Dezcon, Inc.

DEZCON, INC. Demon, Inc. and United Counties Carpenters Dis- trict Council, United Brotherhood of Carpenters and Joiners of America, its affiliates and suc- cessors, Petitioner. Case 8-RC-13652 June 15, 1989 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Marco Graves on July 16, 1987, and Hearing Officer Nora Friel on August 17 and 18, 1987. The Petitioner and the Employer filed briefs. Following the hearing and the filing of briefs and pursuant to Section 102.67 of the Nation- al Labor Relations Board Rules and Regulations, this case was transferred to the Board for decision. The Board has delegated its authority in this pro- ceeding to a three-member panel. The Board affirms the hearing officers' rulings, finding them free of prejudicial error. The Board has considered the entire record in this proceeding and the Petitioner 's and the Em- ployer's briefs and makes the following findings. The Employer, an Ohio corporation, has an office in Niles, Ohio, where it is engaged in the business of construction. In the operation of its business, the Employer annually purchases and re- ceives goods and materials valued in excess of $50,000 directly from points outside the State of Ohio. The parties have stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction. The labor organization involved, the Petitioner, claims to represent certain employees of the Em- ployer.1 A question of representation affecting commerce exists within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. i The Petitioner is a subordinate body of the United Brotherhood of Carpenters and Joiners of America , composed of affiliated local unions in Eastern Ohio, Western Pennsylvania, and West Virginia The Petitioner's geographic area covers Mercer County , Pennsylvania; the following counties in Ohio: Trumbull , Mahoning, Columbiana, Jefferson , Harrison, Belmont, and Monroe; and the following counties in West Virginia: Brook, Marshall, and Hancock The Employer has challenged the Petitioner's status as a labor organi- zation, contending that the Petitioner lacks sufficient employee participa- tion. The record reveals that the Petitioner represents employees in the local unions by negotiating collective-bargaining agreements on their behalf. These agreements are subject to ratification by the members on whose behalf they are negotiated . Although individual employees are not admitted as members of the Petitioner, the Petitioner is made up of the affiliated local unions which, in turn, are made up of the employees on whose behalf the Petitioner negotiates On these facts, we find that the Petitioner is a labor organization within the meaning of Sec 2(5) of the Act. Crystal Bay Club, 169 NLRB 838 (1968) 109 1. FACTS AND CONTENTIONS OF THE PARTIES The Petitioner seeks to represent a unit of car- penters and carpenter-superintendents employed in Mahoning and Trumbull Counties in Ohio and Mercer County in Pennsylvania, including working superintendents,2 but excluding office clerical em- ployees, professional employees , guards, and super- visors. The Employer is a national construction compa- ny engaged in light commercial carpentry con- struction on projects averaging 8 to 10 weeks' du- ration. It has two stockholders and officers: its president, David E. Zofko, and its vice president, Randall Hake . Zofko and Hake share the Employ- er's managerial functions and labor relations au- thority, including the exclusive authority to hire, fire, and discipline employees, to resolve employee grievances, and to enter into collective -bargaining agreements. Zofko testified that he and Hake agreed at some point early in their Company's his- tory3 that they would sign only labor agreements that are limited to specific projects . Zofko and Hake retain ultimate managerial and supervisory authority over the Employer's projects. These projects are manned by a carpenter-superintendent and varying numbers of carpenters , some of whom are regular employees of the Employer and some of whom are hired for a specific project . Transfers of employees from project to project have oc- curred both when projects run concurrently or when only a short time elapses between the end of one project and the beginning of another . For ex- ample, three carpenters regularly employed by the Employer worked on both the Victoria's Secret and the Limited Express projects, which ran con- currently. Of the six local union carpenters who worked on these projects, one had been transferred from another project within the petitioned-for area. Moreover, when projects are located close togeth- er, the Employer has coordinated work among them. The Board has not certified the Petitioner or any other labor organization as the representative of the Employer's carpenter employees and the Board has not defined an appropriate unit of these em- ployees. On September 21, 1983, the Employer ex- ecuted, as a nonassociation member, a collective- bargaining agreement between the Petitioner and a multiemployer bargaining group. The three -county area at issue here was part of the larger area cov- ered by the agreement. That agreement expired 8 The parties stipulated that the working superintendents would be in- cluded in the unit. a Zofko testified that he had started up the Company about 4 years before. 