Wilson & Dean Construction Co. Inc.

484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wilson & Dean Construction Co. Inc . and Oregon State District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America. Case 36-RC-4948 June 15, 1989 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before a hearing officer of the National Labor Relations Board . On July 6, 1987, the Regional Di- rector for Region 19 issued a Decision and Direc- tion of Election in which he found , inter alia, that the formula set forth in Daniel Construction Co., 133 NLRB 264 (1961), modified at 167 NLRB 1081 (1967), should be used to determine eligibility to vote and that the appropriate collective-bargaining unit should be coextensive with the unit set forth in the parties' expired collective-bargaining contract. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Employer filed a request for review of the Regional Director's Decision and Di- rection of Election . The Employer contends that the Daniel Construction eligibility formula is inap- plicable to the instant proceeding . The Employer also contends that the Regional Director erred in failing to find appropriate in this case a unit limited to the carpenter employees employed by the Em- ployer in the Portland, Oregon metropolitan area. By Order dated August 6 , 1987, the Board grant- ed the Employer's request for review . The election was held and the ballots impounded. The Board has considered the entire record in this case and has decided to adopt the Regional Di- rector's Decision and Direction of Election for the reasons stated in this decision. The Employer is engaged primarily in commer- cial and industrial construction. The Regional Di- rector found that the parties have had an 8(f) col- lective-bargaining relationship for approximately 30 years.' The last collective-bargaining agreement extended from March 1, 1983, to May 31, 1986. On March 27, 1987,2 the Employer informed the Peti- tioner by letter that, in accord with the Board's de- cision in John Deklewa & Sons, 282 NLRB 1375 (1987), sub nom. Iron Workers Local 3 v. NLRB, enfd. 843 F.2d 770 (3d Cir. 1988), it would not enter into an 8(f) collective-bargaining agreement with the Petitioner and that their collective-bar- gaining relationship was terminated. Prior to March 27, the Employer had obtained the employees it needed for its construction projects from the Petitioner's hiring hall. After March 27, the Employer adopted a new hiring pro- cedure. It discontinued use of the Petitioner's hiring hall and decided to hire its employees from an employee roster it had compiled . The roster in- cluded the names of all former employees and em- ployees who had not previously worked for the Employer but had applied in response to Employ- er-placed advertisements. On May 28 the Petitioner filed a petition seeking to represent the unit of the Employer 's employees as set out in its expired collective -bargaining agree- ment with the Employer. At the time of the hear- ing in this case the Employer had one employee (Loren Nelson) on its payroll.3 It is undisputed that the Employer anticipates future work and intends to hire more employees when work materializes. In Daniel Construction, the Board recognized the intermittent nature of employment in the construc- tion industry. Employees may experience short lay- offs or may work for more than one employer during the course of a year due to the limited dura- tion of building projects and because materials are often in short supply and the employee's work is dependent on the work of various other crafts. The Board found that, while some construction workers would not have worked for an employer during the payroll period immediately preceding that of the decision and direction of election, because of their past employment and expectancy of future employment they continue to have a substantial continuing interest in the employer's conditions of employment. Thus, the Board found eligible to vote, in addition to those unit employees employed during the payroll period immediately prior to the election, those former employees who had been employed by the employer for at least 30 days in the 12 months preceding the election or for at least 45 days in the 24 months preceding the election. The Regional Director applied this formula to the facts of this case and found that 6 to 15 of the Em- ployer's former employees would be eligible to vote. Under Deklewa, an employer can terminate its collective-bargaining relationship after its 8(f) con- tract with the union has expired. This does not di- minish the short-term construction employee's sub- stantial interest in the employer's conditions of em- I The date on which this relationship commenced is not in the record before us. 2 All dates are in 1987 unless otherwise stated. 8 Loren Nelson had been employed by the Employer during January and February. In May, on his own initiative, he applied for work with the Employer and was hired. 295 NLRB No. 54 WILSON & DEAN CONSTRUCTION CO. 485 ployment or change the existing electoral mecha- nism for expressing representation desires.4 Deklewa notes that over the years the Board has gained substantial expertise and developed proce- dures for conducting elections in the construction industry and cites as an example Daniel Construc- tion.5 The Employer admits that it intends to remain in the construction industry and that it anticipates future work in the Portland, Oregon area. It con- tends, however, that the Daniel Construction formu- la is inapplicable, as the Employer's reliance on its compiled list, rather than on the Petitioner's hiring hall, as the source for employees, denies its former employees a reasonable expectation of future em- ployment. This contention is not borne out by the record. Between 6 and 15 former employees are el- igible to vote under the Daniel Construction formu- la. Although the Employer states that former em- ployees will not be given employment preference and that employees will be hired from the list on the basis of experience and residential proximity to the construction site, there is no evidence that these criteria would preclude the hiring of former employees. Accordingly, we find that the Employ- er's former employees who meet the Daniel eligibil- ity requirements have a reasonable expectation of future employment with a substantial continuing in- terest in the Employer's conditions of employment and are eligible to participate in the election. With respect to the unit, the Employer contends that since 95 percent of its work has been in the Portland, Oregon area, the appropriate unit should be limited to this area. As stated above, the Em- ployer and the Petitioner had a bargaining relation- * Deklewa, supra at 1386. 5 Id., fn. 45. ship that extended for more than 30 years. We agree with the Regional Director that, in view of that history, the unit should be the one set forth in the recently expired contract. The fact that 95 per- cent of the work is in a more limited geographic area than that set forth in the unit description is an insufficient basis for excluding from the unit the ge- ographic area where the remaining 5 percent of the work is performed. Accordingly, we shall remand this proceeding to the Regional Director in order that he may take further appropriate action, including the opening and counting of the impounded ballots. ORDER It is ordered that the matter is remanded to the Regional Director for Region 19 for appropriate action, including the opening and counting of the impounded ballots. CHAIRMAN STEPHENS , dissenting. I would dismiss the petition in this case on the ground that there was only one unit employee when it was filed. I would not include any other former employees as being within the unit because I regard the Daniel Construction formula as inappo- site in the circumstances here. The Employer not only severed his relationship with the Petitioner and announced that he would not make further use of the hiring hall, he also effectively terminated his former work force with the announcement that those who will be chosen to work for him in the future will be selected from a list he compiled, with selections to be made on the basis of factors that do not include experience with the Employer. Accordingly, former employees have no more ex- pectancy of being hired than any other individual who might be selected from the list.