Strong Co.

In the Matter of STRONG COMPANY, EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 114, LOCAL LODGE No. 1066, PETITIONER Case No. 00-RC--535.Decided October 21, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before David Kara- -sick, hearing officer. The hearing officer's rulings made at the hearing' are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The business of the Employer : The Employer, a Utah corporation, is a general contractor engaged principally in road construction and maintenance in Utah and ad- joining States. It maintains its principal office and permanent repair shop in Springville, Utah. For repair, improvement, and construc- tion of highways within the State of Utah during 1948, the Employer received $486,000, and contracted for additional work valued at $594,- 000, of which only part was completed that year. Its highway work has not been limited to that State, In the same year, it commenced a new highway project in Yellowstone National Park, Wyoming, under a $300,000 contract with the United States Bureau of Public Roads. In 1947, the Employer carried on a road construction project in the State of Nevada. The Employer's pur- chases of materials, equipment, and supplies during 1948 totaled in excess .of $145,000, substantially all of which originated outside the ;State of Utah; a large portion of these purchases was received from the local branch of the Wasatch Oil Company. In accordance with the agreement of the parties herein, we find that the Employer's operations affect commerce within the meaning of the National Labor Relations Act, and that it will effectuate the policies ,of the Act for the Board to assert jurisdiction in this proceeding. We have declined to assert jurisdiction over some local suppliers of high- way construction companies, on the ground that their operations were essentially local in character.,' But we believe that the operations of 1 Matter of Makins Sand d Gravel Co., Inc., 85 N. L. R. B. 213, and cases cited therein. 86• N. L. R. B., No. 100. 687 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a company actually engaged in constructing, maintaining, and repair- ing U. S. highways which are arteries essential to the flow of commerce among the States, are so directly and so intimately related to the free flow of that commerce as to call for the exercise of jurisdiction by this Board. To the limited extent that our decision herein is incon- sistent with the panel's holding in Matter of Brewer & Brewer Sons, Inc., 85 N. L. R. B. 387, that decision is hereby overruled 2 2. The labor organizations involved claim to represent certain em- ployees of the Employer, 3. Operating Engineers Local No. 3, International Union of Oper- ating Engineers, A. F. L., herein called the Intervenor, contends that a contract purportedly covering the employees involved herein, exe= cuted between Associated General Contractors, Inter-Mountain Branch, herein called the Association, and a number of A. F. L. craft unions, including the Intervenor, acting collectively, is a bar to this proceeding. The contract, executed on June 1, 1948, was to continue in effect until June 1, 1949, and provided for automatic annual re- newal thereafter, in the absence of 90 days' notice by either party of intention to modify any of the terms of the agreement.3 On February 2, 1949, the contract unions, through the Building and Construction Trades Councils of Ogden, Salt Lake City, and vicinity, notified the Association that they desired to open the agreement and to discuss, amend, or vacate any or all of its provisions. Thereafter, but before February 23, the Association served a similar cross notice on the con- tract unions. Negotiations for a new contract, commenced pursuant to said notices, were still in progress on the date of the hearing herein. The instant petition was filed on April 5, 1949, after the Petitioner had "approached" the Employer for recognition and had been re- ferred to the Association, which rejected its request. It is clear that the February notices, served by the contracting parties on each other before the automatic renewal date of the contract, opened the contract for all purposes. As the notices effectively fore- stalled automatic renewal, the contract does not constitute a bar to this proceeding.' Accordingly, the Intervenor's motion to dismiss the petition on this ground is denied.5 2 Member Murdock's minority position in the Brewer case with respect to U. S. highway resurfacing was, however, consistent with the position now adopted by the Board in the instant case. 3 The contract also provided that in any event the agreement was to continue in effect until completion of any project by a member of the Association , but not later than August 1 following the regularly provided expiration date. 4 Matter of Brunswick Balke Collender Company. 81 N. L. It . B. 877 ; Matter of C. A. Swanson and Sons, 81 N. L. R. B. 321. In view of our finding, we deem it unnecessary to pass upon the other grounds ad- vanced by the Petitioner in opposition to the contract bar defenses. 5In support of its motion to dismiss, the Intervenor also contends that the Petitioner made no valid claim for recognition, asserting that the Petitioner sought recognition for STRONG COMPANY 689 We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit; the determination of representatives : The Petitioner seeks to represent a unit composed of all mechanics, welders, and their helpers and apprentices, employed inside, or out- side, the Employer's repair yard at Springville, Utah, excluding all :office and clerical employees, and supervisors. The Employer and the Intervenor contend that only a multi-employer unit, established by the collective bargaining history between the Association and the A. F. L. unions, including all employees doing construction or repair work for all members of the Association, is appropriate. In the alter- native, they propose a unit of similar scope, embracing only operating engineers, but including, however, the heavy duty mechanics sought by the Petitioner. As stated above, the Employer is a general contractor engaged prin- cipally in the construction