Graver Construction Co.

National Labor Relations Board - Board Decisions

Aug 19, 1957

118 N.L.R.B. 1050 (N.L.R.B. 1957)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For these reasons, I would apply the traditional union test to the
severance of technical employees , and since the Petitioner is admittedly
not a union which traditionally represents technical employees, I
would dismiss the petition.
Graver Construction Company and Teamsters, Chauffeurs &
Helpers Local 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America , AFL-CIO,
Petitioner
Paul Smith Construction Company and Teamsters, Chauffeurs &
Helpers Local 79, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, AFL-CIO,
Petitioner
Cleveland Electric Company and Teamsters, Chauffeurs &
Helpers Local 79, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America , AFL-CIO,
Petitioner
Diversified Builders, Inc. and Teamsters, Chauffeurs & Helpers
Local 79, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, AFL-CIO, Petitioner
B. B. McCormick & Sons and Teamsters, Chauffeurs & Helpers
Local 79, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , AFL-CIO, Petitioner
Patrick Air Force Base Contractors Association, Petitioner and
Teamsters, Chauffeurs & Helpers Local 79, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, AFL-CIO. Cases Nos. 1•-RC-125, 12-RC-130,
12-RC-131, 12-RC-135, 12-RC-146, and 12-RM-5. Augu8t 19,
1957
DECISION, ORDER, 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
Martin Sacks, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.'
1. Patrick Air Force Base Contractors Association, hereinafter
referred to as the Association, Paul Smith Construction Company,
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Leedom and Members Bean and Jenkins].
The Union 's request for oral argument is denied as it does not appear to be necessary in
the light of the record and briefs.
118 NLRB No. 146.
GRAVER CONSTRUCTION COMPANY 1051
hereinafter referred to as Smith , Diversified Builders , Inc., herein-
after referred to as Diversified , and B . B. McCormick & Sons, Inc.,
hereinafter referred to as McCormick, and the Union stipulated that
Smith and McCormick each performs services pursuant to defense
contracts in amounts in excess of $200,000 annually , and that Diversi-
fied is a corporation located outside the State of Florida which per-
forms services in the State of Florida valued in excess of $50,000
annually. Accordingly , the Board finds that Smith, Diversified, and
McCormick are engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert jurisdiction
herein. ' In view of the finding below that there is no question con-
cerning representation raised by the petition filed in Case No. 12-RM-
5, the Board finds it unnecessary to determine herein whether the
Association constitutes a single Employer over which it would assert
jurisdiction.
The record lacks sufficient evidence to determine whether the
Board would assert jurisdiction over Graver Construction Company,
hereinafter referred to as Graver , and Cleveland Electric Company,
hereinafter referred to as Cleveland . In the case of Graver, the
Union moved to withdraw its petition at the hearing and indicated in
its brief that no question concerning representation exists between
the Union and Graver because since the close of the hearing it has
executed a contract with Graver covering the employees at issue. As
Graver has not taken issue with the motion to withdraw or with this
statement in the Union brief, we will grant the motion to withdraw
and find it unnecessary to consider further the Graver petition (Case
No. 12-RC-128 ). As for Cleveland , as indicated below, no similar
basis for disposing of the petition pertaining to it appears, and it
therefore will be essential to determine whether the Board will assert
jurisdiction over Cleveland. Accordingly , in order to avoid delaying
the other petitions with which it has been consolidated , we will sever
Case No. 12-RC-134, and proceed sel9arately therein.
2. The labor organization involved claims to represent certain
employees of the Employers.'
3. In Case No. 12-RM-5 the Association contends that the Union
has claimed to represent in a single unit all motor vehicle drivers and
certain other employees of all the Employer members of the Associa-
2 Maytag Aircraft Corp., 110 NLRB 594; The T. H. Rogers Lumber Company, 117 NLRB
1732. The Union contends that the Board should decline to assert jurisdiction in the build-
ing and construction industry for reasons which appear to be the same as those rejected
by the Board in Plumbing Contractors Association of Baltimore , Maryland , 93 NLRB 1081,
and Heating , Piping & Air Conditioning Contractors , Cincinnati Association, 110 NLRB
261. For the reasons set forth therein , this contention is rejected.
9 Brevard County Building and Construction Trades Council was permitted to intervene
at the hearing for the purpose of contesting the appropriateness of the unit sought in
Case No. 12-RM-5.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion at Patrick Air Force Base and Cape Canaveral, Florida.4 How-
ever, the record is devoid of any evidence that such a claim was ever
made by the Union. Apart from the filing of the petitions by the
Union to represent in separate units the drivers of 3 of the 8
Association members and of 2 subcontractors, the only evidence of a
claim in the record appears in the testimony of J. T. McCormick to
the effect that the Union sought recognition for McCormick's em-
ployees.' While the Association did appoint a committee on April
18, 1957, to handle the Teamsters problem and there were some com-
munications between the committee and the Union, it appears that the
individual claim or claims made by the Union, rather than any claim
for an Associationwide unit, were referred to the committee and were
the subject of their communications. This conclusion not only appears
from the record but is, in effect, conceded by the statement of facts in
the Association brief. Accordingly, in the absence of any claim by
the Union to represent the employees of all Association members in
a single unit, we find that no question concerning representation is
raised by the Association petition, and we shall dismiss it accordingly.'
