Oklahoma Installation Co.

National Labor Relations Board - Board Decisions

Dec 10, 1991

305 N.L.R.B. 812 (N.L.R.B. 1991)

812
305 NLRB No. 113
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There are no issues regarding the composition of the unit, found
to include carpenters, apprentice carpenters, and carpenter’s helpers,
excluding all other employees, office clerical employees, profes-
sional employees, guards, and supervisors as defined in the Act.
2 Bd. Exh. 4 contains a listing of employees at each of the Em-
ployer’s jobsites during the previous 2 years. This document reveals
that at least 11 employees worked on more than one jobsite. Further,
employee James Burgess testified that six additional employees (out
of seven he identified by name) were moved from one jobsite (Green
Hills) to another jobsite (Bellevue).
3 Of course, the Board’s task, as all parties recognize, is to deter-
mine an appropriate unit, not the most appropriate or comprehensive
unit.
Oklahoma Installation Company and Carpenter’s
Local Union No. 123, affiliated with the United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO, Petitioner. Case 26–RC–
7307
December 10, 1991
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On October 18, 1990, the Regional Director for Re-
gion 26 issued a Decision and Direction of Election in
the above-entitled proceeding in which he found ap-
propriate a unit of all carpenters, apprentice carpenters,
and carpenters’ helpers employed by the Employer in
a three-county area in the State of Tennessee com-
prising Davidson, Williamson, and Wilson Counties.
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 contends
in its request for review that the geographical scope of
the Regional Director’s unit finding is erroneous and
that the only appropriate unit is the ongoing jobsite
where the Employer now is working. The Employer
further contends that, in any event, the Regional Direc-
tor erred by including prospective jobsites in Wilson
and Williamson Counties because the Employer has
never performed work in these counties. Finally, the
Employer contends that the Regional Director’s appli-
cation of Daniel Construction Co., 133 NLRB 264
(1961), modified at 167 NLRB 1078 (1967), is erro-
neous.1 On November 14, 1990, the Board granted the
Employer’s request for review. No briefs were filed on
review.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record and has
decided to affirm the Regional Director’s Decision and
Direction of Election as modified below.
1. The Employer is engaged in the construction
business of installing fixtures, including the installation
of interior millwork. During the year 1990 the Em-
ployer had contracts to perform some 450 small re-
modeling jobs, 18 major renovations, and 10 new con-
struction jobs. Its main office is in Owasso, Oklahoma.
All of the Respondent’s jobs in the middle Tennessee
area, thus far, have been in Davidson County. The Em-
ployer’s only ongoing project in middle Tennessee is
at the Green Hills Mall in Davidson County. It also is
performing work at another site in Davidson County,
Hickory Hollow, but that project does not yet involve
millwork or the installation of fixtures.
The Employer’s president, Jack Broler, testified that
when the Employer has in the recent past secured jobs
in the middle Tennessee area, it has assigned a super-
intendent, who is then responsible for all hiring and for
purchasing building materials. Broler is responsible for
securing bids and for leasing equipment. The job su-
perintendent customarily arranges for newspaper adver-
tisements seeking construction workers and conducts
interviews with applicants.
All labor relations policies are centrally established
by Broler from Oklahoma. Although the job super-
intendent sets wages at the jobsite and has some lati-
tude in doing so, strict parameters are set by Broler.
According to the testimony of employees, their super-
intendent hired them at a starting wage level and then
told them he would ‘‘top them out’’ at a $1 wage in-
crease shortly thereafter if they worked out. The in-
crease was within the parameters set by Broler. Fur-
ther, these employees testified that their superintendent
informed them that the Employer intended to keep
their ‘‘key people’’ and would give these key people
an opportunity to go to other jobs that the Employer
had available in the future. Although Broler testified
initially that the Employer did not have a policy of
transferring employees from one job to another, he
later testified that the Employer has no policy that
would keep a superintendent from taking key people
from jobsite to jobsite. Indeed, the record shows that
a minimum of 11 employees have worked on more
than one jobsite for the Employer in Davidson County
during the previous 2-year period.2
In determining whether a petitioned-for multisite
unit is appropriate,3 the Board considers relevant the
following criteria: bargaining history; functional inte-
gration of operations; the similarity of skills, duties,
and working conditions of employees; central control
of labor relations and supervision; and interchange
and/or transfers of employees among construction sites.
