Dezcon, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 109 (N.L.R.B. 1989)

DEZCON, INC.
Demon, Inc. and United Counties Carpenters Dis-
trict Council , United Brotherhood of Carpenters
and Joiners of America, its affiliates and suc-
cessors , Petitioner. Case 8-RC-13652
June 15, 1989
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On a petition duly filed under Section 9 (c) of the
National Labor Relations Act, a hearing was held
before Hearing Officer Marco Graves on July 16,
1987, and Hearing Officer Nora Friel on August 17
and 18 , 1987. The Petitioner and the Employer
filed briefs . Following the hearing and the filing of
briefs and pursuant to Section 102.67 of the Nation-
al Labor Relations Board Rules and Regulations,
this case was transferred to the Board for decision.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board affirms the hearing officers' rulings,
finding them free of prejudicial error.
The Board has considered the entire record in
this proceeding and the Petitioner 's and the Em-
ployer 's briefs and makes the following findings.
The Employer, an Ohio corporation, has an
office in Niles, Ohio, where it is engaged in the
business of construction . In the operation of its
business , the Employer annually purchases and re-
ceives goods and materials valued in excess of
$50,000 directly from points outside the State of
Ohio. The parties have stipulated, and we find, that
the Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction.
The labor organization involved, the Petitioner,
claims to represent certain employees of the Em-
ployer.1
A question of representation affecting commerce
exists within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
i The Petitioner is a subordinate body of the United Brotherhood of
Carpenters and Joiners of America , composed of affiliated local unions in
Eastern Ohio , Western Pennsylvania, and West Virginia The Petitioner's
geographic area covers Mercer County , Pennsylvania; the following
counties in Ohio: Trumbull , Mahoning , Columbiana, Jefferson , Harrison,
Belmont, and Monroe ; and the following counties in West Virginia:
Brook, Marshall , and Hancock
The Employer has challenged the Petitioner 's status as a labor organi-
zation , contending that the Petitioner lacks sufficient employee participa-
tion . The record reveals that the Petitioner represents employees in the
local unions by negotiating collective-bargaining agreements on their
behalf. These agreements are subject to ratification by the members on
whose behalf they are negotiated . Although individual employees are not
admitted as members of the Petitioner, the Petitioner is made up of the
affiliated local unions which , in turn, are made up of the employees on
whose behalf the Petitioner negotiates On these facts, we find that the
Petitioner is a labor organization within the meaning of Sec 2(5) of the
Act. Crystal Bay Club , 169 NLRB 838 (1968)
109
1. FACTS AND CONTENTIONS OF THE PARTIES
The Petitioner seeks to represent a unit of car-
penters and carpenter-superintendents employed in
Mahoning and Trumbull Counties in Ohio and
Mercer County in Pennsylvania, including working
superintendents ,2 but excluding office clerical em-
ployees, professional employees , guards, and super-
visors.
The Employer is a national construction compa-
ny engaged in light commercial carpentry con-
struction on projects averaging 8 to 10 weeks' du-
ration . It has two stockholders and officers: its
president, David E. Zofko, and its vice president,
Randall Hake . Zofko and Hake share the Employ-
er's managerial functions and labor relations au-
thority, including the exclusive authority to hire,
fire , and discipline employees , to resolve employee
grievances , and to enter into collective -bargaining
agreements . Zofko testified that he and Hake
agreed at some point early in their Company's his-
tory3 that they would sign only labor agreements
that are limited to specific projects . Zofko and
Hake retain ultimate managerial and supervisory
authority over the Employer's projects. These
projects are manned by a carpenter-superintendent
and varying numbers of carpenters , some of whom
are regular employees of the Employer and some
of whom are hired for a specific project . Transfers
of employees from project to project have oc-
curred both when projects run concurrently or
when only a short time elapses between the end of
one project and the beginning of another . For ex-
ample, three carpenters regularly employed by the
Employer worked on both the Victoria's Secret
and the Limited Express projects , which ran con-
currently . Of the six local union carpenters who
worked on these projects , one had been transferred
from another project within the petitioned-for area.
Moreover , when projects are located close togeth-
er, the Employer has coordinated work among
them.
The Board has not certified the Petitioner or any
other labor organization as the representative of
the Employer 's carpenter employees and the Board
has not defined an appropriate unit of these em-
ployees. On September 21, 1983 , the Employer ex-
ecuted , as a nonassociation member, a collective-
bargaining agreement between the Petitioner and a
multiemployer bargaining group. The three -county
area at issue here was part of the larger area cov-
ered by the agreement . That agreement expired
8 The parties stipulated that the working superintendents would be in-
cluded in the unit.
a Zofko testified that he had started up the Company about 4 years
before.
