Greene Construction Co.

National Labor Relations Board - Board Decisions

Sep 14, 1961

133 N.L.R.B. 152 (N.L.R.B. 1961)

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning the matter at that time . The change was made (as it was here ). Subse-
quently, in that case ( as well as this one), the union requested the company to
bargain for those drivers who had signed the lease agreements there ( the franchise
agreements here ). Also there, the company continued to bargain with the union
for its other employees, just as the Company has offered to do here. There, the
Regional Director refused to issue a complaint and the General Counsel sustained
that action. The General Counsel said that under such circumstances the company
was under no statutory obligation to bargain with the union , and that in the absence
of any evidence that the sale of the trucking operation was discriminatorily motivated,
further proceedings were unwarranted.
In this case, if anyone is guilty of thwarting the purposes of the Act, it is the
Union and Bowers, for it is Bowers who has said that his Union will not represent
the individual franchisees. The Company, in my view, did everything in its power
in informing the Union, and in offering to consult with the Union, but the Union
flatly stated that it would not negotiate any contract for a franchise arrangement.
In view of these circumstances, I find that the Company discharged its obligations
to bargain under the Act.7
Also, in Shamrock Dairy, Inc., et al., 124 NLRB 494, the Board considered the
question of whether the union had waived any bargaining rights it might have had
with respect to the institution of the so-called independent distributorship plan.
Here, the facts from which the inference of waiver may be drawn are much stronger
than in the Shamrock Dairy case. Here, the union representatives agreed that both
the institution of the franchise arrangement was a "good idea" and that the dinner-
meeting for the purpose of explaining the francise agreement was also a "good idea,"
and they did not object to either. Further, in the union meeting Bowers refused
to represent those men who might want a franchise arrangement. Upon all the
evidence, I find that the Union waived its right to bargain on the subject of the
institution of the franchise arrangements.
Upon the credible testimony of Ellis, I find that Dictor was hired on the under-
standing that he would be offered and would accept one of the franchises, when that
plan was initiated by the Company. However, on approximately January 15, 1960,
when the Company offered him a franchise route he refused it, and thereupon was
told by Ellis that the Company no longer required his services. But, it is admitted
by Dictor, that on the next day Ellis called him saying that he wanted to talk to
Dictor and his wife on the subject of the Santa Barbara franchise, which Dictor
had requested. An appointment was made for the purpose of discussing this subject,
but Dictor did not keep the appointment. I find that it was Dictor, and not the Com-
pany, who brought his employment to an end.
The complaint alleges that certain specific acts of the Company constitute viola-
tions of Section 8(a)(1) of the Act. In my judgment, these specific acts are mere
components of the whole controversy, and are merged in the broader issue of the
case, namely the alleged violation of Section 8(a) (5) by the Company. Since I have
found that the course of conduct of the Company does not constitute a violation of
Section 8(a)(5) it follows, and I find, that in the context of circumstances here
established by the evidence, the said specific acts of the Company are not in violation
of Section 8(a) (1) of the Act.
For all the above reasons, I find that the General Counsel has failed to prove by
a preponderance of the evidence that the Company committed any of the unfair labor
practices alleged in the complaint. It is recommended that the same be dismissed
in its entirety.
7 Times Publishing Company, at al, 72 NLRB 676
Greene Construction Company, and Tecon Corporation , a joint
venture 1 and District 50; United Mine Workers of America,
Petitioner. Case No. 5-RC-3408. September 14, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National.Labor
Relations Act, a hearing was held before Louis Aronin, hearing officer.
I The name of the Employer appears as amended at the hearing.
133 NLRB No. 11.
GREENE CONSTRUCTION CO., -AND TECON CORP . 153
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
Upon the entire record in this case,2 the Board finds :
I. The Employer is engaged in commerce within the meaning of
the Act. , , , , 1 ,
2. The labor organizations involved ,claim to represent certain em-
ployees of the Employer .3
3. A question affecting commerce exists concerning the represents-,
tion -of employees of the Employer within the meaning of Section
9(c) (1) and,'Section 2(6) and-(7) of the Act.
4. The Employer, a joint venture,. is engaged in the construction
of an earth dam in Dickenson County, Virginia, which involves the
clearing of land, blasting of rock, movement 'and packing of earth
and rock, and the construction of spilling gates and towers. The
Employer began the dam project in November 1960, and anticipates
that it will be -completed in 21/2 years from that time. There is no
history of collective bargaining.
The Petitioner seeks a unit of all employees employed by the Em-
ployer on'the construction project, excluding office clerical employees,
guards, watchmen,, professional employees, and supervisors. The
Employer agrees that this unit is appropriate. The Operating Engi-
neers seeks to represent a separate unit of all power equipment opera-
tors, mechanics,' mechanic helpers, oilers, and welders, excluding all
other employees.
The unit sought by the Petitioner is presumptively appropriate, as
it encompasses all employees "of the Employer at this location.4 With
respect to .the unit sought by the Operating Engineers, the record
shows that the power equipment operators operate heavy duty power
9 The Intervenors' request for oral argument is hereby denied inasmuch as the record
and,the Intervenors ' brief adequately present the issues and positions of the parties.
8 At the hearing, the Construction & General Laborers Local 980, AFT--CIO, herein-
after referred to as the Laborers , and the International Union of Operating Engineers,
Local 158 , AFL-CIO , hereinafter referred to as the Operating Engineers , each intervened,
without objection by any party, on the basis of a sufficient showing of interest . Laborers
