R. B. Butler, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1966

160 N.L.R.B. 1595 (N.L.R.B. 1966)

R. B. BUTLER, INC. 1595
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT 19, UNITED MINE WORKERS OF AMERICA
AND LOCAL 7463, UNITED MINE WORKERS OF AMERICA, AND 10 ALL EMPLOYEES
OF HARLAN FUEL COMPANY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT under conditions prohibited by Section 8(b)(7) of the Act,
picket, or cause to be picketed, or threaten to picket, Harlan Fuel Company,
where an object thereof is to force or require Harlan Fuel Company, to rec-
ognize or bargain with us as the representatives of its employees, or to force
or require the employees of Harlan Fuel Company, to accept or select us as
their collective -bargaining representative.
DISTRICT 19, UNITED MINE WORKERS OF AMERICA,,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LOCAL No. 7463, UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone
684-3627.
R. B. Butler, Inc. and Laborers International Union of North
America, Local Union No. 18, AFL-CIO, Petitioner. Case 03-
RC-2647. October /, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, hearings were held before Hearing Offi-
cers John 117. Bowlin and Clayton Corley. The Hearing Officers' rul-
ings made at the hearings are free from prejudicial error and are
hereby affirmed. The Employer and Texas Highway-ITeavy Branch
of the Associated General Contractors filed briefs in support of the
Employer's position. The Petitioner and Building and Construction
Trades Department, AFL-CIO, filed briefs in support of the Peti-
tioner's position.
Upon the entire record in this case, the National Labor Relations
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 juris-
diction herein.
160 NLRB No. 131.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. In its petition, the Petitioner requested an election in a unit of
the Employer's employees "working as laborers on construction jobs
in Bryan, Texas." 1 The Employer contends that the proposed unit is
inappropriate.
The Employer, a Texas corporation with its principal office in
Bryan, Texas, is engaged primarily in the building construction
industry as both general contractor and subcontractor on various con-
struction projects throughout the State of Texas. At the time of the
second hearing, it was engaged in the construction of several build-
ings and street-paving projects in Bryan; a paving project, a steam
tunnel, and a hospital complex on the Texas A & M University cam-
pus in College Station, Texas (about 5 miles from Bryan) ; and an
underpass located adjacent to the Texas A & Al campus. At the time
of the first hearing, the Employer also had construction jobs in Aus-
tin, Texas (more than 100 miles from Bryan), and Rockdale, Texas
(more than 50 miles from Bryan) .2
The Employer presently employs approximately 70 construction
laborers, 25 to 30 carpenters, 1 to 2 carpenter learners, 3 to. 5 cement
finishers, and 1 to 2 cement-finisher learners.3
Construction laborers perform heavy duty manual work such as
site clearance , hand excavation, transportation of concrete, opera-
tion of air tools, general cleaning, and service-type work for the vari-
ous craftsmen (carpenters, ironworkers, cement finishers), who might
also be employed on the job. Laborers are not required to have any
special skills or training. There is no difference in the work performed
by construction laborers in building, or road, street, and tunnel
construction.
Carpenters and cement finishers employed by the Employer are
journeymen and perform the usual duties of such craftsmen. Carpen-
ter learners and cement-finisher learners perform the duties of
apprentices. However, since the Employer has no formal apprentice-
ship program, it designates such employees as learners.'
1 During the first hearing , the Petitioner moved to amend its petition to include "all
employees working as labours on building construction jobs in Bryan, Texas ." For the
reasons stated herein , we deny this motion
2 Whether these projects were still under construction or had been completed at the
time of the remanded hearing is not stated in the record
3 The Employer stated at the second hearing that it also presently employs one or two
form setters and an unspecified number of drivers The duties of such employees are not
stated in the record In its briefs , the Employer states that it also employs equipment
operators , ironworkers, and engineers However, it is clear from the record that the
Employer does not presently have any such employees in its employ.
6 In fact , during the first hearing , the Employer referred to such employees as apprentices.
R. B. BUTLER, INC. 1597
The Employer asserts that, "as the case may require," a cement-
finisher learner, as well as a laborer, may carry cement to a cement
finisher; on a job where ironworkers are employed, an ironworker
"might assist as well as laborers" in carrying material to the site
where ironworkers perform their work; and a cement finisher as well
as a laborer "might" operate an air vibrator. However, it is clear
from this testimony that other employees spend very little time per-
forming the same work as construction laborers, and, in case of learn-
ers, the Employer admitted at the remanded hearing that learners
"spend very little time in common labor work."
