Guy. F. Atkinson and J. A. Jones Construction Co.

National Labor Relations Board - Board Decisions

Jun 9, 1949

84 N.L.R.B. 88 (N.L.R.B. 1949)

In the Matter of 1 Guy F. ATKINSON AND J. A. JONES CONSTRUCTION
COMPANY, EMPLOYER and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS , LODGE No. 154, PETITIONER
Case No. 19-RC-138.-Decided June 9, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Patrick H.
Walker, hearing officer of the National Labor Relations Board. The
hearing officer's rulings made at the hearing are free from prejudicial
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 the under-
signed three-member panel [Members Houston, Reynolds, and
Murdock].
Upon the entire record in the case,2 the Board makes the following:
FINDINGS OF FACT
1. The business of the Employer :
Guy F. Atkinson and J. A. Jones Construction Company, herein
called the Employer, is a joint venture engaged in certain construction
work at Richland, Washington, known as the Hanford Project, pur-
suant to a subcontract with General Electric Company, a corporation,
which is the prime contractor for the Atomic Energy Commission.
Guy F. Atkinson, a Nevada corporation, and J. A. Jones Construction
Company, a North Carolina corporation, are the parties to this ven-
ture. During the period from July 29, 1947, to April 16, 1948, the
Employer caused to be purchased and delivered at Richland, Washing-
ton, materials valued at approximately $20,000,000. Of such ma-
terials, approximately $2,500,000 in value were received by the Em-
ployer from points outside the State of Washington, and approxi-
mately $9,500,000 in value originated at points outside the State but
- Names in caption as amended at the hearing.
2 The transcript of the record has been corrected in -accordance with the motion of the
Jingineers herein.
84 N. L. R. B., No. 12.
88
GUY F. ATKINSON AND J. A. JONES CONSTRUCTION COMPANY 89
were shipped to the Employer from points within the State. Title to
all materials produced and fabricated by the Employer and to all
materials purchased and received by the Employer is vested in the
United States of America.
The Employer declined to take any position respecting the juris-
diction of the Board herein. However, International Union of Oper-
ating Engineers, Local 370, AFL, in a motion to dismiss, argues that
the Board should refuse to assert jurisdiction over the building trades,
essentially for the reason that the work is sporadic, variable, and un-
certain. We have previously indicated our disposition to assume juris-
diction over concerns engaged in construction projects similar to the
one in the case before us.3 Moreover, the magnitude of the operations
in this case leaves little doubt as to their substantial effect upon inter-
state commerce. _
Accordingly, we find that the Employer is engaged in commerce
within the meaning of the National Labor Relations Act.
2. The Petitioner; Millwrights and Machine Erectors, Local Union
1699, United Brotherhood of Carpenters and Joiners of America,
AFL, herein called the Millwrights; and International' Union of
Operating Engineers, Local 370, AFL, herein called the Engineers,
are labor organizations claiming to represent certain employees of
the Employer.
3. A question of representation exists concerning the representation
of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of theAct.4
4. The appropriate unit :
Background and bargaining history
Prior to the advent of the Employer at the Hanford Project, the
premises were occupied by the "Dupont Company" which was there
engaged in certain war production operations. The machine shops
in operation under Dupont were substantially the same as those oper-
ated by the Employer, and it appears that the type of work performed
in these shops has remained substantially unchanged. Under Dupont,
the machine shops were originally manned by members of the Mill-
wrights. However, in May 1944, pursuant to the request of the Secre-
tary of War, and the consequent agreement of all concerned, the
employees then working in the machine shops were replaced by em-
ployees supplied by the Petitioner. The Petitioner continued there-
after to be recognized by Dupont as the bargaining representative of
3 Matter of Ozark Darn constructors , 77 N L 11 B 1136.
* The alleged contract currently in existence between the Engineers and the Employer is
not asserted as a bar.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the machine shop employees. The replaced employees were assigned
elsewhere in the plant where they were urgently needed at that time.
On July 28, 1947, the Employer was instructed by the prime con-
tractor to proceed with certain construction work at the Hanford
Project, described as residential construction and a construction camp.
On the following day, the Employer hired its first employees for this
project. From August 14 through August 16, 1947, the Employer
entered into collective bargaining negotiations with Washington
Building Trades Unions acting on behalf of certain American Feder-
ation of Labor unions, including the Millwrights and the Engineers.
The Petitioner was not notified or consulted as to these negotiations.
