Boudreaux's Drywall, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1992

308 N.L.R.B. 777 (N.L.R.B. 1992)

777
308 NLRB No. 107
BOUDREAUX’S DRYWALL
1 Review was requested of the Acting Regional Director’s findings
that: (1) the Employer’s carpenters, carpenter helpers, carpenter fore-
men, and jobsite laborers, excluding plasterers and warehouse labor-
ers, constitute an appropriate unit for bargaining; and (2) that college
students employed as onsite laborers during school vacations are
temporary employees lacking a community of interest with other em-
ployees. Only the portion of the Acting Regional Director’s decision
addressing the first issue is attached.
3 Also around 1978 or 1979, a carpenter union filed a petition for
an election among carpenters, carpenter apprentices, and carpenter
foremen, and excluded laborers, of the Employer and K & K
Drywall and Interiors (K & K) that was later amended to only K
& K with employees of the Employer who worked 100 hours or
more during the preceding six months for K & K being allowed to
vote. A majority of votes were cast for that carpenter union, but no
collective-bargaining agreement was ever consummated.
4 For discussion of the supervisory authority of carpenter foremen
see footnote 9, infra.
5 The parties agreed at the hearing that the carpenter helpers
should be included in an appropriate unit.
Boudreaux’s Drywall, Inc. and Carpenters Local
Union No. 1846, United Brotherhood of Car-
penters and Joiners of America, AFL–CIO, Pe-
titioner. Case 15–RC–7698
September 10, 1992
ORDER DENYING REVIEW
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The Board has delegated its authority in this pro-
ceeding to a three-member panel, which has considered
the Employer’s request for review of the Acting Re-
gional Director’s Decision and Direction of Election
(the relevant portion of which is attached), as well as
the Petitioner’s opposition brief. The request for re-
view is denied as it raises no substantial issues war-
ranting review.1
APPENDIX
5. The Petitioner seeks to represent a unit limited to all
carpenters, carpenter apprentices, carpenter helpers, and car-
penter foremen performing or overseeing work at any and all
the Employer’s greater New Orleans, Louisiana jobsites.
Contrary to Petitioner, the Employer contends that an appro-
priate unit would necessarily include its jobsite laborers,
warehouse laborers, and plasterers. There are approximately
thirty-seven employees in the unit Petitioner seeks to rep-
resent and approximately fifty-one employees in the unit that
the Employer asserts is appropriate. Petitioner requested rec-
ognition in writing of the Employer by letter dated June 16,
1992. By letter dated June l9, the employer declined recogni-
tion. Until sometime in the 1980’s, when the Employer with-
drew recognition, and for five or six years prior thereto, it
was a party to a multi-employer collective bargaining agree-
ment with a carpenter union covering a carpenter apprentice
unit, during which time, carpenter apprentices did the work
now done by laborers.3
The Employer, a Louisiana corporation with its principal
office and place of business located at New Orleans, Louisi-
ana, is engaged in the business of installing walls and ceil-
ings and in performing plastering work at various locations
throughout the United States, including locations in the great-
er New Orleans area. As part of the services it renders, the
Employer installs metal studs and boards, acoustic ceilings
and performs stucco work on building exteriors.
The Employer’s president and project manager, the only
witness testifying in this hearing, is Thomas Joseph
Boudreaux. He has held that position for approximately eight
years. Boudreaux’s office is located at the Employer’s main
office located at 4335 Werner Drive in New Orleans, which
also houses the offices of two estimators who also serve as
project managers, an office manager who handles the books,
and a secretary. In the New Orleans area, the Employer pres-
ently has several jobs in progress. At a Hibernia Bank, it is
performing renovations on the building interior; at Dillard
Fine Arts University, it is performing stud work on the build-
ing’s exterior and drywall and acoustical work on the build-
ing’s interior; at the Slidell Memorial Hospital, it is perform-
ing shell work and interior build-out; at ‘‘LP&L,’’ it is per-
forming drywall and acoustical work; at the United States
Department of Agriculture, it is performing renovation work;
and at the Elmwood Fitness Center, it is performing some
unspecified work. In addition, the Employer will commence
performing some uuspecified work at Tulane University
Medical Center in the future.
