Fish Plant Services

National Labor Relations Board - Board Decisions

Aug 18, 1993

311 N.L.R.B. 1294 (N.L.R.B. 1993)

1294
311 NLRB No. 182
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Review was requested of the Regional Director’s findings that it
is appropriate to conduct an election at this time; that the showing
of interest is sufficient; that the petitioned-for unit of all the Employ-
er’s construction employees employed at any project within the State
of Arizona and within that part of the Navajo Reservation within the
State of New Mexico is appropriate; and that the eligibility formula
in Steiny & Co., 308 NLRB 1323 (1992), should be applied to the
election in this case. Member Devaney, who dissented from the
Board’s earlier decision to direct an election, finds that the election
was properly held, based on the additional evidence at the second
hearing supporting the Employer’s continuing presence in the rel-
evant geographic area. Accordingly, Member Devaney joins his col-
leagues in denying review.
Member Devaney notes that no party has raised the issue of Board
jurisdiction over employment in projects on the Navajo Reservation.
Fish Plant Services and United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, Local 469; Arizona State District
Council of Carpenters including Millwrights,
Local 1914; International Brotherhood of Boil-
ermakers, Blacksmiths, Forgers and Helpers,
AFL–CIO, Local 627; Operative Plasterers and
Cement Masons, Local 394; International Asso-
ciation of Heat and Frost Insulators and Asbes-
tos Workers, Local 73; Operating Engineers,
Local 428; International Association of Bridge,
Structural and Ornamental Iron Workers,
Local 75; Painters Local Union No. 86; Con-
struction, Production and Maintenance Labor-
ers Union Local 383; Sheet-Metal Workers’
International Associations, Local Union No.
359, AFL–CIO, Joint Petitioner. Case 28–RC–
4998
August 18, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
the Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election (pertinent
portions of which are attached as an Appendix), as
well as Joint Petitioner’s opposition brief. The request
for review is denied as it raises no substantial issues
warranting review.1
APPENDIX
DECISION AND DIRECTION OF ELECTION
1 During the hearing, the Joint Petitioner amended its peti-
tion to name Fish Plant Services as the Employer, based
upon representations of the Employer’s counsel that the peti-
tioned-for employees were employed by that entity, and not
by Fish Engineering and Construction Partners, Ltd. (Fish
Engineering), which had previously been named as the Em-
ployer. At the original hearing in this matter, held on Feb-
ruary 6, 1992, the Employer stated that its correct legal name
was Fish Engineering and Construction Partners, Ltd. How-
ever, at the second hearing, conducted on October 28, 1992,
the Employer’s counsel represented that Fish Plant Services
was formed on July 1, 1991, and that since that date, it had
been the entity which employed the construction employees
on construction projects undertaken by Fish Engineering in
the geographical area encompassed by the petition herein.
The Hearing Officer sought further information concerning
the relationship between Fish Engineering and Fish Plant
Services, but the Employer’s counsel was reluctant to pro-
vide such information. Fish Engineering and Fish Plant Serv-
ices are jointly referred to herein as ‘‘Fish’’ or the Employer.
2 The Employer sought to argue at the hearing, and did
argue in its brief, that the showing of interest presented in
support of the petition is deficient. The Hearing Officer’s re-
fusal to take evidence on this issue at the hearing is hereby
affirmed. The showing of interest is an administrative matter
not subject to litigation. O. D. Jennings Co., 68 NLRB 516
(1946); General Dynamics Corp., 175 NLRB 1035 (1969);
Allied Chemical Corp., 175 NLRB 235 (1967); NLRB v. J. I.
Case Co., 201 F.2d 597 (9th Cir. 1953). The Employer
raised this issue administratively before the hearing and was
administratively advised before the hearing that the showing
was sufficient.
