Hydro Constructors Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1967

168 N.L.R.B. 105 (N.L.R.B. 1967)

HYDRO CONSTRUCTORS INCORPORATED 105
Hydro Constructors Incorporated and International
Laborers ' Union of North America , Local 665,
Petitioner . Case 2-RC-14702
November 6,1967
DECISION ON REVIEW
BY MEMBERS FANNING, BROWN, AND JENKINS
equipment, as dump truck drivers, or as laborers.
Each category of employees receives a different
rate of pay. Dump truck drivers generally receive
40 cents per hour more than laborers. The Em-
ployer's secretary testified that the Employer had
three dump truck drivers, one assigned to each of its
three crews, and that they spent approximately 50
percent of their time in doing work other than their
primary function. However, it was clear that the
witness did not base his estimate of their truck driv-
On July 11, 1967, the Regional Director for Re- ing time on personal observation as he conceded
gion 2 issued a Decision, Order, and Direction of that he was infrequently at the worksites. James
Election, in which he found, in the above-captioned Wilson, one of the employees hired as a dump truck
case, that a unit of laborers and truckdrivers was driver, testified from his work experience that, on
appropriate. I Thereafter, the Petitioner filed a time- the average, he spent roughly 75 percent of his time
ly request for review of the Regional Director's driving a dump truck for the Employer. He also
Decision on the ground that his inclusion of stated that Louis Booker and Clarence Revis were,
truckdrivers in its requested unit of laborers was a like himself, regular dump truck drivers, each of
departure from R. B. Butler, Inc., 160 NLRB 1595. whom was assigned to one of the other two crews,
By telegraphic order dated September 6, 1967, the and that Percell Smith and Dave Ferris, although
National Labor Relations Board granted review. not regular drivers, did a lot of dump truck driving.
Pursuant to the provisions of Section 3 (b) of Dave Ferris testified that during an early period
the National Labor Relations Act, as amended, the when he was assigned as a driver, he spent 85 per-
National Labor Relations Board has delegated its cent of his time driving, but that at present he
powers in connection with this case to a three- spends most of his time in his assigned primary
member panel. function as an operator of heavy equipment. As to
Upon consideration of the entire record in this Percell Smith, the Regional Director found that as
case with respect to the issues under review, the he operates a loader at least 50 percent of the time
Board makes the following findings: and is paid more than the laborers, his primary job
The Employer is engaged in the installation of un- is that of an operator, and he included him in the
derground water service pipes. The Regional unit of operators. No review was sought of that
Director denied the requests of the Petitioner and determination. In view of the foregoing and the en-
the Teamsters for separate units of the Employer's tire record, we find that the Employer has three em-
laborers and truckdrivers, respectively, on the basis ployees assigned as dump truck drivers and that,
of his finding that only a unit of both laborers and contrary to the Regional Director's finding, they are
truckdrivers was appropriate, and he directed an predominantly engaged in that function.
election in such unit in the instant case, placing the Although the dump truck drivers and laborers
Teamsters on the ballot. In concluding that neither work together on the same crews under common
requested group constitutes a distinct and supervision, share similar working conditions, and,
homogeneous segment of the Employer's em- on occasion, perform each other's functions, the
ployees, he relied on his finding that employees Board stated in the R. B. Butler case that, "in the
classified as drivers devote at most only about 50 construction industry, collective bargaining for
percent of their time to driving and the rest to the groups of employees identified by function as well
performance of laborers' duties. He also found that as those groups identified by craft skills has proven
the interests which the truckdrivers shared in com- successful and has become an established ac-
mon with laborers were sufficient to preclude the comodation to the needs of the industry and of the
exclusion of the drivers from a unit of laborers. As employees so engaged." As the requested laborers
above indicated, the Petitioner contends that the in the instant case are engaged a substantial majori-
Regional Director has departed from the Board's ty of their time in laborers' duties and the three
policy established in the R. B. Butler case. dump truck drivers, as above found, are not, and as
Our review of the record discloses that the Em- the laborers receive substantially less pay than the
ployer hires employees to perform different primary r Employer's other employees and are traditionally
functions: as mechanics, as operators of heavy represented in this type of laborers' unit by locals of
I Cases 2-RC-14695 and 2-RC-14703, were consolidated with the in-
stant case for purposes of hearing and decision The Regional Director, in
the former case, dismissed the petition of Teamsters Union, Local 191, af-
filiated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America; herein referred to as the Team-
sters, for a separate unit of truckdrivers, and, in the latter case, found ap-
propriate and directed an election in a unit of the Employer 's mechanics
and operators of heavy equipment sought to be represented by Interna-
tional Union of Operating Engineers , Local 478, AFL-CIO. As no
requests for review were filed with respect to the Regional Director's
findings in those two cases , the instant case is severed therefrom for pur-
poses of our decision on review.
168 NLRB No. 19
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Petitioner's International throughout the United
States, we conclude that a unit of the laborers alone
is appropriate herein.2
Accordingly, we shall remand the case to the Re-
gional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, except that the eligi-
bility date therefor shall be the payroll period im-
mediately preceding the date hereof.3
2 The case of E. H. Koester Bakery Co., Inc., 136 NLRB 1006, and
others involving the unit placement of truckdnvers in production and
maintenance units outside the building and construction industry, which
were relied on by the Regional Director as support for his inclusion of the
truckdnvers in the requested laborers' unit are inapposite Whether the
excluded dump truck drivers alone constitute an appropriate unit is an
issue not before us. As previously noted , the Teamsters filed no request
for review of the Regional Director's dismissal of its petition for such a
unit In view of our finding that a unit limited to laborers is appropriate,
and in the absence of any indication that the Teamsters has any interest in
such unit , the Regional Director shall exclude its name from the ballot in
the election
7 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 2 within 7 days after the date of this Decision and
Direction of Election. The Regional Director shall make the list available
to all parties to the election . No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed. Excelsior Underwear
,Inc, 156 NLRB 1236