Turner Industries Group, LLC

National Labor Relations Board - Board Decisions

Feb 23, 2007

349 N.L.R.B. 428 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 42
428
Turner Industries Group, LLC and Baton Rouge
Building & Construction Trades Council, AFL–
CIO, Petioner. Case 15–RC–8596
February 28, 2007
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The issues presented in this case are (1) whether the
Regional Director correctly found that the petitioned-for
multicraft unit at the Employer’s BASF Geismar, Louisi-
ana facility is appropriate, excluding all insulators, elec-
tricians, and Daily Support Team (DST) employees, and
(2) whether the Regional Director correctly found that
the Employer is engaged in the building and construction
industry as defined by the Board, and thus that the con-
struction industry eligibility formula as set forth in
Daniel Construction Co., 133 NLRB 264 (1961), modi-
fied at 167 NLRB 1078 (1967), reaffirmed and further
modified in Steiny & Co., 308 NLRB 1323 (1992), is
applicable.1 As explained below, we find, contrary to the
Regional Director, that the appropriate unit also must
include the insulators, electricians, and DST employees.
In addition, we affirm the Regional Director’s finding
that the Daniel/Steiny eligibility formula is appropriate
under the circumstances presented in this case, but find it
unnecessary to pass on the issue of whether the Em-
ployer meets the definition of a construction employer
under the Act.
On May 10, 2005, the Regional Director for Region 15
issued a Decision and Direction of Election (pertinent
portions of which are attached as an appendix), in which
he found the petitioned-for multicraft unit comprised of
approximately 67 boilermakers, carpenters, scaffold
builders, ironworkers, laborers, millwrights, painters,
pipefitters, welders, and cement masons employed by the
Employer at its BASF Geismar, Louisiana project, ex-
cluding all insulators, electricians, and DST employees,
to be an appropriate unit for bargaining. In finding the
unit to be appropriate, the Regional Director gave deter-
minative weight to the bargaining history involving this
unit prior to the Employer’s taking over the maintenance
operations. The Regional Director further found that the
Employer is engaged in the building and construction
industry as defined by the Board, and that the
Daniel/Steiny eligibility formula is applicable.

1 The formula defining voter eligibility in the construction industry
includes those employed during the payroll period immediately preced-
ing the date of the decision and direction of election, as well as those
employed for a total of 30 days in the preceding 12 months or 45 days
in the preceding 24 months.
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 Director’s decision. The Employer contended
that the only appropriate unit must include all of its ap-
proximately 163 employees at the Geismar site, includ-
ing the electricians (15 electricians and 1 instrument
technician), insulators (23), and DST employees (57).
The Employer also claimed that the Regional Director
improperly applied the Daniel/Steiny formula, since the
Employer is not in the construction industry, and, in any
event, does not employ intermittent employees. On June
15, 2005, the Board granted the Employer’s request for
review. Thereafter, the Employer filed a brief on review.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
We have carefully reviewed the entire record, including
the brief on review. Contrary to the Regional Director, we
find, for the reasons set forth below, that the appropriate
unit must also include the insulators, electricians, and DST
employees excluded by the Regional Director.2 However,
we agree with the Regional Director that use of the
Daniel/Steiny eligibility formula is reasonable, where, as
here, the Employer performs more than a de minimis
amount of construction work and its work patterns are
comparable to a construction industry employer. We there-
fore find it unnecessary to pass on the issue of whether the
Employer is engaged in the building and construction in-
dustry as defined under the Act.
I. BACKGROUND
The Employer is a contractor that provides mainte-
nance support services for various chemical plants. As
more fully described below, the Employer took over
maintenance and other work at BASF’s Geismar site in
late 2004/early 2005. The BASF Geismar operation is a
complex of 11 chemical plants situated on 2600 acres.
The work performed by the Employer at BASF includes
carpentry, structural steel erection, concrete work, drill
shafts/piling, excavation, road repair, building repair,
plumbing, welding, boilermaking, pipe fabrication, pipe-
fitting, pipe erecting and general labor. About 70 percent
of the work orders involve maintenance work, which
includes such functions as rebuilding pumps, changing
valves, performing reactor chain swap outs, dumping
catalyst, performing internal work on towers, installing
pipelines, and building scaffolds. The remaining 30 per-
cent involves “small cap” projects that involve modify-
ing existing equipment to improve BASF’s efficiency
and productivity. The Employer maintains a core work

2 The Petitioner indicated it would proceed to an election in any unit
found appropriate.
TURNER INDUSTRIES GROUP, LLC 429
force of approximately 210 employees who, on a daily
basis, perform the maintenance support services and
“small cap” projects.
In addition to the daily maintenance work and “small
cap” projects, the Employer also works “turnarounds”
and “outages.” Turnarounds are scheduled preventive
maintenance projects or structural modifications that
require production in a designated section of BASF to be
partially or fully shut down. The Employer uses its core
work force to complete this work (working overtime, if
needed), and may supplement its core work force with
“turnaround employees” hired through the Employer’s
personnel office.3 Outages, which are similar to turn-
arounds, are unscheduled projects due to operational
emergencies. The Employer also uses its core work
force to complete this work. Historically, there have
been 20 to 30 turnarounds and outages per year at BASF.
The Employer has organized its operation into two
sections: Alliance Contract Services (ACS) and Daily
Maintenance Support, also known as Daily Support
Team (DST). A site manager oversees both sections.
The ACS section has department supervisors and plan-
ner/schedulers, both of which are excluded from the unit,
and foremen, who are included in the unit. The DST
section is comprised of zone supervisors and zone plan-
ner/coordinators, both of which are excluded from the
unit, and foremen, who are included in the unit.
The ACS section is organized into four departments,
each separately supervised, comprised of approximately
106 employees: Civil (31 employees, including 5 carpen-
ters, 3 laborers, 19 scaffold builders, and 4 cement ma-
sons); Insulation/Paint (31 employees, including 23 insu-
lators and 8 painters); Mechanical (28 employees, includ-
ing 4 boilermakers, 2 ironworkers, 1 millwright, 12 pipe-
fitters, 9 welders); and Electrical (15 electricians and 1
instrument tech). Equipment mechanic operators are also
considered part of the ACS section.4 All employees in
the ACS section, except laborers, are required to possess
skill certification in at least one craft. However, ACS
employees have voluntarily upgraded their skill levels to
become certified in additional crafts.5
In 1995, National Maintenance, a predecessor of the
Employer, created a multiskilled mechanic job classifica-
tion. Employees in the multiskilled mechanic job classi-
fication are required to attain skill certifications in at

3 For example, in February 2005, the Employer completed a turn-
around which lasted about 2 weeks and required the hiring of 100 tem-
porary employees to complement its core work force.
4 The equipment operators are separately represented by the Interna-
tional Union of Operating Engineers, Local 406, and the parties agree
they are to be excluded from any unit found appropriate.
5 For example, painters have acquired skills to become pipefitters,
and a carpenter has acquired the skills to become a scaffold builder.
least three crafts. The Employer continues to employ
multiskilled employees and assigns them to work in the
DST section. These employees are primarily responsible
for preventive maintenance and repairs and are the high-
est-skilled employees at BASF.6 Although a small num-
ber of ACS employees (mechanical and electrical) per-
form most of the small cap project work, DST employees
also perform small cap work.
Unlike ACS employees who report to departments,
DST employees report to one of five zones7 and typically
function within that zone on a day-to-day basis. In addi-
tion, “nesters,” who are ACS employees certified in only
one craft—i.e., painters, scaffold builders, or insula-
tors—are assigned to each of the five zones and, during
this assignment, report to the designated DST supervisor.
Although the “nesters” are assigned to the DST section,
they are not paid the same higher hourly rate as the DST
employees (the DST hourly rate ranges from $19.05 to
$21.40 per hour, and the ACS hourly rate ranges from
$9.25 to $17.80 per hour). Throughout the day, “nesters”
may also report to ACS supervisors in the civil and insu-
lation/paint departments. Overall, the DST section is
comprised of approximately 57 multiskilled employees
and approximately 24 “nesters.”
The Employer recognizes differences between various
crafts in terms of skills and responsibilities, and uses
craft employees to perform functions within their train-
ing. Nevertheless, the Employer makes its job assign-
ments according to which employees are available and
able to perform the work and the Employer’s preference
is to get the job done with the crew set, consisting of
various crafts, that is assigned the job. Thus, ACS em-
ployees often perform tasks which are not included in
their skill certification. For example, in the mechanical
department, pipefitters perform boilermaker work and
put up structural steel, while boilermakers weld pipes,

6 Any employee interested in this mechanic position must possess at
least one skill certification, which rules out apprentices and helpers. As
part of the selection process, an employee must successfully complete
an interview, undergo a pulmonary function test, and pass a psychomet-
ric test (used as a barometer to indicate how an individual handles
conflict resolution, makes decisions, and works as a member of a team).
If the employee does not already possess certifications in three job
classifications, the employee must agree to attain the certifications by
attending training classes on his or her own time. The employee must
maintain a B average in the class, and upon completion of the classes,
complete 6 months of on-the-job training in the targeted skill classifica-
tion. The employee then receives a pay upgrade. The ultimate goal is
to have him at the $21.40 rate, which is the top rate for those certified
in three skills.
7 Zones are organized as groupings of plants. Zone 1 includes the
waste water treatment plant and the utilities; zone 2 includes the ure-
thane plants; zone 3 includes the diols and amines plants; zone 4 in-
cludes the polyol, chlorine, and aniline plants; and zone 5 includes the
Carboxy and Acetylene plants.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD430
and ironworkers fit pipes. If there is painting to be done,
the Employer would not necessarily choose a painter to
do the work. Rather, insulators, scaffold builders, and
millwrights would do painting if there are more painting
jobs scheduled than painters available on a given day.
The Petitioner’s representation of employees at BASF
extends back to at least 1958. In the 1980s, the Peti-
tioner represented employees at BASF who were em-
ployed by National Maintenance. This relationship ex-
tended through the 1990s and apparently into the early
2000s. During this period, a series of collective-bar-
gaining agreements were executed in which the Peti-
tioner was recognized as the representative of all “main-
tenance employees,” but multiskilled employees (i.e.,
DST employees) were excluded from the unit.8
In 2000, National Maintenance evolved into Interna-
tional Maintenance Corporation (IMC), a subsidiary of
Turner Industries Holding Company L.L.C. Like Na-
tional Maintenance, IMC recognized the Petitioner as the
bargaining representative for its employees at BASF.
The most recent agreement between IMC and the Peti-
tioner became effective in June 2004. This agreement,
like previous agreements, covered maintenance employ-
ees, but excluded all multiskilled employees. The rec-
ognition clauses of these contracts do not specifically
state whether the collective-bargaining relationship is
governed under Section 9(a) or Section 8(f) of the Act.
In November 2004, IMC lost its contract to perform
the maintenance work at BASF to Turner Company L.L.
C., a non-union contractor that is also a subsidiary of
Turner Industries Holding Company L.L.C. This con-
tract was awarded to Turner Company L.L.C. on an
open-shop basis. Due to this development, the Petitioner
and IMC mutually agreed to terminate their collective-
bargaining agreement. As part of the termination agree-
ment, all IMC employees covered by the contract re-
ceived $200 severance pay and the opportunity to work
with Turner Company. Forty-two of the fifty-five former
IMC employees accepted Turner Company’s employ-

