S. K. Whitty & Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 776 (N.L.R.B. 1991)

776
304 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Regional Director applied the eligibility formula set forth in Daniel
Construction Co., 133 NLRB 264 (1961), as modified in 167 NLRB 1078,
1081 (1967).
S. K. Whitty and Company, Inc. and International
Union of Operating Engineers, Local 673, and
Florida State Council of Carpenters, AFL–
CIO, Jointly, Petitioner. Case 12–RC–7360
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
The key issues in this case are (1) whether the
Board should apply a voter eligibility formula based
on past employment and reasonable expectancy of fu-
ture employment in a case where an employer has no
committed work for the immediate future; and (2) if
so, what formula should be used.
On September 21, 1990, the Regional Director for
Region 12 issued a Decision and Direction of Election
in which he found that there was a degree of continu-
ity in the Employer’s work force, which was sufficient
to warrant directing an election among employees who
met the requirements of an eligibility formula based on
the number of days worked for the Employer during
a 1-or 2-year period.1 The Employer filed a timely re-
quest for review of the Regional Director’s decision ar-
guing, inter alia, that the Regional Director erred in ap-
plying the eligibility formula in circumstances where
no work is planned for the immediate future. We grant
the Employer’s request for review, as it raises a sub-
stantial and material issue.
The Board has considered the entire record in this
case and finds the following:
For the reasons set forth below, we find that it is ap-
propriate in this case to apply an eligibility formula,
based on past employment and reasonable expectancy
of future employment. Because, however, we are
modifying the eligibility formula for elections involv-
ing construction employers who engage in project-by-
project hiring (and overruling Daniel Construction to
the extent that the formula set out there differs from
the one described below), we reverse the Regional Di-
rector with respect to his application of the Daniel
Construction formula. As explained below, our modi-
fications are intended to produce a formula more likely
to identify employees with a reasonable expectancy of
future employment with the employer in question.
The essential facts are as follows. The Employer is
a contractor engaged in manufacturing concrete, steel,
or lumber piles at its yard facility in Clermont, Florida,
and installing them with a piledriver at construction
jobsites. The Employer is a Louisiana corporation
which established its Florida facility in February 1990
after taking a 2-year lease on the office and yard prop-
erty.
The Employer generally secures field work through
competitive bids. It has performed such work at sites
throughout the State of Florida. The field work is per-
formed by crews which usually include a foreman, one
to three piledrivers and a crane operator. Depending on
the number of pilings to be driven, the Employer’s
projects are completed within periods ranging from 2
to 7 weeks. With a total complement of approximately
12 employees, the Employer typically performs only
one or two projects at a time.
After a project is completed, the most productive
employees are used on successive projects when pos-
sible. The Employer’s general superintendent retains
on file the names of such employees to contact as
needed for future jobs. The record shows that a num-
ber of employees, including Nicosia, Thibodeaux,
Crowe, Goode, Funke, Strickland, and Purcell have
been employed by the Employer on various projects
over the past year or more.
At the time of the hearing, the Employer had three
committed projects. The Solid Motor Assembly Build-
ing project using 11 or 12 employees was to have been
completed by the first week of September 1990. The
Employer then had a 5-or 6-week job scheduled at the
Orlando International Airport. After completion of the
airport project in mid-October 1990, the Employer had
a job committed at St. Vincent’s Medical Center in
Jacksonville, Florida, which was to have been com-
pleted in the third week of November 1990. There was
no work successfully bid or committed after the Medi-
cal Center job.
The Employer’s general manager testified that the
Employer has no present plans to vacate its Florida fa-
cility. It is searching for work and will continue to
submit bids. At the time of the hearing, the Employer
was preparing a bid for a project of about 6 weeks in
North Carolina, which would be performed by the
Florida division. However, it had unsuccessfully bid
the same or a related project before and was dubious
of a contract award on the current bid. The Employer’s
general manager stated that the Employer desires to
maintain its business in Florida, but lack of substantial
business over 5 or 6 months, due to a continuing
slump in construction activity, could lead to its with-
drawal from the State.
The first issue on review is whether any eligibility
formula should be applied where an employer has no
successful bids or committed work for the immediate
future. The Employer asserts that the absence of any
commitments for future work establishes that none of
the employees previously in its employ have a reason-
able expectation of future employment. It argues that
the Regional Director’s application of an eligibility
formula in such circumstances allows laid-off employ-
777S. K. WHITTY & CO.