On August 16, 1947, a contract was executed containing a preferential
hiring clause and providing for the coverage of "all employees who
are members of the signatory unions who are performing work within
the recognized jurisdiction of such unions as the same is defined by the
Building Trades Department of the American Federation of Labor."
In August 1948, this agreement was terminated and replaced by a
new agreement containing substantially the same recognition and cov-
erage provisions.b
Under the August 1947 agreement, the Employer first recognized
the Millwrights as the representative of the machine shop employees.
By January 1948, these employees were removed by the Employer and
the operation of the machine shops thereafter was assigned to em-
ployees represented by the Engineers. This action resulted in a dis-
pute between the Millwrights and the Engineers as to the work juris-
diction over the Employer's machine shops. Attempts by the parties
to resolve this dispute have been unsuccessful.
Contentions of the parties
The Petitioner seeks a unit of all employees of the Employer at the
Hanford Project, Richland, Washington, "performing work generally
recognized as journeymen tool and die makers, journeymen machinists,
journeymen machinist welders, specialists, helpers and apprentices
thereto, including lead men and working foremen employed in the
machine shops, and excluding supervisory employees as defined by the
Act, professional employees, guards and office employees, and all other
employees of the Company."
The Millwrights urges that the Board direct an election among the
employees petitioned for and, if they select the Millwrights, that they
be found to constitute a part of the unit it presently represents, namely,
° The union security provision in the new agreement was made subject to compliance
with the requirements in Section 8 (a) (3) of the amended Act.
GUY P. ATKINSON AND J. A. JONES CONSTRUCTION COMPANY 91
all employees engaged in the installation and repair of permanent pro-
duction machinery. In the alternative, the Millwrights expresses its
willingness to represent separately the employees in the unit sought by,
the Petitioner.
The Engineers moves to dismiss the petition on the ground, inter
alia, that the machine shops in question are an integral part of the con-
struction operations performed by the operating engineers it repre-
sents and that therefore it would be inappropriate to sever the
employees in the machine shops from the existing unit. .
The Employer stated at the hearing that its position in this proceed-
ing is substantially neutral.
The proposed unit of machine shop employees
At the time of the hearing there were in issue 91 employees employed
in 3 separate machine shops.6 These shops, located in widely sepa-
rated areas within the Hanford Project,7 are described as the White
Bluffs machine shop, the 3000 area machine shop, and the 101 building
machine shop. For security reasons, no testimony was elicited with
respect to the specific work performed in the 101 building machine
shop. However, the parties stipulated that the work performed in all
3 machine shops is substantially identical.
These machine shops of the Employer are unusually extensive for
a construction project and are described in the testimony as being
comparable, in equipment and machine tools to that of any large
custom or job machine shop. The work performed in these shops is
divided equally in time and volume between machining parts for
heavy duty equipment and parts for permanent machinery to ba
utilized ultimately for production purposes. In the White Bluffs
area, the Employer also operates a heavy duty repair shop which is
designed for the assembling, dismantling, and repairing of heavy duty
equipment. However, precision machine tools and instruments are
not utilized in this shop. Such work as requires machining is for-
warded from the heavy duty repair shop to the White Bluffs machine
shop.
In the described machine shops, the employees operate on the basis
of work orders, blueprints, instructions, and models supplied by the
9 These employees were assigned the job classification of heavy duty mechanic by the
Engineers when they were referred to the Employer under the terms of the preferential
hiring contract of the Engineers . The same classification is held by other employees
engaged generally in maintenance and repair of heavy duty equipment operated under the
work jurisdiction of the Engineers . Although there is no such classification in the wage
schedule of the contract, the Employer 's pay-roll section distinguishes the employees in the
machine shops as heavy duty mechanic specialists.
'It was testified that the area included in the project is so extensive as to require an
entire day to cover it in the course of an inspection.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer. The work is of precision character and demands an ability
to reach fine tolerances. It was testified than an employee with-
out previous training, experience, and skill would be unable to
perform the required work. The Employer has no apprentice train-
ing program but hires only skilled employees for these machine shops.
There is no dispute, and it is sufficiently evidenced in the record,
that the employees sought herein perform work comparable to that
performed generally by journeymen machinists and tool and die
makers. They are separately housed, separately supervised, and are
not interchanged with any other employees of the Employer.
Thus it is apparent that the machine shop employees sought to
be represented by the Petitioner constitute a well-defined and homo-
geneous craft group. As such, in accordance with established prec-
edent," they would be entitled to an opportunity to indicate their
desires as to separate representation.