295 NLRB No. 19 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD June 30, • 1985. Since the expiration of the agree- ment, the Employer has signed agreements under Section 8(f) with the Petitioner and its affiliated locals covering most of its projects in the three- county area in which the carpentry work was per- formed by individuals in the Company's employ. These agreements have been limited to specific projects, in keeping with the stated views of Zofko and Hake and that project agreements are more consistent with the Employer's operations. At the hearing, the Employer supplied a list of its construction projects with targeted completion dates after January 1, 1986 (P. Exh. 10). Of these projects, approximately 21 percent were located within the three-county area sought by the Peti- tioner. The Employer also provided a list of all employees designated as "carpenters" and "carpen- ter superintendents" who performed carpentry work on the projects listed on Petitioner's Exhibit 10. Of the 168 carpenters listed, 39 were employees of a subcontractor and have been stipulated by the parties to be ineligible to vote. The parties stipulat- ed that another carpenter, Chris Hake, is a supervi- sor and thus not entitled to vote. Of the remaining 128 carpenters, the employ- ment status of 29 is in dispute. The "Hart Group," 28 individuals, all of whom are related, perform carpentry work for the Employer, at times on a job-by-job basis and at times on an hourly flat rate basis. No contributions for workers' compensation or unemployment compensation are paid on their behalf; nor are state or Federal taxes withheld from their pay. They do not provide their own tools and they work under the Employer's direction. The Employer contends that the "Hart Group" carpen- ters are employees who share a community of in- terest with its other employees. The Petitioner con- tends that they are not eligible to vote as they are independent contractors and as such are not em- ployees within the meaning of the Act and, further, that even if they are employees, they do not share a community of interest with the remaining carpen- ters and carpenter-superintendents employed by the Employer. The Petitioner contends that the re- maining carpenter, Charles Hake, is ineligible to vote because he is a brother of Randall Hake. The Employer contends that there is no basis for ex- cluding Hake. The record contains no evidence concerning the effect of that relationship on Charles Hake's employment status. Of the remaining 99 carpenters employed by the Employer whose employment status is not in dis- pute, 40 have worked on projects within Mahoning and Trumbull Counties, Ohio, and Mercer County, Pennsylvania. At the hearing, Zofko specifically mentioned 10 carpenter employees4 whom he con- sidered the "nucleus and main employees of the Company." The Employer tries to offer these em- ployees full-time employment and provides them with company benefits such as hospitalization and vacation pay. All but one of the listed employees had been employed on jobs located in the three- county area with anticipated dates of completion after January 1, 1986. Of the employees who had worked on jobs within this area, however, all had also performed substantial amounts of work for the Employer outside the area. The Employer contends that the petitioned-for unit is inappropriate as the community of interest among its employees varies from project to project and the only appropriate units would be separate project units composed of carpenter employees currently working under 8(f) agreements on the re- spective projects in progress within the three- county area at the time the petition was filed. Re- garding the specific unit description, the Employer takes two alternative positions. First, the Employer proposes an election in two separate units, the first consisting of all carpenters it employs at its Victo- ria's Secret project in Niles, Ohio, and. the second consisting of all carpenters at its Limited Express project in Niles, Ohio.5 Alternatively, the Employ- er proposes that a single unit consisting of the car- penters it employed at these two projects is appro- priate. In support of its proposed unit or units, the Em- ployer contends that under the third principle set forth in Deklewa6 the appropriate unit for election "normally will be the employees covered by the agreement." Thus, the Employer argues, in this case the parties' bargaining history mandates that only two appropriate units exist-one for each project agreement-and the petitioned-for unit is inappropriate as its scope exceeds the scope of the single-project units covered by the 8(f) agreements repudiated by the petition. Further, the Employer argues that under traditional unit determination principles, the petitioned-for unit is not appropriate as the Employer's projects are functionally inde- pendent, control of terms and conditions of em- ployment and supervisory functions are centralized in the Employer's president and vice president, em- ployees in the three-county area do not have common working conditions or terms of employ- 4 Including Chris Hake, a stipulated supervisor. S