2 There was a period from September 1989 to the end of 1989 when no
work was done in the Florida division. However, this was due to a suspension
of work on the long-term job at Orlando International Airport because of delay
in securing environmental permits.
3 Under that formula, all unit employees are eligible if they have been em-
ployed for a total of 30 days or more within the 12-month period immediately
preceding the eligibility date for the election, or have had some employment
in that period and have been employed 45 days or more within the 24-month
period immediately preceding the eligibility date. Employees who voluntarily
quit or were terminated for cause prior to the completion of the last job for
which they were employed are not eligible under the formula.
ees with no reasonable expectation of future employ-
ment to vote. We find the record does not support this
argument.
Although the Employer has no commitments for fu-
ture work, it had three secured projects at the time of
the hearing. The Employer, therefore, has not experi-
enced a long period of lack of work which might sup-
port a prediction that it would not obtain future work.2
Further, the Employer stated that it was planning to
bid on future work, had already prepared bids for some
projects, and has no present plans to vacate the Florida
facility. These circumstances do not differ greatly from
those of many other construction industry employers
who must obtain work through competitive bidding.
There may be periods when bids are not won and
when work slows down or becomes intermittent. We
find that these conditions do not establish that employ-
ees who have previously worked for the Employer
have no reasonable expectation of future employment.
Further, we find that the history of the Employer’s
Florida division clearly supports the use of an eligi-
bility formula based on past employment and the rea-
sonable expectancy of future employment. The Em-
ployer retains on file the names of the most productive
employees and attempts to use them on future projects
when possible. Several employees who were on the
payroll at the time of the hearing had worked for the
Employer on other projects over the past year or more.
There is, therefore, evidence that the Employer uses
some of the same employees from project to project.
On the basis of the above-described circumstances, we
conclude that, for purposes of determining eligibility to
vote in the election to be held here, it is appropriate
to use a formula that will identify certain individuals
in addition to any who worked for the Employer dur-
ing the payroll period preceding the Decision and Di-
rection of Election, i.e., one that will identify those
whose pattern of work is sufficient to suggest a con-
tinuing interest in the Employer’s conditions of em-
ployment. For the reasons that follow, we conclude
that the Daniel Construction formula, used by the Re-
gional Director in accordance with Board precedent,
does not adequately identify such employees.
In Daniel Construction, the Board observed that
construction employees may experience intermittent
employment, work for short periods of time on dif-
ferent projects, and work for several different employ-
ers during the course of a year. It found that many
such employees may nevertheless work sufficiently
long for an employer to have a continuing interest in
its working conditions which would warrant their par-
ticipation in a representation election. The Board then
fashioned an eligibility formula based on the number
of days worked in a 1- or 2-year period.3
The central purpose of the Board in devising the
Daniel Construction formula was to identify individ-
uals who formed a core group of employees to whom
the employer was likely to turn on a fairly regular
basis or who otherwise had a reasonable expectation of
reemployment with the employer. Thus, in devising
that formula, the Board rejected both the employer’s
proposal that only those who had worked for 6 months
immediately prior to the Direction of Election should
be eligible to vote and the petitioner union’s proposal
that any employee who had worked 5 days for the em-
ployer during the year preceding the election should be
eligible. The Board found that the employer’s proposal
would inappropriately disenfranchise employees with a
reasonable expectation of future employment with the
employer, while the union’s proposal would allow em-
ployees to vote who had no such reasonable expecta-
tion.
We continue to endorse the purposes for which the
Board constructed the Daniel Construction formula,
but we have concluded that it falls short of serving
those purposes because it is somewhat over inclusive.
In particular, we believe that, at least when employ-
ment with the employer for a period of less than 90
days is concerned, evidence of something more than
one-time employment during the last year or two is re-
quired in order to assure that the voters are limited to
those with a reasonable expectation of future employ-
ment with the employer. Thus, for example, we would
not find that an employee who worked 30 days for the
employer on one project 12 months ago is, by virtue
of that fact alone, an employee with the requisite rea-
sonable expectation. Rather, we would add a recur-
rency factor and conclude that unless such an em-
ployee had been recalled to work on at least one other
occasion, the employee has no reasonable expectation
of continued employment and therefore lacks an inter-
est in the employer’s conditions of employment suffi-
cient to warrant inclusion in the voting group.