Dezcon, Inc., 295 NLRB 109 (1989); P. J. Dick Con-
tracting, 290 NLRB 150 (1988). On the facts pre-
sented, we agree with the Regional Director that a
multisite unit is appropriate.
Contrary to the assertions of the Employer, this is
not a case where the only appropriate unit is the ongo-
ing single-site project at Green Hills Mall. The Em-
813OKLAHOMA INSTALLATION CO.
4 Longcrier Co., 277 NLRB 570 (1985), relied on by the Em-
ployer, is distinguishable as the employer in that case had only
‘‘rare’’ transfers or interchange, and there was substantial autonomy
with respect to each project.
5 There is no bargaining history.
6 Because the petition seeks a unit encompassing an ‘‘area’’ that
is described in terms of specific counties rather than, for example,
described in terms of a metropolitan area, we shall evaluate the ap-
propriateness of the unit as set forth in the petition. In this regard,
we note that no party has contended that the petitioned-for unit
should be evaluated in terms of any pertinent geographical metro-
politan cluster, and thus the record contains no basis for us to con-
sider that possibility.
ployer’s contention is based on the notion that the Em-
ployer’s construction projects, including Green Hills,
function essentially as wholly independent operations.
Although the Employer seeks to characterize each of
its projects as an autonomous operation, we find that
employees at all of its projects in Davidson County
share a substantial community of interest. Thus,
uncontradicted employee testimony reveals the exist-
ence of ‘‘key’’ employees and, indeed, the record
shows that the Employer has employed numerous em-
ployees on a multisite basis. On occasion, when the
need has arisen, the Employer has moved employees
from one jobsite to another on a temporary basis.4 Fur-
ther, labor relations policies and procedures are cen-
tralized in company headquarters in Oklahoma and,
therefore, all the Employer’s projects are subject to
identical policies. With regard to establishing employ-
ees’ wages, the record reveals only a minimal degree
of discretion on the part of the job superintendent. In
addition, whether the construction project involves new
construction, remodeling, or major renovation, it ap-
pears that similar employee skills are required. The
Employer has made no showing that the required
skills, duties, and working conditions vary from jobsite
to jobsite within each category. Finally, President
Broler testified that the Employer intends to bid on fu-
ture projects in Davidson County.5 In these cir-
cumstances, we agree with the Regional Director that
a multisite unit is appropriate; however, unlike the Re-
gional Director, we shall limit that unit to Davidson
County.
The Regional Director found that the unit properly
encompassed not only Davidson County, where the
Employer has had many projects, but should also en-
compass the Employer’s operations in Wilson and
Williamson Counties because there was a possibility
that the Employer would obtain work in those coun-
ties. As the Employer correctly points out, however, it
has not in the past performed any work in either
Williamson or Wilson County and has no outstanding
contractual bids to perform work in those counties in
the future. In addition, although Broler testified that
the Employer intends to bid on future projects in Da-
vidson County, he gave no indication that the Em-
ployer intends to bid on projects elsewhere. Accord-
ingly, at this time, any connection between these coun-
ties and the Employer’s operations is speculative at
best.
As noted, the Employer’s president, Jack Broler, is
responsible for securing bids on future projects. Con-
trary to statements attributed by employees to one of
the Employer’s superintendents regarding work at a fu-
ture project at Mount Juliet Mall in Wilson County,
Broler testified that, he had ‘‘never heard of it.’’ Re-
garding work at a project at Cool Springs Mall in
Williamson County, Broler testified that, to his knowl-
edge, that jobsite was in a preliminary stage, and the
Employer had not submitted a bid.
On these facts, and in view of the Employer’s his-
tory, we find that the record is insufficient to establish
the likelihood of future work for the Employer in
Williamson and Wilson Counties so as to warrant now
the inclusion of those counties in an appropriate unit.
We note that in Dezcon, Inc., supra at fn. 13, the
Board included in a multisite unit one county where
the employer had never conducted business, because
‘‘no party has proposed an election in a unit excluding
that county.’’ Here, the propriety of including a county
where the Employer has had no presence has been
squarely raised. Moreover, the Petitioner has agreed to
proceed in any unit that the Board finds appropriate.
