Charles H. Tompkins Co.

CHARLES H TOMPKINS CO Charles H. Tompkins Co. and Local 77, International Union of Operating Engineers , AFL-CIO, Peti- tioner Head Construction Company and Local 77, International Union of Operating Engineers, AFL-CIO, Petitioner . Cases 5-RC-7055 and 5-RC-7059 August 27, 1970 DECISION AND DIRECTION OF ELECTIONS BY MEMBERS FANNING, MCCULLOCH, AND BROWN Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, and pursuant to an order consolidating cases issued by the Regional Director for Region 5 a hearing was held before Hearing Officer William I. Shooer, of the National Labor Relations Board. All parties appeared at the hearing and were given full opportuni- ty to participate therein. On February 12, 1970, the Regional Director issued an order transferring the case to the National Labor Relations Board. There- after, the Petitioner filed a brief with the Board; and the Employer and Construction Contractors Council of Washington, D.C. (hereafter Contractors Council), filed a point brief. 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. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they were free from prejudicial error. They are hereby affirmed. Upon the entire record in these cases the Board finds: 1. The Employers are engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner claims to represent certain employ- ees of the Employers. 3. A question affecting commerce exists in each case concerning the representation of certain employ- ees of the Employers within the meaning of Section 9(c) and Section 2(6) and (7) of the Act. 4. In the Tompkins case, Case 5-RC-7055, the Petitioner requests an election in a unit of all field engineers and instrument men employed by the Employer in the Washington, D.C., metropolitan ' Carpenters District Council of Washington, D C (hereafter Carpen- ters), also intervened 195 area.2 In the Head case, 5-RC-7059, the Petitioner requests an election in a unit of all engineers and assistant engineers employed by the Employer in the Washington, D.C., metropolitan area. The Employers, the Carpenters, and the Contractors Council seek dismissal of the petitions on the grounds that the requested units are inappropriate, as the employees described in the petitions have no communi- ty of interest separate from that of other employees doing similar work, and as a multiemployer bargaining history of other employees requires a multiemployer bargaining unit of the requested employees. Tompkins, a District of Columbia corporation, and Head, a Maryland corporation, are engaged in the construction of industrial buildings. They are members of the Contractors Council, composed of some 75 construction firms, which negotiates and executes mul- tiemployer contracts binding them with six unions, including the Petitioner, the Carpenters, and the area local of the Laborers, covering employees in six build- ing trades in the Washington, D.C., metropolitan area. The Contractors Council's 1969-72 contract with the Carpenters incorporates by reference the Carpenters' constitution as it relates to work jurisdic- tion; and the Carpenters' constitution provides for inclusion of "the use of any instrument or tool for layout work, incidental to the trade." The Contractors Council's 1969-72 contract with the Laborers as it relates to work jurisdiction provides for inclusion of "chainmen, rodmen." Field engineering, or field survey, parties in the construction industry are usually made up of field engineers, instrument men, and rod and chain men. Such parties make initial job layouts before construc- tion begins, and during construction they establish the placement of various elements of the building. Their tools consist of the transit, level chains, markers, and tapes. Tompkins' field engineers generally have special training and education in mathematics, are able to read drawings proficiently, and have substantial job experience. Several hold college degrees.' Its instru- ment men are also able to read drawings, have substan- tial facility with mathematics, and perform the same kinds of tasks as field engineers on a simpler level. These two classifications spend all their time perform- ing the full gamut of this work. They are salaried, and unrepresented by any labor organization. ' The Petitioner originally requested that rodmen and chammen be included in the unit, but withdrew the request when it developed at the hearing that the Employer has no such classification for employees ' They are not alleged to be professional employees within the meaning of Sec 2(12) of the Act and the record does not establish that they are 185 NLRB No. 38 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tompkins assigns Laborers and Carpenters to perform its rod and chain work, which requires no special skill or training, and compensates them under the Laborers and Carpenters contracts. Some of these carpenters and laborers perform some instrument work; but the amount of time such employees spend performing that kind of work is very small. Carpenters, expecially carpenter foremen, use many of the same tools in laying out work for carpenters to perform However, this does not appear to be field engineering work, but rather, in the language of the Carpenters' constitution, "the use of any instrument or tool for layout work, incidental to the trade." Head employs a job classification called engineers. Employees in that classification use the transit and level, have special training in higher mathematics, and spend all their time laying down and measuring reference lines used