Clement-Blythe Companies

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clement-Blythe Companies , A Joint Venture and Interna- tional Union of Operating Engineers , Local Union No. 470, AFL-CIO. Case 11-CA-3371 May 18, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS ' On November 7, 1967, the National Labor Relations Board issued its Decision and Order in this proceeding,' finding that Respondent had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. The Board ordered Respondent to' cease and desist from the unfair labor practices found , and to take certain affirmative action necessary to effectuate the purposes of the Act. On September 9, 1969 , the United States Court of Appeals for the Fourth Circuit issued its decision2 in which it held that: ( 1) as part of the Board ' s process of certifying employee representatives , the Board may make decisions without giving its reasons for decision;3 (2) the Board need not conduct a - de novo hearing in every unfair labor practice case ; and (3) the Board is not precluded from deciding unfair labor practice cases on motions for summary judgment . It further found , however , that , where a de novo hearing is not granted , the Board must thoroughly review the entire record that was before the Regional Director before making its own decision in the unfair labor practice case , and where it grants a motion for summary judgment must explain why the facts established in the representa- tion case sustain the complaint in the unfair labor practice case . As the Board in its Decision in the instant proceed- ing granted the motion for summary judgment without stating that it had reviewed the representation case record , and did not set forth reasons for its decision, the court remanded the case to the Board "for further proceedings." Pursuant to the provisions of Section 3(b) of the Act, as amended , the Board has delegated its powers in connection with this case to a three-member panel. The Board has now reviewed the entire record in this proceeding , including the underlying representation proceeding [Case 11-RC-2528 (not printed in NLRB volumes)] and has decided to affirm its earlier finding that Respondent violated Section 8(a)(5) and ( 1) of the Act. The facts which the Regional Director for Region 11 had before him in the representation matter are not in dispute . At the time of the hearing in that case, 168 NLRB 118 N.L R B v Clement-Blythe Companies, A Joint Venture, 415 F 2d 78 Here, the Regional Director for Region 11, following hearing, issued his Decision directing that an election be held among Respondent's employees in a specified unit on a specified date Respondent had contended that , because of an expanding work force , no election should be held until a much later time The Board denied Respondent's request for review of that Decision without explaining why it felt the request raised no issues warranting review Respondent had 37 employees in the appropriate unit. Respondent anticipated a level of 60 employees at the end of May, 80 at the end of June, 90 at the end of July, 100 at the end of August, 125 at the end of September, about 140 at the end of February 1968, and about 180-190 by April 1969. The eligibility cutoff, date was May '15, 1967. By Respondent's projections, it would have about 43 employees by that date (the fact that it had only 40 we find immaterial, as the Regional Director necessarily relied upon Respondent's projections). When looking to a figure against which to compare that 43, we do not think it realistic to take a projection of so long a period as 2 years (that is, the 180-190 by April 1969). We think a more realistic figure to be the 140 by February 1968. As to job classifica- tions, Respondent offered no figures, but stated that it did not expect to have categories of employees dissimi- lar to those it had at the time of the representation hearing. In determining whether the employee complement is "representative and substantial" so as to warrant holding an immediate election, the Board has avoided the use of hard and fast rules.4 The size of the employee complement at the time of the hearing; the nature of the industry; the time expected to elapse before a full, or substantially larger, complement of employees is on hand; and other variables all militate against a rigid formula and dictate the Board's approach. The Board must often balance what are sometimes conflicting desid- erata, the insurance of maximum employee participation in the selection of a bargaining agent , and permitting employees who wish to be represented as immediate representation as possible. Thus, it would unduly frus- trate existing employees' choice to delay selection of a bargaining representative for months or years until the very last employee is on board. Conversely, it would be pointless to hold an election for very few employees when in a relatively short period the employee comple- ment is expected to multiply many times. The instant case, as is obvious, does not fall easily into either of the extreme categories. Significantly, how- ever, Respondent here is in the construction industry. Congress, as well as the Board, has recognized the need in this industry for permitting the collective-bargain- ing process to begin as early as possible, so as to accommodate to the fluctuating nature and unpredictable duration of construction activities. To that end, for example, Section 8(e) and (f) of the Act accord special consideration to the construction industry. Although waiting for a full, or almost full, employee complement would permit fuller employee participation, it might well delay collective bargaining for groups of employees ' By contrast , the Board has held that an employer-union contract will bar an election if 30 percent of the complement employed at the time of the hearing had been employed at the time the contract was executed, and 50 percent of the job classifications had been in existence General Extrusion Company, Inc , 121 NLRB 1165 In the election area, as noted , a case-by-case approach is utilized , rather than the General Extrusion, or any other, formula. Indeed, elections have been directed where it is not certain that the formula would have been satisfied See Endicott Johnson De Puerto Rico, Inc , 172 NLRB No. 194; General Cable Corporation, 173 NLRB No 42 182 NLRB No. 74 CLEMENT-BLYTHE who wanted union representation, and the delay might well result in bargaining for only a very short duration, with the project completed before any meaningful results could ensue For these reasons, we give more emphasis in the construction industry to the desirability of an early choice given to the employees than to postponing an election in order to achieve a full employee comple- ment The figures set forth above show that at the time of the eligibility cutoff date, Respondent employed 43 of the 140 employees it expected to have within a reasonably foreseeable time from the date of its predic- tions, and there is no showing that less than 50 percent of the classifications expected in the future were embraced by the 43 employees Thus, even were we to apply General Extrusion to this situation, the test of finality would be met In all the circumstances, we 503 are satisfied that Respondent had on hand a substantial and representative number of employees in sufficient classifications to conclude that the election of June 15, 1967, was a valid indication of the employees' desire that International Union of Operating Engineers, Local Union No 470, AFL-CIO, represent them for purposes of collective bargaining, and that Respondent's refusal to bargain with that Union was in violation of Section 8(a)(5) and (1) of the Act Accordingly, we shall affirm our earlier Order SUPPLEMENTAL ORDER Based on the foregoing , and the entire record in this proceeding and in Case 1l-RC-2528, the National Labor Relations Board hereby affirms its Order issued in this proceeding on November 7, 1967