C.T.L. Testing Laboratories, Inc.

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX CORRECTIONS TO HEARING TRANSCRIPT Correction No.' Transcript page Lines Corrected from- I----------------- 10 23 Harold---------------------- 2----------------- 11 10 and Lenore 3----------------- 13 14 part 4----------------- 23 15 Leona 5----------------- 72 18 because the 6----------------- 74 5 I know 7----------------- 93 8 evidence 8----------------- 94 24-25 but the 0----------------- 113 10 talked 10---------------- 116 13 main 11---------------- 119 22 a grin 12---------------- 150 12 could be filed 13---------------- 152 4 at six 14---------•------ 183 19 she 15---------------- 184 17 have 16---------------- 185 1 Company, and Mr. 17---------------- 215 14 knew him 18---------------- 220 2 Mr. 19---------------- 220 19-20 election has been recom- mended and designated 20---------------- 226 11 has 21---------------- 235 3 commerce 22 ---------------- 261 25 second 23---------------- 288 18 sister 24---------------- 290 7 us in 25---------------- 290 8 road, and we 27---------------- 295 18 issues 28---------------- 299 17 charging 29 ---------------- 303 9 Lynch 30---------------- 303 22 was testified to earlier 31---------------- 308 16 nowhere 32---------------- 308 17 in 33---------------- 310 3 as to a discharge 34---------------- 315 24 Holmstead 35---------------- 321 11 was authorized 36---------------- 329 9 thirty 37---------------- 329 10 forth 1 Corresponds to those on Respondent's motion to correct the record. Corrected to- Carol and also another employee Lenore point Lenora because at the you know question but goes to the walked Mansfield to say hello could be followed on the sixth he had Company, Mr. knew then Mrs Union has been elected and certified had counter twelfth secretary us. In road, we issuance charged Leonard testified earlier no more than will be to discourage a Olmsted was not authorized three four C.T.L. Testing Laboratories, Inc. and Sand, Gravel, Crushed Stone, Ashes and Material Yard Workers, Local No. 1175, of International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO. Case No..2-RC-13387. Janu- ary 13, 1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Julius Altman of the National Labor Relations Board. The 150 NLRB No. 90. C.T.L. TESTING LABORATORIES, INC. 983 Hearing Officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds:' 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) .of the Act. 4. The Employer provides inspection services for concrete build- ing materials. It presently employs 11 full-time inspectors, one of whom is a professional engineer. It also employs, on an as-needed basis, many part-time inspectors, some of whom are also profes- sional engineers. The inspectors work at concrete plants where they see that the proper dry ingredients are placed into the concrete mix- ing trucks for shipment to the construction site and at construction sites where they subject the mixed concrete to numerous tests to see that it meets contract and code specifications. In addition to the inspectors the Employer also hires two office employees who inspect part of the time but who also assign jobs to the individual inspectors, three laboratory employees who test sam- ples of concrete taken from the building sites by the inspectors, and a truckdriver who picks up and delivers materials that are to be inspected and tested. The primary question arising in this case involves the scope of the appropriate unit .2 The Petitioner, seeks a unit of all regular full- i Respondent's request for oral argument is hereby denied as the record and briefs, in our opinion , adequately set forth the issues and the positions of the parties. 'The Employer also contends that the inspectors are guards within the meaning of the Act and that the Petitioner represents employees whose work is inspected by the in- spectors and is therefore precluded by the Act from representing the inspectors . Alter- natively, if the Board should find that the inspectors are not guards, the Employer con- tends that the Board should exercise its discretion and not permit the Petitioner to represent the inspectors because the Employer urges the inspectors' independence of judgment would be jeopardized if they had to inspect the work of fellow union members. We find both of these contentions to be totally without merit. As to the first, the legis- lative history of the Act establishes that Congress had no intention of considering inspec- tors as guards . See H. Minority Rept. 245 on H.R. 3020, page 71, Legislative History of the Labor Management Relations Act, 1947, page 362; S. Rept. 105 on S. 1126 page 19, Legislative History of the Labor Management Relations Act, 1947, page 425; H. Conf. Rept. 510 on H.R. 3020, pages 35, 36, Legislative History of the Labor Management Relations Act, 1947 , pages 539 , 540. As to the second, we find no reason to believe 'the performance of these inspectors ' duties would be in any way jeopardized by their being represented by the same union which represents the laborers, shippers , batchers, or any other employees at concrete plants or on jobsites. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time and part-time inspectors, truckdrivers and laboratory employees, excluding professional engineers, office clerical employees, guards, watchmen, and supervisors as defined in the Act, and all other em- ployees. The Employer, on the other hand, contends that the appro- priate unit should include the regular and part-time professional engineers and exclude the laboratory employees and truckdrivers. There is no history of collective bargaining with respect to any of the Employer's employees. The laboratory employees do very little actual inspecting. How- ever, the inspectors, when there is no inspection work to be done, work in the laboratory. Also most of the full-time inspectors worked their way into their positions after working as laboratory employees. The truckdriver's primary function is to transport samples taken, by the inspectors from the field site to the laboratory. Because of the progression of laboratory employee to inspector, the frequency of inspectors working in the laboratory, the frequent contacts of both laboratory employees and inspectors with the truckdriver and the interrelationship of all of their duties, we find a substantial com- munity of interest among the inspectors, laboratory employees, and the truckdriver. Accordingly, we include truckdrivers and labora- tory employees in the unit. .The Employer also hires one full-time and several part-time