Normally any project over $300,000 or $400,000 will be
under the direction of a full-time job superintendent. Em-
ployees working on smaller jobs work with a carpenter fore-
man.4
The Employer presently employs between 25 and 30 car-
penters. The Employer’s carpenters read blueprints, layout
the job, frame interior walls, install sheet rock, frame acous-
tical ceilings and install ceiling tiles. Carpenters work with
power saws and equipment, hammers, saws, plumb-bobs,
tapes, metal masters, etc. They work under the direction of
the superintendent. Carpenters are hired ‘‘from the street’’
with carpentry experience. The Employer does not require its
carpenters to have special training and does not provide such
training. Presently, the Employer also employs 10 to 12 car-
penter helpers.5 They are not sent to school or given any for-
malized instruction to become carpenters. Some are skilled in
reading blueprints. Carpenters helpers assist the carpenters in
laying out the job, cutting metal studs, and performing other
traditional carpentry functions. They work with the same
tools as the carpenters. Most of the time, the Employer uti-
lizes a carpenter helper to assist each carpenter. They may
also be assigned to unload trucks, install insulation, or do
caulking with the laborers when there aren’t enough laborers
to perform these functions. Carpenter helpers report to the
superintendent.
Carpenter foremen are paid between $13 and $14 an hour.
The starting pay for carpenters is between $9 and $12.50 per
hour, with most carpenters receiving $11 an hour. Helpers’
starting pay is between $6 and $7 an hour. They can be paid
as high as $10 an hour before being considered a carpenter.
Carpenter helpers, like carpenters, receive health coverage
after six months employment. This is the only employee ben-
efit available to them.
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The evidence showed that the warehouse foreman, Tim
Liviccardi, is salaried and, when he is not assigning and directing
the warehouse laborers, he is working with the office personnel. He
has the authority to call ‘‘Manpower’’ for additional people. He has
also effectively recommended the hire and fire of warehouse labor-
ers. The parties stipulated at the hearing that Liviccardi should be
excluded from the unit found appropriate for lack of community of
interest. Based on the stipulation of the parties and the record as a
whole, I conclude that the warehouse foreman is a supervisor as de-
fined in Sec. 2(11) of the Act and I shall exclude him from the unit
found appropriate herein both on the basis of his supervisory status
and his lack of community of interest with employees in the unit
found appropriate herein.
Presently, the employer employs approximately five jobsite
laborers. Two of these laborers are assigned to the Slidell
Hospital jobsite, two laborers are assigned to Hibernia Bank
jobsite, and one laborer is assigned to Elmwood Fitness Cen-
ter jobsite. Although the record is unclear, an unspecified
number of laborers either worked or are working at the Dil-
lard jobsite. All jobsite laborers report to the superintendent
at their respective jobsites. The primary responsibilities of
the laborers are transporting the materials to the areas by
truck where the carpenters and plasterers are working, un-
loading the trucks and sweeping of the work area. Laborers
have also been directed to install insulation and perform
caulking work. On occasion, they have installed scaffolding
and performed demolition work with the carpenters. On the
Dillard job, for example, laborers stock the carpenters’ areas
with materials, cleanup after the carpenters, assist carpenters
with materials from the ground when work is done in a high
area, do interior wall installation, and other remedial jobs.
On occasions when four or five truckloads come in, car-
penters and carpenter helpers assist laborers with the unload-
ing of materials and supplies at the jobsite. Usually, this oc-
curs at the commencement of a job. Carpenter helpers may
also be assigned to install insulation, or do caulking with the
laborers when there aren’t enough laborers to perform this
function. Carpenters don’t normally perform insulation or
caulking. If for some reason a carpenter helper does report
for work on a particular day, a laborer may fill in and work
with a carpenter using some of the same tools. A laborer
might even fill in for a carpenter. Laborers do not receive
additional pay for such work. Laborers may use carpenter
tools such as a screw gun, hammer, caulking gun, measuring
tape, and metal-masters. However, the Employer does not
place laborers in a situation where they are required to use
power saws or equipment where they could get hurt.
According to the employer, the laborer position is consid-
ered an entry level job. All employees are reviewed every six
months by the superintendent and that review may result in
an incremental pay raise and/or a promotion to carpenter
helper or carpenter. Employees are orally notified of this pro-
motion policy and there is no formal written promotion plan.
At least two of the Employer’s former jobsite laborers, J. T.
Liviccardi and Gary Cannella, have progressed from laborer
to carpenter, and to working foremen. Prior to working for
the Employer, they did not have any experience as car-
penters. The U.S. Department of Agriculture job is a prevail-
ing wage rate job. On that job the Employer reports car-
penters and carpenter helpers as carpenters and laborers as
laborers.
Starting pay for laborers is between $5 and $5.50 per hour.
Some laborers are being paid $7 to $8 per hour. Laborers,
like carpenters and carpenter helpers, are entitled to health
coverage after six months’ employment.