8 In May 1990, National Maintenance executed a collective-
bargaining agreement with the Petitioner in which it recognized the
Petitioner as the bargaining representative for “all maintenance em-
ployees.” In 1995, at the request of BASF, National Maintenance
created the job classification of multiskilled mechanic to better meet the
needs of BASF. In September 1995, National Maintenance executed
another collective-bargaining agreement with the Petitioner, and the
recognition clause included “all maintenance employees” and specifi-
cally excluded “all multiskilled employees assigned to Direct Manufac-
turing Support Teams (DMS).” Subsequent agreements between the
Petitioner and National Maintenance executed on May 1996, December
1996, and October 2001 also specifically excluded multiskilled em-
ployees. The Petitioner also executed a collective-bargaining agree-
ment in February 1998, but the agreement introduced in the record did
not include a recognition clause.
ment offer and began working with Turner Company
without any break in service. Effective January 1, 2005,
Turner Holding (the parent company of 11 subsidiaries,
including Turner Company and IMC) changed its name
to Turner Industry Group L.L.C., the Employer in this
case, and merged with Turner Company, IMC and six
other subsidiaries. The effect of the merger was in name
only and did not affect the benefits or pay rates of em-
ployees working for the respective former subsidiaries of
Turner Holding.9 As of January 1, 2005, the Employer,
not IMC or Turner Company, holds the contract to per-
form work at BASF.
Moreover, in November 2004, pursuant to a contract
between the Employer and BASF, the Employer assumed
responsibility for performing all maintenance and/or con-
struction tasks at BASF, including electrical work that
was previously performed by Davis International Electri-
cal Company and insulation work that was previously
done by Petrin Corporation. The Employer purchased
Davis Industrial Electric Company in November 2004
and Petrin Corporation in December 2004, and hired the
electricians and insulators formerly employed by these
companies.
II. DISCUSSION
A. Unit Determination
The Board has long found that units may be appropri-
ate based on craft status, or where the requested employ-
ees are a clearly identifiable and homogenous group with
a community of interest separate and apart from other
employees. In making unit determinations, the Board
considers whether a community of interest exists, and
examines such factors as mutuality of interests in wages,
hours and other working conditions; commonality of
supervision; degree of skill and common functions; fre-
quency of contact and interchange with other employees;
and functional integration. See, e.g., Yuengling Brewing
Co. of Tampa, 333 NLRB 892 (2001). The Board does
not permit the arbitrary, heterogeneous, or artificial
grouping of employees. Moore Business Forms, Inc.,
204 NLRB 552 (1973); Glosser Bros., Inc., 93 NLRB
1343 (1951). The Board also considers prior bargaining
history. However, the weight given to a prior history of
collective bargaining is “substantial” not “conclusive.”
A.C. Pavement Stripping Co., 296 NLRB 206, 210
(1989). Moreover, the Board “will not adhere to the his-
torical bargaining unit where that unit does not conform

9 Additionally, the Employer became the parent company of Turner
International L.L.C and Turner Industrial Maintenance L.L.C. Turner
Industrial Technical L.L.C. and Turner Industrial Services L.L.C.
merged to form Turner Specialty Services L.L.C., which also became a
subsidiary of the Employer.
TURNER INDUSTRIES GROUP, LLC 431
reasonably well to other standards of appropriateness.”
Crown Zellerbach Corp., 246 NLRB 202, 203 (1979);
accord A.C. Pavement Stripping, 296 NLRB at 210
(“[T]he Board . . . long held that it will not give control-
ling weight to a history of collective bargaining ‘to the
extent that it departs from statutory provisions or clearly
established Board policy concerning the composition and
scope of bargaining units.’”) (quoting William J. Keller,
Inc., 198 NLRB 1144, 1145 (1972)).
The Regional Director found appropriate the peti-
tioned-for unit, which encompassed only the historical
unit previously represented by the Petitioner. We find,
however, that the Regional Director erroneously exalted
bargaining history as the determinative factor in support-
ing his unit determination. In this case, as correctly
pointed out by the Employer, there is no assertion or
finding that the Employer is a successor employer to its
predecessor. Indeed, the Petitioner abandoned its suc-
cessorship claim when it agreed to end its contract with
the predecessor company in November 2004, and did not
seek recognition from the Employer as a successor. In-
asmuch as there is not even a claim of successorship, the
Regional Director erred in placing a heavy evidentiary
burden on the Employer in challenging the historical
unit. For the same reason, he erred in relying upon the
proposition that “a mere change in ownership should not
uproot bargaining units that have enjoyed a history of
collective-bargaining unless the units no longer conform
reasonably well to other standards of appropriateness.”10
See Yuengling Brewing Co. of Tampa, 333 NLRB 892
(2001).11

10 See Trident Seafoods, Inc., 318 NLRB 738 (1995), enfd. in part
101 F.3d 111, 118 (D.C. Cir. 1996). However, in contrast to Trident
Seafoods, the instant case involves a nonsuccessor employer, and thus
bargaining history is simply a factor to be considered along with others,
and no special weight should be attached to it. Further, even accepting
the principle quoted above, the unit sought by the petitioner unreasona-
bly excludes some crafts from a multicraft unit and thus does not “con-
form reasonably well to other standards of appropriateness.” See
Crown Zellerbach Corp., supra. at 203.
The Regional Director’s reliance on Canal Carting, 339 NLRB 969
(2003) is also misplaced. That case did not involve a change in owner-
ship at all. In Canal Carting, the petitioner sought to merge two groups
of employees that were historically represented in two separate units by
two separate unions. The Board found that bargaining history sup-
ported maintaining the existing units, and there was nothing intrinsi-
cally inappropriate about the existing units. Thus, the existing collec-
tive-bargaining agreement between the intervenor and the employer
barred the petition.
11 In Yeungling, the Board found that a 30-year bargaining history
was one of the factors that favored a finding that petitioned-for mainte-
nance unit was appropriate for bargaining, notwithstanding that the
successorship issue was not litigated, where the employer continued the
same business as its predecessor, bought all of the equipment, and hired
a majority of the employees. In that case, the other community of
interest factors also supported a separate maintenance unit.
Moreover, as discussed below, we find, contrary to the
Regional Director, that the petitioned-for multicraft unit
is not an appropriate unit for bargaining, and that the unit
must also include the insulators, electricians and DST
employees. See A.C. Pavement Striping Co., supra (only
appropriate unit included all employees engaged in
pavement coatings and pavement markings, not the two
separate historical bargaining units); Atlanta Division of
S.J. Groves & Sons Co., 267 NLRB 175 (1983) (peti-
tioned-for grouping of four craft groups, excluding other
craft groups, found to be arbitrary; there, all classifica-
tions of employees worked together on integrated crews,
and there were no factors that warranted finding the four
crafts to constitute a separate craft, departmental, or
functional unit). See also Publix Super Markets, 343
NLRB 1023 (2004) (Board found insufficient evidence
to warrant finding that a separate fluid processing unit
was appropriate apart from other production and mainte-
nance employees); Buckhorn, Inc., 343 NLRB 201
(2004) (petitioned-for maintenance unit not appropriate
separate from production employees); TDK Ferrites
Corp., 342 NLRB 1006 (2004) (same).
In making our unit determination, we find it significant
that the scope and organization of the Employer’s opera-
tions expanded in November 2004 when it took over all
electrical and insulation work being performed at BASF
and hired the employees who were performing that work
at that time. Prior to the takeover, the electrical and in-
sulation employees had worked for other employers.
Now, the Employer employs all of the employees, and
any prior differences in terms and conditions of employ-
ment are eliminated.
We also find it significant that the terms and condi-
tions of employment for all of the employees, ACS and
DST, are substantially similar. Employees receive the
same disability and health benefits, and 401(k) savings
plan; are subject to the same discrimination policy and
alcohol contraband policy; and bring complaints to the
same personnel representative. The site manager is the
final authority regarding employee discipline for all em-
ployees, and all other supervisors may recommend disci-
pline. All employees receive the same flexible break
periods, based upon crew assignments; are paid bi-
weekly; and are paid an hourly rate based on their ex-
perience level. All employees park in the same lot and
enter BASF through the same security point. All em-
ployees have identification badges that are used to enter
BASF through the same gates, and use the same buses to
travel to their designated work area. All employees are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD432
required to wear uniforms, and wear hard hats in various
colors.12
In addition, all employees attend the same required
training courses (24 Occupational, Safety, and Health
Administration (OSHA) courses), and other training re-
quired by the Employer. All employees have access to
the services of a training coordinator who helps place
employees in skill training classes offered by the Associ-
ated Builder Contract (ABC) school. The Employer pro-
vides tools for all employees, both ACS and DST, albeit
some employees may bring and work with their own
personal tools. Since January 1, 2005, the Employer has
required new employees to provide their personal hand
tools, such as tape measures, tri-squares, torpedo levels,
and channel locks. In addition to these factors in support
of a broader unit, there are other factors relating to the
particular employees at issue that also support a broader
unit.
1. Insulators
Insulators are part of the Insulation/Paint department.
They are generally responsible for installing and removing
insulation at BASF. Only insulators perform asbestos
treatment. Insulators also perform hole watch,13 fire watch
and fireproofing, tear down scaffolds, paint, and move
furniture. In the performance of their duties, insulators use
hand saws, cordless rivets, drills, personal protective cloth-
ing for asbestos work, vacuums, and benders.
We conclude that the Regional Director erred by ex-
cluding the insulators from the multicraft unit. The Re-
gional Director acknowledged, and the record shows,
that the insulators’ frequency of contact and interchange,
similar terms and conditions of employment, and degree
of functional integration with ACS employees favor in-
cluding them in the petitioned-for unit. Indeed, the insu-
lators are assigned to the same department as painters,
who are included in the unit. Painters also perform simi-
lar tasks, such as hole watch, fire watch, and painting.
The Regional Director’s emphasized that there are
three times as many insulators (23) as there are painters
(8). However, this fact is not a convincing distinction
considering all of the commonalities between the two
classifications. The other factual distinctions—insulators
may perform painting but there is no evidence that paint-