The Employer contends that it has no written collective-bargaining
agreement with any union.5 But it admitted that, together with three
other contractors in Bryan, it meets with the local Carpenters Union
on a regular basis to establish the wage rates to be paid to carpenter
employees. These wage rates apply to carpenters working in College
Station as well as in Bryan. Further, the Employer uses the local
Carpenters Union hiring hall to obtain its carpenter employees. The
Employer also has a "working relationship" with the Cement Fin-
ishers Union, the Ironworkers Union, and the Operating Engineers
Union.°
The requested employees work for the Employer on a job-to-job
basis.7 While working for the Employer, they may be transferred
from one building job to another, from a paving job to a building
job, and from a building job to a paving job. Such transfers may
- take place during the same week.
Construction laborers are paid considerably less than the craft
and learner classifications. The Employer has a participating insur-
ance plan and a profit-sharing trust plan (available after 3 years of
employment), which are available to all employees.
The Petitioner presented evidence which shows that its Interna-
tional and various locals of the International have traditionally rep-
resented laborers engaged in construction work throughout the State
of Texas. Further, the Petitioner's International and its locals have
entered into more than 400 collective-bargaining agreements with both
5 However, as is stated later in the text, the Employer is a member of the Houston
and Austin Associated General Contractors Association Chapters which have collective-
bargaining contracts with Petitioner and another local, respectively , of Petitioner's
International.
O Contrary to the Employer's contention that "there is not even a suggestion in the
record that the Company has had any oral agreements with the ironworkers, cement
workers, operating engineers, or with any other union," the record shows that the Em-
ployer's general superintendent stated that the Employer has had a "working relationship"
with "all of the trades in general construction , carpenters , cement finishers , ironworkers,
operating engineers."
7 The Employer contends that it hires construction laborers on a permanent basis rather
than on a temporary basis and that a construction laborer employee is "considered to be
a permanent as long as he desires to stay with us." The Employer admitted , however,
that it has a considerable turnover of construction laborer employees and that only
15 to 20 work year round for the Employer.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual contractors and contractor associations throughout the
United States covering laborers engaged in construction work. In
Texas, the Petitioner's International and its various locals have
collective-bargaining agreements for construction laborers with em-
ployer associations in Houston, Amarillo, West Texas, Austin, Fort
Worth, Dallas, Denton, San Antonio, Freeport, Orange, Beaumont,
El Paso; Texas City, Denison, and Borger. (The Employer is a mem-
ber of the Houston and Austin Associated General Contractors
Chapters.) These collective-bargaining contracts cover laborers work-
ing in specific areas . For example, the collective-bargaining contract
with the Houston Chapter of Associated General Contractors estab-
lishes terms and conditions of employment for construction laborers
working in the various counties in and around Houston. The construc-
tion laborers covered by these collective-bargaining contracts per-
form substantially the same work performed by the employees in the
requested unit.
In the past, the Employer has paid construction laborers the wage
scale established in a collective-bargaining contract between a Labor-
ers local and a local AGC in Mineral Wells and Arlington, Texas. The
Employer also used the local Laborers Union hiring hall for the
Arlington job. On two jobs in Port Lavaca, Texas, the Employer
abided by the terms and conditions of a collective-bargaining con-
tract between the local Laborers Union and the local AGC ; the Em-
ployer also abided by the terms and conditions of collective-
bargaining contracts between the local Carpenters, Ironworkers,
Operating Engineers, and Cement Finishers Unions and the local
AGC.
In the construction industry, the Board has found separate units
of craft employees to be appropriate.8 In a recent case, Del-Mont
Construction Company," the Board also found appropriate a unit of
operators of power-driven equipment on the ground that such oper-
ators constituted a "clearly identifiable and functionally distinct
group with common interests which are distinguishable from those of
other employees." 10 In that case, the Board also found to be appro-
8 See. e.g., The Plumbing Contractors Association of Baltimore , Maryland, 93 NLRB
1081 ( plumbers ) ; Denver Heating , Piping and Air Conditioning Contractors Association.
