Peter Kiewit Sons' Co.

National Labor Relations Board - Board Decisions

Aug 2, 1977

231 N.L.R.B. 76 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peter Kiewit Sons' Co. and South Prairie Construc-
tion Co. and International Union of Operating
Engineers, Local No. 627, AFL-CIO. Case 16-
CA-4826
August 2, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On October 24, 1973, the National Labor Relations
Board issued a Decision and Order' finding that
Peter Kiewit Sons' Co. (herein Kiewit) and South
Prairie Construction Co. (herein South Prairie)
constituted separate employers and that the employ-
ees of each company constituted a separate appropri-
ate unit for collective-bargaining purposes. Accord-
ingly, the Board dismissed in its entirety the
complaint, which alleged that Respondents violated
Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, by refusing to apply to
South Prairie's employees the terms and conditions
of a contract executed by Kiewit and the Charging
Party, International Union of Operating Engineers,
Local Union No. 627, AFL-CIO. Thereafter, the
Charging Party petitioned the United States Court of
Appeals for the District of Columbia Circuit to
review the Board's Order.
On September 8, 1975, the court issued its
decision,2 granting the petition for review, reversing
the Board's findings that Kiewit and South Prairie
are separate employers and that the employees of
each constitute an appropriate unit, and vacating the
Board's Order. On November 4, 1975, the court
denied motions for rehearing and for rehearing en
banc. Thereafter, the Board and South Prairie filed
petitions for a writ of certiorari in the Supreme Court
of the United States.
On May 24, 1976, the Supreme Court granted
certiorai, affirmed the judgment of the court of
appeals that Kiewit and South Prairie are a single
employer, vacated the judgment of the court of
appeals that the two firms' employees constitute the
appropriate bargaining unit, and remanded the case
to the court of appeals. 3 Pursuant to the order of the
Supreme Court, the court of appeals on September
30, 1976, remanded the case to the Board for further
i 206 NLRB 562 (1973). Member Walther was not then a member of the
Board; neither he nor Member Penello participated in that decision.
2 Local No. 627, International Union of Operating Engineers, AFL--CIO v.
N.L.R.B., 518 F.2d 1040 (1975).
:' South Prairie Construction Company v. Local No. 627, International
Union of Operating Engineers, AFL-CIO, 425 U.S. 800 (1976).
4 In its statement of position South Prairie contends that Kiewit has not
been bound by a bargaining agreement since July 1973, or at the latest July
231 NLRB No. 13
proceedings for determination of the appropriate
bargaining unit. Thereafter, the Board invited state-
ments of position from the parties. Such statements
were filed by South Prairie and by Local 627,
International Union of Operating Engineers, AFL-
CIO.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon due consideration of the statements of
position, the decisions of the Supreme Court and the
court of appeals, and the entire record in this
proceeding, the Board makes the following supple-
mentary findings:
The facts are fully set out in our original Decision
and Administrative Law Judge's Decision attached
thereto and will not be reiterated in detail here.
Briefly, Kiewit has operated for years as a highway
and heavy construction contractor in the State of
Oklahoma and since 1960 has been signatory to a
collective-bargaining agreement with International
Union of Operating Engineers, Local No. 627, AFL-
CIO, the Charging Party herein. 4 In 1972 in order to
meet nonunion competition in highway construction,
Kiewit's parent corporation brought into Oklahoma
another wholly owned subsidiary, South Prairie, to
operate on a nonunion basis. The ultimate issue in
this case is whether, as a matter of law, Kiewit's
bargaining agreement with the Engineers is applica-
ble to the employees of South Prairie's Oklahoma
operations. In the present posture of this case, the
immediate issue before us is whether South Prairie's
Oklahoma employees constitute an appropriate
bargaining unit separate from Kiewit's employees.
Underlying the consideration of the appropriate
bargaining unit is the now given fact, based on the
finding of the court of appeals as affirmed by the
Supreme Court, that Kiewit and South Prairie
constitute a single employer.5 However, that finding,
as noted by the Supreme Court in its decision in this
case, does not necessarily establish that the employ-
erwide unit is the appropriate bargaining unit, "as
the factors which are relevant in identifying the
breadth of an employer's operation are not conclu-
sively determinative of the scope of an appropriate
unit." Central New Mexico Chapter, National Electri-
cal Contractors Association, Inc., 152 NLRB 1604,
1608 (1965). See also B & B Industries, Inc., 162
1974, and that this case is, therefore, moot. We find, however, that the case
is not moot, particularly because the complaint seeks, as a remedy.
retroactive application of the contract with respect to the wage scale and
payments to the apprenticeship and health and welfare funds.
5 The finding, of course, applies to South Prairie's highway construction
operations within Oklahoma and not to its other operations. The record
shows that South Prairie is a corporation of long standing engaged in the
construction industry in States other than Oklahoma.
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PETER KIEWIT SONS' CO.
NLRB 832 (1967); and Dixie Belle Mills, Inc., A
Wholly Owned Subsidiary of Bell Industries, Inc., 139
NLRB 629 (1962). In determining whether a single
employer exists we are concerned with the common
ownership, structure, and integrated control of the
separate corporations; in determining the scope of
the unit, we are concerned with the community of
interests of the employees involved.
Section 9 of the Act gives to the Board consider-
able discretion in determining appropriate units. 6
Section 9(b) of the Act empowers the Board to
"decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights
guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the
employer unit, craft unit, plant unit, or subdivision
thereof .... " The mandate of that section "to
assure to employees the fullest freedom" indicates
that our primary concern is the degree of common
interests of the employees involved. The ultimate
unit determination is thus resolved by weighing all
the factors relevant to the community of interests of
the employees. Where, as here, we are concerned
with more than one operation of a single employer,
the following factors are particularly relevant;' the
bargaining history; the functional integration of
operations; the differences in the types of work and
the skills of employees; the extent of centralization of
