Wilson & Dean Construction Co. Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 484 (N.L.R.B. 1989)

484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wilson & Dean Construction Co. Inc . and Oregon
State District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America. Case 36-RC-4948
June 15, 1989
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN , CRACRAFT, AND HIGGINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held before a hearing officer of the National Labor
Relations Board . On July 6 , 1987, the Regional Di-
rector for Region 19 issued a Decision and Direc-
tion of Election in which he found , inter alia, that
the formula set forth in Daniel Construction Co.,
133 NLRB 264 (1961), modified at 167 NLRB 1081
(1967), should be used to determine eligibility to
vote and that the appropriate collective -bargaining
unit should be coextensive with the unit set forth in
the parties' expired collective-bargaining contract.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations , the Employer filed a request for
review of the Regional Director 's Decision and Di-
rection of Election . The Employer contends that
the Daniel Construction eligibility formula is inap-
plicable to the instant proceeding . The Employer
also contends that the Regional Director erred in
failing to find appropriate in this case a unit limited
to the carpenter employees employed by the Em-
ployer in the Portland , Oregon metropolitan area.
By Order dated August 6 , 1987, the Board grant-
ed the Employer 's request for review . The election
was held and the ballots impounded.
The Board has considered the entire record in
this case and has decided to adopt the Regional Di-
rector's Decision and Direction of Election for the
reasons stated in this decision.
The Employer is engaged primarily in commer-
cial and industrial construction. The Regional Di-
rector found that the parties have had an 8(f) col-
lective-bargaining relationship for approximately 30
years.' The last collective-bargaining agreement
extended from March 1, 1983 , to May 31, 1986. On
March 27 , 1987,2 the Employer informed the Peti-
tioner by letter that, in accord with the Board's de-
cision in John Deklewa & Sons, 282 NLRB 1375
(1987), sub nom. Iron Workers Local 3 v. NLRB,
enfd. 843 F.2d 770 (3d Cir. 1988), it would not
enter into an 8(f) collective -bargaining agreement
with the Petitioner and that their collective-bar-
gaining relationship was terminated.
Prior to March 27, the Employer had obtained
the employees it needed for its construction
projects from the Petitioner 's hiring hall. After
March 27, the Employer adopted a new hiring pro-
cedure . It discontinued use of the Petitioner's
hiring hall and decided to hire its employees from
an employee roster it had compiled . The roster in-
cluded the names of all former employees and em-
ployees who had not previously worked for the
Employer but had applied in response to Employ-
er-placed advertisements.
On May 28 the Petitioner filed a petition seeking
to represent the unit of the Employer 's employees
as set out in its expired collective -bargaining agree-
ment with the Employer. At the time of the hear-
ing in this case the Employer had one employee
(Loren Nelson) on its payroll.3 It is undisputed that
the Employer anticipates future work and intends
to hire more employees when work materializes.
In Daniel Construction , the Board recognized the
intermittent nature of employment in the construc-
tion industry . Employees may experience short lay-
offs or may work for more than one employer
during the course of a year due to the limited dura-
tion of building projects and because materials are
often in short supply and the employee 's work is
dependent on the work of various other crafts. The
Board found that, while some construction workers
would not have worked for an employer during
the payroll period immediately preceding that of
the decision and direction of election , because of
their past employment and expectancy of future
employment they continue to have a substantial
continuing interest in the employer's conditions of
employment. Thus, the Board found eligible to
vote , in addition to those unit employees employed
during the payroll period immediately prior to the
election, those former employees who had been
employed by the employer for at least 30 days in
the 12 months preceding the election or for at least
45 days in the 24 months preceding the election.
The Regional Director applied this formula to the
facts of this case and found that 6 to 15 of the Em-
ployer 's former employees would be eligible to
vote.
Under Deklewa , an employer can terminate its
collective-bargaining relationship after its 8(f) con-
tract with the union has expired . This does not di-
minish the short-term construction employee's sub-
stantial interest in the employer's conditions of em-
I The date on which this relationship commenced is not in the record
before us.
2 All dates are in 1987 unless otherwise stated.
8 Loren Nelson had been employed by the Employer during January
and February. In May , on his own initiative, he applied for work with
the Employer and was hired.
295 NLRB No. 54
WILSON & DEAN CONSTRUCTION CO. 485
ployment or change the existing electoral mecha-
nism for expressing representation desires.4
Deklewa notes that over the years the Board has
gained substantial expertise and developed proce-
dures for conducting elections in the construction
industry and cites as an example Daniel Construc-
tion.5
The Employer admits that it intends to remain in
the construction industry and that it anticipates
future work in the Portland, Oregon area. It con-
tends, however, that the Daniel Construction formu-
la is inapplicable , as the Employer's reliance on its
compiled list , rather than on the Petitioner 's hiring
hall, as the source for employees, denies its former
employees a reasonable expectation of future em-
ployment. This contention is not borne out by the
record . Between 6 and 15 former employees are el-
igible to vote under the Daniel Construction formu-
la. Although the Employer states that former em-
ployees will not be given employment preference
and that employees will be hired from the list on
the basis of experience and residential proximity to
the construction site, there is no evidence that
these criteria would preclude the hiring of former
employees. Accordingly, we find that the Employ-
er's former employees who meet the Daniel eligibil-
ity requirements have a reasonable expectation of
future employment with a substantial continuing in-
terest in the Employer's conditions of employment
and are eligible to participate in the election.
With respect to the unit, the Employer contends
that since 95 percent of its work has been in the
Portland, Oregon area, the appropriate unit should
be limited to this area. As stated above, the Em-
ployer and the Petitioner had a bargaining relation-
* Deklewa, supra at 1386.
5 Id., fn. 45.
ship that extended for more than 30 years. We
agree with the Regional Director that, in view of
that history, the unit should be the one set forth in
the recently expired contract. The fact that 95 per-
cent of the work is in a more limited geographic
area than that set forth in the unit description is an
insufficient basis for excluding from the unit the ge-
ographic area where the remaining 5 percent of the
work is performed.
Accordingly, we shall remand this proceeding to
the Regional Director in order that he may take
further appropriate action , including the opening
and counting of the impounded ballots.
ORDER
It is ordered that the matter is remanded to the
Regional Director for Region 19 for appropriate
action, including the opening and counting of the
impounded ballots.
CHAIRMAN STEPHENS , dissenting.
I would dismiss the petition in this case on the
ground that there was only one unit employee
when it was filed. I would not include any other
former employees as being within the unit because
I regard the Daniel Construction formula as inappo-
site in the circumstances here. The Employer not
only severed his relationship with the Petitioner
and announced that he would not make further use
of the hiring hall, he also effectively terminated his
former work force with the announcement that
those who will be chosen to work for him in the
future will be selected from a list he compiled,
with selections to be made on the basis of factors
that do not include experience with the Employer.
Accordingly, former employees have no more ex-
pectancy of being hired than any other individual
who might be selected from the list.