295 NLRB No. 19
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
June 30, • 1985. Since the expiration of the agree-
ment, the Employer has signed agreements under
Section 8(f) with the Petitioner and its affiliated
locals covering most of its projects in the three-
county area in which the carpentry work was per-
formed by individuals in the Company's employ.
These agreements have been limited to specific
projects, in keeping with the stated views of Zofko
and Hake and that project agreements are more
consistent with the Employer's operations.
At the hearing, the Employer supplied a list of
its construction projects with targeted completion
dates after January 1, 1986 (P. Exh. 10). Of these
projects, approximately 21 percent were located
within the three-county area sought by the Peti-
tioner. The Employer also provided a list of all
employees designated as "carpenters" and "carpen-
ter superintendents" who performed carpentry
work on the projects listed on Petitioner's Exhibit
10. Of the 168 carpenters listed, 39 were employees
of a subcontractor and have been stipulated by the
parties to be ineligible to vote. The parties stipulat-
ed that another carpenter, Chris Hake, is a supervi-
sor and thus not entitled to vote.
Of the remaining 128 carpenters, the employ-
ment status of 29 is in dispute. The "Hart Group,"
28 individuals, all of whom are related, perform
carpentry work for the Employer, at times on a
job-by-job basis and at times on an hourly flat rate
basis. No contributions for workers' compensation
or unemployment compensation are paid on their
behalf; nor are state or Federal taxes withheld from
their pay. They do not provide their own tools and
they work under the Employer's direction. The
Employer contends that the "Hart Group" carpen-
ters are employees who share a community of in-
terest with its other employees. The Petitioner con-
tends that they are not eligible to vote as they are
independent contractors and as such are not em-
ployees within the meaning of the Act and, further,
that even if they are employees, they do not share
a community of interest with the remaining carpen-
ters and carpenter-superintendents employed by the
Employer. The Petitioner contends that the re-
maining carpenter, Charles Hake, is ineligible to
vote because he is a brother of Randall Hake. The
Employer contends that there is no basis for ex-
cluding Hake. The record contains no evidence
concerning the effect of that relationship on
Charles Hake's employment status.
Of the remaining 99 carpenters employed by the
Employer whose employment status is not in dis-
pute, 40 have worked on projects within Mahoning
and Trumbull Counties, Ohio, and Mercer County,
Pennsylvania. At the hearing, Zofko specifically
mentioned 10 carpenter employees4 whom he con-
sidered the "nucleus and main employees of the
Company." The Employer tries to offer these em-
ployees full-time employment and provides them
with company benefits such as hospitalization and
vacation pay. All but one of the listed employees
had been employed on jobs located in the three-
county area with anticipated dates of completion
after January 1, 1986. Of the employees who had
worked on jobs within this area, however, all had
also performed substantial amounts of work for the
Employer outside the area.
The Employer contends that the petitioned-for
unit is inappropriate as the community of interest
among its employees varies from project to project
and the only appropriate units would be separate
project units composed of carpenter employees
currently working under 8(f) agreements on the re-
spective projects in progress within the three-
county area at the time the petition was filed. Re-
garding the specific unit description, the Employer
takes two alternative positions. First, the Employer
proposes an election in two separate units, the first
consisting of all carpenters it employs at its Victo-
ria's Secret project in Niles, Ohio, and. the second
consisting of all carpenters at its Limited Express
project in Niles, Ohio.5 Alternatively, the Employ-
er proposes that a single unit consisting of the car-
penters it employed at these two projects is appro-
priate.
In support of its proposed unit or units, the Em-
ployer contends that under the third principle set
forth in Deklewa6 the appropriate unit for election
"normally will be the employees covered by the
agreement ." Thus, the Employer argues, in this
case the parties' bargaining history mandates that
only two appropriate units exist-one for each
project agreement-and the petitioned-for unit is
inappropriate as its scope exceeds the scope of the
single-project units covered by the 8(f) agreements
repudiated by the petition. Further, the Employer
argues that under traditional unit determination
principles, the petitioned-for unit is not appropriate
as the Employer's projects are functionally inde-
pendent, control of terms and conditions of em-
ployment and supervisory functions are centralized
in the Employer's president and vice president, em-
ployees in the three-county area do not have
common working conditions or terms of employ-
4 Including Chris Hake, a stipulated supervisor.
S These projects are located within the three-county area and were in
progress at the time the petition was filed . The Employer admits that
both projects are scheduled for completion before an election could be
held. A third project in that petitioned-for area involved no Dezcon em-
ployees, the Employer having subcontracted the work.