3 Based upon counsel’s representations, the parties stipu-
lated that Fish Plant Services is a Texas limited partnership
engaged in the business of general contracting in the building
and construction industry, that during the past 12-month pe-
riod it performed services valued in excess of $50,000 for
customers located outside the State of Texas, and that it is
engaged in interstate commerce within the meaning of the
National Labor Relations Act. All of the testimony at the
hearing concerning the ‘‘Employer’s’’ operations came from
the general manager of construction for Fish Engineering.
Regarding Fish Plant Services, he testified that Fish Engi-
neering bids jobs, and when it obtains contracts, it enters into
an agreement with Fish Plant Services to perform the work.
He also testified that the headquarters of Fish Plant Services
is in Houston, Texas, as is the headquarters of Fish Engineer-
ing. The Employer’s counsel represented that both partner-
ships have the same general partner. Inasmuch as the record
does not make clear the details of the relationship between
Fish Engineering and Fish Plant Services, if a certification of
representative is issued as a result of this proceeding, and if
later developments indicate that the Employer herein is Fish
Engineering and not Fish Plant Services, I shall entertain a
petition for amendment of certification to correctly identify
the Employer.
4 The Joint Petitioner seeks to represent a unit of all full-
time and regularly employed part-time construction employ-
ees employed by the Employer at any project within the
State of Arizona and within that portion of the Navajo Res-
ervation within the State of New Mexico, excluding all other
employees, including office clerical employees, professional
employees, engineers, guards, and supervisors as defined by
the Act. The petition herein was originally dismissed by me
on the grounds that the petitioned-for unit would cease to
exist within 2 months of the date of the original hearing, and
that it was speculative whether the Employer would secure
any additional work within the geographic boundaries of the
petitioned-for unit. The Joint Petitioner requested review by
the Board, and on September 17, 1992, the Board issued a
Decision on Review and Order, reported at 308 NLRB 836
1295FISH PLANT SERVICES
(1992), in which it concluded that based upon the Employ-
er’s ‘‘past and current work and its bidding of future work
within the unit sought by the Joint Petitioner . . . it would
serve a useful purpose to conduct an immediate election after
resolving the remaining unit issues.’’ Id. at 836.
The Employer contends that the petitioned-for statewide
unit is inappropriate, that only a unit limited to its current
jobsite is warranted, and that an election should not be con-
ducted herein because this job will be completed by January
24, 1993. In addition, the Employer argues that a unit of all
construction employees would be inappropriate, but declined
to state at the hearing or in its brief what grouping of em-
ployees it felt would be appropriate. The Employer also as-
serted that the eligibility formula set forth in Steiny & Co.,
308 NLRB 1323 (1992); and Daniel Construction Co., 133
NLRB 264 (1961), as modified 167 NLRB 1078 (1967), is
not applicable to its operations.
The only witness at either the February or October 1992
hearings was the general manager of construction for Fish
Engineering, Joseph Colquitt, whose testimony was
uncontradicted. Unless otherwise noted, the following sum-
mary of the facts is based upon his testimony at both hear-
ings.
Fish is engaged in the business of providing engineering
procurement and construction services to clients in the petro-
chemical refining and gas processing and transmission indus-
try. There has been no history of collective bargaining at any
of its past or current jobs in the geographic area encom-
passed by the petition. All of its work in the relevant geo-
graphic area has been for El Paso Natural Gas Company,
renovating compressor stations on natural gas pipe lines.
During the past 24 months, it had projects in this area at
Wenden, Flagstaff, and Dilkon, Arizona, and White Rock,
New Mexico, all of which had been completed by the time
of the October hearing. The Wenden project was completed
in late February 1991, the Flagstaff job was completed in
November 1991, and the Dilkon and White Rock jobs were
completed in the spring of 1992.
At the present time, Fish has only one job in the area en-
compassed by the petition, another project for El Paso Nat-
ural Gas Company at the Navajo Compressor Station, ap-
proximately 10 miles south of Ganado, Arizona. This job
was started in June 1992, and is scheduled for completion by
January 24, 1993. It involves replacing old compressors,
drivers, and ancillary equipment at a natural gas compressor
station on a natural gas pipeline. As were the Dilkon and
White Rock projects, the Navajo Compressor Station is on
the Navajo Reservation.