pro- fessional engineers. The 1962 New York City Code requires that a licensed professional engineer at the mixing plant and at the work site supervise' both the testing of materials and the inspection of concrete construction. Professional engineers must also qualify the inspectors as being capable to perform their duties. As their duties are supervisory and as these employees are professional employees, we exclude them from the unit. The Petitioner and the Employer further disagree as to the cri- teria which should be applied to determine who are regular part- time inspectors. The Petitioner contends that only those part-timers who worked at least 1 day a week every week in the preceding year should be included in the unit; the Employer's position is that any part-timer who worked at least 1 day during the preceding year should be so included. We find neither of these suggested criteria to be adequate. The Petitioner's suggestion would exclude part-time inspectors who, per- haps,because of a slack workweek in the past year, were not during that one week assigned an inspection job even though they may have worked a substantial number of hours during every other week throughout the year and even though they may have relied exclu- sively upon this work for their livelihood. Obviously such employees have a sufficient interest in their jobs to be included in the unit. The Employer's proposal, on the other hand, would include any inspector C.T.L. TESTING LABORATORIES, INC . 985 who had worked only a single day in the past year. Equally obvi- ously some of these employees would have no substantial interest in the inspectors' working conditions and should not be included in the unit. - The selection of an equitable formula for determining eligi- bility, of part-time inspectors depends upon a careful balancing of the factors of length, regularity, and currency of their employment. In Motor Transport Labor Relations, Inc., 139 NLRB 70, and again in Scoa, Inc., 140 NLRB 1379, we found it equitable to include in the unit all part-timers who had worked * a minimum of 15 days in the calendar quarter preceding the eligibility date. In this case we must consider the further factor of the seasonal nature of the construction industry. The data in the record reveal that during the 30 payroll periods from May ' 3, 1963, to June" 10, 1964 (the payroll period constituting 2 weeks), some 69 part-time inspectors appeared at least once on the Employer's payroll list. The number of part-time inspectors appearing on the payroll lists varied from 12 during the ebb of the slow season to 35 during the height of the peak season, the peak season running from March 15 to November 15. Taking the calendar quarter of October through December 1963, which extends into the Employer's slow period, as an example, only 15 of the 69 part-time inspectors would have been eligible under the 15 days per calendar quarter formula. Under this same formula applied in the peak period calendar quarter of July through September 1963, 23 would have been eligible, only 10 of whom would have been eligible under the test applied to the October through December period. It would be unfair to exclude those in- spectors who worked so consistently during the peak season from eligibility merely because the administrative processes of the Board have resulted in the scheduling of the election during a slack business period. Nor would it be fair to exclude those who have currently worked consistently enough to have met the formula requirements even during the slack period immediately preceding the issuance of this decision. Accordingly, we find in this case that all part- time inspectors who are still considered as on call by the Employer and who have worked a minimum of 15 days in either of the two 3-month periods immediately preceding the issuance of this Deci- sion are regular part-time employees, and we therefore include them in the unit. The remaining point at issue is the question of whether Dan Damiano and Matti Citardi, the office employees who direct the work assignments of the inspectors, are supervisors within the mean- ing of the Act. The record discloses that these employees spend 20 to 25 percent of their time inspecting. It further discloses that Joseph Citardi retains some control over their work assignments. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It however provides no information as to whether they have the authority to effectively recommend the hiring, transferring, suspen- sion, layoff, recall, promotion, discharge, or discipline of other em- ployees or to adjust grievances of other employees. Accordingly, we are unable to resolve this issue on the present record and hereby direct that Dan Damiano and Matti Citardi be permitted to vote if they so desire, subject to challenge. On the basis of the foregoing, we find the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time inspectors, truckdrivers, and laboratory employees, excluding regular and part-time professional engineers, office clerical employees, guards, watchmen, and super- visors as defined in the Act and all other employees.8 [Text of Direction of Election omitted from publication.] 8 Because of the uncertainty as to which of the part-time employees will qualify as regular part-time employees under the formula set forth above, we hereby direct the Regional Director to determine for showing-of-interest purposes the identity of those em- ployees who qualify as regular part-time employees, and to redetermine the adequacy of Petitioner's showing of interest. In the event that the Petitioner's showing of interest proves to be inadequate, Petitioner shall have 10 days from the date it has been informed of the Regional Director's determination to demonstrate the necessary showing of interest; If Petitioner fails to do so the Regional Director is hereby directed to dismiss the peti- tion. The Regional Director's determination shall be final and conclusive only for show- ing of interest purposes, and the parties shall retain all rights to challenge the eligibility of voters in accordance with the Board's Rules and Regulations, Series 8, as amended, and established Board policy. Robert W. Hunt Company, Inc. and Sand, Gravel, Crushed Stone, Ashes and Material Yard Workers, Local No. 1175, of International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, Petitioner. Case No. 2-RC-13388. January 13, 1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Julius J. Altman of the National Labor Relations Board. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. 150 NLRB No. 91.