99 NLRB 251 (plumbers and gasfitters, pipefitters, and drain layers) ; John F Humphrey
d/b/a Automatic Heating and Equipment Company, 100 NLRB 571 ( plumbers , steamfitters,
pipefitters , and refrigeration men) ; The Heating , Piping & Air Conditioning Contractors,
110 NLRB 261 ( plumbers and pipefitters) ; Machinery Hovers and Erectors Division, 117
NLRB 1778 (riggers ) ; Employing Plasterers Association of the Distract of Columbia, Inc.,
118 NLRB 17 ( lathers ) ; Daniel Construction Company, Inc, 118 NLRB 264 (plumbers
and pipefitters ). See also Craver Construction Company 11 8 NLRB 1050 , where the
Board found a unit of truckdrivers to be appropriate in the building and construction
industry.
150 NLRB 85.
10 Id. at 87.
R. B. BUTLER, INC. 1599
priate, as a residual unit, a separate unit of construction laborers and
truckdrivers. The Board in this case, however, is for the first time
presented with the question of whether a proposed single unit of
laborers in the construction industry is appropriate where none of the
other employees are represented or requested to be represented.
Although the Employer refused to state what it considered to be an
appropriate unit, it contends that the requested unit is an attempt to
fragmentize its integrated operations since "the Petitioner's unit
request is not co-extensive with any identifiable group of employees
which are distinguishable from other employees of the Company,"
that "the unit sought by the Petitioner is not functionally distinct
and separate from the other employees of the Company," and that
the requested employees "do not have interests sufficiently distinct
from the other employees of the Company to warrant setting them
apart for collective-bargaining purposes."
While an overall unit is presumptively appropriate for the pur-
poses of collective bargaining, the Act does not compel labor organiza-
tions to seek representation in the most comprehensive grouping of
employees, but only in an appropriate unit.' In the circumstances
of this case, the question of the appropriateness of some unit other
than the single unit of requested construction laborers is not before
us.12 All we need decide here is whether a separate unit of laborers
in the building and construction industry is an appropriate unit for
collective bargaining under the Act.
Section 9(b) of the Act, in empowering the Board to decide in
each case "the unit appropriate for the purposes of collective bar-
gaining," directs it to make an appropriate unit determination
which will "assure to employees the fullest freedom in exercising the
rights guaranteed by this Act"-i.e., the rights of self-organization
and collective bargaining. In the construction industry, collective
bargaining for groups of employees identified by function as well as
those groups identified by craft skills has proven successful and has
become an established accommodation to the needs of the industry
and of the employees so engaged.13 The fact that laborer employees in
the construction industry traditionally have been organized and rep-
resented by the Laborers International and its locals for a long period
of time and that the Employer and other employers in Texas, as well
11 Metropolitan Life Insurance Company, 156 NLRB 1408.
12 See the Plumbing Contractors Association of Baltimore, Maryland, Inc, 93 NLRB
1081, 1091.
13 Indeed , in jurisdictional dispute cases , the Board has frequently encountered existing
collective-bargaining agreements covering separate units of laborers and In recognition of
this well-established practice has accorded weight to such agreements in making work
assignments See, e g , Cement Masons Local 694 , Plasterers ' ( Edgar H. Hughes Company,
Inc ), 144 NLRB 1358; United Association of Journeymen and Apprentices , Local 449
{ Construetois ' Association of Western Pennsylvania ), 149 NLRB 759.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as throughout the United States, have entered into collective-
bargaining agreements covering such employees supports the appro-
priateness of a unit of such employees.
As the Board stated in its Third Annual Report (1938) :
The form which self-organization has taken among the
employees involved in a proceeding, or among workers similarly
situated, it one of the most significant factors in determining the
appropriate unit. Self-organization which has resulted in suc-
cessful collective bargaining in the past can be relied on as a
guide for future collective bargaining.14 [Emphasis supplied.]
The Board also stated in the same report that :
[T]he fact that collective bargaining has followed certain
forms elsewhere in the industry involved tends to indicate that
such forms will be successful with regard to the employer and
the employees involved in the particular case.