12 Historically, ACS employees wore brown hardhats and DST em-
ployees wore gold hats. Likewise, the electricians normally wore yel-
low hardhats when they were employed by David Electric Company,
and the insulators wore green hardhats when they were employed by
Petrin Corporation. Currently, when an employee needs to replace a
hardhat, the color is determined by what color is available when the
Employer places the order. Brown has been the color available in
recent years.
13 “Hole watch” is a duty that involves standing by the vessel entry
when inside a tower.
ers also perform insulation; only insulators perform as-
bestos abatement; and insulators and painters use differ-
ent tools—are similarly not persuasive in light of the
commonalities between the two classifications.
In addition, the insulation work was previously per-
formed by Petrin Corporation, which was purchased by
the Employer in December 2004. Thus, as discussed
above, the scope of the Employer’s operations has ex-
panded, and the insulation employees are now, unlike
before, working for the same employer and in the same
department as other unit employees. There is no princi-
pled reason for excluding the craft-employee insulators
while including other craft employees. Accordingly, we
find that the insulators must be included in the bargain-
ing unit.
2. Electricians
Electricians receive their assignments from mainte-
nance work orders that are issued by DST supervisors.
They perform preventive maintenance on switch gears,
upgrades on wire pulls, change configurations and install
loops in the control rooms, install cable trays, change
light bulbs, install electrical tracing and contra-tracing
(which is normally mechanical department work), and
weld on brackets used to support cable trays. Electri-
cians also do “small cap” work. They perform special-
ized tasks to their craft such as all electrical preventive
maintenance on heavy switch gears rated 480 and above
and the maintenance and operation of 11 switch gears.
They use electric saws, tripods, squares, levels, hammers,
center punches, drills, wire snips, and volt meters.
We find that the Regional Director erred by excluding
the electricians from the unit. The Regional Director
declined to include the electricians based on their histori-
cal exclusion and their specialized work, finding that
they could constitute a separate historical craft unit.
However, as with the insulators, the Regional Director
acknowledged, and the record shows, that the electri-
cians’ frequency of contact and interchange and their
receipt of similar terms and conditions of employment as
other ACS employees favor their inclusion. In addition,
significantly, as mentioned above, Davis Industrial Elec-
trical Company previously performed the electrical work
for BASF before the Employer purchased this company
in November 2004. Thus, the electricians are now work-
ing for the same employer as the other unit employees, in
the same ACS section (albeit in this instance a separate
department). Again, the Petitioner is seeking a multicraft
unit, and there is no basis for excluding the craft-
employee electricians but including other craft employ-
ees. Under these circumstances, we find that the electri-
cians must be included in the unit.
TURNER INDUSTRIES GROUP, LLC 433
3. DST employees
We find that DST employees share a strong commu-
nity of interest with employees in the unit and that there
is no rational basis to exclude this classification from the
overall maintenance unit. As discussed above, DST em-
ployees share many of the same terms and conditions of
employment and benefits with ACS employees, and at-
tend the same required training courses. Only a few of
the terms and conditions of employment are different,
including vacation time, holiday benefits, and overtime.14
It is true that DST employees are the most highly skilled
employees because they are certified in three crafts when
they reach the top of their ladder.15 Nonetheless, ACS
journeymen are also highly skilled in their particular
craft and in some cases have become certified in more
than one craft. In addition, ACS employees perform
overlapping functions with other crafts due to the Em-
ployer’s system of assignment based on need.
In addition, DST employees work closely in the same
Zones and share some overlapping supervision with ACS
“nesters,” albeit they perform different functions. Spe-
cifically, three “nesters” are regularly assigned to zone 1
(one painter, one scaffold builder, and one insulator),
eight “nesters” to zone 2 (one painter, four insulators,
three scaffold builders), six “nesters” to zone 3 (all insu-
lators), three nesters to zone 4 (one painter, two insula-
tors), and four “nesters” to zone 5 (all insulators). All of
these “nesters” report to DST supervisors. Thus, most
(about 17) of the 23 insulators are assigned to work in
Zones with the DST employees. Some of the insulators
are permanently assigned to work in the zones, and insu-
lators have shops in each of the DST zones. Also, three
of the eight painters are assigned to work in the zones
alongside the DST mechanics. Moreover, scaffold build-
ers have contact with both ACS and DST employees, and
are assigned to DST zones as needed.
Further, there are occasions when DST and ACS em-
ployees who are not “nesters” work together. Thus, the
Employer uses ACS pipefitters and boilermakers, who

14 ACS employees do not receive the same vacation time and holiday
benefits as DST employees. ACS employees receive a maximum of 1-
week paid vacation after 1 year of continuous service. DST employees
also receive this benefit after 1 year of continuous service, but are also
eligible to receive 2 weeks of paid vacation after 3 years of continuous
service and then 3 weeks after 10 years of continuous service. ACS
employees receive 10 nonpaid holidays, but DST employees receive 10
paid holidays. DST employees are subject to mandatory overtime and
are required to wear pagers, unlike the ACS employees. DST employ-
ees are eligible for overtime pay after completing 8 hours of work in a
day, while the ACS employees are eligible after the completion of 40
hours of work in a week.
15 This fact is reflected in their higher pay scale—the journeyman
ACS earns $17.80 per hour, but the DST employees earn between
$19.05 and $21.40 per hour.
possess a single skill certification, to supplement DST
crews when extra people are needed. Occasionally, dur-
ing “small cap” projects, DST mechanics may help ACS
employees complete a final alignment on an installed
pump. Also, during turnarounds, ACS and DST employ-
ees may be required to work together to complete a pro-
ject as soon as possible.
In sum, we find that there exists a strong community of
interest between DST employees and the other craft em-
ployees in the overall unit. DST employees share many
of the same terms and conditions of employment with the
included employees, work closely with “nesters,” share
some overlapping supervision, and on occasion work
with other ACS craft employees on projects. The bar-
gaining history is only one factor to be considered, and,
in this case, the factors in favor of inclusion strongly
outweigh this history. Thus, we find that that DST craft-
employees must be included in the multicraft unit found
appropriate. See A.C. Pavement, supra; Atlanta Division
of S.J. Groves & Sons Co., supra. See also Publix Super
Markets, supra; Buckhorn, supra; TDK Ferrites, supra.
B. Whether the Daniel/Steiny Eligibility
Formula is Applicable
Having determined the appropriate unit, we next con-
sider whether the Regional Director correctly found that
the Daniel/Steiny eligibility formula should be utilized.
As discussed below, the record does not precisely estab-
lish the percentage of construction work performed by
the Employer and, thus, whether or not this work is sub-
stantial. At the same time, the Employer’s performance
of construction work is clearly more than de minimis or
incidental: it is integral to its overall work, and the pat-
tern of the Employer’s operation of hiring turnaround
employees on an intermittent basis approximates that in
the construction industry. Under the circumstances of
this case, we find that use of the Daniel/Steiny eligibility
formula is reasonable irrespective of whether the Em-
ployer meets the definition of a construction employer
under the Act. Thus, it is unnecessary to determine
whether the Employer is engaged primarily in the con-
struction industry.
1. The Regional Director’s decision and
contentions of the parties
The Regional Director rejected the Employer’s narrow
definition of construction work,16 and found that the

16 The Employer limited its definition of construction work to build-
ing a new facility and did not include making additions to existing
structures, and claimed that its small cap projects are not considered
construction because these projects do not involve driving pilings and
hanging steel. The Regional Director noted, however, that in the Em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD434
Board defines construction work in broad terms. See
Painters Local 1247 (Indio Paint & Rug Center), 156
NLRB 951, 959 (1966) (Board held that the statutory
definition of the building and construction industry “sub-
sumes the provision of labor whereby materials and con-
stituent parts may be combined on the building site to
form, make, or build a structure”); South Alabama
Plumbing, 333 NLRB 16 (2001) (an employer that
makes repairs to, and replaces integral parts of an im-
movable structure is engaged in construction work within
the meaning of Section 8(f) of the Act).17 The Regional
Director found that because the Employer uses turn-
around employees on an intermittent basis for short peri-
ods of time and then lays these employees off when the
work is complete, the Employer is engaged in the build-
ing and construction industry.
In its brief on review, the Employer reiterates its claim,
without elaboration, that the Regional Director errone-
ously found the Employer to be a construction employer.
Instead, the Employer assumes arguendo that it could be
defined as a construction employer, but claims that
Daniel/Steiny does not apply, where, as here, the Em-
ployer does not employ an intermittent work force.
Thus, the Employer asserts that the turnaround employ-
ees are more appropriately categorized either as seasonal
employees, as the most recent shutdowns occurred at
approximately the same time in 2004 and 2005, or as
temporary employees, as the turnaround employees are
aware upon hiring that the duration of their employment
will be brief.
The Employer’s contention that the extra employees
hired for turnarounds are seasonal or temporary, and thus
not intermittent, is not persuasive. The Employer is not a
seasonal employer, and the extra employees are clearly
hired on an as-needed, and not seasonal, basis. Further,
the Daniel/Steiny formula by its application necessarily
includes those who would be temporary because of the
intermittent nature of the construction industry and the fact
that employees may work for more than one employer.
Thus, the Employer’s distinction between temporary and
intermittent employees is not relevant here. Notably, al-
though the Employer does not necessarily recall the same
employees for turnarounds, the Employer’s site manager
testified that “a lot of them are recalls.” Moreover, some
insulators hired for a turnaround have thereafter been hired
as permanent employees.

ployer’s most recent small cap project, the Employer “added some
support steel and ran a 24-inch line,” which was valued at $200,000.
17 In that case, the employer, a plumbing business, employed four
regular permanent employees, with three performing service work and
one performing construction. Thus, the employer contended that it
performed 75-percent service work, and 25-percent construction work.
Inasmuch as the Employer assumes arguendo that it is
in the construction industry, its argument implicitly is
based on the premise that a distinction should be drawn
on the basis of differing hiring patterns within that indus-
try. That approach is inconsistent with Board precedent.
Indeed, in Steiny & Co., 308 NLRB 1323 (1992), the
Board found that the Daniel formula is applicable in all
construction cases, regardless of the construction em-
ployer’s method of operation, i.e., whether the employer
is similar or dissimilar to an industrial employer, or
whether or not it operates with a stable core of employ-
ees or project-by-project employees.
2. Analysis
As stated above, we find it unnecessary to decide
whether the Employer is actually engaged in the con-
struction industry. We find that even assuming that the
Employer is not a construction employer, the use of the
Daniel/Steiny formula is reasonable.
Here, the record shows that the Employer performs
more than an incidental or de minimis amount of con-
struction work and that such work is integral to its opera-
tions, albeit the exact percentage of construction work
performed by the Employer is unclear. In this regard,
construction projects are clearly performed within the
context of the “small cap” projects and various mainte-
nance projects. According to the site manager, “small
cap” projects are designed to make an existing process or
piece of equipment function better. This could involve
any small internal work on a vessel, such as adding a
pump or adding an impeller on a pump, or installing an
additional header on the reactor. In describing a “small
cap” project, the site manager was asked by counsel
whether a small cap project is like “adding a room onto
your house when you’re still living in it.” The site man-
ager replied “that’s a good example.” Furthermore, as
noted by the Regional Director, the Employer’s most
recent “small cap” project involved upgrading the plant
in the glycol unit where the Employer “added some sup-
port steel and ran a 24-inch line.”18
In addition, work performed at the Geismar site since
January 2005 has included tasks such as rebuilding pumps,
installing pipelines, and building scaffolds that appear to
come under the Board’s broad definition of construction.19

18 Additional examples of construction projects include the Em-
ployer’s addition of a new structure to the PVP building in 2003 and
the building of a flare stack foundation.
19 The Act contains no precise definition of the building and con-
struction industry. As discussed above, however, the Board has adopted
a broad definition of construction work. See F.H.E. Services, 338
NLRB 1095, 1098 (2003) and cases discussed therein citing the broad
definitions of construction contained in the Standard Industrial Classifi-
cation Manual and the Construction Review, volume 3. See also Car-
penters Local 623 (Atlantic Exposition Services), 335 NLRB 586, 591–
TURNER INDUSTRIES GROUP, LLC 435
Notably, the Employer was going through a process at the
time of the hearing of finding and removing all of the as-
bestos on old pipelines and replacing it with nonasbestos
insulation, a function that the Board has clearly been held
to be construction. See U.S. Abatement, 303 NLRB 451
(1991) (Board found that the removal of asbestos and the
installation of insulation was construction work as it af-
fected the structure of buildings and equipment which
became part of the structure; because the asbestos was
being removed for reinsulation, a function which the em-
ployer conceded was construction, the Board determined
that “removal and substitution are but two halves of the
whole.” Id. at 456).
Thus, while the record does not establish with preci-
sion the extent of the construction work performed by the
Employer at the Geismar site, it is nevertheless clear that
the Employer performs more than a de minimis amount
of construction work at Geismar, and such functions are
integral to the Employer’s work at this site.
Furthermore, the Employer’s pattern of hiring “turn-
around” employees on an intermittent basis is similar to
the hiring pattern in the construction industry. Thus, when
extra employees are needed during turnarounds, the Em-
ployer hires employees for the duration of the turnaround
and then lays them off when the turnaround is over. In-
deed, in February 2005, the Employer completed a turn-
around which lasted about 2 weeks and required the hiring
of 100 temporary employees to complement its core work
force. Although the Employer does not necessarily hire
the same employees for subsequent turnarounds, the site
manager testified that “a lot of them are recalls.”20 More-
over, some insulators who have been hired for a turn-
around were subsequently hired as permanent employees.
Under these circumstances, we believe that the use of the
Daniel/Steiny eligibility formula “will likely insure eligi-
bility to the greatest number of employees having a direct
and substantial interest in the choice of representatives.”

