John McShain, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 180 (N.L.R.B. 1970)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John McShain , Inc. and Local 77, International
Union of Operating Engineers , AFL-CIO, Peti-
tioner. Case 5-RC-6998
August 27, 1970
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer William I.
Shooer of the National Labor Relations Board. All
parties appeared at the hearing and were given full
opportunity to participate therein. On February 12,
1970, the Regional Director for Region 5 issued an
order transferring the case to the Board. The Petition-
er, the Employer, Intervenor Carpenters District
Council of Washington, D.C. (hereafter Carpenters),
and Construction Contractors Council of Washington,
D.C. (hereafter Contractors Council), filed briefs with
the Board.
Pursuant to the provision of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they were
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner claims to represent certain employ-
ees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Employ-
er within the meaning of Section 9(c) (1) and Section
2(6) and (7) of the Act.'
4. The Petitioner requests an election in a unit
of all field engineers, instrument men, rodmen, and
chainmen employed by the Employer in the greater
Washington, D.C., metropolitan area. The Employer,
Carpenters, and Contractors Council contend that
the unit requested is inappropriate because it includes
some but not all employees performing layout work.
' The Employer, the Contractors Council, and Carpenters contend
that Carpenters current collective-bargaining agreement with Contractors
Council, of which the Employer is a member, is a bar to this proceeding
The evidence shows, however, that that agreement does not cover and
has never been applied to the employees sought in this petition It
therefore is not a bar
They also contend that the only appropriate unit
of employees performing layout work is a multiem-
ployer unit of the employees of the members of the
Contractors Council.
The Employer is a Delaware corporation with its
office and principal place of business in Philadelphia,
Pennsylvania. It is engaged in building and construc-
tion in several locations, including the Philadelphia
metropolitan area and the Washington, D.C., metro-
politan area.' In the Philadelphia area it has a single-
employer contract with a local of the Carpenters
union covering its field survey employees. In Washing-
ton it is a member of the Contractors Council, com-
posed of some 75 members, which negotiates and
executes multiemployer contracts with six building
trades unions including the Petitioner and the Carpen-
ters.' Neither the Employer nor the Contractors Coun-
cil bargains with any union concerning the employees
described in the petition herein.
Field engineers, instrument men, rodmen, and
chainmen make up what is variously referred to as
field survey, field en',ineering, or field layout crews.
The basic tools of a field survey crew are the transit,
level, plumb bob, measuring tapes, and markers like
stakes and batter boards. Field engineers, and to a
lesser degree instrument men, generally have special
schooling and skills in advanced mathematics, as well
as substantial job experience. Rod and chainmen
need no special skills.
Before construction begins, the field survey crew
lays out the exterior lines of the building, the excava-
tion reference lines, and the placement of the steel
and cement building supports called caissons. There-
after they set reference lines for the foundation, walls,
partitions, and other features of the structure. After
construction begins, and when they are needed, the
Employer supplements its field survey crews with
employees represented by the Carpenters, who know
how to use many of the same tools. When so assigned,
carpenters are paid under their own contract rather
than at rates paid to crewmembers. Carpenter foremen
do layout work such as laying out of the interiors
of buildings and the construction of wooden forms
for pouring cement around steel beams. However,
work of this type is better described as layout work
after construction has begun, rather than as field
survey work.
Field survey crews generally have their own separate
supervision, and are not normally supervised by car-
penter foremen.
' The only work being performed by the Employer in the Washington
area at the time of the hearing was on the Kennedy Center for the
Performing Arts
' The Council-Carpenter, contract covers, among other,,"the u,e of any
instrument or tool for layout work incidental to the trade
185 NLRB No. 39
JOHN McSHAIN
The Employer's field survey employees are salaried,
generally receive no overtime pay, and receive no
health, welfare, or pension benefits. They are not
represented by any labor organization. The carpenters
are compensated at hourly rates, receive double time
for overtime, and receive health, welfare, and pension
benefits.
Based on the above, and the record as a whole,
we find that the unit requested by Petitioner is
appropriate for purposes of collective bargaining. The
field engineers have an identifiable skill, work in
crews together with instrument men and rod and
chainmen, the crews have their own separate supervi-
sion, and are compensated on a distinctive basis.
Neither the assignment of carpenters to supplement
the crews on an "as needed" basis nor the layout-
type work performed by carpenter foremen incidental
to carpentry work destroys the separate identity of
the crews. The field survey employees are a homogene-
ous and separately identifiable group of unrepresented
employees with employees with a community of inter-
est setting them apart from other employees of the
Employer.'
We find no merit in the contention that only a
Contractors Council multiemployer unit is
appropriate. Under the Board's policy, an established
multiemployer bargaining history as to other employ-
ees is not controlling with regard to the scope of
181
the unit where, as here, the unrepresented employees
sought constitute a homogeneous, separately identifia-
ble group.'
Accordingly, we find that the following employees
constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
All field engineers, instrument men, rod and
chainmen employed by the Employer within the
greater Washington Metropolitan Area, but
excluding all other employees, professional
employees, guards and supervisors as defined
in the Act.
[Direction of Election'' omitted from publication.]
See Charles H Tompskins Co, 185 NLRB No 38, issued today
'San Jose Moteld/b/a Hyatt House Motel, 174 NLRB No 148
' In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote, all parties to the election should have access to a list of voters
and their addresses which may be used to communicate with them
Excelsior Underwear Inc, 156 NLRB 1236, NLRB v Wyman-Gordon
Company, 394 U S 759 Accordingly, it is directed that 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 5 within 7 days of 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
Carpenters may secure a place on the ballot by producing a showing
of interest