In determining an appropriate unit we look not only to the
history of collective bargaining with the particular employer,
but also to the methods which have been used elsewhere in the
same industry.15
Accordingly, the facts that the laborers here perform a different
type of work from the employer's other employees,," receive substan-
tially less pay than the Employer's other employees, and have tra-
ditionally been represented by the Petitioner or other locals of the
Petitioner's International in the type of units as requested in Texas
and throughout the United States, convince us that the laborers con-
stitute a readily identifiable and homogenous group with a community
of interests separate and apart from other employees.17 In view of the
14 Third Annual Report of the National Labor Relations Board, page 160.
u Id. at 161-162.
1e The Employer contends that the requested unit is inappropriate because "the operat-
ing engineers , ironworkers , and laborers employed from time to time by the Company
perform similar duties " We find no merit in this contention As the Board stated in
Machinery Movers and Erectors Division, Michigan Cartagemen 's Association, 117 NLRB
1778 , 1780-81.
[T]he fact that some of the [ requested employees] may occasionally perform duties
not strictly within the job description, or that other employees may also perform
some of these tasks, does not render the unit inappropriate where, as here, the
requested employees are engaged a substantial majority of their time in the duties
described. .. .
17 Citing Sioux Falls Builders' Association, 143 NLRB 27 ; Broomall Construction Com-
pany, 137 NLRB 344; Greene Construction Co., 133 NLRB 152; Olinger Construction
Company, 129 NLRB 560 ; and Truss-Mart Corporation, 121 NLRB 1430, the Employer
and amicus Texas Highway-Heavy Branch of the Associated General Contractors assert
that the Board has held that a unit such as that requested is inappropriate because it
constitutes neither a craft nor a departmental unit. Not only are those cases distinguish-
able on their facts, but in Del-Mont Construction Company, 150 NLRB 85 , the Board
held , in effect , that an appropriate unit in the construction industry did not need to be
either a craft or departmental unit so long as the requested employees constituted, as
they do here, a readily identifiable and distinct group with common interests which are
distinguishable from those of other employees. See also Lewis & Bowman, Inc., 109 NLRB
796; 109 NLRB 1194.
R. B. BUTLER, INC. 1601
foregoing, we find that the requested unit, as modified below, is
appropriate under the Act.
The Employer also contends that the requested unit is inappro-
priate because it does not include its construction laborers employed
in College Station. At the close of the first hearing, the Petitioner
moved to amend the petition to include construction laborers in the
"Bryan area" which would have specifically included the Employer's
construction laborers employed in College Station- The Employer
objected to such amendment on the grounds that it was "contrary to
all the evidence adduced by the Petitioner" and was vague and indef-
inite. We find the Employer's objections to the Petitioner's requested
amendment to be without merit. In the first place, such amendment
was consistent with rather than "contrary to all the evidence adduced
by the Petitioner." Secondly, the amendment to include construction
laborers working in the "Bryan area" as well as in the city limits
of Bryan is not inconsistent with the practice in the building and
construction industry.18 Indeed, as the Employer admitted at the
remanded hearing, it is consistent with the Employer's and the local
Carpenters Union's practice of establishing wage rates for the Em-
ployer's carpenter employees working in College Station as well as
in Bryan. Therefore, we find that the appropriate unit shall include
all construction laborer employees of the Employer employed in the
"Bryan area" which shall include College Station.
The Petitioner requested only laborers working on building con-
struction and would exclude those working on street and paving con-
struction. As the record shows that laborers are transferred from a
building job to a street or paving job on a regular basis and that
there is no difference in the duties performed or the wages received
when working on either type of job, there is no basis for limiting the
unit to those laborers working only on building construction. Thus,
the appropriate unit here consists of "all employees working as
laborers on construction jobs" as requested in the original petition.
Accordingly, we find that the following employees constitute a
unit appropriate for collective-bargaining purposes within the mean-
ing of Section 9(b) of the Act:
All employees working as laborers on the Employer's construction
jobs in the Bryan, Texas, area, excluding all other employees, office
clerical employees, professional employees, watchmen, guards, and
supervisors as defined in the Act.
5. In its remand order, the Board ordered that evidence be adduced
with respect to "the number of days each of the nonpermanent
Is In Plumbing Contractors Assoolation of Baltimore, Maryland, Inc., 93 NLRB 1081,
the appropriate unit was found to be all "plumbers . . . employed . . . In Baltimore,
Maryland, and vicinity. .. ." [Emphasis supplied.]
