Peter Kiewit Sons' Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peter Kiewit Sons' Co. and South Prairie Construc- tion Co. and International Union of Operating Engineers, Local No. 627, AFL-CIO. Case 16- CA-4826 August 2, 1977 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On October 24, 1973, the National Labor Relations Board issued a Decision and Order' finding that Peter Kiewit Sons' Co. (herein Kiewit) and South Prairie Construction Co. (herein South Prairie) constituted separate employers and that the employ- ees of each company constituted a separate appropri- ate unit for collective-bargaining purposes. Accord- ingly, the Board dismissed in its entirety the complaint, which alleged that Respondents violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to apply to South Prairie's employees the terms and conditions of a contract executed by Kiewit and the Charging Party, International Union of Operating Engineers, Local Union No. 627, AFL-CIO. Thereafter, the Charging Party petitioned the United States Court of Appeals for the District of Columbia Circuit to review the Board's Order. On September 8, 1975, the court issued its decision,2 granting the petition for review, reversing the Board's findings that Kiewit and South Prairie are separate employers and that the employees of each constitute an appropriate unit, and vacating the Board's Order. On November 4, 1975, the court denied motions for rehearing and for rehearing en banc. Thereafter, the Board and South Prairie filed petitions for a writ of certiorari in the Supreme Court of the United States. On May 24, 1976, the Supreme Court granted certiorai, affirmed the judgment of the court of appeals that Kiewit and South Prairie are a single employer, vacated the judgment of the court of appeals that the two firms' employees constitute the appropriate bargaining unit, and remanded the case to the court of appeals. 3 Pursuant to the order of the Supreme Court, the court of appeals on September 30, 1976, remanded the case to the Board for further i 206 NLRB 562 (1973). Member Walther was not then a member of the Board; neither he nor Member Penello participated in that decision. 2 Local No. 627, International Union of Operating Engineers, AFL--CIO v. N.L.R.B., 518 F.2d 1040 (1975). :' South Prairie Construction Company v. Local No. 627, International Union of Operating Engineers, AFL-CIO, 425 U.S. 800 (1976). 4 In its statement of position South Prairie contends that Kiewit has not been bound by a bargaining agreement since July 1973, or at the latest July 231 NLRB No. 13 proceedings for determination of the appropriate bargaining unit. Thereafter, the Board invited state- ments of position from the parties. Such statements were filed by South Prairie and by Local 627, International Union of Operating Engineers, AFL- CIO. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon due consideration of the statements of position, the decisions of the Supreme Court and the court of appeals, and the entire record in this proceeding, the Board makes the following supple- mentary findings: The facts are fully set out in our original Decision and Administrative Law Judge's Decision attached thereto and will not be reiterated in detail here. Briefly, Kiewit has operated for years as a highway and heavy construction contractor in the State of Oklahoma and since 1960 has been signatory to a collective-bargaining agreement with International Union of Operating Engineers, Local No. 627, AFL- CIO, the Charging Party herein. 4 In 1972 in order to meet nonunion competition in highway construction, Kiewit's parent corporation brought into Oklahoma another wholly owned subsidiary, South Prairie, to operate on a nonunion basis. The ultimate issue in this case is whether, as a matter of law, Kiewit's bargaining agreement with the Engineers is applica- ble to the employees of South Prairie's Oklahoma operations. In the present posture of this case, the immediate issue before us is whether South Prairie's Oklahoma employees constitute an appropriate bargaining unit separate from Kiewit's employees. Underlying the consideration of the appropriate bargaining unit is the now given fact, based on the finding of the court of appeals as affirmed by the Supreme Court, that Kiewit and South Prairie constitute a single employer.5 However, that finding, as noted by the Supreme Court in its decision in this case, does not necessarily establish that the employ- erwide unit is the appropriate bargaining unit, "as the factors which are relevant in identifying the breadth of an employer's operation are not conclu- sively determinative of the scope of an appropriate unit." Central New Mexico Chapter, National Electri- cal Contractors Association, Inc., 152 NLRB 1604, 1608 (1965). See also B & B Industries, Inc., 162 1974, and that this case is, therefore, moot. We find, however, that the case is not moot, particularly because the complaint seeks, as a remedy. retroactive application of the contract with respect to the wage scale and payments to the apprenticeship and health and welfare funds. 5 The finding, of course, applies to South Prairie's highway construction operations within Oklahoma and not to its other operations. The record shows that South Prairie is a corporation of long standing engaged in the construction industry in States other than Oklahoma. 76 PETER KIEWIT SONS' CO. NLRB 832 (1967); and Dixie Belle Mills, Inc., A Wholly Owned Subsidiary of Bell Industries, Inc., 139 NLRB 629 (1962). In determining whether a single employer exists we are concerned with the common ownership, structure, and integrated control of the separate corporations; in determining the scope of the unit, we are concerned with the community of interests of the employees involved. Section 9 of the Act gives to the Board consider- able discretion in determining appropriate units. 