These projects are located within the three-county area and were in progress at the time the petition was filed . The Employer admits that both projects are scheduled for completion before an election could be held. A third project in that petitioned-for area involved no Dezcon em- ployees, the Employer having subcontracted the work. 6 John Deklewa & Sons, 282 NLRB 1375 ( 1987). DEZCON, INC. ment distinct from employees outside the peti- tioned-for area, and little employee interchange occurs among the Employer's projects. Finally, the Employer argues that the basis for the petitioned- for unit is the Petitioner's geographical jurisdiction, which, it urges, can have no relevance to determin- ing an appropriate bargaining unit, and urges the Board to abandon the eligibility formula of Daniel Construction Co., 133 NLRB 264 (1961), in favor of a formula that would exclude employees who worked on one project only. The Petitioner contends that its proposed unit is appropriate and that both unit alternatives pro- posed by the Employer are inappropriate. In sup- port of its petitioned-for unit, the Petitioner argues that the "unit" the Employer proposes is actually no unit at all, as both projects of the Employer under 8(f) agreements within the three-county area that were ongoing when the petition was filed have been completed. Consequently, no carpenters are employed by the Employer at either location. Fur- ther, the Petitioner asserts that , in manning the projects listed on Petitioner 's Exhibit 10 within the three-county area, the Employer initially obtained its carpenter employees from Carpenters Local Unions 171 and 1438 , and that these employees were, after initial employment, recalled pursuant to various collective-bargaining agreements.7 The Pe- titioner further argues that the parties' bargaining history supports its unit , pointing to its 1983-1985 agreement with the Employer, which it contends recognizes the Petitioner's geographic unit as ap- propriate. Noting that the Board has held that in determining appropriate units for elections in the construction industry it would no longer distin- guish between "permanent and stable" and "project-by-project" work forces,8 the Petitioner characterizes the Employer's proposed units as es- sentially the type of project-by-project unit reject- ed by the Board in Deklewa. Noting also that the Board cited Daniel Construction Co.9 approvingly in Deklewa, the Petitioner urges that applying the eligibility standards set forth in Daniel will enfran- chise the employees who have sufficient expecta- tion of future employment to be eligible. II. ANALYSIS AND CONCLUSIONS In determining an appropriate bargaining unit in the construction industry, as in all other settings, 7 The record indicates that at least two of the Employer 's jobs within the three-county area, the Employer obtained carpenters from sources other than the referral systems of Locals 171 and 1438. Although the record indicates that the Employer did recall some carpenter employees to work at subsequent projects it is not clear that it did so pursuant to the provisions of collective-bargaining agreements. 8 Deklewa, supra, 282 NLRB at 1375 9 133 NLRB 264 (1961), cited at 282 NLRB 1375 fn. 5. 111 the Board seeks to fulfill the objectives of ensuring employee self-determination, promoting freedom of choice in collective bargaining, and advancing in- dustrial peace and stability. Under the Act, our task is to determine not the most appropriate or comprehensive unit, but simply an appropriate unit. 10 In doing so, we look first to the unit sought by the petitioner. If it is appropriate, our inquiry ends. If, however, it is inappropriate, the Board will scrutinize the employer's proposals. When the Board is faced with more than one location of a single employer, these factors have been found par- ticularly relevant: bargaining history; functional in- tegration of operations; the similarity of skills, duties, and working conditions of employees; cen- tralization of control of labor relations and supervi- sion, particularly in regard to hiring , discipline, and control of day-to-day operations; and interchange of employees among construction sites.I I In this case, the Petitioner has introduced evi- dence that over 20 percent of the Employer's projects during a specified period were located in the three-county area. The record shows that the overall labor policies as well as day-to-day control for these projects are set by the Employer's presi- dent and vice president, who have exclusive con- trol over hiring, firing, disciplining employees, and the establishment of wages and working conditions. The record also indicates that, as the projects un- dertaken by the Employer tend to be similar, the employees working as carpenters for the Employer in the three-county area share common skills and functions. Many of the Employer's projects in the area have operated under 8(f) agreements with the Petitioner or its affiliated locals, so that the em- ployees in the proposed unit have similar working conditions. Accordingly, we find that there is sub- stantial centralized control over labor relations and similar skills, functions, working conditions, and su- pervision among the employees in the unit pro- posed by the Petitioner. 