Daniel Construction Co., Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1967

167 N.L.R.B. 1078 (N.L.R.B. 1967)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel Construction Company, Inc. and United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Petitioner. Case
I1-RC-1453
October 27, 1967
SUPPLEMENTAL DECISION AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
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 ap-
propriate by the Board. The Petitioner, which lost
the election, filed objections to the election and un-
fair labor practice charges. Upon the issuance of a
complaint, the Regional Director consolidated the
cases2 for hearing. On July 18, 1963, the Trial Ex-
aminer issued his Intermediate Report, finding that
the Employer had engaged in and was engaging in
certain unfair labor practices and recommending
that the election held in Case I1-RC-1453 be set
aside and a new election be held.
The Board, on January 31, 1964, adopted the
Trial Examiner's Intermediate Report with certain
additions and modifications.3 The Respondent Em-
ployer 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
representation case.4 The Employer's petition for
a writ of certiorari was denied by the Supreme
Court on October 11, 1965.5
Thereafter, on November 8, 1965, the Employer
filed with the Board a motion to reopen the record
in the representation case for the purpose of receiv-
ing evidence as to the appropriateness of the unit
and as to the formula utilized by the Board in deter-
mining the voting eligibility of employees generally,
and of certain employees in particular who
customarily transfer between supervisory and non-
supervisory jobs. The Employer contended that
since the hearing it had made extensive changes in
its organization affecting the validity of the Board's
appropriate unit finding and that more accurate em-
ployment records provided a basis for a more
realistic eligibility formula. On December 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 eligibility formula and the
exact scope of the division wide 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 hearing on the
standards for determining eligibility pending the
Board's determination of the unit issue.
On October 18, 1966, the Board issued a Supple-
mental Decision,6 in which it found that the Em-
ployer had failed to show organizational changes
warranting a modification in the scope of the divi-
sionwide unit previously found appropriate' and re-
manded this proceeding to the Regional Director
for Region 11, pursuant to it order of May 6, 1966,
for the purpose of reopening the record and holding
a hearing to receive evidence relating to the voting
eligibility formula. On March 7, 1967, a hearing
was held before Hearing Officer Larry L. Eubanks.
Thereafter, the Employer and Petitioner submitted
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby af-
firmed.
The Employer's request to reopen the record for
the purpose of receiving evidence relating to the
voting eligibility formula is based on its contention
that, since the original hearing in 1961, more accu-
rate employment records have been maintained
which provide a basis for a more realistic eligibility
formula in a new election.
In its original Decision and Direction of Election
the Board adopted the following eligibility formula:
... in addition to those in the unit who were
employed during the payroll period immediate-
ly preceding the date of the Decision and
Direction of Election, all employees in the unit
who have been employed for a total of 30 days
Daniel Construction Company, Inc., 133 N LRB 264
z Cases I1-RC-1453 and I 1-CA-1893
3 145 NLRB 1397 By such action, the Board remanded the representa-
tion case to the Regional Directoi for the purpose of holding another elec-
tion
, Daniel Construction Co, Inc v N L R B , 341 F 2d 805 (C A 4)
5 382 U S 831
6 Daniel Construction Company, Inc, 161 NLRB 52
' The Board affirmed its previous unit determination, as set forth in 133
NLRB 264, and found the appropriate unit for collective bargaining to be
All journeymen plumbers and pipefitters, pipefitter welders and
pipefitter helpers employed by the Company in its Greenville divi-
sion, including but not limited to construction work in the States of
North Carolina, South Carolina, Tennessee, Alabama, Georgia, and
Flordia, excluding all other building trades craftsmen, engineers,
draftsmen, foremen (working and nonworking), general foremen, cler-
ical employees, professional employees, watchmen, guards, and su-
pervisors as defined in the Act
167 NLRB No. 159
DANIEL CONSTRUCTION COMPANY, INC. 1079
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.
In adopting the foregoing eligibility formula, the
Board emphasized the nature of the construction in-
dustry, in which many employees experience inter-
mittent employment and may work for short
periods on different projects . In this connection, the
Board noted that it is not unusal for employees to be
employed by several different employers in 1 year,
and that plumbers and pipefitters may experience
short layoffs caused by material shortages or
because pipefitters ' work is dependent on the work
of various other crafts . The Board also took note of
the fact that the Employer had experienced in early
1961 a temporary restriction in the number of plum-
bers and pipefitters employed , but concluded that
the fact that some employees might have been terns'
porarily laid off because of that restriction in no
way detracted from their continuing interest in the
Employer ' s working conditions.