Contrary to the assertion of our dissenting col-
leagues, we are not changing the Daniel principle. That
principle is that a formula should be used to determine
those employees who have a reasonable expectation of
reemployment by a construction industry employer
who hires on a project-by-project basis. As noted, we
continue to endorse that principle. Our sole difference
with our dissenting colleagues concerns the precise
formula that is to be applied. Our colleagues believe
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 An employer’s retention of an employee for a sustained period of time
suggests that the employer is satisfied with that employee’s work and, depend-
ing on its employment practices, the likelihood that it will recall the employee
in the future.
5 For example, employees hired and working on the election eligibility date
would, of course, be eligible to vote regardless of how long they had pre-
viously worked for the employer. See, e.g., NLRB v. Tom Wood Datsun, 767
F.2d 350, 352 (7th Cir. 1985), and cases there cited.
6 Employees who have been terminated for cause or have quit voluntarily
prior to the completion of the last job for which they were employed are not
eligible to vote. 1 Daniel Construction Co., 133 NLRB 264 (1961), as modified 167 NLRB
1078 (1967).
that an employee establishes a reasonable expectancy
of reemployment upon a bare showing that he or she
worked 30 days on a project 12 months ago. We dis-
agree that such a bare showing would establish the
requisite expectancy.
In the absence of recurrent employment, a single pe-
riod of employment may, however, be of sufficient du-
ration to indicate a likelihood that the employee will
work again for the employer. For example, an em-
ployee who was laid off shortly before the eligibility
date but who had worked for several months for the
employer should not be excluded from voting merely
because he or she had only one period of employment
with the employer. Such a sustained single period of
employment is a valid indicator of reasonable expect-
ancy of future employment.4 The Daniel Construction
figure of 30 days, however, is too short a period of
employment to identify adequately employees in this
category. On balance, based on our expertise, we con-
clude that a single period of employment of at least 90
days in the year preceding the eligibility date is a pe-
riod of sufficient duration to indicate a likelihood of
future employment under this aspect of the test.
Accordingly, we shall revise the formula to include
the factor of recurrent employment or a single period
of at least 90 days of employment. Thus, in addition
to employees meeting the standard eligibility criteria,5
we shall find eligible all employees in the unit (1) who
have been employed for at least two periods of em-
ployment cumulatively amounting to 30 days or more
in the 12-month period immediately preceding the eli-
gibility date, or (2) who have had some employment
in the 12-month period and have had at least two peri-
ods of employment cumulatively amounting to 45 days
or more in the 24-month period immediately preceding
the eligibility date, or (3) who have had one period of
employment of 90 days or more in the 12-month pe-
riod immediately preceding the eligibility date.5
ORDER
It is ordered that Case 12–RC–7360 is remanded to
the Regional Director for Region 12 for action consist-
ent with this decision.
MEMBERS CRACRAFT and DEVANEY, dissenting.
Contrary to the majority, we would not disturb the
longstanding Daniel Construction eligibility formula.1
For 30 years the Board has successfully applied the
basic Daniel formula without substantial modification.
We see no good reason at this time to modify this
well-established principle. Many construction industry
employers continue to hire employees on an intermit-
tent basis from a limited pool of prospective employ-
ees, there is no evidence that the existing formula has
failed in its purpose, and our colleagues offer no em-
pirical evidence justifying the new formula they assert
today.
The special employment patterns present in the
building and construction industry have required the
development of special representational procedures for
the industry. The representational problems inherent in
the industry were recognized by Congress in enacting
the 1959 amendments to the Act. ‘‘Representation
elections in a large segment of the industry are not fea-
sible to demonstrate such majority status due to the
short periods of actual employment by specific em-
ployers.’’ S.Rep., 1 Leg. Hist. 451–452. In the first
Daniel case the Board decided that a special eligibility
formula was necessary in the construction industry.
Many employees in the industry experience intermit-
tent employment, may work for short periods on many
different projects and for several different employers
during the course of a year, and on any particular
project may be laid off for varying periods due to ma-
terial shortages or to the flow of work on the project.