In Cases Nos. 12-RC-130, 12-RC-135, and 12-RC-146, the Union
petitioned to represent separate units of truckdrivers employed by
Smith, Diversified, and McCormick at the Base. At the hearing the
Employers moved to dismiss these petitions on the grounds of inappro-
priate unit. The Union did not oppose the motion but additionally
moved to withdraw its petitions. At the same time, however, the Un-
ion asserted that it still had an interest in and represented the em-
ployees in the units set forth in its petitions. In addition, prior to the
hearing herein the Union was picketing near the entrances of Patrick
Air Force Base for recognition by at least one of the Employers in-
volved. Although the picketing has been barred by a temporary
State court injunction since the first day of the hearing, there is noth-
ing to indicate that it will not resume if and when the injunction is
dissolved. In view of the Union's continuing claim to represent the
employees covered by its petitions and the likelihood that the Union
will resort to economic action to gain recognition if no elections are
held, we will deny the Union's motion to withdraw and will consider
the petitions on their merits.' As we find below that the units sought
by the Teamsters are appropriate, the Employers' motion to dismiss is
denied, and we find that questions affecting commerce exist in Cases
Nos. 12-RC-130, 12- RC-135, and 12-RC-146 concerning the repre-
4 Patrick Air Force Base and Cape Canaveral Missile Project are hereinafter referred to
collectively as the Base.
6 While Grover Carter of Smith also testified that he met with union representatives prior
to his appointment to an Association committee to handle the Teamsters problem, there is
no indication in the record as to what claim if any was made at that time.
6 Busch & Sons, Inc., 98 NLRB 809 ; see also Indegro, Inc ., 117 NLRB 380.
7 Standard Automotive Manufacturing Company, 109 NLRB 720.
GRAVER CONSTRUCTION COMPANY 1053
sentation of certain employees of the Employers within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
4. The Union seeks to represent all dump, concrete mixer, cement
transport, and flat bed truckdrivers employed by Smith; all flat bed
and dump truckdrivers employed by Diversified; and truckdrivers
and helpers employed by McCormick. Although it is not entirely
clear from the record, it appears that all three units would include all
employees of the Employers who devote the principal portion of their
time to driving trucks and allied functions e As the Board customar-
ily finds such units appropriate,' we find that the following units of
employees at Patrick Air Force Base and the Cape Canaveral Missile
Project, Cocoa, Florida, are appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the Act: 10
A. All •truckdrivers and truckdriver helpers employed by Paul
Smith Construction Company, excluding all other employees, guards,
and supervisors as defined in the Act.
B. All truckdrivers and truckdriver helpers employed by Diversi-
fied Builders, Inc., excluding all other employees, guards, and super-
visors as defined in the Act.
C. All truckdrivers and truckdriver helpers employed by B. B. Mc-
Cormick & Sons, Inc., excluding all other employees, guards, and
supervisors as defined in the Act.
5. The Union contends that the Board should not direct any election
herein because of the short duration of the Employers' contracts and
instability of employment at the Base. In the event that elections are
directed, however, it contends that the Board should establish a longer
eligibility period than usual.
As for the duration of the Employers' operations on the Base, the
record indicates that McCormick has been on the Base since the
summer of 1956 and has a lease to operate a ready-mix concrete business
on the Base with 2 years more to run. Smith has had contracts at the
Base for the past 6 years and presently has contractual commitments
which would require 10 months of full scale effort from the date of the
hearing to complete. In addition, it is probable that it will obtain new
contracts by the time its present contracts expire. Diversified came
onto the Base a few months before the hearing, taking over the con-
tract of another contractor. The record does not indicate the expected
" The units sought would clearly exclude employees who drive trucks incidentally to the
performance of other duties.
9 Lew is & Bowma n. Inc., 109 NLRB 796.
'o The Union seeks to have the unit description exclude any truckdrivers who fall within
any other craft union's jurisdiction. We reject this request as the Board does not base unit
determinations upon such considerations. See Comfort Slipper Corporation, 111 NLRB
188. However, as indicated above employees who drive trucks only incidentally to other
duties are excluded from the unit , and to the extent that any other union may actually
represent under contract employees falling within the unit description , such employees are
excluded from the units.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
length of time for completion of that contract nor whether Diversified
intends to seek other contracts to perform after it is completed.