592 (2001), enfd. 320 F.3d 385 (3d Cir. 2002). The Board has stated
that the term “building and construction industry” is very general in
nature and susceptible to various interpretations. C.I.M. Mechanical
Co., 275 NLRB 685, 689 (1985). See also Forest City/Dillon-Tecon
Pacific, 209 NLRB 867 (1974), enfd. in relevant part and remanded in
part 522 F.2d 1107 (9th Cir. 1975); Painters Local 1247 (Indigo Paint
& Rug Center), supra at 957–959. As discussed, the Board’s definition
“subsumes the provision of labor whereby materials and constituent
parts may be combined on the building site to form, make, or build a
structure.” See Painters Local 1247 (Indio Paint & Rug Center), supra
at 959. It encompasses employers that make repairs to, and replace
integral parts of a immovable structure. See South Alabama Plumbing,
supra.
20 Although it is not clear from the record how many turnarounds oc-
cur each year or how often extra employees are hired, the record shows
that historically, there have been about 20 to 30 turnarounds and out-
ages each year. In addition, the fact that a lot of employees are recalled
suggests an ongoing need for such employees.
Steiny, 308 NLRB at 1326, quoting Alabama Drydock Co.,
5 NLRB 149, 156 (1938).
Under these particular circumstances, in agreement
with the Regional Director, we find that the application
of the Daniel/Steiny formula is reasonable, regardless of
whether the Employer meets the definition of construc-
tion employer under the Act. See generally Trump Taj
Mahal Casino, 306 NLRB 294 (1992), enfd. 2 F.3d 35
(3d Cir. 1993) (Board stated that it “has been flexible in
carrying out its responsibility to devise formulas suited to
its unique conditions in the entertainment industry, as in
other specialized industries, to afford employees with a
continuing interest in employment the optimum opportu-
nity for meaningful representation.” Id. at 296).21
CONCLUSION
For the foregoing reasons, we find that the petitioned-
for multicraft unit is not an appropriate unit for bargain-
ing. Accordingly, we reverse the Regional Director’s
finding that a unit consisting of boilermakers, carpenters,
scaffold builders, ironworkers, laborers, millwrights,
painters, welders, and cement masons employed by the
Employer at its Geismar, Louisiana project is an appro-
priate unit for bargaining, and find that the unit must also
include insulators, electricians, and DSTs. In addition,
we affirm the Regional Director’s finding that the appli-
cation of the Daniel/Steiny formula is appropriate.22

21 The Employer also contended that the formula should only be ap-
plied to those employees who have worked since January 1, 2005,
when this Employer took over the operations, and points out that the
Petitioner, at the hearing only asked that the formula be applied to “all
employees within the last year that have worked at the BASF/Geismar
site and that are employed by any of the Turner companies.” In its brief
on review, the Employer reiterates the contention that the Petitioner
sought to apply the formula only 1 year back, and thus claims that the
Regional Director erred by applying the formula 2 years back, consis-
tent with the Daniel/Steiny eligibility formula. We find that the Em-
ployer has not provided convincing reasons to alter the historical
Daniel/Steiny formula, and thus the Regional Director did not err in his
application of the formula.
22 The Employer claims that it has been prejudiced by the Regional
Director’s decision, subsequent to the issuance of the Decision and
Direction of Election, to permit 149 ineligible voters to use mail ballots
in this proceeding. According to the Employer, on May 23, 2005, the
Petitioner submitted a list of additional names (115) that it alleged,
without evidentiary support, were eligible to vote under the
Daniel/Steiny formula. The Employer promptly objected and requested
that the Regional Director require the Petitioner to produce supporting
evidence, and claimed that neither the Petitioner nor the Regional Di-
rector had the authority to amend or expand the Excelsior list. The
Employer also claimed that its payroll and timekeeping records indi-
cated that the individuals were not eligible voters. The Regional Direc-
tor did not respond to the Employer’s objections, but subsequently
permitted the Petitioner to resubmit the same names with addresses for
receipt of mail ballots despite the Employer’s contention that they were
not eligible voters. The Regional Director thereafter faxed the Em-
ployer a supplemental list of 33 individuals who were also to receive
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD436
ORDER
The Regional Director’s Decision and Direction and
Election is reversed with respect to the issue of unit de-
termination, and affirmed in its application of the
Daniel/Steiny eligibility formula. This case is remanded
to the Regional Director for further appropriate action
consistent with the Order.
APPENDIX
DECISION AND DIRECTION OF ELECTION
. . . .
I. ISSUES
The Baton Rouge Building & Construction Trades Council,
AFL–CIO (herein the Petitioner) filed the petition in this matter
seeking to represent a unit comprised of all boilermakers, car-
penters, ironworkers, laborers, millwrights, painters, pipefitters,
and welders employed by Turner Industries Group, L.L.C.
(herein the Employer) at its BASF Project in Geismar, Louisi-
ana; excluding all office clerical employees, guards, profes-
sional employees, and supervisors as defined in the Act, and
DMS employees. The Petitioner amended its petition at the
hearing to include cement masons in the unit. The record re-
flects that the Petitioner seeks to represent employees who were
historically included in the bargaining unit represented by the
Petitioner at the BASF project plants in Geismar, Louisiana.
Scaffold builders have been included in the historical unit.
Electricians and Insulators have not been part of the historical
unit. The Petitioner expressly seeks to exclude electricians
from the unit. The Petitioner does not seek to represent insula-
tors but is not opposed to their inclusion in the unit if found
appropriate by the Board.
There are two issues to be decided in this matter. The central
issue involves the Employer’s contention that the petitioned-for
historical unit of approximately sixty-seven (67)2 employees
comprised of four (4) boilermakers, five (5) carpenters, nine-
teen (19) scaffold builders, two (2) ironworkers, three (3) la-
borers, one (1) millwright, eight (8) painters, twelve (12) pipe-
fitters, nine (9) welders, and four (4) cement masons is an inap-
propriate unit for collective-bargaining. The Employer con-
tends that the only appropriate unit would include all of its
approximately one hundred seventy (170) employees working
at the BASF Geismar site, including all of the employees
sought by the Petitioner, but also the electricians and insulators
referred to collectively as the Alliance Contract Services
(“ACS”) employees and all Daily Maintenance Support
(“DMS”) employees, also known as Daily Support Team

