Del-Mont Construction Co.

National Labor Relations Board - Board Decisions

Dec 14, 1964

150 N.L.R.B. 85 (N.L.R.B. 1964)

DEL-MONT CONSTRUCTION COMPANY 85
I find the circumstances under which the interrogation is alleged to have taken
place meets this exclusion.42
b. The "no talking rule" and the alleged surveillance
The, contentions of the General Counsel with respect to paragraphs 5(d) and (e)
of the complaint and the evidence to support the allegations are too absurd to warrant
comment 43 As counsel for the Respondent suggests in his brief, if Cole was re-
quired to leave the roof then the president of any company.remains in his office at
the'risk of committing an unfair labor practice if 'his secretary chooses to sign a card
there. As the evidence in this and other cases shows, a frequent locale for-the sign-
ing of cards is the employees' restroom and it would follow that should a foreman
happen to be using the facilities when a signing was taking place a posthaste de-
parture would be required regardless of the urgency of the visit or the immediate
stage of operations.
It is recommended that the complaint, insofar as it alleges violation of Section
8(a) (1), be dismissed.
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an eniployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 79 is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint 'be dismissed in its entirety.
" See also Mrs. Dora S. Lanthier et at., d/b/a Lanthier Machine Works, 116 NLRB
1029, 1037; N.L.R.B v. Blue Bell, Inc, 219 F 2d 796 (C.A 5) ; Mao Sao d/b/a Container
Manufacturing Company v N.L.R.B., 171 F. 2d 769 (C.A. 7) ; N L.R B. v. Tennessee
Coach Company, 191 F. 2d 546 (C A. 6) ; NLRB. v *J. E. McCatron, et at, d/b/a Price
Valley Lumber Co., 216 F. 2d 212 (C.A. 9) ; N.L.R.B. v. Peerless Products, Inc, 264 F 2d
769 (CA. 7) ; N.L.R.B. v. T A MoGahey, et' al., d/b/a Columbus Marble Works, 233 F.
2d 406 (CA 5).
' The Trial Examiner stated during the examination of a witness under the surveillance
allegation that he would grant a motion to strike paragraph 5(d) at the conclusion of the
General Counsel's case. For reasons which are obvious the motion was not made.
Del-Mont Construction Company and Local 542, International
Union of Operating Engineers , AFL-CIO, Petitioner
Del-Mont Construction Company and Local 57, Laborers District
Council of Philadelphia and Vicinity, AFL-CIO, Petitioner.
Cases Nos. 4-RC-5394 and, 4-IBC-5393. December 14, 1964
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Hearing Officer Robert H. Levan. The Hearing Officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
150 NLRB No. 9.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in these cases , the Board finds: I
1. The Employer is engaged in commerce within,the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer. ,
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. In its petition in Case No. 4-RC-5394, Operating Engineers seeks
to represent a unit of all operators of power-driven equipment, such
as crane, backhoe, shovel, bulldozer, compressor and pump operators,
and mechanics and apprentice oilers. Laborers, in Case No. 4-RC-
5393, seeks to represent all laborers and truckdrivers in a single unit.
Together, the two petitions encompass all employee classifications of
the Employer except office clerical employees. There is no collective-
bargaining history for any employees of the Employer.
The Employer, a contractor for installation of water distribution
lines, works almost exclusively for the Philadelphia Suburban Water
Company. The Employer employs approximately 12 heavy-equipment
operators, 12 truckdrivers, and 30 to 40 laborers organized into 4 or 5
crews or work gangs, each under the direction of a foreman , and as-
signed to various locations. where water mains are being installed or
extended. A crew typically consists of four to six laborers, two heavy-
equipment operators, a stake-truck driver, and the foreman in charge.
Crews are dispatched daily from the Employer's yard to various in-
stallation sites where the crew will normally operate from 2 days to a
week in accomplishing a particular installation. Upon arrival of the
crew at an installation site, the foreman, assisted by the stake-truck
driver, lines up the ditch; laborers operating pavement breakers, or
jack hammers, cut the macadam or concrete; a backhoe operator digs
the ditch, guided by a laborer who is denominated a pit man; several
laborers lay the pipe and others cover it by hand; an operator, using a
bulldozer or loader, starts backfilling as soon as the pipe is covered;
laborers hand-tamp the fill and apply black top ; and an operator on
either a tandem or a three-wheel steamroller completes the job by roll-
ing the new pavement. The Employer describes the stake truck which
goes to, and remains with, each job as a mobile toolshed. Its driver
remains with the truck, takes care of the tools, and assists the foreman.
Truckdrivers, other than those assigned to stake trucks, are not as-
signed to work gangs but drive special purpose trucks, as needed, to
and from various jobsites and the Employer's yard. Like the truck-
Operating Engineers ' request for oral argument Is hereby denied as the record and
