Sunray Ltd.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 517 (N.L.R.B. 1981)

SUNRAY LTD.
Sunray Ltd. and International Union of Operating
Engineers, Local 12, AFL-CIO and Laborers'
International Union of North America, Local
1184, affiliated with the Laborers International
Union of North America, AFL-CIO, CLC.
Cases 21-RM-2064 and 21-RM-2065
September 30, 1981
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon petitions duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before a hearing officer of the
National Labor Relations Board. On December 19,
1980, the Acting Regional Director for Region 21
issued a Decision and Direction of Election in
which he found appropriate in Case 21-RM-2064 a
bargaining unit consisting of all employees per-
forming work within the recognized jurisdiction of
International Union of Operating Engineers, Local
12, AFL-CIO, employed by Sunray Ltd. in south-
ern California; excluding all other employees,
guards, and supervisors as defined in the Act. In
Case 21-RM-2065 he found appropriate a unit of
all employees performing work within the recog-
nized jurisdiction of Laborers' International Union
of North America, Local 1184, affiliated with the
Laborers International Union of North America,
AFL-CIO, CLC, employed by Sunray Ltd. in
southern California; excluding all other employees,
guards, and supervisors as defined in the Act. The
Acting Regional Director also found that all the
employees of Sunray were dual-function employees
who did work which came under the jurisdiction
of both Local 12 and Local 1148 and that those
five employees made up both units. He therefore
ordered an election in each unit.
In ordering the elections, the Acting Regional
Director rejected the claims of both Unions that
they currently had collective-bargaining agree-
ments with the Employer which acted as a bar to
the election.
Thereafter, Local 12 and Local 1184 filed re-
quests for review with the Board in which they ex-
cepted to the Acting Regional Director's failure to
find that their contracts with the Employer acted
as a bar to an election.
On January 15, 1981, the Board by telegraphic
order granted the requests for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
258 NLRB No. 72
The Board has considered the entire record in
this case, including the briefs of the Unions, and it
hereby affirms the Acting Regional Director's De-
cision and Direction of Election to the extent con-
sistent herewith.
The Petitioner-Employer (Sunray) is engaged in
business as a construction subcontractor in the in-
stallation of water and sewer pipes. As found by
the Acting Regional Director, and uncontested by
the parties here, Sunray, operating as a partnership,
is the alter ego of two previous companies owned
by Sunray's general partner, Ray Bartlett. Also un-
contested is the finding that the other partners in
Sunray, Conn, Wagoner, DeWalt, Michael Bartlett,
and Harvey are in fact employees of Sunray within
the meaning of the National Labor Relations Act.
The question presented is whether contracts en-
tered into in compliance with Section 8(f) of the
Act between Ray Bartlett, as owner of Ray's
Septic Tanks (hereinafter Ray's) and as owner of
Construction Concrete Products (hereinafter CCP),
with the two Unions, act as contract bars to the in-
stant petitions. In agreement with the Acting Re-
gional Director, we find that they do not.
In January 1978, Ray's employed one employee,
Conn, when it entered into an 8(f) agreement with
Local 12 covering employees performing work
over which that Union had jurisdiction. Shortly
thereafter, Conn joined Local 12.
In September 1978, Ray Bartlett, as owner of
CCP,' signed contracts with both Local 12 and
Local 1184 covering employees performing work
over which the respective Unions had jurisdiction.
CCP employed Conn, Wagoner, DeWalt, Harvey,
and Michael Bartlett. Harvey at some time became
a member of Local 12 and Wagoner and Michael
Bartlett became members of Local 1184. DeWalt
belonged to neither Union.
In July 1979, Ray Bartlett, as general partner of
Sunray,2 executed a collective-bargaining contract
with Local 12 identical to the previous contracts
between Ray Bartlett and Local 12. At the time of
entering this contract, Sunray employed the same
five employees employed by CCP.
