Manhattan Construction Co.

National Labor Relations Board - Board Decisions

May 15, 1990

298 N.L.R.B. 501 (N.L.R.B. 1990)

MANHATTAN CONSTRUCTION Co. 501
Manhattan Construction Company and International
Union of Operating Engineers , Local 714, AFL-
CIO, Petitioner . Case 16-RC-9054
May 15, 1990
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held on July 27, 1988, and the
hearing officer's report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows four votes for and one vote against the Peti-
tioner, with four challenged ballots. The chal-
lenged ballots are sufficient to affect the results of
the election.
The Board has reviewed the record in light of
the exceptions and brief, and has adopted the hear-
ing officer's findings and recommendations to the
extent consistent with this decision and finds that a
certification of representative should be issued.
The hearing officer found that employees Tom
Vissor, Larry Pepper, J. C. Williams, and Thomas
Goodjoint were included in the unit' because they
met the eligibility requirements set out in Daniel
Construction Co., 133 NLRB 264 (1961).2
The Petitioner excepted to the hearing officer's
recommendations, contending, that none of the four
had performed sufficient 'unit- work to satisfy the
Daniel Construction eligibility requirements. The
Petitioner further contended that even if Daniel
Construction requirements were met, Vissor, a field
engineer, and Pepper, a general labor foreman,
should still be found ineligible to vote under the
rule of Eastern Rock Products,3 because both of
them were performing exclusively nonunit work
for the Employer on the eligibility ' date. In arguing
that the two were exclusively nonunit employees on
that date, notwithstanding their performance of
some unit work in the past, the Petitioner relied on
the principles of Berea Publishing Co.,4 which de-
i The unit included all construction equipment operating engineers in
Dallas County , excluding all other employees , office clerical employees,
guards , and supervisors as defined in the Act.
2 The parties stipulated to a Daniel Construction formula for determin-
ing eligibility to vote. That formula includes, in addition to the employ-
ees employed in the unit during the payroll eligibility period, "all em-
ployees in the unit who have been ' employed for a total of 30 days or
more within the period of 12 months , or 'who have had some employ-
ment in that period and who have been employed 45 or more days within
the period of 24 months, immediately preceding the eligibility date "
3 239 NLRB 892 (1978)
4 140 NLRB 516 (1963)
fines "dual function" employees, who may be in-
cluded in a unit even if they are performing some
nonunit work. We find merit in the Petitioner's ar-
guments under Eastern Rock and Berea Publishing
regarding Vissor and Pepper.5
Applicable Principles
In Eastern Rock the Board faced the question
whether two employees who had performed suffi-
cient unit work in the past to meet the Daniel Con-
struction formula were eligible to vote, even though
on the eligibility date they were employed in exclu-
sively nonunit work. The Board held that the em-
ployees were ineligible, explaining that the Daniel
Construction formula, devised to take account of
the intermittent nature of employment in, the con-
struction industry, applied only to "admitted unit
employees not working for the employer on the
eligibility date."6 The formula was not intended,
the Board observed, to extend voter eligibility to
employees working for the employer on the eligi-
bility date but performing exclusively nonunit
work7 merely because they had performed suffi-
cient hours of unit work in the past to satisfy the
numerical standards of the formula.
In Berea Publishing, the Board held that, in de-
termining whether employees who spend only part
of their working hours performing unit work for
their employer should be included in that unit it
would apply the same standards as those applied to
part-time employees. In each case, an employee
who is "regularly employed for sufficient periods
of time [in unit work] to demonstrate . . . a • sub-
stantial interest in the unit's wages, hours, and con-
ditions of employment"8 should be included in the
unit.9
For the reasons stated below, we agree with the
Petitioner that, under the principles of Eastern
Rock and Berea Publishing, the evidence of past
performance of unit work by Vissor and Pepper
does not make them eligible to vote.
5 Because sustaining the challenges to the ballots of Vissor and Pepper
makes the ballots of Williams and Goodjomt no longer determinative, we
do not reach any of the Petitioner 's arguments regarding them, nor do
we find it necessary to decide whether the hearing officer erred in deny-
ing the Petitioner's motion to reopen the record , to admit into evidence a
map of the Dallas/Fort Worth Airport.
Although the Petitioner cites testimony concerning alleged supervisory
duties of Larry Pepper and refers to him at least once as a "general labor
foreman/supervisor," it does not expressly argue that he should be ex-
cluded from the unit as a supervisor under Sec. 2(11) of the Act. In any
event, we find it unnecessary to decide whether Pepper is a supervisor
under the Act.
6 Eastern Rock, supra at 892
7 Ibid.
3 Id. at 518-519
9 Member Cracraft would also apply the normal. community -of-interest
test in determining whether a dual function employee should be included
in the unit See Oxford Chemicals, 286 NLRB 187 (1987) (Member Cra-
