Lewis & Bowman, Inc.

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to adjust minor grievances. Under these circumstances, we find the "working foremen" to be supervisors within the meaning of the Act, and, accordingly exclude them from the unit.9 We find that all production and maintenance employees employed by the Employer at its Hollydale and South Gate, California, plants, excluding salesmen, office clerical employees, watchmen, guards, pro- fessional employees, working foremen, and all supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 9Iowa Public Service Company, 102 NLRB 701, footnote 6; Jordan-Rodgers Company, 107 NLRB 1136. LEWIS & BOWMAN, INC. and INTERNATIONAL HOD CARRIERS', BUILDING & COMMON LABORERS' UNION OF AMERICA, LABORERS' DISTRICT COUN- CIL OF WESTERN PENNSYLVANIA, LOCAL UNION No. 836, A. F. L. and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 66 & 66 A, B & C and UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMER- ICA, LOCAL UNION #2274, A. F. L. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMER- ICA, TEAMSTERS JOINT COUNCIL No. 40, LOCAL UNION No. 963, A. F. L., PETITIONERS. Cases Nos. 6-RC-1398, 6-RC-1399, 6-RC- 1400, and 6-RC-1401. August 12,1954 Decision and Direction of Elections Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before William A. McGowan, 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 proceeding, the Board finds as follows : 1. The Employer, a Delaware corporation with its main offices at Goldsboro, North Carolina, is engaged in the general construction of bridges, dams, water spillways, flood walls, and similar-projects in several States, including Kentucky, Pennsylvania, and West Virginia. Its contracts performed during the calendar year ending December 31,1953, were valued at more than $750,000. 1 The Employer's request for oral argument is denied, inasmuch as the record and briefs in this proceeding clearly set forth the positions of the parties The motion of the Carpenters' to reverse the hearing officer's ruling with respect to the intervention of United Mine Workers of America, Region 62, which claimed a contract interest in this proceeding, is denied . See footnote 4 below. 109 NLRB No. 113. LEWIS & BOWMAN, INC. 797 The project immediately concerned in this proceeding is a flood control dam 2 being constructed by the State of Pennsylvania at Sin- namahoning, Pennsylvania. The Employer is a subcontractor on this project under a prime contract between the State of Pennsylvania and Nello L. Teer Company. Under its subcontract, the Employer is ob- ligated to drive a diversion tunnel, line the tunnel, place concrete in the stilling basin, the intake tower, and the spillway, and perform other minor work. The balance of work in building the dam will be performed by the principal contractor with other subcontractors. At the conclusion of the hearing in March, the Employer had completed the drilling of the tunnel and expected that its work would be com- pleted by the end of 1955. The cost of the entire project will be about $6,400,000; and the cost of the portion of the contract to be performed by the Employer will be approximately $3,150,000. In connection with its work on the project, the Employer will import machinery from Ohio valued at approximately $400,000; lumber from North Carolina valued at about $27,000; and cement from New York valued at about $175,000. On the foregoing facts, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding' 2. International Hod Carriers', Building & Common Laborers' Union of America, Laborers' District Council of Western Pennsyl- vania, Local Union No. 836, A. F. L., herein called the Hod Carriers; International Union of Operating Engineers, Local 66 & 66 A, B & C, herein called the Operating Engineers; United Brotherhood of Car- penters & Joiners of America, Local Union #2274, A. F. L., herein called the Carpenters; and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Teamsters Joint Council No. 40, Local Union No. 963, A. F. L., herein called the Team- sters, are labor organizations claiming to represent certain employees of the Employer. 3. Questions affecting commerce exist concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act .4 The dam is being built exclusively for flood control purposes and is not designed for the production of power. 8 Ozark Dam Constructors, 77 NLRB 1136; N. L. R. B. v. Ozark Dam Constructors, 190 F. 2d 222 (C. A. 8). We find no merit in the position that an oral agreement of the Employer to "go along with" whatever contract the prime contractor might negotiate with United Mine Workers of America , Region 62 , the recognized bargaining representative for employees of the prime contractor, constitutes a bar to this proceeding Standard Brands, Incorporated, 81 NLRB 1311 at 1312; and cases cited therein. That the Employer has complied with the wage and certain other provisions of the contract between the prime contractor and United Mine Workers of America, Region 62, has no bearing on the issues presented herein. We see no reason to apply any different ruling on the contract issue in the construction industry than is applied in ordinary manufacturing operations . It is clear that the Em- 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Hod Carriers, the Operating Engineers, the Carpenters, and the Teamsters desire to represent in four separate units employees of the Employer employed at the Sinnamahoning project. The Team- sters would represent truckdrivers ; the Carpenters would represent carpenters and their apprentices ; the Operating Engineers would rep- resent the operators of power-driven machines ; and the Hod Car- riers would represent laborers, together with other unskilled and semi- skilled employees, in a miscellaneous unit of specific and general cate- gories of employment.5 At the beginning of the hearing in this proceeding in February 1954, the Employer had 82 employees working on the project, includ- ing the foremen. Of this number, 22 were miners, including drillers and powdermen; 18 were miner's helpers; 6 were carpenters and 2 were carpenters' helpers ; 7 were operators of power shovels, bulldozers, and cranes, filling trucks with excavated material; 9 were truckdriv- ers, hauling excavated material from the tunnel and doing other"gen- eral hauling on the job; and 8 were laborers who dig ditches, repair roads, handle materials, and perform general labor work. The com- pletion of excavation work on the diversion tunnel terminated the need of miners as such. Some