Thus, the Board decided that an employee who worked
intermittently but for a significant period for a particu-
lar employer had a sufficient continuing interest in
working conditions to be eligible to participate in an
election.
The first Daniel case held that unit employees who
have been employed for a total of 30 days or more in
the past 12 months or who have had some employment
in that period and who have been employed 45 or
more days within the past 24 months are eligible to
vote in a representation election. The Board decided,
in effect, that those employees meeting the formula
had a reasonable expectancy of future employment and
should be included in the unit. Although the Board did
not explicitly state why it chose 30 and 45 days, such
periods would give an employer sufficient time to
evaluate whether the employer would rehire (or accept
referral of) the employee. The second Daniel case re-
affirmed the 30/45 day formula but added that employ-
ees who were discharged for cause or quit before com-
pletion of a project were not eligible. The apparent
reason for this modification is that employers would be
unlikely to rehire such employees.
Project-by-project employment is still sufficiently
common in the construction industry to require the use
of a special eligibility formula to provide for meaning-
ful organization and representation in much of the in-
779S. K. WHITTY & CO.
2 And the projects may be of such short duration that there is otherwise in-
sufficient time to hold an election.
3 The majority’s position would also disenfranchise many employees who
have only recently begun working in construction or who work for newly
formed employers.
4 For example, a project requiring 90 days of continuous electrical work
would be a large project indeed.
dustry. In our opinion, the majority’s modification of
the Daniel formula not only unnecessarily changes
well established precedent, but also seriously erodes
employees’ rights to engage in meaningful organiza-
tion.
The majority today modifies the established Daniel
formula by adding to the 30/45-day standard the re-
quirement that the employee must also have at least
two periods of employment with the employer. The
second modification would require an employee who
has worked only once in the past year to have a period
of employment of 90 days or more.
The majority offers no justification for this departure
from precedent except to assert that employment for a
period of less than 90 days requires evidence of more
than one-time employment to assure that voters are
limited to those with a reasonable expectation of future
employment with the employer. The majority cites no
concrete evidence supporting their assertion. Further-
more, the majority misconstrues Daniel to the extent
they consider its purpose ‘‘was to identify individuals
who formed a core group of employees.’’ Daniel, how-
ever, was meant to apply to employees who work for
employers without core groups of employees, i.e., em-
ployers that hire, through hiring halls or from a pool
of skilled workers, new employees for each new
project, as well as to employees who work for employ-
ers that retain core groups, i.e., employers that seek to
rehire some or most former employees. We believe
this misconstruction leads our colleagues to ignore the
common practice of intermittent, project-by-project
employment that Daniel was designed to address.
The requirement that an employee work for an em-
ployer more than once in the relevant period is an un-
realistic impediment to organization in much of the in-
dustry. How often any particular employee works for
an employer will frequently depend on the number and
size of projects an employer undertakes during the rel-
evant period and on the size of the available work
force. Because many of the smaller employers in the
industry engage in relatively few and small projects
during the course of a year, few if any employees may
work on more than one project.2 Thus, a likely impact
of the newly announced formula will be to limit mean-
ingful organization to employees of large contractors
that operate multiple projects during the course of a
year and would be likely to work their way through
the pool of qualified craftsmen several times in the
course of a year.2
The new alternative eligibility requirement of a sin-
gle period of employment of at least 90 days is, we
believe, similarly unrealistic for much of the industry.
Not all projects in the industry last for 90 days. Even
in substantially longer projects, the need for a particu-
lar craft or subcontractor is often less than 90 days.4
The likely impact of this modification would be to
limit meaningful organization to employees who work
on large projects or who belong to a craft that works
for the duration of a project.
We believe that the existing Daniel eligibility for-
mula remains as valid today as it did 30 years ago.
The majority cites no significant change in the industry
or other substantial reason that would justify departure
from such long established precedent. Changing well-
established Board principles without substantial jus-
tification goes far toward undermining the Board’s
credibility as an institution. Upon a thorough examina-
tion of the issue, we are not persuaded that the original
voting eligibility formula, as set forth in the Board’s
1961 Daniel decision, requires modification. Because
we see no compelling reason to modify the Daniel eli-
gibility formula, we would not now do so.