor policies are
determined on a divisional. basis; and that each division determines
with respect to individual jobs whether the mechanical work will be
subcontracted or performed by Daniel Construction Company employ-
ees. No evidence was introduced which showed actual change in the
organization or operation of the Greenville division affecting the
underlying factors upon which the Board earlier found appropriate
a unit of plumbers and pipefitters employed by that division, that is,
centralized control of labor relations, similarity of skills, functions,
and working conditions at all projects and employee transfer between
projects.
Evidence was introduced to show that the Employer is attempting
to establish each division as an autonomous operation which will
work within a specific geographic area. The Employer contends that
the area of the Greenville division unit should now be limited to the
State of South Carolina, the metropolitan area of Augusta, Georgia,
and a few isolated jobs outside South Carolina, primarily in North
Carolina, instead of the six State area originally found appropriate.s
However, the record indicates that the Greenville division, at the
time of hearing, was performing jobs in five of the six States speci-
fied in the 1961 unit finding. There is also testimony by the Employer's
vice president and assistant general manager that if regular customers
request that the Greenville division-which is the only division main-
taining a• mechanical department and which employs one-third to one-
?Divisions established since the 1961 hearing are a Tennessee division ( 1961 ), an In-
ternational division with Brussels , Belgium, headquarters ( 1964 ), and Louisiana, Ken-
tucky, and Arkansas divisions ( 1965). ,
8 This contention concerning a more limited area for the Greenville division unit assumes
that the Board will adhere to divisionwide scope. The Employer further contends that the
only appropriate unit would be one limited to a specific project. The hearing was for the
limited purpose of receiving evidence on the question of the scope of the divisionwide unit,
rather than a reexamination of the appropriateness of a divisionwide unit. In any event,
we would reject the Employer 's contention that a single project unit is the only appro-
priate unit for the same reasons we rejected this contention in the previous decision. See
133 NLRB 264, 265.
MARION MANUFACTURING COMPANY 55
half of the total work force-perform work in other States, the division
would undertake such work even in States where divisions other than
Greenville now operate.
Based on the above, and on the record as a whole, we find that the
Employer has failed to show organizational changes warranting a
modification in the scope of the divisionwide unit previously found
appropriate.9 The scope of the unit was found to be coextensive with
the Greenville division's operations, and we reaffirm that determina-
tion and find that the appropriate unit for collective bargaining
within the meaning of Section 9(b) of the Act is as follows:
All journeymen plumbers and pipefitters, pipefitter welders and
pipefitter helpers employed by the Company in its Greenville
division, including but not limited to construction work in the
States of North Carolina, South Carolina, Tennessee, Alabama,
Georgia, and Florida, excluding all other building trades crafts-
man, engineers, draftsmen, foremen (working and nonworking),
general foremen, clerical employees, professional employees,
watchmen, guards, and supervisors as defined in the Act.
As we have now reexamined the unit problem and made our deter-
mination, we remand this proceeding to the Regional Director for
Region 11, pursuant to the Board Order of May 6, 1966, for the pur-
pose of reopening the record and holding a hearing to receive evi-
dence relating to the voting eligibility formula.
0 The Employer 's request for oral argument is denied as the record and briefs adequately
rpresent the issues and positions of the parties.
Marion Manufacturing Company and United Textile Workers of
America, AFL-CIO. Case 11-CA-?2944. October 18, 1966
DECISION AND ORDER
On July 5, 1966, Trial Examiner John Dyer issued his Decision in
the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
,engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that the complaint be dismissed with respect
to those allegations. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision, and a brief in support thereof.
161 NLRB No. 21.