D & M Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 654 (N.L.R.B. 1984)

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D & M Sheet Metal, Inc. and Sheet Metal Workers
International Association, Local Union #19, Pe-
titioner. Case 4-RC-15562
14 December 1984
DECISION AND CERTIFICATION OF
- REPRESENTATIVE
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held 6 April 1984 and the
Acting Regional Director's report recommending
disposition of them. The election was conducted
pUrsuant to a Stipulated Election Agreement. The
tally of ballots shows 4 for and 2' againsf . the Peti-
tioner, with 3 challenged ballots.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the Acting
Regional Director's findings and recommenda-
tions,' and finds that a certificaticin of representa-
tive should be issued.
The Acting Regional Director found, inter alia,
that D & M is an employer within the construction
industry and• that April Rambo and Robert
McGinn worked enough days during the 24
months preceding the election to satisfy the Daniel
Construction CO., 2 special criteria available för de-
termining voter eligibility in the construction indus-
try. However, he concluded they Were not eligible
to vote because they were engaged in full-time
nonunit work on, and prior to, the eligibility date.
Eastern Rock Products, 239 NLRB 892 (1978).
We agree with the Acting Regional Director's
recommendation that the challenges to the ballots
of Rambo and McGinn be sustained. The parties
raised no issue concerning special eligibility Criteria
when they entered into the Stipulated Election
Agreement which .contains the standard eligibility
formula. We find that the agreement is proper and
should be given effect. 'Accordingly, we find it un-
necessary to consider the Daniel Construction issues
that the Acting Regional Director discusses.
1 In the absence of exceptions, we adopt, pro forma, the Acting Re-
gional Director's recommendation that the challenge to Thomas Hollen-
bach's ballot be sustained
2 133 NLRB 264 (1961) (employees in unit who worked at least 30
days in 12-month period preceding election or who did some unit work
in 12-month period preceding election and at least 45 days in 24 months
immediately preceding eligibility date, eligible to vote) -
CERTIFICATION OF
REPRESENTATIVE,
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Sheet Metal Workers Inter-
national Association, Local Union #19 and that it
is the exclusive collective-bargaining representative
of the employees in the- following appropriate unit:
All sheet metal workers , emplOyed by D &
M ' Sheet Metal, Inc., at its Wesllawn, Pennsyl-
vania facility, excluding all office clei-ical em-
ployees, guards and supervisors as definded in
the Act. -
MEMBER ZIMMERMAN, concurring.
I agree with my colleagues that the Stipulated
Election Agreement should be given effect. I fur-
ther find that the Daniel Construction eligibility for-
mula does not in any event apply in this case. That
formula is not implicated in every election in the
construction industry. See, e.g.,- Dick Kekhner Ex-
cavating Co., 236 NLRB 1414 (1978); E. V Wil-
liams Co., 175 NLRB 792 (1969). It was devised to
address the unique sort of work assignments
common in the construction industry. The Board
found that because of the nature of the industry
many employees experience intermittent employ-
ment for short periods and may be employed by
several different employerg during the course of a
year. In consideration of those• factors, the Board
determined that employees who had been em-
ployed by an employer for at least 30 days in the
year preceding the eligibility date for the election
or had some employment with that employer in the
year preceding the election and 45 days in the 2-
year period preceding the eligibility date would
have a continuing interest in • their working condi-
tions which would •warrant their participation in
the election. Here, as the Employer concedes,
Rambo's and McGinn's work cannot be character-
ized as intermittent short term -employment, nor do
they work for several different employers in any
given period of time. Instead, they hold- permanent
. full-time jobs with another company. . Although
they sometimes work for this Employer, they do so
only on the infrequent occasions when there is a
lapse in their regular employment. As they hold
regular full-time positions, they are not the kind of
employees for which the special rule in Daniel
Construction was developed:'
, i Eastern Rock Products relied on by the Acting Regional Director is a
limitation on the Daniel Construction rule, as Daniel Construction is not
applicable in the instant case, likewise Eastern . Rock does not apply
273 NLRB No. 93