J. P. Sand and Gravel Co.

J. P. SAND AND GRAVEL CO. 83 J. P. Sand and Gravel Company and -Inter-national Union of Operating Engineers, Local 18A, 18B, 18G, 18RA, AFL-CIO, Petitioner. Case 9-RC-11110 January 9, 1976 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was-held before Hearing. Officer J. Michael Fischer. Thereafter, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for'Region 9;. this case was transferred to the Nation- al Labor Relations Board for decision. Thereafter, the Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds they are free from prejudicial error. They are hereby affirmed. 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 pur- poses of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization within the meaning of the Act. 3. The Petitioner filed a petition on July 2, 1975. The Employer contends that the petition is barred by an agreement between the Employer and former employee McDonald on behalf of the employees. The Petitioner contends that the agreement is not a bar and further argues that there is currently no em- ployee representative willing and able to administer any agreement. In agreement with the Petitioner, we find that there is currently no employee representative to ad- minister the agreement between the Employer and employee McDonald. It is clear that no organization or individual expressed at the hearing a present will- ingness and ability to represent employees and ad- minister the contract. Prior to the hearing, McDon- ald had retired and left the employ of the Employer. Subsequent to that time, employees apparently asked employees O'Bryan and Craiglow to serve as employ- ee representatives. At the hearing, pursuant to the Hearing Officer's suggestion, employee O'Bryan moved to intervene as employee representative. However, in his testimony, O'Bryan flatly stated that he was no longer an employee representative and had no- intention of representing other employees. Ac- cordingly, in light of O'Bryan's testimony and pur- suant to Petitioner's motion, we grant Petitioner's motion, made at the hearing, to strike employee O'Bryan's intervention. - " The Employer contends that employee Craiglow remains willing and able to-serve as employee repre- sentative. However, we note -that Craiglow, though present at the hearing, made no motion to intervene. Further, contrary to the Employer's contention, Craiglow did not state at the hearing that he was willing and able to serve as employee representative. Rather, Craiglow testified that at the time he was asked to be employee representative he assumed it was so that he might represent other employees. However, according to Craiglow, subsequent to being asked to be employee representative but prior to the hearing, he informed the other employees that they did not need him as employee representative. We can only interpret Craiglow's testimony to indi- cate that he had ceased, prior to the hearing, to be an employee representative. It is clear that there never existed any organiza- tion, formal or informal, with bylaws or rules, to rep- resent the employees herein. Evidence indicates only that there had been an employee spokesman. It is not clear what authority the spokesman was authorized to exercise on behalf of the other employees. What- ever the past situation, at the hearing, no person or organization indicated current willingness and ability to represent the employees. Accordingly, as there is no current employee representative, the agreement involved herein cannot serve as a bar to this petition. Even were there an employee representative here, we find that the agreement would fail to bar the elec- tion. In substance, the agreement addresses itself only to the wages and fringe benefits for employees. The agreement does not contain a recognition clause, and it is clear that employees with grievances take them up directly with management. The contract does not embody substantial terms and conditions of employment, cannot be resorted to by either the em- ployees or the Employer for guidance in governing their day to day relations, and does not "[impart] sufficient stability to the bargaining relationship to justify our withholding a present determination of representation." ' Finally, as in Austin Powder Company, supra, there exists much doubt here as to whether the agreement 1 See Raymond's, Inc., 161 NLRB 838, 840 (1966), and Austen Powder Company, 201 NLRB 566 (1973). 222 NLRB No. 17 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein is a "collective" agreement. Evidence indi- cates that employees have had to request raises indi- vidually and have not automatically received increas- es pursuant to the agreement. Further, employees appeared for the most part unaware as to the opera- tion of their wage rates and classifications and have had to enforce individually their limited rights under the agreement. Under these circumstances, the agree- ment cannot be deemed a "collective" agreement. Based on the foregoing, we find that a question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 2(6) and (7) of the Act. 4. We shall direct an election in the following unit which we find, in accord with the positions of the parties,2 to be appropriate for the purpose of collec- 2 The Employer contends that employees Manning and Tennant should be ineligible to vote because they are temporary employees. The Employer tive bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer engaged in the production of sand and gravel at the Employer's facility at 5555 Lockbourne Road, Columbus, Ohio, excluding office clerical employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] apparently defines as temporary those employees who are not covered by its insurance program. However, at the hearing , Employer Representative Roberts admitted that Manning is now covered by the insurance program and Tennant is having his application for insurance processed Further- more, regardless of the employees' status under the Employer's insurance program, it is clear that under Board criteria both employees are not tempo- rary employees. Both employees work a regular full-time schedule , perform duties that are a regular part of the Employer's operation, and have no definite or contemplated date of termination . Accordingly, employees Man- ning and Tennant are clearly within the requested unit and are eligible to vote in the election. See William E Lacke, Gertrude E. Lacke (Deceased), & Vivienne C Lacke Burum, co-partners d/bla Dmuba Sentinel and Sentinel Printing & Publishing Co, 137 NLRB 1610 (1962); and Selecto-Flash, Inc., 176 NLRB 170 (1969)