12 Concerning employee interchange, the Employer has presented evidence that, where time and loca- tion are favorable, some interchange has occurred. However, the Employer's projects apparently do not often coincide to provide occasions for transfer from project to project. Thus, while the evidence 10 P. J Dick Contracting, 290 NLRB 150 (1988). 11 Ralph Rogers & Ca v. NLRB, 870 F.2d 379 (7th Cir. 1989); Peter Kiewit & Sons Ca, 231 NLRB 76, 77 (1977), enfd. 595 F 2d 844 (D.C. Cit. 1979). i2 Longcner Ca, 277 NLRB 570 (1985), cited by the Employer, is inap- posite. In Longcner, in which the Board declined to find an overall unit of employees appropriate and found that each of the employer 's projects constituted a separate unit, the project superintendent hired and directed the employees at the individual project and set most of the terms and conditions of employment of the employees at the individual project 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of interchange is not overwhelming, the circum- stances of the Employer's business render the inter- change documented in the record significant. The parties' bargaining history is insufficiently settled or established to provide significant guid- ance in determining the appropriate unit . In this regard, we reject the Petitioner's contention that we refer to a single collective-bargaining agree- ment that expired in 1985 as an indication that the Employer has recognized the three -county area as an appropriate unit boundary-especially as the agreement covered a larger geographical area. Nor do we accept the Employer's contention that the more recent trend of entering into project-by- project agreements constitutes determinative bar- gaining history under Deklewa, supra. The Board's remarks on unit scope in Deklewa should not be in- terpreted so as to rob construction industry em- ployees of meaningful choice, simply because an employer has unilaterally decided to limit its rela- tions with craft unions to project agreements.) a Thus, we find that employees in the petitioned- for unit share a sufficient community of interest, in view of their similar duties, functions, supervision, and other terms and conditions of employment, to la Our refusal to accord the parties' bargaining history decisive impor- tance in this case does not derogate from our longstanding policy not to depart from established bargaining relationships unless the dictates of the Act or compelling circumstances require us to do so. Great Atlantic & Pacific Tea Ca, 153 NLRB 1549, 1550 ( 1965). We simply find that in this case the bargaining history is too brief and inconclusive to provide proper guidance We also reject the Employer's argument that the Board should aban- don the Daniel Construction formula in this case. The Employer has not shown compelling reasons why its operation should be distinguished from others in the construction industry . Moreover, in light of our finding that the carpenter employees in the petitioned -for unit share a community of interest, we also reject the Employer's argument that the only basis for the petitioned-for unit is the territorial limitations of some constituent locals of the Petitioner We also note that there is no evidence in the record that the Employer has undertaken any project in Mercer County, Pennsylvania. As no party has proposed an election in a unit excluding that county , we find no com- pelling reason not to include it. constitute an appropriate unit . In view of our find- ing that the petitioned-for unit is appropriate, we do not reach the Employer's proposals concerning unit scope. Regarding unit composition , we are unable to determine from the record whether the "Hart Group" are employees within the meaning of the Act or are independent contractors, or whether, if employees, have a separate community of interest from unit carpenters. As they are too numerous to vote under challenge, we remand this case to the Regional Director for taking further evidence, find- ings of fact, and conclusions of law concerning the employment status of these individuals and direc- tion of an election . With regard to the eligibility of Charles Hake, we find that the record contains no evidence that his familial relationship to Randall Hake affects his employment status; therefore, we find that he is eligible to vote.14 Thus, we find that the petitioned-for unit is ap- propriate and that an election should be ordered in this unit: All employees employed by the Employer as carpenters in Mahoning and Trumbull Coun- ties, Ohio, and Mercer County, Pennsylvania, including working superintendents but exclud- ing all office clerical employees, professional employees, and all guards and supervisors as defined in the Act. 1 s ORDER It is ordered that Case 8-RC-13652 is remanded to the Regional Director for Region 8 for action consistent with these findings herein. 14 With regard to the carpenter-superintendents, we note that neither party contends that these individuals are supervisors and the parties have stipulated that they are eligible to vote in the unit Accordingly, we shall include them in the unit. is The unit appears as amended at the hearing.