mail ballots. The Employer asserts that it promptly objected in writing
to each list submitted by the Union.
We do not believe that the Employer has been prejudiced. The Em-
ployer may challenge any mail ballots of employees that it regards as
ineligible to vote, and those challenges will be resolved in subsequent
proceedings. See Casehandling Manual (Representation Proceedings),
Sec. 11338.9.
2 Site Manager Danny Price used the term carpenters and scaffold
builders interchangeably in his testimony.
(“DST”) employees. The Employer asserts that employees in
the disputed electrician and insulator classifications, and DST
employees, share a community of interest with employees in
the petitioned-for unit that warrants their inclusion in the unit.
The Employer and the Union, herein the Parties, stipulate
and I find that the six (6) equipment mechanic operators em-
ployed by the Employer are excluded from any unit found ap-
propriate as they are and have been represented by the Interna-
tional Union of Operating Engineers, Local 406 since Novem-
ber 30, 2004. Additionally, the Parties agree and I find that the
Site Manager and all individuals designated as Supervisors
exercise independent judgment in making work assignments
and effectively recommending discipline and are statutory su-
pervisors that are excluded from any unit found appropriate.
Further, the Parties stipulate and I find that all individuals des-
ignated as Planner/Scheduler and Zone Planner/Coordinator are
salaried employees that do not share a community of interest
with the petitioned-for hourly employees and are excluded from
any unit found appropriate.
The secondary issue involves the Employer’s contention that
it is not engaged in the construction industry, and that therefore,
the Daniel/Steiny formula is not applicable in determining voter
eligibility.
II. DECISION
Based on the entire record in this proceeding and for the rea-
sons set forth below, I find that the petitioned-for historical
unit, including scaffold builders, is an appropriate unit under
Section 9(b) of the Act.
Accordingly, it is hereby ordered that an election be con-
ducted under the direction of the Regional Director for Region
15 in the following unit:
All boilermakers, carpenters, scaffold builders, ironworkers,
laborers, millwrights, painters, pipefitters, welders, and ce-
ment masons employed by the Employer at its BASF Geis-
mar, Louisiana project; excluding all electricians, insulators,
DST employees, office clerical employees, guards, profes-
sional employees and supervisors as defined in the Act.
Further, it is ordered in addition to those employees in the
unit who were employed during the payroll period immediately
preceding the date of this Decision and Direction of Election,
all employees performing work in the unit set forth above are
eligible to vote if they have been employed at BASF for a total
of 30 working days or more within the period of 12 months, or
who have had some employment in that period and who have
been employed 45 working days or more within the 24 months
immediately preceding the eligibility date for the election here-
inafter directed, and who have not been terminated for cause or
quit voluntarily prior to completion of the last job for which
they were hired.
III. RECORD EVIDENCE AND ANALYSIS
In reaching my determination that the petitioned-for histori-
cal unit, which includes scaffold builders and excludes electri-
cians, insulators, and DST employees, is an appropriate unit for
the purposes of collective-bargaining, I considered a commu-
nity-of-interest analysis. Additionally, I considered whether
there are present any compelling circumstances that warrant
TURNER INDUSTRIES GROUP, LLC 437
disturbing the historical bargaining unit in this case. My de-
termination is consistent with the principle that “[i]t is well
settled that the existence of significant bargaining history
weighs heavily in favor of a finding that a historical unit is
appropriate, and that the party challenging the historical unit
bears the burden of showing that the unit is no longer appropri-
ate.” Canal Carting, Inc., 339 NLRB 969, 970 (2003).
A. Operations and Bargaining History at BASF
The record evidence reflects that dating back to at least 1958,
the Petitioner has represented employees at the BASF chemical
plants located in Geismar, Louisiana (hereinafter “BASF”). In
the 1980s, the Petitioner represented employees at BASF who
were employed by National Maintenance Corporation, referred
to herein as National Maintenance.
The record discloses that on May 11, 1990, National Mainte-
nance executed a collective-bargaining agreement with the
Petitioner in which it recognized the Petitioner as the bargain-
ing representative for “all maintenance employees.” Thereaf-
ter, in 1995, at the request of BASF, National Maintenance
created the job classification of multi-skilled mechanic to better
meet the needs of BASF. Subsequently, on September 1, 1995,
National Maintenance executed another collective-bargaining
agreement with the Petitioner. The recognition clause of the
agreement included “all maintenance employees” and specifi-
cally excluded “all multi-skilled employees assigned to Direct
Manufacturing Support Teams (DMS).” On May 31, 1996,
National Maintenance executed another collective-bargaining
agreement with the Petitioner in which all multi-skilled em-
ployees assigned to DMS were again specifically excluded.
Likewise, collective-bargaining agreements executed by Na-
tional Maintenance and the Petitioner on December 23, 1996
and October 31, 2001 specifically excluded multi-skilled DMS
employees. National Maintenance and the Petitioner also exe-
cuted a collective-bargaining agreement on February 30, 1998;
however, the agreement as contained in the record does not
include a recognition clause.
Some time during 2000, National Maintenance evolved into
International Maintenance Corporation, referred to herein as
IMC, a subsidiary of Turner Industries Holding Company
L.L.C. However, the record does not contain any documenta-
tion reflecting how or when National Maintenance became
IMC. Notably, even after 2000, the Petitioner executed a col-
lective-bargaining agreement with National Maintenance on
October 31, 2001 that covers work at BASF.
Like National Maintenance, IMC also recognized the Peti-
tioner as the bargaining representative for its employees at
BASF. The most recent collective-bargaining agreement be-
tween IMC and the Petitioner became effective June 7, 2004.
The agreement provided that it did not “extend to construction
work or any work other than maintenance.” Pursuant to the
agreement, IMC recognized the Petitioner as the “exclusive
bargaining representative for all maintenance employees em-
ployed by [IMC], excluding all office clerical employees,
guards, watchmen and supervisors as defined by the National
Labor Relations Act, and all multi-skill employees assigned to
Direct Manufacturing Teams (DMS).” The agreement also
provided that the Petitioner “will be the primary source of
manpower” and that when hiring employees to work turn-
arounds, IMC “will notify the [Petitioner] of the number of
applicants required from each Local Union.” IMC then did
acquire its turnaround employees through the union hall. Many
of the employees IMC hired to work turnarounds were former
turnaround employees who were recalled. The Petitioner pro-
vided the turnaround employees, but the employees still had to
be “hired in” through IMC’s personnel department. As part of
the process, Danny Price, who was the Site Superintendent for
IMC, sent labor requisitions, which contained the employee’s
name, craft, rate of pay, and report date, to the personnel de-
partment.
The record evidence reflects that in 2004, IMC lost its contract
to perform the maintenance work at BASF to a nonunion contrac-
tor. BASF awarded the contract to Turner Company L.L.C.,
referred to herein as Turner, on an open-shop basis. Turner is
also a subsidiary of Turner Industries Holding Company L.L.C.
Thereafter, on November 8, 2004, IMC and the Petitioner mutu-
ally agreed to terminate the June 7, 2004 collective-bargaining
agreement. As part of the Petitioner’s agreement to terminate the
collective-bargaining agreement, all IMC employees covered by
the terminated collective-bargaining agreement received a
$200.00 severance payment and the opportunity to work with
Turner. Forty-two (42) of the fifty-five (55) former IMC em-
ployees accepted Turner’s employment offer and began working
with Turner without any break in service.
As employees for Turner, the forty-two employees no longer
paid into the Petitioner’s benefit program, but were offered
Turner’s short-term and long-term disability insurance, Blue
Cross/Blue Shield health insurance, dental and eye insurance,
and 401(k) savings plan. The record evidence does not reflect
any changes in the nature of the work performed by employees.
Further, the record evidence does not expressly disclose what
hourly rate Turner paid to the former IMC employees. I note
that the record reflects IMC paid its represented employees an
hourly rate of $19.15 per hour plus an additional ninety-five
cents ($0.95) per hour for health insurance.
On November 19, 2004, Turner executed a contract with
BASF to perform work “consisting of certain maintenance
and/or construction tasks or procedures, or to accomplish cer-
tain maintenance or construction results” at BASF on a non-
union basis. Turner assumed responsibility for performing all
maintenance and/or construction tasks at BASF, including elec-
trical work that was previously done by Davis International
Electrical Company and insulation work that was previously
done by Petrin Corporation. Turner purchased Davis Interna-
tional Electrical Company on November 11, 2004 and Petrin
Corporation on December 20, 2004. Turner, as it did with the
former IMC employees, hired the electricians formerly em-
ployed by Davis Electrical Company and the insulators for-
merly employed by Petrin Corporation. Turner completed its
transition of employees from IMC on about December 21,
2004.
As of, at least, December 31, 2004, Turner Industries Hold-
ing Company L.L.C., referred to herein as Turner Holding, was
also the parent company of (1) Harmony L.L.C., (2) Harmony
Industrial Maintenance L.L.C., (3) IMC, (4) International Pip-
ing Systems L.L.C., (5) Nichols Construction Company L.L.C.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD438
(6) Scafco L.L.C., (7) Turner International Piping Systems
L.L.C., (8) Turner International L.L.C., (9) Turner Industrial
Maintenance L.L.C., (10) Turner Industrial Technical L.L.C.,
and (11) Turner Industrial Service L.L.C. Turner and IMC,
however, were the only subsidiary companies of Turner Hold-
ing actually at BASF as of December 31, 2004.
Effective January 1, 2005, Turner Holding changed its name
to Turner Industries Group L.L.C., the Employer in this case.
Simultaneous with the name change, Turner, along with IMC,
Harmony L.L.C., Harmony Industrial Maintenance L.L.C.,
International Piping Systems L.L.C., Nichols Construction
L.L.C., Scafco L.L.C., and Turner International Piping Systems
L.L.C., merged into the Employer. The effect of the merger
was in name only and did not in any way affect the benefits or
pay rates of employees working for the respective former sub-
sidiaries of Turner Holding.
Additionally, the Employer became the parent company of
Turner International L.L.C. and Turner Industrial Maintenance
L.L.C. Turner Industrial Technical L.L.C. and Turner Industrial
Services L.L.C. merged to form Turner Specialty Services
L.L.C., which also became a subsidiary company of the Em-
ployer. As of January 1, 2005, the Employer, not IMC or
Turner, holds the contract to perform work at BASF.
B. The Employer’s Current Operation at BASF
The Employer is a time and material contractor that provides
maintenance support services for various chemical plants, in-
cluding BASF. BASF is a complex of eleven (11) chemical
plants situated on 2600 acres. The Employer is responsible for
performing maintenance work that is necessary to keep BASF
operational. The Employer also performs “small cap” projects
at BASF. Small cap projects are projects valued at up to ten
million dollars and involve modifying existing equipment to
improve BASF’s efficiency and productivity. The Employer
maintains a core work force of approximately 210 employees
on a daily basis that performs the maintenance support services
and the “small cap” projects. The work performed by the Em-
ployer at BASF includes the following tasks: carpentry work,
structural steel erection, concrete work, drill shafts/piling, ex-
cavation, road repair, building repairs, plumbing, welding, boil-
ermaking, pipe fabrications, pipefitting and pipe erection, and
general labor.
In addition to providing daily maintenance support and per-
forming “small cap” projects, the Employer also works “turn-
arounds” and “outages” at BASF. Turnarounds are scheduled
projects that require production in a designated section of
BASF to be partially or fully shut down during the completion
of preventative maintenance or structural modifications. The
average duration of a turnaround project is two (2) weeks.
Outages, which are similar to turnarounds, are unscheduled
projects that become necessary due to operational emergencies.
Historically, there have been twenty (20) to thirty (30) turn-
arounds and outages per year at BASF.
The record discloses that when performing outage work, the
Employer normally uses its core work force to complete the
work. During turnarounds, the Employer, when necessary,
requires its core work force to work overtime. Additionally, the
Employer may supplement its core work force with “turn-
around employees.” The “turnaround employees” are hired
through the Employer’s personnel office. As part of their hir-
ing process, “turnaround employees” must score at least sev-
enty percent (70%) on the Employer administered skill assess-
ment test to be considered certified in a designated craft. Fur-
ther, the Employer informs the “turnaround employees” that
their employment is limited to the duration of the turnaround.
Nonetheless, the record evidence reflects that the Employer
uses “turnaround employees” to replace under achieving em-
ployees in its core work force or to fill vacancies in the core
work force.
The record reflects that at the time of the hearing, the Em-
