The Longcrier Co.

National Labor Relations Board - Board Decisions

Nov 20, 1985

277 N.L.R.B. 570 (N.L.R.B. 1985)

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Longcrier Company and International Union of
Operating Engineers , AFL-CIO, Local 714, Pe-
titioner . Case 16-RC-8644
20 November 1985
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 23 December 1983 the Regional Director for
Region 16 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he
found appropriate a unit of approximately 10 con-
struction equipment operating engineers including
flagmen employed by the Employer in Dallas
County, Texas. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, the Employer filed a
timely request for review of the Regional Direc-
tor's decision on the grounds, inter alia , that he
made erroneous findings of fact and departed from
precedent. By mailgram dated 20 January 1984, the
request for review was granted. Pursuant to the
Board's procedures, the election was held 20 Janu-
ary 1984, in the unit found appropriate by the Re-
gional Director, and the ballots were impounded
pending the Board's decision on review. No briefs
were filed on review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this case with respect to the issues under review
and makes the following findings:
The Employer currently provides the services of
a general contractor on several commercial con-
struction sites located in Dallas County. The ma-
jority of the Employer's work is subcontracted to
others with the Employer providing excavation or
grading, some form work, carpentry work, miscel-
laneous specialty and ironwork, cleanup and safety,
and some hoisting. All of the Employer's employ-
ees are classified as carpenters or laborers.
At the time of the hearing, the Employer had
under construction in Dallas County two office
buildings known as Park Central Buildings 8 and 9,
scheduled for completion in December 1983; the
Park Central Health Club and parking garage,
scheduled for completion in February 1984; the
Walnut Hill Atrium Apartments, scheduled for
completion between July and September 1984; and
the Dallas Bank and Trust,,which was essentially
completed in December 1983. The Cedar/Maple
project, begun in November 1983, was scheduled
for completion in January 1985. Of these jobs, con-
struction equipment is utilized at Park Central
Buildings 8 and 9, the Park Central Health Club,
the Dallas Bank and Trust, and the Walnut Hill
Atrium Apartments. The total employee comple-
ment at Park Central Buildings 8 and 9 is 20 to 25
employees, at the Health Club approximately 12
employees, and at the Walnut Hill Atrium Apart-
ments 12 to 15 employees.
The Petitioner seeks to represent employees, in-
cluding dual-function employees, who spend a ma-
jority of their time operating construction equip-
ment other than the air compressor. The Employer
takes the position that all construction employees
on each jobsite, not just those operating equipment,
should constitute a separate unit. Alternatively, if a
countywide unit is found, the unit should encom-
pass all employees who spend any time operating
construction equipment.
Each project entered into by the Employer is the
result of successful bidding. Each is independently
staffed, equipped, and supervised. The Employer
owns no equipment; thus, any equipment used on a
particular project is leased. Each project has a su-
perintendent who is responsible for deciding the
composition of the crew, which normally includes
a foreman , a field manager, carpenters, and labor-
ers. The superintendent hires the crew employees
and assigns work to them. Within the Employer's
established guidelines and framework for each
project, the superintendent has considerable lati-
tude in setting the terms and conditions of employ-
ment. He sets each crew member' s wage rate, as
well as the hours and breaktimes for the project.
There are no employee fringe benefits, nor seniori-
ty. When the project is completed or employees
are no longer needed, the employees are terminat-
ed. The Employer has no provision for an employ-
ee to be transferred to another project in case of
layoff or termination. Such employees may, how-
ever, make a new application for employment at
another existing or new project, but it is the super-
intendent on that project who determines the
hiring. The record shows that only on rare occa-
sions will a carpenter transfer to another project,
and then only for a period of a few hours up to 2
days. There is, however, frequent interchange of
employees performing tasks on a particular project.
The superintendent decides which members of the
crew will operate which piece of equipment. While
certain equipment, such as a tower crane, may
have a specific operator assigned, normally the in-
dividuals who operate the construction equipment
perform other tasks as well. All employees on a
project are under the same supervision with fore-
men supervising in assigned areas. There is no sep-
arate supervision over crane operators or equip-
ment operators. The employees on a project are
277 NLRB No. 62
LONGCRIER CO.
not organized along craft or departmental lines;'
rather, they are in highly integrated crews that per-
form various jobs and work together in close prox-
imity, many functioning as a team on certain oper-
ations.
The primary work which the Employer itself
performs begins with the excavation or grading
function utilizing front-end loaders or a backhoe.
After this equipment is used, the final grading is
done with pick and shovel. Either the equipment
operator himself will do this work or different em-
ployees may operate the equipment and work with
a pick and shovel. The employees performing this
work are generally classified as laborers. A front-
end loader is occasionally used by both carpenters
and laborers in performing cleanup work in
moving trash. When the excavation is finished and
the frame of a building is completed, a temporary
elevator is erected, and the Employer assigns a
person specifically to the job of operating the ele-
vator. The hoisting function involves the moving
of individuals and materials , including those of sub-
contractors, onto the various floors of a building.
The only employees specifically hired to operate
equipment for the Employer are the elevator oper-
ator and the crane operators.
The record shows that as of the hearing date the
Employer employed one full-time crane operator,
J. Bair, who operated the Kroll tower crane at the
Walnut Hill Atrium project. He climbed up at the
start of the day and remained in the cab of that
crane until quitting time. The Employer also had a
100-ton P and H crane at that project which was
operated by G. Ludlow, who spent approximately
65 percent of his time on the crane and approxi-
mately 35 percent of his time operating the 1450