6 Section 9(b) of the Act empowers the Board to "decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof .... " The mandate of that section "to assure to employees the fullest freedom" indicates that our primary concern is the degree of common interests of the employees involved. The ultimate unit determination is thus resolved by weighing all the factors relevant to the community of interests of the employees. Where, as here, we are concerned with more than one operation of a single employer, the following factors are particularly relevant;' the bargaining history; the functional integration of operations; the differences in the types of work and the skills of employees; the extent of centralization of management and supervision, particularly in regard to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange and contact between the groups of employees. Kiewit has had a long bargaining history with Engineers Local 627 and other unions; South Prairie of course has not. There are, however, no historically established separate units, as South Prairie's coming into Oklahoma was the cause of the charge herein. The 1970-73 collective-bargaining agreement was signed by several contractors in addition to Kiewit and by several unions in addition to Local 627. However, that contract, as found by the Administra- tive Law Judge, did not create a multiemployer bargaining relationship but instead contemplated separate units for each contractor's employees. In addition, other unions did not share representation of Kiewit's engineers with Local 627. In finding that Kiewit and South Prairie constitute a single employer, the court of appeals found a substantial degree of integration of operations and common management of the two Companies. How- ever, Kiewit and South Prairie retain their separate h In its decision in this case the Supreme Court quoted from Packard Motor Car Compant v. N. L.R.B., 330 U.S. 485. 491 (1947), that the selection of an appropriate unit lies largely within the Board's discretion which "is rarely to be disturbed." 7 Although Kiewit and South Prairie are not, in the traditional sense, separate plants, the factors used to determine whether a multiplant or a single-plant unit is appropriate are relevant here. corporate identities and have operated as separate enterprises for years. Each Company submits sepa- rate and independent bids,s although they are precluded by state law from bidding against each other. Each has a different dollar maximum for work which it can undertake. Neither Company subcon- tracts work to the other, and they do not work together on projects. Each Company uses its own tools and raw materials. Although heavy equipment is leased back and forth, the leases are signed agreements at the going rental rate. Of particular relevance here is that with respect to the interests of employees the Companies function as substantially separate operations. Kiewit and South Prairie are both engaged in highway construction in Oklahoma. There is nothing in the record to show a marked difference between the skills of the employees of the two Companies. However, South Prairie's Oklahoma operations are involved solely with highway construction, while Kiewit is engaged also in heavy construction work, including airport, mill, and railroad bridge construc- tion. Thus, although the employees of both Compa- nies perform similar work, the interests of South Prairie's employees are more narrowly drawn than those of Kiewit's employees. The fact that South Prairie operates as a nonunion contractor was determined by South Prairie's and Kiewit's parent corporation and, as found by the court of appeals, constitutes "a very substantial qualitative degree of centralized control of labor relations." Within that framework, however, South Prairie's labor policies are set by its president,9 and Kiewit's are set by an official of the parent corporation. More important to the consideration of the immediate issue before us is the local control over the day-to-day operations. Although many, if not most, of South Prairie's supervisors had previously worked for Kiewit, after their transfers they worked solely for South Prairie and supervised only South Prairie's employees. There is no common supervi- sion. The day-to-day control of South Prairie ultimately rests with its president. He has control over hiring, disciplining, and firing employees, establishes wages and conditions of employment, and has ultimate authority over the immediate working conditions. There is no evidence in the record that any official of the parent corporation (or of Kiewit) routinely reviews the day-to-day decisions, has the authority to do so, or regularly visits South Prairie's operations. Similarly, Kiewit exercises day- ' There is no evidence that South Prairie's bids are specifically reviewed by Kiewit or the parent. 9 South Prairie's president had previously been Kiewit's area manager. After he transferred, however, he no longer worked for Kiewit. 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to-day control over its operations. Accordingly, we find that there is substantial local control over those labor policies which most immediately affect the interest of the employees involved. When South Prairie came into Oklahoma a number of supervisors and officials, including South Prairie's president, came from Kiewit. There is also evidence that a few employees who had worked for Kiewit went to work for South Prairie but, since both Companies hire employees on a project-by-project basis, such is not unexpected. With the possible exception of one employee who on one occasion was loaned from one Company to another, there is no evidence of interchange in the traditional sense. There is no evidence which indicates that an employee of one Company will fill in for a sick or otherwise absent employee of the other Company or that an employee of one Company works on the projects of the other. As found by the court of appeals, the corporate relationship between South Prairie and Peter Kiewit is sufficient to find that they are one employer. However, the relationship between the two Compa- nies with respect to how the interests of their employees are affected is a different matter. In weighing the factors set out above, we find that the operations of South Prairie and Peter Kiewit are not so closely intertwined in all respects that their projects are indistinguishable or their employees equally under the jurisdiction of both firms. To the contrary, the evidence, taken as a whole, shows that the engineers employed by South Prairie in Oklaho- ma have a distinct and separate community of interests from the employees of Kiewit so as to constitute a separate appropriate bargaining unit. This is especially so in those aspects which directly and immediately affect the employees involved. South Prairie bids on jobs separately and indepen- dently of Kiewit and has predominately distinct arrangements for the day-to-day supervision and control of employees, and its employees do not interchange with Kiewit's employees. Accordingly, we find that the engineers employed by South Prairie in Oklahoma constitute a distinct and separate bargaining unit from the engineers employed by Kiewit. As South Prairie's employees constitute a separate appropriate bargaining unit, we further find that it would be improper to impose upon those employees the collective-bargaining agreement exe- cuted by Kiewit and Local 627. Accordingly, we shall dismiss the complaint herein in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 78