and maintenance of highways in Utah and adjoining States. Its contract projects are often carried on at con- siderable distances from Springville, Utah, where it maintains its main office and a general repair yard. The Employer's field operations are seasonal.in character, most of them being discontinued from November 1 to April 1. During this period, the Employer's only operations con- sist of the overhaul and repair of its equipment. At the time of the hearing, the employees in the requested unit con- sisted of six mechanics, two welders and one laborer. Of these, six were assigned to the Springville repair yard, two to a project at Orem, .Utah, and one to a project at Bountiful, Utah. All mechanics and welders, irrespective of place of assignment, are engaged in the main- tenance, overhaul, and repair of the Employer's operating equipment, such as tractors, scrapers, tournapulls, graders, rollers, trucks, gravel plants, water pumps, pile drivers, and mixers. Those in the repair yard work under the supervision of the shop superintendent; those assigned to field projects work under the project foremen. For this work, the Employer hires only skilled mechanics and welders, having no apprenticeship or other training program for them 6 Normally, there is no interchange of functions or personnel between the mechanics and welders group, and other employees. However, when a machine its members only. We find it unnecessary to pass upon this contention , as the petition on its face shows that the Petitioner is seeking to represent all employees in the requested classifications . The filing of the petition was enough in itself to place the Employer on notice of the Petitioner 's claim. See Matter of Norcal Packing Company, 76 N. L. It. B. 254, 256. 6 They are hired both at the repair yard and at the projects. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD breaks down in the field, operators frequently assist the mechanics in. making necessary repairs.7 The repair yard's heaviest work is done during the winter months, when all "run-down" field operating equipment is brought to the Springville yard for general repair and overhaul works During this period, field superintendents or foremen who may qualify as skilled mechanics are assigned to the yard, in order to retain them throughout the year.9 Because of the seasonal nature of field operations, me- chanics and welders are frequently transferred between the repair yard and field, as necessity arises."' From the inception of its operations in 1946 the Employer has been a member of Associated General Contractors, Inter-Mountain Branch,. an employer group. In 1946, the Association's Labor Committee, on behalf of all members of the Association (approximately 75 em ployers), executed separate agreements with the Intervenor and 3 other A. F. L. unions.h1 In 1947, the Association negotiated similar agreements, but, as it had no authority to bind its members for that year, the agreements were executed only by certain employers, each of which signed for itself. The Employer elected not to join and had no contract for that year. In 1948, the Association was granted power of attorney by all its members and, accordingly, executed a single master agreement with Utah Building and Construction Trades Coun- cil and 6 affiliated A. F. L. unions .12 By their terms, the foregoing contracts applied to "general field construction work" and recognized the various contracting unions as separate exclusive bargaining representatives of all employees over whom the unions had jurisdiction. Each contract specifically em- eluded "permanent shop work (performed in permanently established shops)." Five of the Association members during this same period T Likewise, operators , together with employees in other categories , on occasion assist mechanics and welders during rush periods. S The repair yard ordinarily is kept open throughout the year. However, during the summer of 1947, it was closed because all field projects were located a considerable distance- from Springville. 6 During the past year, thred supervisors were assigned to such work. 10 From June 1, 1946 , to November 1, 1947, approximately 35 mechanics and welders were transferred from the repair yard to field projects , and 28 from field projects back to. the Springville yard . Some of them were involved in several transfers . During that period, between 20 and 25 worked regularly in the repair yard. During the past year a total of 15• mechanics and welders worked for the Employer. " In addition to the Intervenor ( Operating Engineers ), these unions were : International Hod Carriers, Building and Common Laborers Union ; United Brotherhood of Carpenters and Joiners of America ; and International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. 12 In addition to the four unions which had participated in past bargaining the 1943 contract was signed by Operative Plasterers and Cement Finishers International Association and by International Association of Bridge , Structural and Ornamental Iron Workers. STRONG COMPANY 691 have bargained, and are now bargaining, with the Intervenor for repair shop employees under separate agreements. - We do not believe that the foregoing collective bargaining history shows a fixed pattern on a multi-employer basis such as must preclude establishment of a limited unit with respect to the particular employees sought by the Petitioner. Before June 1, 1948, the Employer joined with the other members of the Association only intermittently. In 1.947, other members of the Association also broke away from the Association-wide bargaining. Moreover, the contracts never applied to shop mechanics and welders. Indeed, the Intervenor has itself recognized the appropriateness of a more limited unit by its separate contracts for shop workers with five employers. Under these circum- stances, and upon the entire record in this case, we find no merit in the objections to the scope of the proposed single-employer unit 13 As the mechanics and welders involved herein exercise a high degree of craft skill, similar to that of other employees whom we have hereto- fore established as separate bargaining groups, we believe that they too may, if they so desire, constitute a separate unit 14 We shall therefore, direct an election in the following voting group: 15 All mechanics,16 welders, and their helpers 17 employed inside, or outside, the Employer's repair yard at Springville, Utah, excluding. all office and clerical employees and supervisors as defined in the Act.. However, we shall make no final unit determination at this time,, but shall first ascertain the desires of these employees as expressed in, the election herein directed. If a majority of them vote for the Peti- tioner, they will be taken to have indicated their desire to constitute a separate appropriate unit. "Matter of Danner Press, Inc., 80 N. L . R. B. 844; Matter of Norcal Packing Company, 76 N. L . R. B. 254 , 258, and cases cited therein. 