257-551-67-vol . 160-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laborer employees was employed by the employer during the year
prior to the hearing" and also requested that the parties state their
positions on voting eligibility. This information was requested
because the Board, taking into consideration the intermittent nature
of construction work,19 has in the past varied its usual voting eligibil-
ity requirements 20 in construction industry cases. Because of the
nature of the construction industry, many construction employees
may be employed by several different employers during the course of
the year. Also, many such employees experience intermittent employ-
ment and may work for short periods of time on different projects.
However, as the Board pointed out in Daniel Construction Com-
pany,21 these factors "in no way detract from such employees' con-
tinuing interest in working conditions which would warrant their
participation in an election to determine a representative for collec-
tive bargaining concerning the tenure and conditions of their
employment." Thus, in Daniel Construction Company, the Board
found that in addition to those employees in the unit who were em-
ployed during the payroll period immediately preceding the date of
the Decision and Direction of Election, all employees in the unit who
had been employed for a total of 30 days or more in the last year or
who had had some employment in the last year and who had been
employed 45 days or more within the last 2 years were also eligible
to vote in the election.22
Although the Employer admitted that of the approximately 70
laborer employees it usually has on its payroll throughout the year,
only 15 to 20 are employed the entire year, it insisted that the
remaining 50 to 55 employees are "nonpermanent" employees. There-
fore, the Employer refused at the remanded hearing to state the
average number of days its "nonpermanent" laborer employees worked
during the past year. The Petitioner did not attempt to subpena the
Employer's payroll records to determine this fact, but in its second
brief, it "urges that the Board establish criteria sufficiently broad
to permit the maximum number of laborers employed by this par-
ticular Employer to fully exercise their statutory rights." However,
as there is no evidence whatever in this record which would support
18 Congress also took this factor into consideration by enacting Section 8(f) of the Act
wherein it permitted the making of prehire contracts covering employees in the con-
struction industry and requiring membership in a union after a period of only 7 days of
employment rather than the period of 30 days applicable to employees in other industries
20 See, e .g, Daniel Construction Company, 133 NLRB 264 ; Trammell Construction
Company, Incorporated, 126 NLRB 1365.
a Supra, footnote 20.
rz In Trammell Construction Company, supra, footnote 20, all employees who had worked
for at least 65 days in the last year were held to be eligible to vote. In Denver Heating,
Piping and Air Conditioning Contractors , supra, footnote 8, all employees who were em-
ployed during the 3 months or 13 weekly payroll periods immediately preceding the date
of the Decision in that case were declared to be eligible to vote in the election.
RAYTHEON COMPANY 1603
a deviation from our usual eligibility requirements, and as the
Employer states it employs approximately the same number of
laborers throughout the year,23 eligibility will be determined by the
usual payroll period.
[Text of Direction of Election omitted from publication.] 24
za See Lewis it Bowman, Inc, supra, footnote 18, where the Board held that "because
the Employer's construction period is now at peak, eligibility will be determined by the
usual payroll period "
^ 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 23 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.
Raytheon Company and International Union of Electrical, Radio
& Machine Workers, AFL-CIO
Raytheon Company and International Union of Electrical, Radio
& Machine Workers , AFL-CIO, Petitioner. Cases 20-CA-3554
and 3O-RC-6201.1 October 5, 1966
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On June 13, 1966, Trial Examiner William E. Spencer issued his
Decision in the above-entitled consolidated proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist ,therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Ile also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint. In addition, he rec-
ommended sustaining certain objections to the election held on Feb-
ruary 4, 1965, in Case 20-RC-6201, and setting aside the election.
Thereafter, the Respondent filed a statement of exceptions, a "Brief
in Support of Exceptions to Intermediate Report; and in Support of
Portions of Intermediate Report," and an "Answering Brief to Brief
of IUE in Support of Cross-exceptions." The General Counsel filed a
brief in support of certain portions of the Trial Examiner's Decision,
cross-exceptions, and a brief in support of its cross-exceptions. Inter-
national Union of Electrical, Radio & Machine Workers, AFL-CIO,
'International Brotherhood of Electrical Workers, AFL-CIO, Intervened in Case
20-'RC-6201.
160 NLRB No. 122.