ployer had performed one turnaround in February 2005. For
this turnaround, which lasted about 2 weeks, the Employer
hired one-hundred (100) “turnaround employees” to comple-
ment its core work force. Upon completion of the turnaround,
the Employer retained some of the “turnaround employees,”
which included insulators, a pipefitter, and four to six other
employees certified in one of the Mechanical Department crafts
as set forth below.
The Employer has organized its operation at the facility into
two sections: Alliance Contract Services (“ACS”) and Daily
Maintenance Support (“DMS”), also known as Daily Support
Team (“DST”). Site Manager Danny Price oversees both the
ACS and DST sections. The ACS section has department su-
pervisors, planner/schedulers, and foremen. The DST section
has zone supervisors, zone planner/coordinators, and foremen.
The Parties stipulate and I find that the foremen are hourly paid
employees who work with tools of the trade and are to be in-
cluded in any unit found appropriate.
The ACS section is organized into four departments com-
prised of approximately seventy (70) employees: Civil, Insula-
tion/Paint, Mechanical, and Electrical. Each employee in the
ACS section, except laborers, is required to possess skill certi-
fication in at least one craft. Employees gain the required skill
certification by scoring at least 70% on a skill assessment test
administered by the Employer. Journeyman level ACS em-
ployees are paid an hourly wage of $17.80 per hour.
The Civil Department consists of approximately thirty-one
(31) employees: five (5) carpenters, three (3) laborers, nineteen
(19) scaffold builders and four (4) cement masons. Scott
Cassard is the Supervisor. Danny Guitreau is the Plan-
ner/Scheduler for the Civil and the Insulation/Paint Depart-
ments.
The Insulation/Paint Department consists of approximately
thirty-one (31) employees, including twenty-three (23) insula-
tors and eight (8) painters. Kelly Cortez is the Supervisor.
The Mechanical Department consists of approximately
twenty-eight (28) employees: four (4) boilermakers, two (2)
ironworkers, (1) millwright, twelve (12) pipefitters, and nine
(9) welders. James Guice is the Supervisor. Larry Wellman
and Steven Brassett serve as the Planner/Schedulers for the
Mechanical and the Electrical Departments.
The Electrical Department consists of approximately sixteen
(16) employees, including fifteen (15) Electricians and one (1)
Instrument Tech. Pete Baker is the Supervisor.
The record reflects that equipment mechanic operators are
also considered a part of the ACS section. As noted above,
TURNER INDUSTRIES GROUP, LLC 439
they are represented by the International Union of Operating
Engineers, Local 406 and are to be excluded from any unit
found appropriate. I note that the equipment mechanic opera-
tors are paid the same $17.80 hourly wage as the petitioned-for
journeyman level ACS employees.
In 1995, National Maintenance Corporation created a multi-
skilled mechanic job classification. The multi-skilled employ-
ees were assigned to work as Direct Manufacturing Support
Teams (DMS). Currently, the Employer continues to employ
multi-skilled employees who are required to attain skill certifi-
cations in at least three crafts. The multi-skilled employees
presently are assigned to work in the Daily Support Team
(“DST”) section.
Whereas the ACS employees report to departments on a
daily basis, DST employees report to one of the five (5) as-
signed zones and typically function within that zone on a day-
to-day basis. Additionally, “nesters,” which are ACS employ-
ees certified in only one craft, specifically painters, scaffold
builders, and insulators, are assigned to each of the five zones
and, during this assignment, report to the designated DST Su-
pervisor. Although the “nesters” are assigned to the DST sec-
tion, they are not paid the same hourly wage as the DST em-
ployees, which range from $19.05 to $21.40 per hour. Nesters
continue to be paid as ACS employees. Throughout the day,
the “nesters” may also report to ACS supervisors in the Civil
and Insulation/Paint Departments. Overall, the DST section is
comprised of approximately 57 multiskilled employees and
approximately 24 “nesters.”
The five zones are as follows: Zone 1, which includes the
waste water treatment plant and the utilities, is supervised by
Gene Higginbotham and Charles Monson. Leonard James is
the planner assigned to Zone 1. Fifteen multiskilled employees
are assigned to Zone 1. Three “nesters” are also regularly as-
signed to Zone 1: painter Bennie Ennis, a scaffold builder, and
an insulator.
Zone 2 includes the urethane plants. Wayne Sharp supervises
the fourteen (14) multi-skilled employees and eight (8) “nest-
ers” that are assigned to Zone 2. The “nesters” include painter
Bob Underwood, four (4) insulators, and three (3) scaffold
builders. Neal Bullion is the planner assigned to Zone 2.
Zone 3 includes the Diols and Amines plants. J.J. Fontenot
and David Egnew supervise the fifteen (15) multi-skilled em-
ployees that are assigned to Zone 3. Six (6) “nesters,” all insu-
lators, are also assigned to Zone 3.
Zone 4, which includes the Polyol, Chlorine, and Aniline
plants, is supervised by Mike Lamber. Larry Daigle is the planner
for Zone 4. Eight (8) multi-skilled employees and three (3) “nest-
ers,” a painter and two (2) insulators, are assigned to Zone 4.
Zone 5 includes the Carboxy and Acetylene plants. Geza
Kovach supervises the seven (7) multi-skilled employees and
four (4) “nesters,” all insulators, which are assigned to Zone 5.
Mervin McConn is the planner.
C. Community of Interest
Neither the Act nor Board policy requires a petitioner to seek
the optimum unit. The Board considers only whether the peti-
tioned-for unit is an appropriate unit. Black & Decker Mfg.
Co., 147 NLRB 825, 828 (1964). As the Board noted in Over-
nite Transportation Co., 322 NLRB 723 (1996):
Section 9(b) of the Act provides that the Board ‘shall decide
in each case whether … the unit appropriate for the purposes
of collective-bargaining shall be the employer unit, craft unit,
plant unit, or subdivision thereof.’ The plain language of the
Act clearly indicates that the same employees of an employer
may be grouped together for purposes of collective bargaining
in more than one appropriate unit. For example, under Sec-
tion 9(b), the same employees who may constitute part of an
appropriate employer wide unit also may constitute an appro-
priate unit if they are a craft unit or are a plant wide unit. The
statute further provides that units different from these three, or
‘subdivisions thereof,’ also may be appropriate. It is well-
settled then that there is more than one way in which employ-
ees of a given employer may be appropriately grouped for
purposes of collective bargaining.” Overnite at 723.
Therefore, the Petitioner is not required to seek the most
comprehensive unit of employees unless a unit compatible with
its requested unit does not exist. P. Ballentine Packing Co., 141
NLRB 1103, 1107 (1963). Indeed, the Board has determined
that it is not its function “to compel all employees to be repre-
sented or unrepresented at the same time or to require that a
labor organization represent employees it does not wish to rep-
resent, unless an appropriate unit does not otherwise exist.”
Mc-Mor-Han Trucking Co., 166 NLRB 700, 701 (1967), quot-
ing Ballentine Packing Co., 132 NLRB at 925 (1961). As such,
the Board first examines the petitioned-for unit to determine if
it is an appropriate unit. “If that unit is appropriate, then the
inquiry into the appropriate unit ends. If the petitioned-for unit
is not appropriate, the Board may examine the alternative units
suggested by the parties, but it also has the discretion to select
an appropriate unit that is different from the alternative propos-
als of the parties.” Barlett Collins Co., 334 NLRB 484, 484
(2001). I note that the Board generally attempts to select a unit
that is the smallest appropriate unit encompassing the peti-
tioned-for employee classifications. Barlett at 484.
In establishing an appropriate bargaining unit, the Board
considers whether the petitioned-for employees share a com-
munity-of-interest. Community-of-interest factors considered
by the Board include (a) bargaining history, (b) the nature of
employee skills and supervision, (c) the degree of functional
integration, (d) frequency of contact and interchange with other
employees, and (e) the terms and conditions of employment.
Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962);
Brand Precision Svcs., 313 NLRB 657 (1994); Ore-Ida Foods,
313 NLRB 1016 (1994), affd. 66 F.3d 328 (7th Cir. 1995). The
Board generally looks to the totality of the circumstances or the
overall community of interest in making unit determinations.
Johnson Controls, Inc., 322 NLRB 669 (1996). Additionally,
where a craft or departmental group is sought, the Board con-
siders whether the petitioned-for employees participate in a
formal training or apprenticeship program; whether the duties
of the petitioned-for employees overlap with the duties of the
excluded employees; and whether the employer assigns work
according to need rather than on craft or jurisdictional lines.
Burns & Roe Services Corp., 313 NLRB 1307, 1308 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD440
The Petitioner in this case seeks to represent a unit compris-
ing ACS section employees, but excluding electricians, insula-
tors, operators, and multi-skilled DST employees. As noted
above, the Employer contends that the only appropriate unit in
this matter is one that includes all maintenance employees at
BASF, including electricians, insulators, and DST employees
because the employees share common interests and conditions
of employment.
(a) Bargaining history and history of operations
In determining the appropriateness of a bargaining unit, prior
bargaining history is given substantial weight. Generally, the
Board is reluctant to disturb a unit established by collective-
bargaining that is not repugnant to Board policy or so consti-
tuted as to hamper employees in fully exercising rights guaran-
teed by the Act. Red Coats, Inc., 328 NLRB 205 (1999).
Therefore, a party challenging the appropriateness of a histori-
cal unit has a heavy evidentiary burden. Trident Seafoods, Inc.,
318 NLRB 738 (1995). Further, “a mere change in ownership
should not uproot bargaining units that have enjoyed a history
of collective bargaining unless the units no longer conform
reasonably well to other standards of appropriateness.” Trident
at 738.
The Petitioner has not enjoyed a history of collective-
bargaining with the Employer. Indeed, the record evidence
reflects that prior to January 1, 2005, the Employer did not exist
in its present name or form. Nonetheless, the record reflects
that dating back to at least 1990, the Petitioner has enjoyed a
collective-bargaining relationship at BASF with various sub-
sidiary companies of Turner Holding, the Employer’s predeces-
sor in name, but not form.
It is clear from the record that the Petitioner’s bargaining his-
tory in the petitioned-for unit was interrupted in November
2004 when the Petitioner agreed to terminate its collective-
bargaining agreement with IMC. Prior to November 2004,
employees in the petitioned-for unit were paid a journeyman
level hourly rate of $19.15 per hour, plus an additional ninety-
five cent ($0.95) per hour for health insurance. Additionally,
the employees receive their insurance and benefits through the
Petitioner. Presently, the Employer pays journeyman level em-
ployees in the petitioned-for unit an hourly rate of $17.80, and
provides its benefit package to the employees. Other than
wages and benefits, the record evidence fails to show that the
nature of the work performed by the Employer’s ACS employ-
ees differ substantially from the work performed by employees
represented by the Petitioner at BASF with the various subsidi-
ary companies of Turner Holding.
Further, to the extent that the electricians and insulators are
now employed by the Employer, they have not been historically
represented by the Petitioner at BASF. Furthermore, as dis-
cussed in more detail below, neither the electricians nor the
insulators share a community of interest so overwhelming with
the petitioned-for historical unit that the unit must be broadened
to include them. Indeed, like the operating engineers, both the
electricians and the insulators each could constitute a separate
appropriate craft unit.
Accordingly, I conclude that the record evidence reflects that
the Employer has failed to show the existence of any compel-
ling circumstances that warrant disturbing the historical bar-
gaining unit.
Furthermore, in support of the appropriateness of maintain-
ing a historical unit, the bargaining pattern at other plants of the
same employer, although not controlling in relation to the bar-
gaining unit of a particular plant, is a factor to be considered in
unit determination. Spartan Department Stores, 140 NLRB
608 (1963). The record evidence reflects that in addition to
BASF, the Petitioner has executed collective-bargaining agree-
ments with various subsidiaries of Turner Industries Holding
Company L.L.C. at other chemical facilities. The recognition
clause in those agreements have substantially mirrored the rec-
ognition clause in the agreements the Petitioner has executed at
BASF. For instance, at Dow Chemical, National Mainte-
nance’s June 7, 1999 agreement recognition clause included
“all maintenance employees.” The recognition clause is the
same in agreements that IMC had with the Petitioner at PCS
Nitrogen and Williams Olefins and Vulcan Chemicals and
Honeywell International and Louisiana Generating and DSM
Elastomers, all effective January 29, 2001. IMC’s agreement
with the Petitioner at Borden Chemicals and Plastics effective
December 28, 1999 also included “all maintenance employees”
in the recognized unit.
Thus, I conclude that the bargaining history in the petitioned-
for unit weighs heavily in favor of a finding that the historical
unit continues to be an appropriate unit for the purposes of
collective-bargaining.
The Employer relies upon The Boeing Co., 337 NLRB 152
(2001), to support its contention that the petitioned-for unit
should be enlarged to include electricians, insulators, and DST
employees because the slight differences with the petitioned-for
unit is outweighed by the factors they have in common. Nota-