At the March 7, 1967, hearing, the only evidence
introduced by the Employer consisted of a compu-
terized compilation of certain payroll records for
the years 1964, 1965, and the first 10 months of
1966. From this payroll data the Employer com-
piled a number of statistical exhibits. The only
testimony was that of the Employer 's accounting
division manager , who explained how the payroll
data was compiled and what the Employer's ex-
hibits, based on this data, purported to show.
The Employer contends that the Board ' s original
voter eligibility formula is unrealistic . The Em-
ployer points out that the Board noted in rejecting
its requested eligibility formula in 1961 that the Em-
ployer had not offered , and in fact , had refused to
present evidence to support its request . Since 1964,
however, the Employer has maintained a data
processing system , which has enabled it to keep
more complete employment histories of its em-
ployees. The Employer contends that the payroll
data , introduced at the hearing , demonstrates
factually that the grounds relied on by the Board in
arriving at its original voting eligibility formula no
longer exist . Specifically , the Employer contends
that the temporary restriction of early 1961, re-
ferred to by the Board in its Decision , no longer
exists , and that the Board 's conclusions that many
employees "may work for short periods of time on
different projects" because of the "nature of this
industry" and that employees "may experience
short layoffs due to material shortages or because
the pipefitting work is dependent on the work of
various other crafts" are no longer warranted. To
support its contentions , the Employer has at-
tempted to show that there has been an increasing
degree of stability in its work force from 1964 to
1966.
As in 1961 , the Employer requests that voting
eligibility be limited to those employees on the
payroll and employed on a constant and continuing
basis for a period of 6 months immediately preced-
ing the Direction of Election . The Employer con-
tends that the 6 -month continuous employment
requirement is necessary to prevent employees who
are temporarily employed prior to the Direction of
Election from gaining eligibility . In the alternative,
the Employer requests that if the Board persists in
using a formula which allows employees who are no
longer employed to vote , that formula should be
limited to include only those employees who were
employed at least 6 months during the 12 months
preceding the Direction of Election . Further, to in-
sure that only those former employees who have
some continuing interest in the Employer 's working
conditions be permitted to vote , the formula should
be limited to employees laid off in the reduction of
force at the completion of a job , and should not in-
clude terminated employees who voluntarily quit or
were discharged , as such employees have no in-
terest in the employment relationship.
Contrary to the Employer , the Petitioner con-
tends that the statistical data introduced by the Em-
ployer at the hearing fully supports the utilization of
the Board ' s original voting eligibility formula in a
second election . The Petitioner points out that no
evidence was introduced that contradicts the
Board ' s original finding that intermittent employ-
ment is the hallmark of the construction industry, or
that short layoffs due to material shortages and the
dependence of pipefitters ' work on the work of
other crafts are any less relevant today than they
were in 1961 . The original voting eligibility formula,
according to the Petitioner , would insure the fullest
participation in the election by all employees who
have reasonable expectation of future employment
with the Employer. Moreover, the Petitioner deems
it highly significant that the Employer is the domi-
nant industrial contractor in the 6-State area in
which it operates , since this means that employees
on layoffs from one project have a greater expecta-
tion of future employment with the Employer on
one of its other projects.
If, however, the Board decides that a modifica-
tion in the voting eligibility formula is warranted,
the Petitioner contends that all employees who
have been employed by the Employer for at least 30
days during the 12 months preceding the Board's
Supplemental Decision and Direction of Election,
together with all employees on the payroll at the
time of such Decision , should be eligible.
Upon examination of the entire record in this
proceeding , we are not persuaded that the original
voting eligibility formula or standard , as set forth in
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's 1961 Decision,8 is either unrealistic or
requires significant modification.
The essence of the Employer's contentions is that
the grounds relied on by the Board in its 1961 vot-
ing eligibility determination are no longer valid. We
are able to agree with the Employer, however, only
with respect to one of these grounds, specifically,
that the temporary restriction in the number of
plumbers and pipefitters employed that occurred in
early 1961 no longer exists.