14 Matter of Brown and Root, Inc., et al. d/b/a Ozark Dam Constructors , 77 N. L. R. B. 1136 . See, also, Matter of International Harvester Company, McCormick Twine Mills, 80 N. L . R. B. 1279. 11 The Petitioner desires to include apprentices in this group . As the Employer em ploys no apprentices , we shall not include them in the voting group. 16 We find no merit in the Intervenor's contention that the mechanics and welders are supervisors within the meaning of the Act. The record shows , and we find, that they exert vise only the normal direction and control of skilled workmen over their helpers. We hereby also include Rapley Bird , a repair mechanic, whom the Intervenor would exclude as a supervisor . Occasionally , while working in the field , but only when assigned to large projects , Bird supervises the oilers . Crandall, the Employer's secretary -treasurer, testified that throughout his employment Bird had devoted approximately 10 percent of his time to such duties ; that the Employer does not consider him a supervisor ; and that at the time of the hearing he was assigned to a project requiring no oilers . As Bird is clothed with supervisory authority only during very limited and sporadic periods, we are satisfied that he is not a supervisor within the meaning of the Act . See Matter of Gen, eral Motors Corporation , Buick Motor Division, 78 N. L. R. B. 72, and cases cited therein, 11 Included within this category are the repair yard laborer and all helpers regularly. assigned to mechanics and welders at field projects. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION 18 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the voting group described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by International Association of Machinists, District Lodge No. 114, Local Lodge No. 1066, or by Operating Engineers Local Union No. 3, International Union of Operating Engineers, A. F. L., or by neither. MEMBER REYNOLDS , dissenting : I have made abundantly clear in other decisions in which I partici- pated,19 that I am disposed to assert jurisdiction in cases of this type. However, I cannot agree with the action of the majority because I believe applicable Board precedents are controlling on this subject. I dissented in Matter of Texas Construction Material Company 20 from the Board's refusal to take jurisdiction over an employer en- gaged in supplying materials, such as sand and gravel, to companies performing contruction work because of the close relationship between the employer's operations and the building and construction industry. However, I have deemed myself bound in subsequent cases 21 by the majority decision in the Texas case. 19 As some of the employees may be stationed at points distant from Springville at the time of the election , the Regional Director is authorized , within his discretion , to conduct the balloting of such employees by mail , if the election may be expedited thereby. See Matter of E. I. DuPont de Nemours and Company, 79 N. L. R. B. 345. Any participant in the election herein may , upon its prompt request to , and approval thereof by, the Regional Director, have its name removed from the ballot. 19 Matter of Knoxville Sangravl Material Company, Inc., 80 N. L. R. B. 1461 ; Matter of Texas Construction Material Company, SO N. L. It. B. 1248. 20 See footnote 19, supra. 21 See for example Matter of Transit-Mix Concrete Company, Inc., 85 N. L. R. B. 661 Matter of Construction Materials Company, 85 N. L. R . B. 320 ; Matter of Making Sand & Gravel Co ., Inc., 85 N. L. R. B. 213 ; Matter of Hartman Concrete Materials Company, 82 N. L. R. B . 1223. See also Matter of Brewer it Brewer Sons, Inc., 85 N. L. R. B . 387 (which the majority is now overruling on the jurisdictional question). STRONG COMPANY 693 The majority predicates its decision to assert jurisdiction in the instant case upon the ground that the Employer is engaged in the construction, maintenance, and repair of highways which are arteries of commerce. The majority in effect admits, however, that the sole discernible difference between this case and the Texas line of cases is that in the former the Employer builds and repairs the roads, whereas in the latter the companies supplied the materials from which the roads were made. I do not believe that this is a valid basis for distinction. Certainly, it cannot be gainsaid that both types of opera- tions constitute related segments of the same industry, and if we hold, as we have, that the operations of the supplier are essentially local in character, consistency requires that we make a similar finding with respect to the road builder. I am unable to perceive any sound reason for asserting jurisdiction over an employer engaged in the construc- tion of an instrumentality of commerce and at the same time refusing to assert jurisdiction over an employer supplying the construction materials; one has no more profound impact on commerce than the other. In view of the foregoing, I would dismiss the petition in the instant case. MEMBER GnAY, dissenting : I agree with Member. Reynolds that there is no valid basis for the majority to distinguish this case from those in which the Board has declined to assert jurisdiction. I therefore join Member Reynolds in holding that the applicable Board decisions require the dismissal of this petition.. 867351-50-vol. 86-45