bly, the petitioner in The Boeing Company did not have an
extensive collective-bargaining relationship with the employer,
and therefore, did not seek to represent a historical unit. Thus,
bargaining history was not a part of the analysis utilized by the
Board in reaching its decision in that case. Accordingly, I find
the Board’s conclusion in The Boeing Company was based
upon facts inapposite to the instant case.
(b) Nature of employee skills and supervision
All employees, ACS and DST, attend twenty-four (24) Oc-
cupational, Safety, and Health Administration (“OSHA”) re-
quired training courses and attend other training required by the
Employer. All employees have access to the services of a train-
ing coordinator who helps place employees in skill training
classes offered by the Associated Builders Contract (“ABC”)
school. The Employer contributes $30 for interested employ-
ees, both ACS and DST, to attend classes on their own time.
ACS employees have voluntarily utilized such classes to up-
grade their skill levels and to become certified in additional
crafts within the ACS section. Specifically, painters have ac-
quired the skills to become pipefitters and a carpenter acquired
the skills to become a scaffold builder.
As a condition of employment, all ACS employees, except
laborers, must score at least a seventy percent (70%) on the
Employer administered skill assessment test to be certified in at
least one skill classification. The skill assessment tests verify
TURNER INDUSTRIES GROUP, LLC 441
that a person is proficient in the job classification designated
and is capable of performing the work. Once ACS employees
possess at least one skill certification, they are not subject to
any additional skill or psychological testing and are not re-
quired to be certified or licensed by the State.
The record reflects that the Employer recognizes differences
between various crafts in terms of skills and responsibilities.
Nonetheless, notwithstanding an ACS employee’s skill certifica-
tion, the Employer makes its job assignments according to which
employees are available and able to perform the work required to
meet the needs of BASF. Thus, the record reflects that ACS
employees often perform tasks which are not included in their
skill certification. For instance, in the mechanical department,
pipefitters do boilermaker work, boilermakers weld pipes, iron-
workers fit pipes, and pipefitters put up structural steel.
In the Civil Department, scaffold builders generally erect
scaffolds and build platforms that are used by and enable other
employees to perform their work. The record evidence reflects
that carpenters do re-bar work, run jackhammers, build forms,
move furniture, build containment boxes, and unload trucks.
Carpenters use claw-hammers and scaffold wrenches in the
performance of their duties.
The record evidence discloses that laborers are not required
initially to grade out on an Employer administered skill assess-
ment test. To progress, however, laborers must score at least
70% on the skill assessment test. Laborers also complete a 40-
hour HAZMAT training and work on the HAZMAT team
cleaning up spills. Laborers do shovel work, perform clean-up,
unload catalyst, and move furniture. Similar to laborers, the
record reflects that cement masons perform general labor work
and work with the HAZMAT team. Cement masons also finish
cement, dig forms, dispose of paint waste, and refuel equip-
ment.
The record evidence discloses that in the Insulation/Paint
Department, insulators are generally responsible for installing
and removing insulation at BASF. Only insulators perform
asbestos abatement. Insulators also perform hole watch, fire
watch and fireproofing, tear down scaffolds, do paint work, and
move furniture. In the performance of their duties, insulators
use hand saws, cordless rivets, drills, personal protective cloth-
ing on asbestos work, vacuums, and benders.
Like the insulators, the painters also perform hole watch and
fire watch. Additionally, the painters do mostly “touch-up”
painting. In the performance of their tasks, painters use brushes,
rollers, and chipping guns. The painters also operate forklifts,
perform warehousing work, and work in tool rooms.
In the Mechanical Department, ironworkers, welders, pipefit-
ters, and boilermakers perform torque work, weld pipelines,
change out valves and do outages. In the performance of their
tasks, boilermakers use hand wrenches, impacts, and channel-
locks, and millwrights use socket sets and shims.
In the Electrical Department, electricians receive their as-
signments via maintenance work orders. Electricians do pre-
ventive maintenance on switch gears, upgrades on wire pulls,
change configurations and install loops in the control rooms,
install cable trays (trays hold wires together), and change light
bulbs. They install electrical tracing and contra-tracing (which
is normally mechanical department work), and weld on brack-
ets used to support cable trays. Electricians also do “small cap”
work. Significantly, electricians perform tasks specialized to
their craft, such as all electrical preventive maintenance on
heavy switch gears rated 480 and above and the maintenance
and operation of all 11 switch gears. In the performance of
their craft, electricians use electric saws, tripods, squares, lev-
els, hammers, center punches, drills, wire snips and volt meters.
The record evidence reflects that instrumentation work is done
by BASF.
The DST multi-skilled employees are primarily responsible
for preventive maintenance and repairs at BASF. The DST
employees report to their DST zone supervisor. DST mechan-
ics are the highest skilled employees at BASF. Any employee
interested in becoming a DST mechanic must possess at least
one skill certification, which rules out apprentices and helpers.
As part of the selection process, an employee must successfully
complete an interview, undergo a pulmonary function test, and
pass a psychometric test. The psychometric test is used as a
barometer to indicate how an individual handles conflict resolu-
tion, makes decision, and works as a member of a team. Addi-
tionally, if the employee does not possess certifications in three
job classifications, the employee must agree to attain the certi-
fications by attending training classes on their own time. The
employee must maintain a B average in the classes, and upon
completion of the classes, complete 6 months of on-the-job
training in the targeted skill classification.
Clearly, the DST employees’ skills and separate supervision
weigh in favor of excluding them from the petitioned-for unit.
(c) Degree of functional integration
The Employer provides tools for all employees, both ACS
and DST, but some employees may bring and work with their
own personal tools. Employees have their own toolboxes.
Since January 1, 2005, the Employer has begun requiring newly
hired employees to have their own personal hand tools, such as
tape measures, tri-squares, torpedo levels, and channel locks.
The ACS employees have shops in their respective depart-
ments where they perform tasks according to their crafts before
deploying to perform “small cap” or maintenance work
throughout BASF. ACS employees are assigned job tasks ac-
cording to what is required to supply the needs of BASF. For
instance, the record reflects that boilermakers perform the fol-
lowing tasks at BASF: blinding (isolating a pipe and working
with end wrenches), removing pipe, installing valves, rigging,
tower work, bolt-up work, small fabrication, installing struc-
tural steel, unloading trucks, material handling, building scaf-
folds up to 20 feet, removing scaffolds, fiberglass work, apply-
ing resin on fiberglass wraps, some touch-up painting on spray
applications, some catalyst handling, cane removal on reactors,
hooking up air compressors and welding machines, and flight
plants. Additionally, millwrights apply coatings to pump hous-
ings, insulators apply paint or coatings, painters build cabinet
boxes, pipefitters apply paint or resin, and mechanics apply
fiberglass resin. Further, laborers work with cement masons
and carpenters. Thus, the record does reflect some overlapping
of job functions.
At times, the Employer uses ACS pipefitters and boilermak-
ers, who possess a single skill certification, to supplement DST
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD442
crews when extra people are needed. Likewise, insulators,
when working with DST employees, put on steam tracing and
fill it in, pull pumps, and bolt up valves. Additionally, “nest-
ers” periodically assist DST employees. DST employees, how-
ever, generally do not perform the skill work of the “nesters.”
Occasionally, during “small cap” projects, DST mechanics may
help ACS employees complete a final alignment on an installed
pump. Further, during turnarounds, ACS employees and DST
employees are required to work together to complete a project
as soon as possible. During these turnarounds, ACS employ-
ees, regardless of skill certification, work as a group to com-
plete the turnaround work as soon as possible. ACS employ-
ees, particularly Mechanical Department employees, may be
assigned to work alongside DST employees during turn-
arounds. ACS employees, however, do not generally perform
the exact same work as the DST employees during turnarounds.
This occasional overlapping of trades involving lesser skilled
duties does not preclude a separate unit. Schaus Roofing, 323
NLRB No. 146 (1997). Further, the use of teams composed of
mixed skill employees does not make a separate unit inappro-
priate. Burns & Roe Svcs. Corp., 313 NLRB 1307, 1308
(1994).
(d) Frequency of contact and interchange
with other employees
ACS employees report to shops located in one of four de-
partments: Civil, Insulation/Paint, Mechanical, and Electrical.
However, their work is not confined to the shops. In the per-
formance of their jobs, particularly “small cap” projects, they
work throughout all the eleven plants located in the five zones
at BASF. As such, they come into contact with and work
around DST mechanics assigned to perform the maintenance
support work in the zones. ACS employees generally do not,
however, work with DST employees or perform the work of
DST employees. As reflected above in the skills section, many
of the ACS employees perform work in crafts other than the
one in which they are certified.
In contrast to the ACS employees, DST mechanics report to
one of five zones at BASF and generally do not perform work
outside of a designated zone. Other than “nesters,” which are
painters, scaffold builders, and insulators, DST mechanics have
limited interaction with other ACS employees. Three (3) of the
eight (8) painters are assigned to work in the zones alongside
DST mechanics, and they report to DST supervisors. The re-
cord evidence does not reflect that the painters perform the
same tasks as DST employees.
Scaffold builders, in performing their duties, have work-
related contact with other ACS section employees as well as
with DST mechanics. Scaffold builders are assigned to DST
zones as needed and report to DST supervisors. Scaffold build-
ers generally do not actually perform the same tasks as the DST
mechanics, but during turnarounds, scaffold builders string
pipe, bolt up flanges, install blinds, and, as needed, are assigned
to perform other work they are qualified to do.
Further, the record discloses that fourteen (14) of the twenty-
three (23) insulators are assigned to work in zones with the
DST employees and report to DST supervisors. Indeed, some
of the insulators are permanently assigned to work in the zones,
and insulators have shops in each of the DST zones.
Notably, although “nesters” are assigned to work in DST
zones, they are not paid the same wage rate as DST employees.
Nesters continue to be paid as ACS employees.
(e) Terms and conditions of employment
All employees, ACS and DST, park in the West Contractor
Entrance and enter BASF through the same security point. All
employees have identification badges that are used to enter
BASF through the same gates. All employees use the same
buses to travel to their designated work areas.
The Employer has fourteen (14) lunchrooms located
throughout BASF that are accessible to any employee, ACS or
DST. Employees generally eat lunch in the area in which they
are working, yet, some employees return to a specific lunch-
room to eat lunch. The record reflects that where employees
eat lunch is a matter of geographic and personal preference.
The same is true regarding restrooms.
Since December 20, 2004, all employees, ACS and DST, re-
ceive the same short-term and long-term disability insurance,
Blue Cross/Blue Shield health insurance, dental and eye insur-
ance, and 401(k) savings plan. All employees are also subject
to the same discrimination policy and alcohol contraband pol-
icy. All employees express their concerns and present com-
plaints to the same personnel representative. Site Manager
Danny Price is the final authority for discipline of all employ-
ees, with all other supervisors having authority to recommend
discipline. All employees receive the same flexible break peri-
ods, which are based upon crew assignments.
Notably, ACS employees do not receive the same vacation
and holiday benefits as DST employees. ACS employees, re-
gardless of skill certification, receive a maximum of one (1)
week paid vacation after 1 year of continuous service. In con-
trast, DST employees receive two (2) weeks of paid vacation
after 3 years of continuous service and three (3) weeks of paid
vacation after 10 years of continuous service. Further, ACS
employees receive ten (10) non-paid holidays, but DST em-
ployees receive ten (10) paid holidays.
All employees, ACS and DST, are paid biweekly and receive
an hourly rate according to their experience level. The specific
rate of pay an ACS employee receives is based upon the em-
ployee’s experience level in the craft, which “A” signifies jour-
neyman level at $17.80 per hour. In contrast, DST mechanics
receive an entry level pay rate of $19.05, which progresses up
to $21.40 per hour based on the experience of the employee.
Thus, there is a considerable difference in the pay received by
ACS employees and DST employees.
Employees are not required to wear uniforms. All employ-
ees, ACS and DST, wear hard hats in various colors. Histori-
cally, ACS employees wore brown hardhats and DST employ-