To support its contention that the Board's 1961
findings that employees work for short periods of
time on different projects and for different em-
ployers because of the "nature of the construction
industry," and that employees "may experience
short layoffs due to material shortages or because
the pipefitting work is dependent on the work of
various other crafts" are no longer true, the Em-
ployer relies on its statistical data, which it con-
tends reveals a trend toward longer term employ-
ment. As evidence of such a trend, the Employer
points out that the percentage of total employees
who worked 121 days or more per year has in-
creased from 1964 to 1966. However, careful in-
vestigation of the Employer's employment data
does not persuade us that such a trend is obvious;
rather, the data, as the Petitioner suggests, appears
to indicate only that the length of employment in
each employment ranges is variable. To illustrate,
the percentage of employees working 181 days or
more in 1964 constituted 18.5 percent of the total
work force, 22.4 percent of the work force in 1965,
and 18.2 percent of the work force in 1966. Em-
ployees working between 121 to 180 days in 1964
were 13.4 percent of the work force, 12.6 percent
in 1965, and 17.8 percent in 1966. The number of
employees in the 6-to 30-day-employment range
was 23.5 percent in 1964, 20.3 percent in 1965, and
25.7 percent in 1966. Likewise, the percentage of
employees in the 31-to 60-, 61-to 90-, and 91-to
120-day-employment ranges varies from year to
year. From this data, we conclude that the trend
toward longer term employment or stabilization,
which the Employer contends has occurred
between 1964 and 1966, can, at best, only be
described as minimal.10
The Employer further contends that the Board's
1961 finding that "employees work for short
periods of time on different projects" or "ex-
perience short layoffs" is contradicted by its data,
which reveals that employees who worked less than
120 days averaged working on less than 2 jobs dur-
ing 1964 and 1965 and averaged working on only
2.1 jobs in 1966. In our opinion, however, this data
does not, in fact, contradict the Board's 1961 find-
ing. We note that the average number of jobs
worked by employees in the employment ranges of
121 to 180 days and 181 days and over is not sig-
nificantly higher than it is in the other employment
ranges." If anything, this data reveals that the
average number of jobs worked per year has in-
creased for all employment ranges. Moreover, as
the Board indicated in its original Decision, many
of the Employer's projects are under construction
for 18 months or longer; this would substantially
lower the average number of jobs worked per
year.12 On the other hand, the employment data
reveals that some employees worked on as many as
30 to 56 projects in the 34-month period covered by
the Employer's data and as many as 14 to 25 pro-
jects in 1 year.
Most significantly, however, while the Employer
has calculated the average number of jobs worked
per year by its employees, the evidence does not in-
dicate whether employment on these jobs was con-
tinuous in nature or whether layoffs due to material
shortages or to the fact that pipefitters work is de-
pendent on the work of other crafts are common.
At the Petitioner's request, the Employer in-
troduced data which shows the average number of
total unit employees by month. This data indicates
that there is great fluctuation in the number of em-
ployees employed by the Employer, even on a
monthly basis, and tends to confirm the Board's
originial finding with respect to the prevalence of in-
termittent employment in this industry.13 In addi-
tion to showing the great fluctuation in the number
of employees involved in the Employer's operation,
this data also persuades us that the Employer's
requested formula, which, among other things,
would limit voting eligibility to those on the payroll
at the time of the Board's Direction of Election,
would disenfranchise a large number of employees
who have a reasonable expectation of future em-
ployment with the Employer.
Daniel Construction Company, Inc , 133 NLRB 264
The Employer computed the number of days each employee worked
in the years 1964, 1965, and the first 10 months of 1966 The employees
were then grouped into certain categories or employment ranges based
upon varying numbers of days worked in each year The specific catego-
ries or employment ranges utilized by the Employer were 6 to 30 days, 31
to 60 days, 61 to 90 days, 91 to 120 days, 121 to 180 days , and 181 or
more days worked per year By agreement of the parties , employees who
worked 5 days or less were excluded from the survey Using the total
number of employees who worked in each year, the Employer was then
able to compute the percentage of its total work force (excluding those
who worked 5 days or less) which fell into each employment range
10 In examining the statistical data with respect to employment ranges,
we note that figures for 1966 include only the first 10 months of the year
11 In the employment range of 121 to 180 days, the average number of
jobs worked in 1964, 1965, and 1966 was 2 1, 2 9, and 3 0, respectively,
and in the employment range of 181 days and over, the average number of
jobs for 1964, 1965, and 1966 was 2 4, 2 7, and 3 3, respectively
12 In this connection, we found ourselves handicapped in evaluating the
Employer's data, since no evidence was introduced by the Employer as to
the average length of time it takes to complete a project
13 For example, the number of employees by month varies from 1,182
in June 1965 to 2,399 in October 1965, and from 1,677 employees in
February 1966 to 2,494 employees in April 1966 Moreover, although the
Employer employed a total of 4,477 employees from January 1 to Oc-
tober 31, 1966, the greatest number of employees employed in I month
was 2,494
DANIEL CONSTRUCTION COMPANY, INC. 1081
In conclusion, on the basis of the evidence
presented by the Employer, we are unable to
discern any significant change in the nature of this
industry or the Employer's particular operation
since the Board's original Decision in 1961.