Fish has also submitted bids for three jobs on compressor
stations for El Paso Natural Gas Company at Alamo Lake,
Arizona, at a site east of Lake Havasu, Arizona, and at the
Williams Compressor Station west of Flagstaff, Arizona.
None of these is on the Navajo Reservation. In the past, Fish
has not always been the successful bidder for El Paso Nat-
ural Gas projects in this geographic area, and at the time of
the October 1992 hearing, it did not know whether it would
receive any of the contracts for these three upcoming jobs.
It did not have any other outstanding bids for work in the
area covered by the petition at the time of the October hear-
ing. Colquitt stated that work would not begin until March
1993, if Fish got any of the jobs it had bid.
At the time of the hearing, Fish had approximately 82 con-
struction employees on the Navajo Compressor Station
project, down from a project high of 84. Colquitt estimated
that by January 10, 1993, only 13 of these employees would
remain on the job, and that all would be gone by January
24.
At the completion of each project, the construction em-
ployees are terminated, and they must fill out a new applica-
tion when they seek employment on any other project for
Fish. At the time of the February 1992 hearing, only 7 em-
ployees of the approximately 300 who had been employed as
of that date on Fish’s projects within the petitioned-for unit
had worked on more than one project. However, at the
present time, of the approximately 82 employees currently
employed in the petitioned-for unit at the Navajo Compressor
Station, 31 have worked for Fish on previous jobs. Since the
Navajo Compressor Station job is on the Navajo Reservation,
and pursuant to laws of the Navajo Nation, the Employer is
obligated to give preference in hiring to Navajos for jobs on
the Reservation. Of the 31 employees on this job who had
been formerly employed by Fish, 29 had worked on other
jobs on the Reservation.
The Employer does not have a nucleus of construction em-
ployees whom it consistently transfers from job to job, al-
though some supervisors are moved from job to job. Occa-
sional employee transfers do occur. For example, at the end
of the White Rock and Dilkon projects, some employees
were moved from one job to the other to complete a tie-in.
In addition, foremen may tell good employees of jobs that
will begin in the future, although the employee is still re-
quired to fill out a new application on the new project. Infre-
quently, employees may be laid off when a phase of a
project is completed, and recalled to work when their skills
are needed again in later phases. In this case, the employee
is contacted at the last address and telephone number on file,
and if he or she is not immediately available, someone else
is contacted and offered the job. Employees do not accrue
seniority. Previous experience with Fish is favorably consid-
ered when an employee applies for work.
The Employer’s projects on the Navajo Reservation are or-
ganized somewhat differently from those off the Reservation
because of the laws applicable on the Reservation. The Em-
ployer does not usually use written job descriptions, but it
is required to do so for jobs on the Reservation. Fish Engi-
neering prepared job descriptions which were used on all the
projects on the Reservation. Pay rates for these jobs were ne-
gotiated by Joseph Colquitt with the office of Navajo Labor
Relations (ONLR), and these same pay rates were used on
all the jobs on the Reservation for 1991 and 1992. Usually
the Employer allows qualified employees to cross crafts, but
this was not allowed on the Reservation jobs because it was
necessary for the Employer to adhere strictly to the nego-
tiated pay rates. Fish Engineering also signed an affirmative
action statement concerning Navajo preference which was re-
quired by ONLR for jobs on the Reservation.
Recruitment for jobs on the Reservation is carried out by
contacting the Navajo Nation employment service, adver-
tising in a Navajo newspaper and on a Navajo radio station,
and accepting applications on the jobsite. The Employer then
interviews and hires the most promising applicants. Recruit-
ment for other jobs is similar, in that state employment serv-
ices, word of mouth, and jobsite applications are used.
