Fruco Construction Co.

National Labor Relations Board - Board Decisions

Feb 9, 1942

38 N.L.R.B. 991 (N.L.R.B. 1942)

In the Matter of FRUCO CONSTRUCTION COMPANY, FRUIN-COLNON CON-
TRACTING CO., AND THE MASSMAN CONSTRUCTION COMPANY and
INTERNATIONAL FEDERATION OF TECHNICAL ENGINEERS', ARCHITECTS'
AND DRAFTSMEN'S UNION, LOCAL 23, A. F. L.
Case No. B-3393.-Decided February 9, 1942
Practice and Procedure : petition dismissed without prejudice where construc-
tion project is rapidly nearing completion and where it appears that civil
engineers, employed on the project and comprising the unit sought, will no
longer be employed by the Companies within the next one or two months.
Mr. Bertram Diamond, for the Board.
Mr. Philip C. Wise, of St. Louis, Mo., for the Companies.
Mr. Joseph R. Gamble, of St. Louis, Mo., for the Union.
Mr. Robert R. Hendricks, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On November 27, 1941, International Federation of Technical Engi-
neers', Architects' and Draftsmen's Union, Local 23, affiliated with the
American Federation of Labor, herein called the Union, filed with the
Regional Director for the Fourteenth Region (St. Louis, Missouri) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Fruco Construction Com-
pany,' St. Louis, Missouri, Fruin-Colnon Contracting Co., St. Louis,
Missouri, and The Massman Construction Company, Kansas City,
Missouri, herein jointly called the Companies, and requesting an in-
vestigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On December 1, 1941, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act,
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 2, as amended, ordered an investigation and
1 Referred to herein as Fruco.
38 N. L R. B., No. 183.
991
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On December 6, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Companies and the
Union. Pursuant to notice, a hearing was held on December 11, 12,
13, 15, and 16, 1941, at St. Louis, Missouri, before Henry J. Kent, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Companies and the Union were represented and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing, the Trial Examiner
made various rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Fruco Construction Company, a Missouri corporation, is engaged,
together with Fruin-Colnon Contracting Co. and The Massman Con-
struction Company, also Missouri corporations, in the construction
of a multiple-unit ammunition plant 2 at St. Louis, Missouri. By
virtue of "an arrangement" between the three companies, Fruco is
the "operating corporation" and is performing the entire construction
work.3 All the workmen on the project are, apparently, the employees
of Fruco. The work is being done under contract with the United
States Government 4 and under the direction and supervision of the
local United States Army Project Engineer. The ammunition plants
will not be operated by any of the construction Companies.
It was disclosed at the hearing that the total cost of the construc-
tion work being done by the Companies would be between 50 and 85
million dollars, and that the cost of the building material being used
in the construction project would be approximately 50 percent of the
3 The construction project entails the building of three units :-Plants I and II and a "core
plant."
3 The record is not entirely clear as to just what part in the venture the other two corpo-
rations are taking Counsel for the Companies stated at the hearing that the association
of Fruco with the other two corporations "was arranged through the insistence of the Gov-
ernment, rather than through any mutual arrangement prior to that date, and they have
associated in this project after negotiations, as having . . the financial responsibility
and the technical training to construct a project of this kind."
4 The primary contract for Plant I was entered into on December 11, 1940 ; supplemental
contracts for the core plant and Plant II were entered into on April 19, 1941, and June 28,
1941, respectively -
FRUCO CONSTRUCTION COMPANY 993
total cost. Approximately 10 percent of the construction material is
obtained from points without the State of Missouri.
It was disclosed at the hearing that two of the three plants under
construction were then "substantially complete," and that the third
plant was, as of December 15, 1941,-approximately half-completed.
As regards this third plant, the contract provides for "an estimated
completion date as of April 1, 1942." 5 There was further testimony
at the hearing that the peak of employment on the construction work
had already been passed, and that the number of employees of Fruco
would continue to drop rapidly' The construction manager testified
that within a few weeks there would be a "rapid decline" in the num-
ber of civil engineers T (the employees on whose behalf the petition
herein was filed) employed on the project and that "by the first of
April 1942, we may have nobody." There is nothing in the record
indicating that Fruco's present employees will be reemployed by it
or by the other Companies following completion of the St. Louis
project.8
Since the construction work on the project is now rapidly nearing
completion, and since it,appears that Fruco will have laid off all or
most of its employees by the end of February or March 1942, we are of
the opinion that it will serve no useful purpose to proceed with a
determination of representatives at the present time.
Under the circumstances, the present petition will be dismissed with-
out prejudice.
ORDER
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby orders that the petition for investigation and
, At the close of the hearing , counsel for the Companies stated that it was his understand-
ing that the completion date for this unit had been moved ahead to March 1, 1942.
8 The greatest number of workers employed on the construction project was 15,000. At
the dates of hearing there were approximately 13,500 employees.
'' There were approximately 150 civil or technical engineers employed by Fruco at the
dates of hearing.
8 It was stated at the hearing that the three Companies were engaged in no other joint
work and that none was then contemplated With but a few exceptions , none of the civil
engineers presently employed on the project had ever been pi eviously employed by any of the
Companies.,
8Cf Matter of The Ohio Public Service Company and International Brotherhood of Elec-
trical Workers , A P. L., 36 N. L. R B. 1269 , wherein construction workers were ex-
cluded from the appropriate unit on the ground that the construction work then being
undertaken by the Company would be completed and all or most of the construction workers
laid off within a very short time following the entering of the Board 's decision . In view
of the fact that additional construction work , entailing reemployment of some of the former
construction workers , was anticipated within the following few months, the Board provided,
in that case , that the exclusion would not prejudice the right of either of the unions therein
involved to file a new petition with respect to the construction woikeis when the Company
resumed its construction operations
438861-42-vol. 38-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification of representatives of employees of Fruco Construction
Company, St. Louis, Missouri, Fruin-Colnon Contracting Co., St.
Louis, Missouri, and The Massman Construction Company, Kansas
City, Missouri, filed by International Federation of Technical Engi-
neers', Architects' and Draftsmen's Union, Local 23, A. F. L., be,
and it hereby is, dismissed.