management and supervision, particularly in regard
to labor relations, hiring, discipline, and control of
day-to-day operations; and the extent of interchange
and contact between the groups of employees.
Kiewit has had a long bargaining history with
Engineers Local 627 and other unions; South Prairie
of course has not. There are, however, no historically
established separate units, as South Prairie's coming
into Oklahoma was the cause of the charge herein.
The 1970-73 collective-bargaining agreement was
signed by several contractors in addition to Kiewit
and by several unions in addition to Local 627.
However, that contract, as found by the Administra-
tive Law Judge, did not create a multiemployer
bargaining relationship but instead contemplated
separate units for each contractor's employees. In
addition, other unions did not share representation
of Kiewit's engineers with Local 627.
In finding that Kiewit and South Prairie constitute
a single employer, the court of appeals found a
substantial degree of integration of operations and
common management of the two Companies. How-
ever, Kiewit and South Prairie retain their separate
h In its decision in this case the Supreme Court quoted from Packard
Motor Car Compant v. N. L.R.B., 330 U.S. 485. 491 (1947), that the selection
of an appropriate unit lies largely within the Board's discretion which "is
rarely to be disturbed."
7 Although Kiewit and South Prairie are not, in the traditional sense,
separate plants, the factors used to determine whether a multiplant or a
single-plant unit is appropriate are relevant here.
corporate identities and have operated as separate
enterprises for years. Each Company submits sepa-
rate and independent bids, s although they are
precluded by state law from bidding against each
other. Each has a different dollar maximum for work
which it can undertake. Neither Company subcon-
tracts work to the other, and they do not work
together on projects. Each Company uses its own
tools and raw materials. Although heavy equipment
is leased back and forth, the leases are signed
agreements at the going rental rate. Of particular
relevance here is that with respect to the interests of
employees the Companies function as substantially
separate operations.
Kiewit and South Prairie are both engaged in
highway construction in Oklahoma. There is nothing
in the record to show a marked difference between
the skills of the employees of the two Companies.
However, South Prairie's Oklahoma operations are
involved solely with highway construction, while
Kiewit is engaged also in heavy construction work,
including airport, mill, and railroad bridge construc-
tion. Thus, although the employees of both Compa-
nies perform similar work, the interests of South
Prairie's employees are more narrowly drawn than
those of Kiewit's employees.
The fact that South Prairie operates as a nonunion
contractor was determined by South Prairie's and
Kiewit's parent corporation and, as found by the
court of appeals, constitutes "a very substantial
qualitative degree of centralized control of labor
relations." Within that framework, however, South
Prairie's labor policies are set by its president,9 and
Kiewit's are set by an official of the parent
corporation. More important to the consideration of
the immediate issue before us is the local control over
the day-to-day operations. Although many, if not
most, of South Prairie's supervisors had previously
worked for Kiewit, after their transfers they worked
solely for South Prairie and supervised only South
Prairie's employees. There is no common supervi-
sion. The day-to-day control of South Prairie
ultimately rests with its president. He has control
over hiring, disciplining, and firing employees,
establishes wages and conditions of employment,
and has ultimate authority over the immediate
working conditions. There is no evidence in the
record that any official of the parent corporation (or
of Kiewit) routinely reviews the day-to-day decisions,
has the authority to do so, or regularly visits South
Prairie's operations. Similarly, Kiewit exercises day-
' There is no evidence that South Prairie's bids are specifically reviewed
by Kiewit or the parent.
9 South Prairie's president had previously been Kiewit's area manager.
After he transferred, however, he no longer worked for Kiewit.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to-day control over its operations. Accordingly, we
find that there is substantial local control over those
labor policies which most immediately affect the
interest of the employees involved.
When South Prairie came into Oklahoma a number
of supervisors and officials, including South Prairie's
president, came from Kiewit. There is also evidence
that a few employees who had worked for Kiewit
went to work for South Prairie but, since both
Companies hire employees on a project-by-project
basis, such is not unexpected. With the possible
exception of one employee who on one occasion was
loaned from one Company to another, there is no
evidence of interchange in the traditional sense.
There is no evidence which indicates that an
employee of one Company will fill in for a sick or
otherwise absent employee of the other Company or
that an employee of one Company works on the
projects of the other.
As found by the court of appeals, the corporate
relationship between South Prairie and Peter Kiewit
is sufficient to find that they are one employer.
However, the relationship between the two Compa-
nies with respect to how the interests of their
employees are affected is a different matter. In
weighing the factors set out above, we find that the
operations of South Prairie and Peter Kiewit are not
so closely intertwined in all respects that their
projects are indistinguishable or their employees
equally under the jurisdiction of both firms. To the
contrary, the evidence, taken as a whole, shows that
the engineers employed by South Prairie in Oklaho-
ma have a distinct and separate community of
interests from the employees of Kiewit so as to
constitute a separate appropriate bargaining unit.
This is especially so in those aspects which directly
and immediately affect the employees involved.
South Prairie bids on jobs separately and indepen-
dently of Kiewit and has predominately distinct
arrangements for the day-to-day supervision and
control of employees, and its employees do not
interchange with Kiewit's employees. Accordingly,
we find that the engineers employed by South Prairie
in Oklahoma constitute a distinct and separate
bargaining unit from the engineers employed by
Kiewit. As South Prairie's employees constitute a
separate appropriate bargaining unit, we further find
that it would be improper to impose upon those
employees the collective-bargaining agreement exe-
cuted by Kiewit and Local 627. Accordingly, we
shall dismiss the complaint herein in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
78