As for stability of employment, the parties agreed at the hearing
to permit representatives of the Board to extract information from the
payroll records of the Employers for use in determining the issue and
the eligibility period to be used in the event that an election is
directed." This information indicates that during the period from
November 1956 through May 1957, McCormick had between 32 and 46
truckdrivers on its payroll in any 1 month. From July until November
when McCormick operations were commencing, the number ranged
from 6 to 29. During the period from June 1956 through January
1957, Smith had from 11 to 16 truckdrivers on its payroll in any 1
month, and from February through May the number ranged from 20
to 26. As for Diversified, it appears.that during the 4 months it oper-
ated on the Base prior to the hearing, it employed 4 to 5 truckdrivers
monthly. Under these circumstances, we conclude that there is con-
tinuity of the Employers' operations on the Base and the stability of
truckdriver jobs is sufficiently assured to proceed with elections
herein."
As for the eligibility period to be used for purposes of the elections,
while there is some general testimony to the effect that there is a pool
of truckdrivers from whom the various contractors on the Base draw
according to their needs, the information gathered after the hearing
indicates that the truckdrivers have not worked for the contractors
on an intermittent basis but rather have worked steadily for a single
contractor from the start of their employment with him and with few
exceptions have gone off the payroll permanently after no more than
one short break in service and usually none. In addition, although
Smith and McCormick have employed a number of casual employees,
almost half the number of employees employed by Smith since June
1956, and over a third of those employed by McCormick since July
1956, were employed by these Employers as of the last payroll period
covered by the information submitted. Similar facts appear as to
Diversified. In view of the fact that it does not appear likely that
employees who have left the employment of the Employers will return
in any substantial numbers, and as it appears that a substantial num-
11 The parties entered this agreement with the understanding that they would be fur-
nished for use in briefing any analysis of this information which the Board might have
made for use in this decision . After the close of hearing , the Board granted the parties
until July 25 , 1957, since past , to file briefs , and indicated that in the event the Board
determined an analysis of the information necessary and comments thereon also necessary,
time would be accorded to all parties to comment. However as the Board does not find
it necessary to make any analysis of this information apart from that set forth herein,
which can be obtained by simple inspection of the information furnished the Board, it
deems it unnecessary to receive additional comment on this issue.
12 The Girdler Corporation, 96 NLRB 894 ; Machinery Movers and "rectors Division,
Michigan Cartagentien 's Association, 117 NLRB 1778,
PINE INDUSTRIAL RELATIONS COMMITTEE, INC. 1055
her of employees will be entitled to vote under the Board's usual
eligibility rules, we perceive no reason to depart therefrom.13
[The Board dismissed the petition in Case No. 12-RM-5 and granted
the request to withdraw the petition in Case No. 12-RC-128 and
granted with prejudice the filing of a new petition for a period of 6
months from the date of this Order, unless good cause is shown why
the Board should entertain a new petition filed prior to the expiration
of such period.]
[The Board severed the petition in Case No. 12-RC-134.]
[Text of Direction of Elections omitted from publication.]
13 Cf. Cities Service Oil Co. of Pennsylvania, 80 NLRB 1512.
Pine Industrial Relations Committee , Inc.; Brooks-Scanlon, Inc.;
Ponderosa Mouldings, Inc., d/b/a Ponderosa Lumber Sales;
Philip Dahl and Sam Johnson , Co-Partners, d/b/a Tite Knot
Pine Mill ; Philip Dahl and Harold D. Barclay, Co-Partners,
d/b/a Harold Barclay Logging Company , and Red Blanket
Lumber Company, Inc. and International Woodworkers of
America, Local Unions 6-7 and 6 -122, AFL-CIO. Cases Nos. 36-
CA-486 and 36-CA-627. August 30,1957
DECISION AND ORDER
On March 28, 1956, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents 1 had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices as alleged in the complaint, and recommended that
these particular allegations be dismissed. Thereafter, the Respond-
ents, the Charging Unions,' and the General Counsel filed exceptions
to the Intermediate Report, together with supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
I The Respondents , namely , Pine Industrial Relations Committee, Inc.; Brooks-Scanlon,
Inc.; Ponderosa Mouldings , Inc., d /b/a Ponderosa Lumber Sales ; Philip Dahl and Sam
Johnson, Co -Partners , d/b/a Tile Knot Pine Mill ; Philip Dahl and Harold D. Bar clay,
Co-Partners , d/b/a Harold Barclay Logging Company ; and Red Blanket Lumber Company,
Inc., are herein called PIRC , Brooks-Scanlon, Ponderosa, Tite Knot , Barclay , and Red
Blanket , respectively.
2 The Charging Unions are Locals 6-7 and 6-122. International Woodworkers of
America , AFL-CIO, herein called Local 6-7 and Local 6-122 , respectively.
118 NLRB No. 142.