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pay rates for jobs off the Reservation are set by Colquitt,
based upon a survey of area wages conducted under his su-
pervision. Although the rates may differ from job to job
based upon the wage survey, any variation is approved by
Colquitt, not by the project superintendent for each job. Once
the wage rates are set, any changes are made centrally, not
by the project superintendent. For example, on the Dilkon
job, the Navajo employees went on strike, and ‘‘the home of-
fice’’ authorized the increase of their benefit payment by 50
cents per hour for travel pay to settle the strike. The decision
about what fringe benefits, if any, will be offered is made
by the corporate headquarters, and this cannot be changed by
project superintendents.
Colquitt provides a set of generic work rules to the project
superintendents, and they, in turn, have the authority to mod-
ify the rules based upon the circumstances unique to their re-
spective jobs. For example, the superintendents may differ as
to whether they allow coffeepots or radios on the job, and
whether there are formal breaktimes. The work rules also
cover such things as the length of the workday and week and
appropriate conduct on the job. However, there is one cor-
porate policy regarding drugs and alcohol which applies on
all jobsites, companywide.
Colquitt visits the jobsites three to five times each
throughout their duration, and talks almost every day by tele-
phone with each superintendent. In addition, he, himself,
served as superintendent on the Flagstaff project. Colquitt as-
signs the senior supervision to each job, and participates in
the initial review of each prospective job and the estimating
and preparation of the bid on each job. He participates in the
selection of subcontractors on each job, and monitors the
progress of each job as to schedule, cost, and other factors.
Within these parameters, the project superintendent on
each job represents the Employer in the enforcement of all
Federal, state, and company safety regulations. He also con-
trols the schedule, approves all costs for the project, and can
institute overtime at his discretion. The superintendents have
the authority to hire and fire employees, to grant time off,
to discipline, evaluate, promote, demote, and lay off employ-
ees without checking with the home office. They are also re-
sponsible for safety on the job and for providing basic con-
struction tools. They can move employees from one classi-
fication to another and effect a corresponding change in the
employees’ pay. They assign work. Internal records regard-
ing hiring and discharge of employees are sent from the job-
site to the headquarters office, while other personnel records
are kept at the jobsite.
Purchasing of equipment and instruments for all the jobs
is handled by the Fish procurement department in the Fish
home office, while the purchasing of bulk materials for each
job is done on the construction site by the office material
manager under the authority of the project superintendent.
The payroll timesheets and the payroll are developed on the
jobsite by the field office material manager and put into the
jobsite computer, then transmitted by modem to the Fish
home office. There the math or accounting is checked, and
the payroll is then sent back to the jobsite. The paychecks
are printed at the jobsite.
Job classifications vary from project to project, depending
upon the work involved and whether particular tasks are sub-
contracted. As a general rule, the classifications include la-
borers, carpenters, concrete finishers, iron workers, rebar in-
stallers, ironworker steel erectors, riggers, equipment opera-
tors, millwrights, pipefitters, pipe welders, electricians, in-
strument fitters, scaffold builders, painters, and insulators. On
its previous jobs in the geographic area included in the peti-
tion, the Employer used virtually all of these crafts on the
Wenden, Dilkon, and White Rock jobs, and only laborers,
pipefitters, and welders on the Flagstaff job. The current
project uses electricians, instrument fitters, millwrights,
heavy crane operators, hydraulic crane operators, riggers,
pipe fitters, pipe welders, laborers, painter/sandblasters, and
carpenters.
The Employer has usually subcontracted specialty work on
these jobs, for example installing chain link fence, pile driv-
ing, drill shaft boring, and post well heat stress relieving.
Other general construction work may or may not be subcon-
tracted. Organization of the different crafts under specific
foremen or general foremen depends upon the work done by
the Employer on each jobsite and the available supervisors.
The current Navajo Compressor Station job includes a civil
craft superintendent with laborer, painter, and carpenter fore-
men reporting to him, and laborers, painters, sandblasters,
and carpenters reporting in turn to those foremen. It has a
pipe superintendent to whom the pipefitter foremen report,
with pipe fitters and pipe welders reporting to those foremen.
