D & M Sheet Metal, Inc.

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D & M Sheet Metal, Inc. and Sheet Metal Workers International Association, Local Union #19, Pe- titioner. Case 4-RC-15562 14 December 1984 DECISION AND CERTIFICATION OF - REPRESENTATIVE BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 6 April 1984 and the Acting Regional Director's report recommending disposition of them. The election was conducted pUrsuant to a Stipulated Election Agreement. The tally of ballots shows 4 for and 2' againsf .the Peti- tioner, with 3 challenged ballots. The Board has reviewed the record in light of the exceptions and brief, has adopted the Acting Regional Director's findings and recommenda- tions,' and finds that a certificaticin of representa- tive should be issued. The Acting Regional Director found, inter alia, that D & M is an employer within the construction industry and• that April Rambo and Robert McGinn worked enough days during the 24 months preceding the election to satisfy the Daniel Construction CO., 2 special criteria available för de- termining voter eligibility in the construction indus- try. However, he concluded they Were not eligible to vote because they were engaged in full-time nonunit work on, and prior to, the eligibility date. Eastern Rock Products, 239 NLRB 892 (1978). We agree with the Acting Regional Director's recommendation that the challenges to the ballots of Rambo and McGinn be sustained. The parties raised no issue concerning special eligibility Criteria when they entered into the Stipulated Election Agreement which .contains the standard eligibility formula. We find that the agreement is proper and should be given effect. 'Accordingly, we find it un- necessary to consider the Daniel Construction issues that the Acting Regional Director discusses. 1 In the absence of exceptions, we adopt, pro forma, the Acting Re- gional Director's recommendation that the challenge to Thomas Hollen- bach's ballot be sustained 2 133 NLRB 264 (1961) (employees in unit who worked at least 30 days in 12-month period preceding election or who did some unit work in 12-month period preceding election and at least 45 days in 24 months immediately preceding eligibility date, eligible to vote) - CERTIFICATION OF REPRESENTATIVE, IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Sheet Metal Workers Inter- national Association, Local Union #19 and that it is the exclusive collective-bargaining representative of the employees in the- following appropriate unit: All sheet metal workers, emplOyed by D & M ' Sheet Metal, Inc., at its Wesllawn, Pennsyl- vania facility, excluding all office clei-ical em- ployees, guards and supervisors as definded in the Act. - MEMBER ZIMMERMAN, concurring. I agree with my colleagues that the Stipulated Election Agreement should be given effect. I fur- ther find that the Daniel Construction eligibility for- mula does not in any event apply in this case. That formula is not implicated in every election in the construction industry. See, e.g.,- Dick Kekhner Ex- cavating Co., 236 NLRB 1414 (1978); E. V Wil- liams Co., 175 NLRB 792 (1969). It was devised to address the unique sort of work assignments common in the construction industry. The Board found that because of the nature of the industry many employees experience intermittent employ- ment for short periods and may be employed by several different employerg during the course of a year. In consideration of those• factors, the Board determined that employees who had been em- ployed by an employer for at least 30 days in the year preceding the eligibility date for the election or had some employment with that employer in the year preceding the election and 45 days in the 2- year period preceding the eligibility date would have a continuing interest in •their working condi- tions which would •warrant their participation in the election. Here, as the Employer concedes, Rambo's and McGinn's work cannot be character- ized as intermittent short term -employment, nor do they work for several different employers in any given period of time. Instead, they hold- permanent . full-time jobs with another company. . Although they sometimes work for this Employer, they do so only on the infrequent occasions when there is a lapse in their regular employment. As they hold regular full-time positions, they are not the kind of employees for which the special rule in Daniel Construction was developed:' , i Eastern Rock Products relied on by the Acting Regional Director is a limitation on the Daniel Construction rule, as Daniel Construction is not applicable in the instant case, likewise Eastern. Rock does not apply 273 NLRB No. 93