6 John Deklewa & Sons, 282 NLRB 1375 ( 1987).
DEZCON, INC.
ment distinct from employees outside the peti-
tioned -for area, and little employee interchange
occurs among the Employer's projects. Finally, the
Employer argues that the basis for the petitioned-
for unit is the Petitioner 's geographical jurisdiction,
which , it urges, can have no relevance to determin-
ing an appropriate bargaining unit, and urges the
Board to abandon the eligibility formula of Daniel
Construction Co., 133 NLRB 264 (1961), in favor of
a formula that would exclude employees who
worked on one project only.
The Petitioner contends that its proposed unit is
appropriate and that both unit alternatives pro-
posed by the Employer are inappropriate. In sup-
port of its petitioned-for unit , the Petitioner argues
that the "unit" the Employer proposes is actually
no unit at all, as both projects of the Employer
under 8(f) agreements within the three-county area
that were ongoing when the petition was filed have
been completed . Consequently , no carpenters are
employed by the Employer at either location. Fur-
ther, the Petitioner asserts that , in manning the
projects listed on Petitioner 's Exhibit 10 within the
three-county area , the Employer initially obtained
its carpenter employees from Carpenters Local
Unions 171 and 1438 , and that these employees
were , after initial employment , recalled pursuant to
various collective -bargaining agreements .7 The Pe-
titioner further argues that the parties' bargaining
history supports its unit , pointing to its 1983-1985
agreement with the Employer, which it contends
recognizes the Petitioner 's geographic unit as ap-
propriate . Noting that the Board has held that in
determining appropriate units for elections in the
construction industry it would no longer distin-
guish between "permanent and stable" and
"project-by-project" work forces,8 the Petitioner
characterizes the Employer 's proposed units as es-
sentially the type of project-by-project unit reject-
ed by the Board in Deklewa. Noting also that the
Board cited Daniel Construction Co.9 approvingly
in Deklewa , the Petitioner urges that applying the
eligibility standards set forth in Daniel will enfran-
chise the employees who have sufficient expecta-
tion of future employment to be eligible.
II. ANALYSIS AND CONCLUSIONS
In determining an appropriate bargaining unit in
the construction industry, as in all other settings,
7 The record indicates that at least two of the Employer 's jobs within
the three-county area , the Employer obtained carpenters from sources
other than the referral systems of Locals 171 and 1438. Although the
record indicates that the Employer did recall some carpenter employees
to work at subsequent projects it is not clear that it did so pursuant to the
provisions of collective -bargaining agreements.
8 Deklewa, supra, 282 NLRB at 1375
9 133 NLRB 264 (1961), cited at 282 NLRB 1375 fn. 5.
111
the Board seeks to fulfill the objectives of ensuring
employee self-determination, promoting freedom of
choice in collective bargaining , and advancing in-
dustrial peace and stability. Under the Act, our
task is to determine not the most appropriate or
comprehensive unit , but simply an appropriate
unit. 10 In doing so, we look first to the unit sought
by the petitioner. If it is appropriate, our inquiry
ends . If, however , it is inappropriate , the Board
will scrutinize the employer's proposals. When the
Board is faced with more than one location of a
single employer , these factors have been found par-
ticularly relevant : bargaining history ; functional in-
tegration of operations; the similarity of skills,
duties, and working conditions of employees; cen-
tralization of control of labor relations and supervi-
sion, particularly in regard to hiring , discipline, and
control of day-to-day operations; and interchange
of employees among construction sites.I I
In this case , the Petitioner has introduced evi-
dence that over 20 percent of the Employer's
projects during a specified period were located in
the three-county area. The record shows that the
overall labor policies as well as day-to-day control
for these projects are set by the Employer' s presi-
dent and vice president , who have exclusive con-
trol over hiring, firing, disciplining employees, and
the establishment of wages and working conditions.
The record also indicates that, as the projects un-
dertaken by the Employer tend to be similar, the
employees working as carpenters for the Employer
in the three -county area share common skills and
functions. Many of the Employer 's projects in the
area have operated under 8 (f) agreements with the
Petitioner or its affiliated locals, so that the em-
ployees in the proposed unit have similar working
conditions. Accordingly, we find that there is sub-
stantial centralized control over labor relations and
similar skills, functions , working conditions, and su-
pervision among the employees in the unit pro-
posed by the Petitioner. 12
Concerning employee interchange, the Employer
has presented evidence that , where time and loca-
tion are favorable, some interchange has occurred.