craft, concurring).
298 NLRB No. 65
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vissor
George Roundtree, a crane operator for the Em-
ployer, had been working on the Dallas job for 2-
1/2 months at the time of the hearing. In testimony
credited by the hearing officer, he stated that Tom
Vissor was employed by the Employer as a field
engineer in charge of layout and blueprint reading
on the job in Dallas, Texas. Roundtree had never
seen Vissor operate equipment that traditionally
would belong to the operating engineers' craft.
Neal Haynes, president and business manager of
the Petitioner, testified that before filing the peti-
tion, he spoke with Rick McKinney, the Employ-
er's director of labor relations, about entering into
a new contract, and McKinney stated that there
were only two operating engineers employed by
the Employer in Dallas County at that time.
John W. Dixon, the Employer's vice president,
testified that Vissor had operated dirt equipment
occasionally in the early stages of the construction
project, but he could not specifically identify the
equipment Vissor had operated or for how long a
period he had operated it. He testified that he
could state what days Vissor, Williams, Pepper, or
Goodjoint worked, but not how many days they
operated construction equipment. He further testi-
fied that when he was putting the Excelsior) ° list
together he asked his job superintendents and
project managers in Dallas County to supply lists
of equipment operators covering the last 2 years.
They included anyone who had operated a conven-
tional crane, tower crane, bobcat, dirt equipment,
backhoe, frontend loader, or forklift. Dixon testi-
fied that Vissor, Pepper, Williams, and Goodjoint
had all operated these types of equipment for 30
days in the last year, or for 45 days in the last 2
years, some of which were within the last year.
Dixon stated that all four of the employees in ques-
tion had operated some of the equipment but he
could not specify how many days each man had
operated which type of machine. Finally, Dixon
testified that the Employer's records, which he did
not have at the hearing, probably would not show
that either.
Although it appears that Vissor operated some
"dirt equipment" at an early stage of the Dallas
construction project, the evidence concerning the
type of equipment used and the times he operated
the equipment is not sufficiently specific to estab-
lish that Vissor "regularly" operated such equip-
ment. Hence, the evidence supports the Petitioner's
contention that on the eligibility date Vissor was
employed in the nonunit position of field engineer
and had not performed sufficient unit work to give
him a substantial interest in the unit's wages and
working conditions to qualify him as a dual func-
tion employee under Berea Publishing. Pursuant to
Eastern Rock, as a nonunit employee on that date,
Vissor was not an eligible voter notwithstanding
his past performance of some unit work. Accord-
ingly, the challenge to Vissor's ballot is sus-
tained.11
Pepper
Roundtree testified that Pepper was the foreman
of the laborers on the Dallas job. He had given the
laborers and Roundtree instructions, and he kept
the time of the laborers and Roundtree. Roundtree
believed that Pepper could recommend the hiring
and firing of employees, and he observed Pepper
scold an employee for poor work performance.
Roundtree conceded that Pepper ran construction
equipment, but testified that this work consumed
only 5 to 10 percent of Pepper's worktime, and
that when Roundtree started on the job and Pepper
was operating dirt equipment, he was doing so be-
cause laborers had yet to report to the jobsite. The
Employer's vice president, John W. Dixon, testi-
fied that Pepper had worked on various projects
and that it was common for him to operate con-
struction equipment.
Notwithstanding Dixon's credited testimony con-
cerning Pepper's operation of construction equip-
ment, however, the only details of Pepper's duties
were supplied by Roundtree. Those details do not
establish that Pepper regularly engaged in this unit
work within the meaning of Berea Publishing. The
very small portion of Pepper's time devoted to the
operation of construction equipment (5 to 10 per-
cent), the lack of evidence to show that Pepper
regularly engaged in unit work, and particularly
the indication that Pepper's operation of such
equipment was largely confined to periods when
there were no laborers on the job, leads to the con-
clusion that on the eligibility date Pepper was en-
gaged full time in the work of a construction labor
foreman. As a nonunit employee on that date, he
was not eligible to vote, regardless of whether his
performance of unit work in the past met the
Daniel Construction requirements. Eastern Rock
Products, supra. Accordingly, the challenge to his
ballot is sustained.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for International Union of Op-
i i As we have sustained the challenge to Vissor's ballot, we find it un-
10 Excelsior Underwear, 156 NLRB 1236 (1966). necessary to reach the issue of whether Vissor is a technical employee.
MANHATTAN CONSTRUCTION CO. 503
erating Engineers, Local 714, AFL-CIO and that it All construction equipment operating engi-
is the exclusive collective -bargaining representative neers in Dallas County; excluding all other
of the employees in the following appropriate unit: employees, office clerical employees, guards
and supervisors as defined in the Act.