loader. In addition, J. A. Caldwell operated the
1450 loader at the Walnut Hill Atrium approxi-
mately 50 percent of his time and spent the remain-
der of his time operating, the 480LL loader and
performing laborers' duties. The other operator of
the 480LL loader at the Walnut Hill Atrium was
D. Spear, who spent approximately 50 percent of
his time on the loader and also worked approxi-
mately 2 days a week as a flagman for the tower
crane. The Employer employed flagmen at the
Walnut Hill Atrium only to direct the tower crane
operator when hoisting materials . Generally, one
flagman was on the ground and another was on the
top level. They served as the "eyes" of the opera-
tor and used two-way radios to communicate di-
rections to the operator. Laborers secured the ma-
terials that were hoisted by the tower crane. As
noted, loader operators worked with laborers who
i The Employer does not recognize any traditional craft jurisdictions,
and there is no apprenticeship or other training program in any craft
571
used picks and shovels in performing grading func-
tions and with carpenters in laying the foundation.
In addition to the two crane operators and two
flagmen at the Walnut Hill Atrium, D. Watten-
barger operated the 20-ton Omega crane at the
Health Club site approximately 60 percent of his
time and spent approximately 40 percent of his
time performing carpenter functions. D. A. Cae-
synski spent approximately 50 percent of his work-
ing time operating the track loader at the Park
Central 8 and 9 projects. Two other employees, J.
D. Wright and W. E. Toth, spent approximately 50
percent of their time operating rubber tire loaders,
and one employee operated the temporary elevator
at the Park Central site on a full-time basis.
In finding appropriate a Dallas County-wide unit
limited to the employees operating construction
equipment, the Regional Director noted that the
geographic scope of the unit encompassed a practi-
cal working area and that the unit sought consisted
of employees who were identifiable by their job
functions, i.e., their primary function being the op-
eration of construction equipment. Initially, we do
not agree that a countywide unit is appropriate
here. Rather, we find, on this record, that employ-
ees at each project constitute a separate appropriate
unit.2 Thus, each project has a superintendent who
is responsible for all hiring at his project, deciding
the composition of his crew, assigning work to the
crewmembers, and, within the Employer's estab-
lished guidelines, setting each member's wages and
terms and conditions of employment. There are no
seniority lists maintained , and, when the project is
completed or an employee's services are no longer
required, the employee is terminated. Except in
rare circumstances, employees are not transferred
between projects. There is no showing that a
common nucleus of employees is retained from
project to project. Each project is geographically
separate, the Park Central project being approxi-
mately 5 miles away from the others. We find,
therefore, that each project functions as a virtually
independent and autonomous operation, and, when
each project is completed, the employees are termi-
nated rather than transferred to other sites. Conse-
quently, insufficient basis exists here for finding ap-
propriate the broader unit. We conclude instead
that each project of the Employer constitutes a
separate appropriate unit.
Nor are we persuaded on this record that the pe-
titioned-for employees who operate construction
2 The Board has found appropriate broader geographic units where it
was shown that a nucleus of employees is transferred from project to
project Daniel Construction Co., 133 NLRB 264, 265 (1961), Trammell
Construction Co., 126 NLRB 1365 (1960) There is an absence of such a
showing here
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment share a sufficient separate and distinct
community of interest, in these circumstances, to
constitute a separate appropriate unit apart from
other project employees. While the Board has long
recognized that in the construction industry units
may be appropriate on the basis of a craft, or be-
cause they comprise a clearly identifiable and func-
tionally distinct group of employees, the petitioned-
for employees meet neither of these tests. The
record fails to show that any of the requested em-
ployees participated in or completed a traditional
apprenticeship program or achieved journeyman
status in a craft. Basically, the requested unit would
include those employees who happen to spend a
majority of their time operating some type of con-
struction equipment. To find such a unit appropri-
ate in the Employer's mode of operation we would
have to disregard the degree of common supervi-
sion by the project superintendent, as well as the
overlapping duties and functional integration of the
work performed by the petitioned-for employees
with that of the remaining employees. As noted, all
employees are classified either as carpenters or la-
borers, and the superintendent of each project de-
cides which employees in the crew will operate
which piece of equipment, utilizing employees ac-
cording to need rather than following strict job
classifications. As demonstrated, those project em-
ployees who operate construction equipment also
perform other tasks and work with other employ-
ees as an integrated team.
On this record, we find that the evidence fails to
establish that the requested unit is either a craft
unit or a functionally distinct group of employees-
with interests sufficiently separate from those of
the Employer's other employees on each project to
warrant granting them a separate- unit. See, Brown
& Root, 258 NLRB 1002 (1981); Sunray Ltd., 258
NLRB 517, 518 (1981). Rather, we find that- all
construction employees, including laborers and car-
penters, on each project constitute an appropriate
unit.
Because our unit findings would result in a sub-
stantially larger number of employees on each
project being eligible to vote in separate units, we
shall order that the election conducted on 20 Janu-
ary 1984 be vacated. Further, although the Union
indicated that it was willing to proceed to an elec-
tion in other than the unit sought, it was anticipat-
ed at the time of the hearing (1 December 1983)
that all of the existing projects, except for the
Cedar/Maple project, would be completed by Sep-
tember 1984, and the Cedar/Maple project by Jan-
uary 1985. In these circumstances, no useful pur-
pose would be served by conducting elections in
the separate units found appropriate. We shall
therefore dismiss the petition. M. B. Kahn Construc-
tion Co., 210 NLRB 1050 (1974).
ORDER
It is ordered that the election conducted on 20
January, 1984 is vacated.
IT IS FURTHER ORDERED that the petition is dis-
missed.