We now turn to a discussion of the eligibility for-
mula or standard requested by the Employer.
Under that proposed standard (those on the payroll
at the time of the Direction of Election, who have
been continuously employed during the 6 months
preceding the Direction of Election) an employee
to attain voting eligibility would have to be em-
ployed 132 consecutive workdays prior to the
Direction of Election.14 We are unable to determine
from the Employer's data what percentage of em-
ployees would be eligible under this proposed for-
mula, since the Employer's employment data does
not indicate whether employment was continuous.
For the purposes of discussion, however, we will
assume that the Employer's data shows continuous
employment, instead of merely the total number of
days worked each year, and that those who worked
the requisite number of days would be on the
payroll when the election is directed. As qualified
by these assumptions, the Employer's proposed for-
mula would have allowed only 36 percent of the em-
ployees employed in 1966 to vote, 35 percent in
1965 and 31.9 percent in 1964.15 Moreover, it ap-
pears that substantially fewer than 31 to 36 percent
of the employees would be eligible to vote under the
Employer's formula, since the result obtained does
assume not only continuous employment, but that
the employees who worked the requisite number of
days were actually on the payroll at the time of the
Direction of Election, an assumption that appears
doubtful in view of the great fluctuation in the total
number of employees per month.16 Clearly, the Em-
ployer's proposed eligibility formula is overly
restrictive since a substantial number of employees
who not only have a reasonable expectation of fu-
ture employment with the Employer, but may, in
fact, be employed at the time of the Direction of
Election will be disenfranchised. Likewise, the al-
ternative eligibility standard requested by the Em-
ployer (those employees who have worked at least
6 months in the 12 months preceding the Direction,
of Election) is overly restrictive since it also would
limit employee participation in the election to 36
percent, according to the Employer's 1966 data.
On the other hand, a rough approximation taken
from the Employer's data indicates to us that the
Board's original formula would permit approxi-
mately 75 percent of the employees to vote. In our
opinion, the Board's original voting eligibility for-
mula will assure that those employees who have a
reasonable expectation of future employment with
the Employer, and thereby have a continuing in-
terest in the Employer's working conditions will be
eligible to vote. At the same time , however, we are
not unmindful that the standard or formula applied
must not be so broad in application that it will per-
mit individuals who have no likelihood of future em-
ployment with the Employer to decide the question
whether the employees will have representation.
For this reason, we think that the desired result can
be achieved by excluding those individuals who
have quit voluntarily or have been terminated for
cause prior to the completion of the last job for
which they were employed. Therefore, we will reaf-
firm the Board's original eligibility formula with the
aforementioned modification.
Accordingly, we find that, in addition to those
employees in the unit who were employed during
the payroll period immediately preceding the date
of the issuance of the Regional Director's Notice of
Second Election in this proceeding, all employees
in the unit who have been employed 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 days or more within
the 24 months immediately preceding the eligibility
date for the election hereinafter directed, and who
have not been terminated for cause or quit volun-
tarily prior to the completion of the last job for
which they were employed, shall be eligible to vote.
[Direction of Elections? omitted from publication.]
'" The number of days (132) was arrived at by using the Employer's
estimate of 22 working days per month
15 These figures were taken from the Employer's data The percentage
of employees in the employment ranges of 121 to 180 days and 181 days
and over for each year were used, although obviously some of the em-
ployees in the 121-to 180-day range did not work 132 days
16 See fn 14, supra
11 The Petitioner contends that the Employer should be required to
supply the names and addresses of all eligible employees in accordance
with the rule in Excelsior Underwear Inc , 156 NLRB 1236 We agree
The original election in this proceeding was held in 1961 The record was
reopened on the Employer ' s motion (which motion the Petitioner op-
posed ) for the purpose of receiving evidence concerning the extensive
changes the Employer claims were made in its operation since the first
election Hearings were held on the scope of the unit and eligibility formu-
la, thus for all practical purposes the basic issues in any representation
case have been relitigated For these reasons, we consider the circum-
stances in this case to be analogous to a first election Accordingly, we will
provide that the Excelsior rule be applied in this case
An election eligibility list , containing the names and addresses of all the
eligible voters, must be filed by the Employer with the Regional Director
for Region I 1 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in extraor-
dinary circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are
filed Excelsior Underwear inc , 156 N LRB 1236