and Operating Engineers , together with the Iron Workers Local 769 and Brotherhood of
Carpenters and Joiners , Local 319, herein referred to collectively as the Joint Intervenor,
intervened jointly, also without objection , for the purpose of appearing jointly on the
ballot in the event the Board found that only a unit of all employees could be appropriate.
In -addition , Iron Workers Local 769 and Brotherhood of Carpenters and Joiners,
Local 319 , moved to intervene separately for purposes of seeking separate craft units of
employees falling within their respective jurisdictions . We affirm the hearing officer's
denial of their motions because neither made a showing of interest among the employees
it sought . Mrs. Tucker's Products, etc, 106 NLRB 533, 536 . Also, the hearing officer
properly rejected evidence which the Laborers sought to adduce in support of its conten-
tion that a separate unit of employees within its jurisdiction is appropriate , as its showing
of interest among such employees was less than 30 percent . See Dierks Paper Company,
120 NLRB 290
'Southern Paperboard Corporation, et al , 112 NLRB 302, 304.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment used in construction, such as bulldozers and power shovels,'
under the supervision of the bulldozer operator foreman. The oilers
oil and grease power shovels. The mechanics, mechanic helpers, and
welders repair and maintain the power equipment under the super
vision of the master mechanic. Although the work done by these
employees requires varying degrees of skill, some of which is not
acquired without several years experience, we find under the facts and
circumstances here present that the overall unit is the appropriate unit:
As set forth in footnote 3, above, the Iron Workers sought to i'nter-
vene in this proceeding for the purpose of representing a craft unit of
ironworkers, but was not permitted to do so. On the date of the hear-
ing the Employer had not yet hired any ironworkers, and there is
no evidence in the record as to the functions they will perform. Under
these circumstances, we shall not make a determination as to them
at'this time.5 -
In view of the foregoing, and under the circumstances of this case,
we find a unit of all employees at the project is alone appropriate.
The parties are in disagreement as to the unit placement of the labor
foreman, who the Petitioner and Employer contend is a supervisor;
the bulldozer operator foreman, who the Employer contends is a
supervisor; and the carpenter foreman, who the Employer and Inter-
venors contend is a supervisor.
The labor foreman is without authority to hire employees, but he
can effectively recommend such action, and he is authorized to fire and
discipline employees. The bulldozer operator foreman assigns and
directs the work of the power equipment operators. The record shows
that these duties require the bulldozer operator foreman- to exercise
independent judgment. He is also authorized to discipline employees
and give them time off. The carpenter foreman is without authority
to hire, fire, transfer, suspend, or lay off employees or effectively to
recommend such action. The record shows the carpenter foreman
merely directs the work of the other carpenters in a routine fashion,
acting as a conduit of orders given him by his supervisor. In view of,
the foregoing, we find the labor foreman and bulldozer operator fore-
man are supervisors within the meaning of the Act, and shall exclude
them from the unit herein found appropriate. We further find that
the carpenter foreman is not a supervisor and shall include him in
the unit.
Accordingly, we find the following employees of the Employer con-
stitute a unit appropriate for the purposes of collective bargaining
within Section 9 (b) of the Act : All employees employed by the Em-
ployer at its dam construction project at Dickenson County, Virginia,
including the carpenter foreman, but excluding office clerical em-
5 Ulrich, Manufacturing Company, 127 NLRB 239, 241. See Mrs. Tucker's Products,
supra, at 535-536.
E. F. DREW & CO ., INC. 155
ployees, guards, watchmen, professional employees, the labor foreman,
the bulldozer operator foreman, and all other supervisors as defined
in the Act.6
5. On April 12, 1961, the date of the hearing, the Employer had 61
employees in the above unit. Of these 61, 8 were carpenters, 7 were
power equipment operators, 1 was a welder, 1 was an oiler, 1 was. a
mechanic helper, 2 were heavy duty mechanics, 2 were wagon drillers,
5 were power tool operators, 1 was an air tool operator, 1 was a form
setter, 1 was a powderman, and 31 were laborers. The Intervenors
contend that an election should not be held at this time, because a
representative complement of employees is not now employed, but
should be deferred until October 1, 1961. The Employer. anticipates
that at that time it will have increased its work force to between 176,
and 190 employees and will. maintain this employment level for a
period of 6 months. Thereafter, the number of employees will de-
crease to approximately 100 and continue at that.leveluntil the dam is
completed. The Employer also anticipates that. as the work on the,
dam progresses it will add workers in job categories, such as cement
finishers, steelworkers, road grader operators, crusher operators, and
cement mixer operators, which had no employees in them at: the time
of the hearing. We find, however, that when the election herein di-
rected takes place, employment will be at or near its peak and the
Employer's work force will constitute a substantial and representative
complement of employees. Accordingly, we shall direct an immediate
election and eligibility will be determined by the usual payroll 7
As we have found that a. unit of all employees is alone appropriate,
we shall grant the request to place the name of the Joint Intervenor on
the ballot.'
[Text of Direction of Election omitted from publication.]
6 The parties agree that the project manager, project superintendent , and master me-
chanic are supervisors and that the engineers are professional and should be excluded
as such.
7 See Hussmann Refrigerator Company, 125 NLRB 621 , 623.
8 If successful , the Joint Intervenor will be certified jointly. The Employer may then
insist that it bargain jointly for the employees it represents.
E. F. Drew & Co ., Inc.' and United Packinghouse , Food & Allied
Workers, AFL-CIO, Petitioner . Case No. 22-RC-1179. Sep-
tember 14, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, ahearing was held before Jonas Aarons, hearing officer.
1 The Employer's name appears as amended at the hearing.
133 NLRB No. 19.