However, the Employer's projects apparently do
not often coincide to provide occasions for transfer
from project to project. Thus, while the evidence
10 P. J Dick Contracting, 290 NLRB 150 (1988).
11 Ralph Rogers & Ca v. NLRB, 870 F.2d 379 (7th Cir. 1989); Peter
Kiewit & Sons Ca, 231 NLRB 76, 77 (1977), enfd. 595 F 2d 844 (D.C.
Cit. 1979).
i2 Longcner Ca, 277 NLRB 570 (1985), cited by the Employer, is inap-
posite . In Longcner, in which the Board declined to find an overall unit
of employees appropriate and found that each of the employer 's projects
constituted a separate unit, the project superintendent hired and directed
the employees at the individual project and set most of the terms and
conditions of employment of the employees at the individual project
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of interchange is not overwhelming , the circum-
stances of the Employer 's business render the inter-
change documented in the record significant.
The parties' bargaining history is insufficiently
settled or established to provide significant guid-
ance in determining the appropriate unit . In this
regard , we reject the Petitioner 's contention that
we refer to a single collective -bargaining agree-
ment that expired in 1985 as an indication that the
Employer has recognized the three -county area as
an appropriate unit boundary-especially as the
agreement covered a larger geographical area. Nor
do we accept the Employer 's contention that the
more recent trend of entering into project-by-
project agreements constitutes determinative bar-
gaining history under Deklewa , supra . The Board's
remarks on unit scope in Deklewa should not be in-
terpreted so as to rob construction industry em-
ployees of meaningful choice , simply because an
employer has unilaterally decided to limit its rela-
tions with craft unions to project agreements.) a
Thus, we find that employees in the petitioned-
for unit share a sufficient community of interest, in
view of their similar duties , functions , supervision,
and other terms and conditions of employment, to
la Our refusal to accord the parties ' bargaining history decisive impor-
tance in this case does not derogate from our longstanding policy not to
depart from established bargaining relationships unless the dictates of the
Act or compelling circumstances require us to do so . Great Atlantic &
Pacific Tea Ca, 153 NLRB 1549, 1550 ( 1965). We simply find that in this
case the bargaining history is too brief and inconclusive to provide
proper guidance
We also reject the Employer 's argument that the Board should aban-
don the Daniel Construction formula in this case . The Employer has not
shown compelling reasons why its operation should be distinguished from
others in the construction industry . Moreover , in light of our finding that
the carpenter employees in the petitioned -for unit share a community of
interest , we also reject the Employer 's argument that the only basis for
the petitioned-for unit is the territorial limitations of some constituent
locals of the Petitioner
We also note that there is no evidence in the record that the Employer
has undertaken any project in Mercer County, Pennsylvania . As no party
has proposed an election in a unit excluding that county , we find no com-
pelling reason not to include it.
constitute an appropriate unit . In view of our find-
ing that the petitioned-for unit is appropriate, we
do not reach the Employer 's proposals concerning
unit scope.
Regarding unit composition , we are unable to
determine from the record whether the "Hart
Group" are employees within the meaning of the
Act or are independent contractors, or whether, if
employees , have a separate community of interest
from unit carpenters . As they are too numerous to
vote under challenge , we remand this case to the
Regional Director for taking further evidence, find-
ings of fact, and conclusions of law concerning the
employment status of these individuals and direc-
tion of an election . With regard to the eligibility of
Charles Hake, we find that the record contains no
evidence that his familial relationship to Randall
Hake affects his employment status; therefore, we
find that he is eligible to vote.14
Thus, we find that the petitioned -for unit is ap-
propriate and that an election should be ordered in
this unit:
All employees employed by the Employer as
carpenters in Mahoning and Trumbull Coun-
ties, Ohio, and Mercer County, Pennsylvania,
including working superintendents but exclud-
ing all office clerical employees , professional
employees, and all guards and supervisors as
defined in the Act. 1 s
ORDER
It is ordered that Case 8-RC-13652 is remanded
to the Regional Director for Region 8 for action
consistent with these findings herein.
14 With regard to the carpenter -superintendents , we note that neither
party contends that these individuals are supervisors and the parties have
stipulated that they are eligible to vote in the unit Accordingly, we shall
include them in the unit.
is The unit appears as amended at the hearing.