In these circumstances, we discern no logical basis to
grant a unit including a geographical area6 in which
the Employer has never conducted business. We shall,
therefore, limit the unit found appropriate to Davidson
County where the Employer has at all pertinent times
maintained operations.
2. In directing an election the Regional Director ap-
plied the eligibility formula set forth in Daniel Con-
struction Co., supra, finding eligible to vote certain
employees who are not presently employed by the Em-
ployer. Under the Daniel Construction formula all em-
ployees who were employed for 30 days or more dur-
ing the 12-month period preceding the eligibility date
or who were employed for 45 days or more in the 24
months preceding the eligibility date are eligible, in
addition to those employees meeting the usual criteria.
The Employer contends that employees meeting the
Daniel Construction requirements who are presently
not working for the Employer are ‘‘strangers’’ to the
Employer and should not be eligible to vote. We find
no merit to the contention.
In S. K. Whitty & Co., 304 NLRB 776 (1991), the
Board recently revisited the question of voter eligi-
bility standards in elections involving construction in-
dustry employers who hire on a project-by-project
basis and, in particular, the standard embodied in the
Daniel Construction formula. We endorsed the pur-
poses for which the Board had constructed that for-
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The central purpose of the Daniel formula was to ensure that
former employees of an employer who have a reasonable expectation
of employment in the foreseeable future are permitted to vote even
though they are not presently employed by the employer on a job-
site.
8 The Employer maintains that employment at each jobsite is de-
cided by a separate hiring determination by the job superintendent
at that jobsite.
9 These employees are Robert L. Humphus, Jimmy R. Judd, Robert
E. Morgan, Ronnie L. Hayes, Robert C. Redden, Jimmy Aldridge,
Joe Armstrong, Kris Harrelson, Larry J. Harrington, and Troy S.
Pierce.
10 These employees are Danny Cason, Leonard Taylor, and Bill
Wooten. Employee Burgess testified that these employees also
worked at a second jobsite, a matter disputed by the Employer.
mula,7 but concluded that the formula itself was some-
what over inclusive and, therefore, fell short of serving
those purposes. Under S. K. Whitty, the Board now re-
quires a history of recurrent employment except for in-
stances when employment with an employer has been
for 90 days or more in the 12-month period imme-
diately preceding the eligibility date. Thus, eligibility
rests on a showing that an employee has worked at
least two periods of employment cumulatively amount-
ing to 30 days or more in the 12-month period imme-
diately preceding the eligibility date or has had some
employment in the 12-month period and has had at
least two periods of employment cumulatively amount-
ing to 45 days or more in the 24-month period imme-
diately preceding the eligibility date. In the absence of
such recurrent employment, eligibility will be found on
a showing that an employee has worked for one period
of 90 days or more in the 12-month period imme-
diately preceding the eligibility date.
In the instant case, the Regional Director found that
13 named employees met the eligibility criteria of
Daniel Construction and that 1 additional employee,
who had been employed on 2 jobsites, would be per-
mitted to vote under challenge because the Employer’s
payroll records were incomplete. Of the 13 employees
eligible under the Daniel Construction formula, the
record shows that at least 10 were employed on more
than one jobsite during the eligibility period8 and,
therefore, these employees meet the recurrency require-
ments of S. K. Whitty.9 Of the remaining employees,
all three were employed for at least 90 days in the year
preceding the eligibility date.10 Accordingly, as the
record shows that the Employer employs ‘‘key’’ em-
ployees who have a substantial continuing interest in
the Employer’s employment conditions and who have
a reasonable expectation of reemployment, we affirm,
under S. K. Whitty, the Regional Director’s voter eligi-
bility findings.
ORDER
It is ordered that the Regional Director’s Decision
and Direction of Election is affirmed, as modified
below, and the case is remanded to the Regional Di-
rector for Region 26 for action consistent with our
findings herein.
The appropriate unit is:
All carpenters, apprentice carpenters and car-
penter’s helpers employed by the Employer in
Davidson County in the State of Tennessee, ex-
cluding all other employees, office clerical em-
ployees, professional employees, guards, and su-
pervisors as defined by the Act.