The rigging superintendent has rigger foremen and an equip-
ment operator general foreman reporting to him, and riggers
and equipment operators report to them. There is a mill-
wright superintendent and a millwright foreman, with the
millwrights reporting to them. Finally, two electrical/-
instrument superintendents have electrical foremen and elec-
tricians and instrument fitters, in turn, reporting to them. The
Winden job, on the other hand, did not have a civil craft
group because the work was subcontracted, and these skills
were not used. The Winden job also did not have a separate
rigging group, but that work was done by Fish employees
within the piping or mechanical group. Each job has had a
piping group. The Flagstaff job did not include millwrights
or an electrical group, because the work did not require those
skills. Different crafts may be combined under one super-
intendent, or more than one superintendent might be ap-
pointed for a particular craft, depending upon the skills need-
ed on the job and the availability of qualified supervisors.
On each job, there are employees with different craft skills
and different pay rates. As earlier noted, formal written job
descriptions are only used on jobs on the Navajo Reserva-
tion, and only on Reservation jobs are craft lines strictly ob-
served. On other jobs, employees with appropriate skills may
work across craft lines. On each job, the employees with dif-
ferent skills go through the same hiring process, and they
work side by side with each other on the job. They normally
work the same hours, but there is some selective overtime
for particular crafts. All of the employees are paid on the
same day. They are paid the same hourly compensation for
travel expenses, but they do not receive any other fringe ben-
efits. They all wear the same protective coveralls, but the
color of the hardhats differ from craft to craft. All of the em-
ployees may use the same employee breakroom and portable
restrooms on the jobsite. They are all hourly paid, although
at different rates, and all construction employees on a jobsite
are covered by the same work rules. There are no apprentice-
ship programs or formal lines of promotion for any of the
crafts.
1297FISH PLANT SERVICES
The Employer argues that no election should be conducted
herein because of the imminent completion of its only cur-
rent project in the relevant geographic area. However, I find,
in accordance with the Board’s prior decision in this matter,
reported at 308 NLRB 836 (1992), that in view of the Em-
ployer’s substantial prior work, its outstanding bids for addi-
tional work, and the fact that this project will be ongoing at
the probable date of an election, it is appropriate to conduct
an election at this time. The Employer cited K-P Hydraulics
Co., 219 NLRB 138 (1975), in support of its position. How-
ever, that case, which involved an expanding unit in the
manufacturing industry, is inapposite to a construction indus-
try situation, where jobs are usually of relatively short dura-
tion and more inclusive eligibility formulas are used.
The parties disagree about whether the unit should include
all projects within the petitioned-for geographic area or
whether it should be limited to the current jobsite. In deter-
mining whether a petitioned-for, multisite unit is appropriate,
the Board considers bargaining history; functional integration
of operations; the similarity of skills, duties, and working
conditions of employees; central control of labor relations
and supervision; and interchange, and/or transfers of employ-
ees among construction sites. Oklahoma Installation Co., 305
NLRB 812 (1991).
As noted above, there is no bargaining history for the peti-
tioned-for unit. Although each jobsite is a separate project,
the wage rates and fringe benefits are set by Colquitt or em-
ployees under his direction, and the project superintendent
has no authority to change them. When a change was made
to settle the strike at the Dilkon project, it was made by
Colquitt’s office, not by the project superintendent. Pay rates
and job descriptions for the projects on the Navajo Reserva-
tion were negotiated with the ONLR by Colquitt, not by the
project superintendents. Fish Engineering, not Fish Plant
Services, signed the equal employment statement for the Res-
ervation projects. Colquitt is in almost daily telephone com-
munication with the jobsites, and the jobsite and home office
computers are also linked together. In addition, Colquitt ap-
points the top supervision on each job, and he makes several
visits to each jobsite as the job progresses. On the other
hand, hiring, firing, layoffs, discipline, and evaluation of em-
ployees are done by the various project superintendent or su-
pervisors reporting to them. Colquitt’s office provides ge-
neric work rules to the project superintendents, and the
superintedents have discretion to modify them. Similar skills
are used on each of the jobs the Employer has had within
the geographic area covered by the petition, although the
specific skills and the chains of command have varied some-
what because of differences in the jobs. Employees are occa-
sionally moved directly from one job to another, and a sub-
stantial number of employees on the current project have
worked for the Employer on other jobs within the petitioned-
for geographic area. Some supervisors are moved by the Em-
ployer from job to job. Although the Employer currently has
only one project in this area, as earlier noted it has had oth-
ers in the recent past, and it has bid on more work in this
area. In these circumstances, I find that employees on the
separate projects share a community-of-interest, and that the
petitioned-for, multisite unit is appropriate. Oklahoma Instal-
lation Co., supra; Dezcon, Inc., 295 NLRB 109 (1989); Wil-
son & Dean Construction Co.; Daniel Construction Co., 133
NLRB 264 (1961).