The Unions contend that there are two distinct
craft units employed by Sunray, each consisting of
two or three individuals (with DeWalt as the
swingman). With two employees being members of
each Union, the Unions enjoy majority status, and
thus their previous 8(f) relationships with Barlett
have become 9(a) relationships, and the contracts
are a bar to the election. Local 12 also claims that
'The record does not show when Ray's ceased doing business and
CCP was established.
2 Around April 1979. CCP ceased operations and Sunray was estab-
lished.
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it gained status as a 9(a) representative when Ray's
single employee, Conn, joined that Union.
The Acting Regional Director found, and the
record supports the finding, that all five of CCP's
and then Sunray's employees perform the identical
work of operating machines such as backhoes,
loaders, and cranes, drive trucks, lay pipe, weld,
and do general laborers' duties such as digging
ditches. Some of this work falls within the jurisdic-
tion of each of the Unions involved here, and some
perhaps falls within the jurisdiction of unions rep-
resenting other crafts. None of the employees have
been employed or work strictly as machine opera-
tors or laborers. Thus, we agree with the Acting
Regional Director that the appropriate unit for col-
lective bargaining includes the five employees of
Sunray. It is clear that neither Union has ever rep-
resented a majority in that unit, and thus their 8(f)
relationships did not mature into 9(a) relationships.
We also agree with the Acting Regional Direc-
tor that Local 12 did not become a 9(a) representa-
tive when Conn, then the only employee of Ray's,
joined Local 12. As noted by the Acting Regional
Director, the Board will not enforce a contract
covering a single-person unit. Nor will we certify
or find appropriate a single-person unit in a repre-
sentation proceeding. 3 This is a matter of long-
standing Board policy. As we would not find a
single-person unit appropriate, we will not consider
a contract covering such a unit a bar to an election
petition. Moreover, the unit is now five times the
size it was when the 1978 contract was executed
and, as the Union has never enjoyed majority
status in the larger unit found appropriate here, we
would not hold such contract to be a bar to an
election petition.4 Thus, neither Union's contract is
a bar to the petitions filed here.
' Roman Catholic Orphan Asylum of San Francisco, d/b/o Mount St. Jo-
seph's Home for Girls, 227 NLRB 251 (1976); Virginia-Carolina Chemical
Corporation, 104 NLRB 69 (1953).
4 United Service Company d/b/a A-1 Linen Service, 227 NLRB 1469
(1977).
Although we agree with the Acting Regional
Director that Sunray's five employees make up an
appropriate unit, we do not agree that the same
employees make up two separate units. The Acting
Regional Director found all five employees to be
dual-function employees because they perform
work subject to the jurisdiction of both Unions
and, citing Berea Publishing Company, 140 NLRB
516 (1963), found that there were two units consist-
ing of Sunray's five employees. In Berea, the Board
reestablished the Oscala Star Banner rule 5 allowing
a dual-function employee who does a sufficient
amount of work within a unit and has sufficient in-
terest in the unit's conditions of employment to
vote in an election in that unit. This rule does not,
and was never intended to, create more than one
unit consisting of an entire work force just because
all employees perform several craft functions. To
do so could cause a situation where an appropriate
unit of all of the Employer's employees elected
separate unions to be their exclusive collective-bar-
gaining representative in two or more separate
units-a result we find incongruous with the poli-
cies of the Act. We therefore find that one unit of
all of the Employer's employees is an appropriate
unit, and we will direct an election in that unit,
giving the employees a choice to be represented by
Local 12, Local 1184, or no union.
Although each Union contends that its unit con-
sists of two or three employees, the collective-bar-
gaining contracts they entered into with the Em-
ployer call for the representation of all employees
doing work under their jurisdictions. As all of the
employees perform work covered under the juris-
diction of each Union, we construe this as a claim
to represent all of the Employer's employees.
The unit found appropriate here consists of all
employees employed by Sunray Ltd. in southern
California; excluding all office personnel, guards
and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication].
597 NLRB 384 (1951).
518