to position the building and its parts. The Employer also has a job classification known as assistant engineers, some of whom are skilled and others unskilled. Skilled assistant engineers use the transit and level, have special training in mathematics, and spend all their time performing work the engineers do at a simpler level. Unskilled assistant engineers do not have special knowledge or skills, and spend all their time performing rod and chain work in connection with the activities of engineers and skilled assistant engineers. All these employees are salaried, receive no overtime pay except on Saturday, and receive no health or welfare or pension benefits. None of these employees are repre- sented by a labor organization. Other Head employees who are covered by the Carpenters and Laborers contracts also spend up to 20 percent of their time as helpers to field survey crews. The Board has held that "a clearly identifiable and homogeneous group of employees with a commu- nity of interest separate and apart from other employ- ees" may constitute an appropriate unit in the con- struction industry; and the fact that other employees perform some of the same tasks is not sufficient in itself to render the requested unit inappropriate.4 Applying these principles to the present case, we are satisfied that the units sought by the Petitioner are appropriate.' The Tompkins field engineers, and the Head engi- neers here involved possess identifiable skills also possessed to a lesser extent by instrument men and Htcchent Constructors Inc 169 NLRB No 38 R B Butler, Inc 160 NLRB 1595, 1600 ' They are essentially units of surveying parties performing technical work which the Board has long found appropriate SeeGeorgeA Fuller Company, 78 NLRB 207, 208, and fn 1, Starrett Bros & Eken, Inc, 77 NLRB 275, 279 assistant engineers. They spend their entire time work- ing together to perform the functions of field engineer- ing surveys and layouts in building construction. Their method of pay and benefits are different from those of laborers and carpenters, and they are unrepresented. Moreover, the similar work performed by other employees amounts to significantly less than half the time of such employees or is performed as an incident to carpentry and not as field engineenng survey work.' In these circumstances, we find that the units request- ed are readily identifiable and homogeneous groupings of field survey employees with a community of interest separate and apart from construction tradesmen. We find no merit in the contention that only a Contractors Council multiemployer unit is appropriate. Under the Board's policy, an established multiemployer bargaining history as to other employ- ees is not controlling as to the scope of the unit if the unrepresented employees constitute a homogene- ous, separately identifiable group.' Moreover, a single- employer unit is presumptively appropriate, and the scope of the metropolitan areawide units requested is consistent with construction industry practices and not otherwise objected to. Therefore, as there is no bargaining history and no other labor organization seeks to represent these employees on any other basis, we conclude that they constitute appropriate units for collective bargaining.' Accordingly, we find that the following employees constitute units appropriate for collective bargaining within the meaning of Section 9(b) of the Act: (1) All field engineers and instrument men employed by Charles H. Tompkins Co. within the greater Washington Metropolitan Area, but excluding all other employees, professional employees, guards, and supervisors as defined in the Act. (2) All field engineers and assistant engineers employed by the Head Construction Company within the greater Washington Metropolitan Area, but excluding all other employees, profes- sional employees, guards, and supervisors as defined in the Act. ' Tompkins employs no one classified as rodmen or chammen, and the Petitioner does not request the inclusion of such classifications in the Tompkins unit As no party requests inclusion of laborers covered by the Contractors Council-Laborers contract who perform rod and chain work, they are excluded As the record is not complete with regard to the nature of the duties performed by Head employee Hunt, a member of the Carpenters apparently devoting substantial time to layout work which may be field in type, he may vote subject to challenge 'San Jose Motel d/b/a Hyatt House Motel, 174 NLRB No 148 See R B Butler, Inc, supra, 1601 As noted above, the Contractors Council's contracts with six construction industry unions cover the Wash- ington, D C , metropolitan area ' John McShain, Inc, 185 NLRB No 39, issued today CHARLES H TOMPKINS CO 197 [Direction of Elections10 i' omitted from publication.] '° In order to insure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the elections should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, Wyman-Gordon Compa- ni, 394 U S 759 Accordingly, it is hereby directed that election eligibility lists, containing the names and addresses of all the eligible voters, must be filed by the Employers with the Regional Director for Region 5 within 7 days after the date of this Decision and Direction of Elections The Regional Director shall make the lists available to all parties to the elections No extension of time to file these lists shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the elections whenever proper objections are filed i i Carpenters may secure a place on either ballot by producing a showing of interest therein