The Employer also argued that the petitioned-for unit of
all construction employees is inappropriate, but declined to
state what grouping of employees it did believe was appro-
priate. It does not contend that any other group of employees
should be included with the construction employees. It is
well established that a unit need be only an appropriate unit,
and not ‘‘the ultimate or the most appropriate.’’ Morand
Bros. Beverage Co., 91 NLRB 409, 418 (1950), enfd. 190
F.2d 576 (7th Cir. 951). Based upon the evidence that the
construction employees are all hourly paid, are all subject to
the same work rules on a given project, work side by side,
normally work the same hours, receive the same travel ex-
pense compensation, share the same breakroom and restroom
facilities, and wear the same coveralls, I find that a unit of
all construction employees is an appropriate unit. The cases
cited by the Employer in its brief, Brown & Root, Inc., 256
NLRB 1069 (1981); and R. B. Butler, Inc., 160 NLRB 1595
(1966), discuss the appropriateness of a construction industry
unit limited to one craft, and not an overall unit like the one
sought herein. In fact, in R. B. Butler, the Board commented
that an overall unit is a presumptively appropriate unit (id.
at 1599).
The Employer also asserts that the Daniel Construction
eligibility formula does not apply to its operations. However,
the Board stated in Steiny & Co., supra, 308 NLRB 1323
(1992):
We have decided that the Daniel formula is applicable
in all construction industry situations. We find no rea-
sonable, feasible, or practical means by which to distin-
guish among construction industry employers to decid-
ing whether a formula inshould be applied.
. . . .
[W]e have decided to apply the Daniel formula regard-
less of the construction employer’s method of operation
[footnote omitted].
The Employer admitted at the October 1992 hearing that this
engaged in the construction industry, and the evidence herein
leaves no doubt that it is so engaged. Moreover, the Board
left intact in Steiny, supra at fn. 17, its holding in S. K.
Whitty & Co., 304 NLRB 776 (1991), that the fact that a
construction industry employer has no committed work at
any given time does not establish that it will not secure work
in the future or that its former employees did not have a rea-
sonable expectation of future employment. Accordingly, I
conclude that the Daniel formula should be used in this case.
The Employer also argued that the foremen are supervisors
within the meaning of Section 2(11) of the Act, and as such
should be excluded from the unit. The Petitioner declined to
state a position on the eligibility of the foremen. Based upon
the record herein, I am unable to determine their status, so
I shall allow the foremen to vote subject to challenge.
In addition to employees meeting the standard eligibility
criteria, i.e., employees hired and working on the election eli-
gibility date, regardless of how long the employee previously
worked for the Employer, I shall also find eligible other em-
ployees in the unit: (1) who have been employed for 30
working days or more within the 12 months preceding the
eligibility date for the election, or (2) who have had some
employment in those 12 months and have been employed for
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 working days or more within the 24-month period imme-
diately preceding the eligibility date. Steiny & Co., 308
NLRB (1992); Daniel Construction, 133 NLRB 264 (1961),
as modified 167 NLRB 1078 (1967).