Considerable evidence was adduced at the hearing concerning the
respective jurisdictional claims of the Engineers, the Millwrights,
and the Petitioner to the work performed in the machine shops at the
Hanford Project.' We have considered this evidence and find that
it has little relevance to the issues before us. As we have indicated
in past cases,1° such evidence cannot be construed to relieve the Board
of its statutory duty of determining the bargaining unit in the light
of all the relevant facts.
The Engineers contend, in effect, that a separate unit of machinists
in the building and construction industry is not feasible and is in-
herently inappropriate because of the changing character of the
operations. The record before us offers no support for such a proposi-
tion. Nor is it necessary for us to decide such an issue respecting the
entire industry.- In any event, the evidence is sufficient as to the
scope and character of the Employer's machine shop operations and
the reasonable expectation of the continuance thereof to warrant the
rejection of such a contention with respect to this case.
Finally, on the basis of the record, we reject as without merit the
separate contentions that the machine shop employees may not form
an appropriate unit because they are functionally integrated in the
s See, e g , Matter of Jefferson Electric Co , 80 N L R B 6 , Matter of General Electric
Co,80N L R B 169
6 Thus, testimony and documentary evidence was introduced as to certain jurisdictional
awards and rulings of the A F. L Building and Construction Trades Department; and
alleged jurisdictional agreement between the Millwrights and the Petitioner , and the al-
leged custom on the west Coast of the United States as to work jurisdiction over machine
shops on construction projects.
10 See e g , Matter of Consolidated Vultce Aircraft Corporation, 70 N. L R B. 1357
Matter of Philip Morris & Company, Ltd, Inc, 70 N L. if. B 274
11 It is noted that we have previously found appropriate a machinists' unit in this indus-
try. Matter of Ozark Dam Constructors, supra
GUY F. ATKINSON AND J. A. JONES CONSTRUCTION COMPANY 93
construction operations performed by the employees in the respective
bargaining units presently represented by the Engineers and the Mill-
wrights. The Engineers' motion to dismiss is hereby denied in its en-
tirety for the reasons contained herein.
Accordingly, we find that the machine shop employees in question
may constitute a separate appropriate unit for purposes of collective
bargaining. On the other hand, as described above, at the time of the
hearing these employees were included in a larger unit represented by
the Engineers. Also, they have been included in the unit currently
bargained for by the Millwrights. Both the Engineers and the Mill-
wrights have indicated a desire to represent these employees as part
of their respective bargaining groups. There is no persuasive evidence
-showing that it would be inappropriate to include these erflployees in
the present bi igaining unit of the Engineers or in that of the Mill-
wrights. -Therefore, in view of the past bargaining history at the
Hanford Project, and all the circumstances herein, we believe that the
Engineers or the Millwrights, if either is selected in the election, may
appropriately represent the machine shop employees as part of the
respective bargaining units for which they are currently recognized.
However, we shall make no final unit determination at this time but
shall be guided, in part, by the desires of these employees as expressed
in the election hereinafter directed. If the majority of the employees
in the voting group described below select the Petitioner, they will be
taken to have indicated their desire to constitute a separate unit.
Voting group
All employees 12 in the Employer's machine shops in the White Bluffs
area, the 3000 area, and the 101 building 13 at the Hanford Project,
Richland, Washington, excluding office employees, guards, profes-
sional employees, and supervisors.
DIRECTION OF ELECTION 14
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
12 In this group are machine-shop welders whose inclusion in the voting group is not
disputed.
13 On May 3, 1949 , the Regional Director administratively advised us , as follows . "The
only machine shop presently operating is the one referred to as the white Bluffs machine
shop. There are presently 42 employees The other machine shops are not operating
and it appears that they will not reopen " We have taken cognizance of this advice in our
unit determination and are herewith authorizing the Regional Director to proceed with the
conduct of the election , as directed , among the eligible employees in the machine shops
currently in operation
14 Any participant in the election herein may , upon its prompt request to , and approval
thereof by , the Regional Director , have its name removed from the ballot.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the voting group described in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, but excluding those employees who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented, for purposes of,collective bar-
gaining, by International Association of Machinists , Lodge No. 154, or
by International Union of Operating Engineers , Local 370, AFL, or by
Millwrights and Machine Erectors, Local Union 1699, United Brother-
hood of Carpenters and Joiners of America, AFL, or by none.