Guy H. James Construction Co.

National Labor Relations Board - Board Decisions

Jun 18, 1971

191 N.L.R.B. 282 (N.L.R.B. 1971)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guy H. James Construction Company and Interna-
tional Union of Operating Engineers , Local No. 181,
AFL-CIO, Petitioner . Case 9-RC-8478
June 18, 1971
DECISION ON REVIEW
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 6, 1970, the Regional Director for Region
9 issued a Decision and Order in the above-entitled
proceeding in which he dismissed the petition and
found that the collective-bargaining agreement entered
into between the Employer and the Intervenor' on
December 1, 1969, was not a prehire agreement and
constitutes a bar to an election, pursuant to the petition
herein filed March 9, 1970, among any or all employees
falling within the contract's coverage.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions , Series 8, as amended, the Petitioner filed a timely
Request for Review of the Regional Director's Deci-
sion and Order on grounds that he made factual
findings which are clearly erroneous on the record. By
telegraphic order dated September 9, 1970, the Na-
tional Labor Relations Board granted the Petitioner's
Request for Review. Thereafter, the Intervenor filed a
brief on review supporting the Regional Director's dis-
missal by reason of its contract and also argued that the
unit limited to operating engineers , as set forth in the
petition, was inappropriate.
On November 19, 1970, after having reviewed the
entire record, the Board concluded that the issues
raised in the Petitioner's Request for Review and the
Intervenor's brief on review could best be resolved on
the basis of further record evidence and ordered the
case remanded to the Regional Director for the purpose
of reopening the hearing to receive evidence with re-
spect to the involved contract and the hiring procedure,
and any additional evidence which the parties may
wish to present regarding the appropriateness of the
proposed unit.
Thereafter, a hearing was conducted January 11,
1971, before Hearing Officer James H. Stephens. There-
after, only the Employer and Intervenor each filed
briefs with the Board.
1 International Union of District 50, Allied and Technical Workers of the
United States and Canada, herein called the Intervenor, was allowed to
intervene at the hearing on the basis of its collective-bargaining agreement
with the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
The Board has considered the entire record in this
case with respect to the issues under review, and finds
as follows:
The Employer, an Oklahoma corporation, is en-
gaged in heavy construction in several States. In Sep-
tember 1969, it was awarded a contract by the United
States Corps of Engineers to construct a large earth
dam which is known as the Cave Run Reservoir project
located near Salt Lick, Kentucky. The work on the
project began about October 1, 1969. In late September,
the Employer and Intervenor met on several occasions
for the purpose of engaging in contract negotiations
which resulted in a 4-year contract being executed on
October 6, 1969. On this date there were eight em-
ployees working at the project, all of whom had signed
membership cards for the Intervenor.
In November, apparently because of contract bar
considerations, the parties mutually agreed to termi-
nate this contract for a 4-year term and to execute a
new one for a shorter term. As proof of its majority
status, the Intervenor offered to furnish the Employer
designation cards signed by a majority of the mainte-
nance and construction employees at the Cave Run
Reservoir. At this time approximately 24 employees,
including operating engineers, were working in four
general job classifications.
The parties then executed a new 3-year contract
bearing an execution date of December 1, 1969, well
before the filing of the instant petition. As of the June
1970 hearing date approximately 50 employees were
working at the project in six general job classifications.
A peak employment of 51 employees in these six job
classifications was reached the following month. This
contract has been applied.
In the circumstances of this case, we, like the Re-
gional Director, find no merit in the Petitioner's con-
tention that the current contract between the Employer
and Intervenor is a prehire agreement which can not
serve as a contract bar. Instead we view it as a new
agreement based on majority status executed at a time
when there existed an adequate work force (at least 30
percent) and sufficient job classifications (at least 50
percent) as compared with those in existence at time of
hearing. Accordingly, we find that said contract bars
the instant petition and affirm the Regional Director's
dismissal of the petition.
191 NLRB No. 33