of these employees, however, depending on their individual skills may be retained for other work. As the work on the project progresses, the number of the Employer's em- ployees will increase to a peak of approximately 300 employees in the summer of 1954. The decrease for the winter slowdown is expected in October. During the summer of 1955, a similar increase in em- ployment will occur. The Employer expects to complete its work by October 1955. The exact number and the exact classifications of em- ployees at any given time is not predictable. Thus, during the summer peak of 1954, there may be 50 to 60 carpenters, 25 to 30 power-driven machine operators, 25 to 30 truckdrivers, and 50 to 75 laborers. Also from time to time as the construction work progresses, and until its completion, the Employer anticipates the need of skilled workers in other job categories, such as cement finishers, reinforcing steelwork- ers, structural steelworkers, sheet metal workers, painters, mechanics, and pipefitters. There is no history of bargaining between the Em- ployer and any labor organization selected by employees at the dam project. The Carpenters desires to represent employees who fall within its usual craft unit. The Teamsters desires to represent truckdrivers. ployer had no employees at work on the dam at that time it entered into the oral contract urged as a bar. Carbide .& Carbon Chemicals Division, Union Carbide and Carbon Corpora- tion, 98 NLRB 270 at 272 5 The parties stipulated that the four Petitioners have historically and traditionally represented these respective groups of employees in accordance with the statements of employee or work jurisdiction set forth in their constitutions. LEWIS & BOWMAN, INC. 799, The carpenters are skilled craftsmen of the type customarily granted separate craft units by the Board, and the truckdrivers constitute a distinct, well-defined, homogeneous group of employees with special interest whom the Board has established as a separate appropriate bargaining unit or even severed from a larger production unit, de- spite a history of bargaining on a broader basis. The Operating Engineers desires to represent operators of power- driven equipment, such as crane, derrick, compressor, bulldozer, and cement machine operators, together with oilers stationed on and work- ing about such machines. Though variously skilled, these employees are not craftsmen. The employees sought by the Hod Carriers in- clude not only employees in well-defined specific classifications, but also employees in miscellaneous and general labor categories. These employees, variously skilled and unskilled, are not craftsmen. So far as the record discloses, all production and maintenance employees working on the project and not included in the units sought by the Carpenters and the Teamsters at the time of the hearing fell within a, broad group of miscellaneous employees sought either by the Oper- ating Engineers or by the Hod Carriers. These employees as sought respectively by the two labor organizations clearly do not constitute a craft or departmental group nor do they comprehensively embrace any well-defined group of employees with special homogeneity of in- terests other than their common general employment. For these rea= sons, we believe that they do not constitute separate appropriate bar= gaining units. Employees at work at the time of the hearing were subject to increase in numbers and categories of employment as the seasonal work on the dam project advances. We shall therefore in- clude production and maintenance employees at the dam in a general broad unit, excluding employees in the other two units indicated above. . We find that the following employees of the Employer, engaged in the construction of the dam at Sinnamahoning, Pennsylvania, exclud- ing office clerical employees, professional employees, guards, and su- pervisors as defined in the Act, constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: (a) Carpenters and carpenter apprentices or helpers; (b) truckdrivers; and (c) all production and maintenance employees, excluding employees in units (a) and (b). 5. Although the employees in unit (c) do not constitute the unit sought either by the Operating Engineers or by the Hod Carriers, we will place the names of both organizations on the ballot, subject to the right of either to withdraw its name by notice to the Regional Director to that effect within 5 days from the date of the issuance of this Deci- sion and Direction of Elections. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because the Employer's construction period is now at peak, eligibil- ity will be determined by the usual payroll period. [Text of Direction of Elections omitted from publication.] MEMBER PETERSON took no part in the consideration of the above Decision and Direction of Elections. CHARLES H. SEYFERT, AN INDIVIDUAL D/B/A SEYFERT FOODS Co. and LOCAL No. 40, BAKERY & CONFECTIONERY WORKERS OF AMERICA, AFL. Case No. 13-CA-1495. August 13,1954 Decision and Order STATEMENT OF THE CASE . Upon a charge and an amended charge duly filed by Local No. 40, Bakery & Confectionery Workers of America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsels and the Board, through the Acting Regional Director for the Thirteenth Region (Chicago, Illinois), issued his complaint dated August 13,1953, against Charles H. Seyfert, an individual d/b/a Seyfert Foods Co., herein called Seyfert or the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges and the com- plaint, together with the notice of the hearing, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that : (1) The Respondent discriminatorily discharged Martha Christine Johnson on or about Junc 15, 1953, and at all times thereafter has discriminatorily neglected, failed, and refused to rein- state her; (2) the Respondent caused a number of its employees to engage in a concerted work stoppage or strike in protest against John- son's discharge; (3) the Respondent, on or about June 15 and 16 and July 9, 1953, rejected the striking employees' unconditional requests for reinstatement and, beginning on or about June 17, 1953, hired re- placements for the striking employees; (4) the Respondent increased the wages of the nonstriking employees in order to discourage their joining in the strike; (5) the strike was an unfair labor practice strike or, alternatively, was an economic strike converted and prolonged by 'This term specifically includes counsel for the General Counsel appearing at the hearing. 109 NLRB No. 115.