briefs, in our opinion , adequately set forth the issues and the positions of the parties.
DEL-MONT CONSTRUCTION COMPANY 87
drivers, heavy-equipment operators are not regularly attached to par-
ticular work crews, as are the laborers, but move from site to site inde-
pendently of the work crews, as their equipment is needed.
The Employer contends that the only appropriate unit would be one
including all its employees in a single unit and that since neither Peti-
tioner has indicated a willingness to represent such a unit, the peti-
tions should be dismissed. We do not agree.
Although, as indicated above, there are some factors supporting the
appropriateness of the overall unit advocated by the Employer, there
are others that support the appropriateness of a separate unit-con-
fined to the employees sought by the Operating Engineers. Thus, the
heavy-equipment operators exercise a high degree of skill and inde-
pendent judgment in the operation of intricate, expensive, and poten-
tially dangerous equipment; they receive only the most general super-
vision which does not extend beyond the mere indication of the
ultimate results to be accomplished; they receive substantially higher
wages than do other employees; they do not interchange with other
employees; and they do not work outside their classifications un-
der normal operating conditions. It further appears that heavy-
equipment operators in the building and construction industry have
been recognized by employers as separate units for collective-
bargaining purposes. These factors warrant the conclusion that the
heavy-equipment operators constitute a clearly identifiable and func-
tionally distinct group with common interests which are distinguish-
able from those of other employees. In view thereof, and as no labor
organization seeks to represent them as part of a larger unit, we find
that the heavy-equipment operators constitute a separate appropriate
unit herein.
As already noted, the Operating Engineers would include mechanics
and' oilers in such a unit. The mechanics are skilled employees who
maintain and repair all types of equipment. They have interests in
common with the heavy-equipment operators. The Laborers agrees
that they belong in the Operating Engineers' unit and no other labor
organization is seeking to represent them on any other basis. The
Employer does not argue that it would be improper to include them in
a unit of heavy-equipment operators if, as we are finding, such a unit
is appropriate. In the circumstances, we shall include the mechanics
in the aforementioned appropriate unit. However, as it has not been
shown that the Employer hires employees in the classification of oiler
or that it contemplates doing so, we shall make no provision for the
unit placement of employees in such a classification.
In Case No. 4-RC-5393, Laborers seeks to represent a single unit of
laborers and truckdrivers. These groups of employees have related
interests. Nobody seeks to represent them separately. Except for the
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heavy-equipment operators, they comprise the Employer's entire op-
erating complement. Having concluded that the heavy-equipment
operators are entitled to separate representation, we find that the
laborers and truckdrivers also constitute an appropriate unit.
The Employer contends that it has 11 foremen who should be ex-
cluded as supervisors from any unit found to be appropriate. Operat-
ing Engineers does not claim any of these individuals but Laborers
refused to take a position with respect to the supervisory status of
these individuals, who are in charge of the crews which function at
the various jobsites. It is clear from the record that these foremen
possess authority to hire, discharge, transfer, and assign work to the
employees in the crews assigned to them. We find that they are super-
visors under the Act.
Accordingly, we find that the following units are appropriate for
purposes of collective bargaining within the meaning of Section 9(b)
of the Act :
(a) All operators of power-driven equipment, including crane, back-
hoe, shovel, bulldozer, compressor and pump operators, and mechanics,
but excluding all other employees, clerical employees, professional
employees, guards, and supervisors as defined in the Act.
(b) All laborers and truckdrivers, but excluding operators of
power-driven equipment, mechanics, clerical employees, guards, and
supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
s Sioatm Valley Empire Electric Association, 122 NLRB 92.
International Longshoremen 's & Warehousemen 's Union; and
Locals 6, 10, 34, 54, and 91, International Longshoremen's &
Warehousemen 's Union and United States Steel Corporation.
Case No. 20-CD-136. December 15, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges by United
States Steel Corporation (herein called the Employer) under Section
8(b) (4) (D). The charges as amended allege, in effect, that Inter-
national Longshoremen's & Warehousemen's Union and its Locals 6,
10, 34, 54, and 91 (herein called the Respondents) induced employees
of the Employer and others to refuse to perform services for the
Employer, and threatened and coerced it in order to force the
150 NLRB No. 17.