ees wore gold hats. Likewise, the electricians normally wore
yellow hardhats when they were employed by Davis Electrical
Company, and the insulators wore green hardhats when they
were employed by Petrin Corporation. Presently, whenever an
ACS or DST employee needs to replace a hardhat, the color is
determined by what color is available when the Employer
TURNER INDUSTRIES GROUP, LLC 443
places its order. Brown has been the color available in recent
years.
The ACS employees have shops in their respective depart-
ments and the DST employees have shops in their respective
zones. The DST shops, however, are better equipped than the
ACS shops.
IV. SUMMARY
(a) Electricians
While the electricians’ frequency of contact and interchange
with other ACS employees and their receipt of similar terms
and conditions of employment as the other ACS employees
may favor including them in the petitioned-for unit, their his-
torical independence and particularly specialized work are de-
terminative in excluding them from the petitioned-for unit.
Electricians perform all electrical preventive maintenance on
heavy switch gear rated 480 and above. Such electrical main-
tenance work is a task specialized to the electrician craft. The
record is void of any evidence that other ACS employees per-
form electrical maintenance on heavy switch gears rated 480
and above. To the extent the record reflects that other ACS
employees perform electrical work, it is limited to work that
does not require the expertise of a skilled electrician, such as
installing cable trays to hold wires. The record evidence dis-
closes and I find that the electricians could constitute a separate
appropriate craft unit. Additionally, I note that the electricians
have not been included in the bargaining unit historically repre-
sented by the Petitioner at BASF.
Thus, I conclude that the electricians are appropriately ex-
cluded from the petitioned-for unit.
(b) Insulators
Like the electricians, the insulators’ frequency of contact and
interchange with other ACS employees, their receipt of similar
terms and conditions of employment as other ACS employees,
and their degree of functional integration with other ACS em-
ployees favor including them in the petitioned-for unit. Par-
ticularly, the insulators are assigned to the same department as
painters and perform substantially similar tasks as the painters.
There are, however, nearly three times as many insulators (23)
as there are painters (8). The record discloses that the insula-
tors may do paint work, but the evidence does not reflect that
painters perform any installation or removal of insulation.
Indeed, the record evidence discloses that only insulators per-
form asbestos abatement. Additionally, the record reflects that
the insulators and painters use different tools to perform their
respective tasks. Further, fourteen (14) insulators are assigned
to work with DST employees in zones, whereas only three (3)
painters are so assigned. The determinative factor, however, is
that the insulators, unlike the painters, have not been included
in the bargaining unit historically represented by the Petitioner
at BASF.
I conclude, therefore, that the insulators are appropriately
excluded from the petitioned-for unit.
(c) DST
Contrary to the Employer's position at the hearing and in its
brief, it is clear from the record that the DST employees, gener-
ally known as multi-skilled mechanics, constitute a clearly
identifiable and functionally distinct craft group with common
interests that distinguishes them from ACS section employees.
Johnson Controls, supra at 672, citing Del-Mont Construction
Co., 150 NLRB 85, 87 (1965). DST mechanics are the highest
skilled employees at BASF; primarily perform their work in
designated zones; report to DST zone supervisors; do not per-
form the work of ACS “nesters’; wear gold hardhats; generally
work 5 days per week/eight hours per day; wear pagers and are
subject to mandatory overtime; receive overtime pay after eight
hours per day; receive ten (10) paid holidays per year; receive
up to three (3) weeks of vacation based upon the number of
continuous years of service; and receive the highest pay at
$21.40 per hour. Furthermore, DST employees are not a part of
bargaining unit historically represented by the Petitioner and
prior to December 22, 2004, received a separate benefit pack-
age than the ACS employees.
In sum, the record evidence supports the Petitioner’s claim
that the DST employees are a clearly identifiable and function-
ally distinct group with common interests which are distin-
guishable from those of the ACS employees at BASF. I con-
clude, therefore, that the DST employees are appropriately
excluded from the petitioned-for unit.
D. Construction Industry
In 1967, the Board noted that in the construction industry,
many employees experience intermittent employment and may
work for short periods on different projects for several different
employers in a year. Daniel Construction Co., 167 NLRB 1078
(1967). Therefore, the Board established the following eligibil-
ity formula to insure that all employees with a reasonable ex-
pectation of future employment with an employer engaged in
the construction industry would have the fullest opportunity to
participate in a representation election:
Accordingly, we find that, in addition to those employees in
the unit who were employed during the payroll period im-
mediately preceding the date of the issuance of the Regional
Director’s Notice of Second Election in this proceeding, all
employees 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 employment in that period and who have
been employed 45 days or more within the 24 months im-
mediately preceding the eligibility date for the election here-
inafter directed, and who have not been terminated for cause
or quit voluntarily prior to the completion of the last job for
which they were employed, shall be eligible to vote.
[Daniel at 1081. ]
In 1992, the Board confirmed the appropriateness of apply-
ing the Daniel formula when an employer has a relatively sta-
ble work force but also experiences sporadic employment pat-
terns typical of the construction industry. Steiny & Co., 308
NLRB 1323 (1992).
The Employer contends that it is not engaged in the con-
struction industry, and that therefore, the Daniel/Steiny formula
is not applicable in determining voter eligibility. Rather, the
Employer contends that the maintenance services it provides at
BASF, which includes rebuilding pumps, changing valves,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD444
swapping out reactor chains, dumping catalyst, internal work
on towers, installing pipelines, building scaffolds, touch up
painting, asbestos abatement, firewater leaks, underground
works, form work, moving furniture and unloading trucks, is
governed by OSHA standards for General Industry or Mainte-
nance and is not construction work. The Employer’s definition
of construction work is limited to building a new facility and
does not include making additions onto existing units. Further,
the Employer contends that the “small cap” projects it performs
are not considered construction because it does not involve
driving pilings and hanging steel. Yet, for the Employer’s most
recent “small cap” project, the Employer “added some support
steel and ran a 24-inch line”, which was valued at $200,000.
In contrast to the Employer’s limited and narrow definition
of construction work, the Board defines construction work in
broad terms. For instance, the Board has held that the statutory
definition of the “building and construction industry” encom-
passes “the provision of labor whereby materials and constitu-
ent parts may be combined on the building site to form, make,
or build a structure.” Carpet, Linoleum and Soft Tile (Indio
Paint and Rug Center), 156 NLRB 951, 959 (1966). Addition-
ally, the Board has found that an employer who makes repairs
to and replaces integral parts of an immovable structure is en-
gaged in “construction” as used in Section 8(f) of the Act. Ga-
rab d/b/a South Alabama Plumbing, 333 NLRB 16 (2001).
Moreover, the Board has established a set of factors it considers
when determining whether an employer is engaged in the con-
struction industry: (a) intermittent employment; (b) short peri-
ods of employment on different projects; (c) several different
employers in one year; and (d) short layoffs due to material
shortages or because the work is dependent on the work of
various crafts. Steiny and Co., 308 NLRB 1323 (1992).
The record evidence reflects that the Employer has a core
work force of approximately 210 employees that it maintains
throughout the year. Clearly, the use of the Daniel formula “by
no means excludes core employees, however that term may be
defined; it simply enfranchises employees who, although work-
ing on an intermittent basis, have sufficient interest in the em-
ployer’s terms and conditions of employment to warrant being
eligible to vote and included in the unit.” Steiny at 1328. In-
deed, if an employer has an entirely stable work force, then no
employees will be eligible by virtue of a Daniel/Steiny formula.
Brown & Root, 314 NLRB 19 (1994) citing Steiny at 1327–
1328. The record discloses, however, that in addition to its
core work force, the Employer has employed “turnaround em-
ployees” on an intermittent basis for a short period of employ-
ment. In February 2005, the Employer hired approximately one
hundred (100) “turnaround employees” for a turnaround project
at BASF that lasted about 2 weeks. Most of the “turnaround
employees” were released at the conclusion of the project and
were free to seek employment with a different employer. His-
torically, nearly twenty (20) turnarounds are performed each
year at BASF that last an average of 2 weeks. Thus, the record
shows that the Employer employs “turnaround employees” on
an intermittent basis for short periods of time and that the
“turnaround employees” are laid off when the work is com-
plete. Accordingly, I find that the Employer is engaged in the
building and construction industry as defined by the Board.
The Employer further contends that even if it is involved in
the construction industry, the Daniel/Steiny formula does not
apply because the “turnaround employees,” as temporary em-
ployees, do not have a reasonable expectation of future em-
ployment or possess a substantial interest in working condi-
tions. Site Manager Danny Price testified that “turnaround em-
ployees” are told that their employment is for a short and defi-
nite duration and that the Employer does not necessarily re-hire
the same employees for turnarounds. Price acknowledged,
nonetheless, that the Employer’s preference is to re-hire turn-
around employees that have worked at BASF due to the time it
takes to process new employees. Additionally, the evidence
reflects that 20 to 30 turnarounds per year have been performed
historically at BASF, which further increases the “turnaround
employees” likelihood of future employment. Moreover, the
evidence discloses that as recently as February 2005, the Em-
ployer has hired “turnaround employees” to replace poor per-
forming employees in its core work force or to fill vacancies.
Accordingly, the record establishes and I find that “turnaround
employees” can reasonably expect to be re-hired when they are
released upon the completion of a project. Indeed, I find that
the fact pattern in this case is similar to the fact pattern consid-
ered by the Board in Wilson & Dean Construction Co., 295
NLRB 484 (189).
In Wilson & Dean, the employer was engaged in commercial
and industrial construction. The Employer had an 8(f) collec-
tive-bargaining relationship with the union for approximately
thirty (30) years. Pursuant to a collective-bargaining agreement,
the employer obtained the employees it needed for its construc-
tion projects from the union’s hiring hall. The Employer prop-
erly terminated its collective-bargaining agreement with the
union, and afterwards, discontinued using the union as the
source for its employees. The union filed a petition to represent
employees in the unit as set forth in the expired collective-
bargaining agreement. The Board noted, “[u]nder Deklewa, an
employer can terminate its collective-bargaining relationship
after its 8(f) contract with the union has hired. This does not
diminish the short-term construction employee’s substantial
interest in the employer’s conditions of employment or change
the existing electoral mechanism for expressing representation
desires.” Wilson & Dean at 484–485. The Board concluded
that “the employer’s former employees who meet the Daniel
eligibility requirements have a reasonable expectation of future
employment with a substantial continuing interest in the em-
ployer’s conditions of employment and are eligible to partici-
pate in the election.” Id.
Further, the record evidence does not reflect that the terms
and conditions of employment of “turnaround employees” are
any different than those of the Employer’s core work force.
Rather, the record reflects that turnaround employees, like ACS
employees in the core work force, must possess at least one
skill certification. Thus, I conclude that turnaround employees
have sufficient interest in the Employer’s terms and conditions
of employment to warrant being eligible to vote and included in
the unit.
Accordingly, eligible to vote in this matter are all unit em-
ployees that have been employed by the Employer for a total of
30 working days or more within the period of 12 months, or
TURNER INDUSTRIES GROUP, LLC 445
who have had some employment in that period and who have
been employed 45 working days or more within the 24 months
immediately preceding the date of this Decision and Direction
of Election, and who have not been terminated for cause or quit
voluntarily prior to completion of the last job for which they
were hired.
IV. THE UNIT
Based on the foregoing, the record as a whole and careful
consideration of the arguments of the parties at the hearing and
in their briefs, I shall direct an election in the unit as set forth
below:
All boilermakers, carpenters, scaffold builders, ironworkers,
laborers, millwrights, painters, pipefitters, welders, and ce-
ment masons employed by the Employer at its BASF Geis-
mar, Louisiana project; excluding all electricians, insulators,
DST employees, office clerical employees, guards, profes-
sional employees and supervisors as defined in the Act.