The Employer generally employs three or four warehouse
laborers who work primarily at its main office and yard. The
warehouse stores metal studs, sheet rock, equipment, chop
saws, table saws, etc. The warehouse laborers spend a major-
ity of their time hauling material to and from jobsites. They
do not perform the tasks of a jobsite laborer on a regular
basis. At jobsites, however, superintendents occasionally may
direct them to do some cleanup work or take some materials
back to the warehouse. These warehouse laborers report to
warehouse foreman Tim Liviccardi.6 The yard laborers’
hours may fluctuate between 6 and 8 hours a day, while la-
borers on the jobsite normally work 8 hours a day. Ware-
house and jobsite laborers are paid about the same hourly
rate, although the warehouse laborer/truck driver makes $8 or
$8.50 an hour. Both the jobsite and warehouse laborers enjoy
the same benefit.
At the present time, the employer only has one plasterer,
Luke Crapps. However, the Employer contends that four or
five other plasterers are currently on layoff status that should
be permitted to vote. Those laid off plasterers generally work
35 to 40 weeks out of the year and are likely to be recalled.
Between the beginning of January 1992 and July 10, 1992,
Crapps has worked perhaps 24 to 25 pay periods. The plas-
terers ‘‘handle the synthetic plaster lines which are the wall
systems and handle the stucco.’’ The primary function of a
plasterer is to put mud compound or install styrofoam
sheathing. Plasterers are hired to do plastering work and have
not been trained in all aspects of carpentry. Plasterers work
under the supervision of the jobsite superintendent. They are
paid between $10 and $12 an hour and have health coverage
after six months of employment.
Even if there is no plastering work, the Employer may as-
sign good plasterers to do other things rather than lay off a
good plasterer. The plasterer may install sheetrock or do steel
stud framing. When it rains, the plasterer goes inside and
works for the carpenters. Carpenters may also work with the
plasterer installing styrofoam and light materials. Carpenters,
however, are not normally directed to assist the plasterer
with plastering.
Petitioner seeks to exclude all laborers. In regard to the
Petitioner’s position that the jobsite laborers should not be
included in the unit, the record fails to show that the car-
penters participated in or completed a traditional apprentice-
ship program or achieved journeyman status in a craft. In-
stead, the record shows that carpenters were hired ‘‘off the
street’’ with only some carpentry experience. They are not
sent to school or given any specialized training. Signifi-
cantly, laborers can and have been promoted from a laborer
position to a carpenter and even to the position of carpenter
foreman. While the Employer has no formal apprenticeship
program, it does provide on-the-job training. Moreover, job-
site laborers often assist carpenters in much the same way as
carpenter helpers, using carpenter tools in carpentry func-
tions. These laborers even fill in for carpenter helpers and
carpenters. Carpenters, carpenter helpers, and jobsite laborers
all report to the job superintendent. Every six months, the
work performance of these employees is reviewed by the job
superintendent and may result in an incremental pay raise or,
779BOUDREAUX’S DRYWALL
7 The Petitioner particularly cites Dick Kelchner Excavating Com-
pany, 236 NLRB 1414 (1978), in support of its position that the job-
site laborers should not be included in the unit with carpenters and
carpenter helpers. In that case, operators were not placed in a unit
with laborers. However, contrary to the case at hand, it does not ap-
pear that the laborers in the Kelchner case assisted the operators or
that laborers could progress to become operators. Further, those op-
erators were sent to training seminars and in some instances received
special schooling to learn or improve upon their skills.
in the case of laborers and carpenter helpers, promotions to
carpenter helper or carpenter positions. Although laborers are
paid less than carpenters or carpenter helpers, they all receive
the same health benefit.
In view of the foregoing, and the record as a whole, noting
particularly the absence of a formal apprentice program or
requirement, job progression, common carpenter function,
and common supervision, I am satisfied that the carpenter
foremen, carpenters, carpenterhelpers, and jobsite laborers are
a readily identifiable and homogeneous group with a
comnnunity of interest separate and apart from other employ-
ees. See ECM, Inc., 264 NLRB 1077 (1982), Brown & Root,
Inc., 258 NLRB 1002 (1981), and New Enterprise Stone &
Lime, 172 NLRB 2157 (1968).7
In regard to the warehouse laborers, I reach a different
conclusion. Based on the above and the record as a whole,
and noting particularly that those laborers report to a ware-
house foreman, spend a majority of their time hauling mate-
rials to and from jobsites, do not perform the tasks of a job-
site laborer on a regular basis, are not in the carpentry line
of progression, and have different hours than jobsite laborers,
I find that the warehouse laborers do not have a community
of interest or common function with the other employees in
the unit found appropriate herein and should be excluded
from said unit.
In regard to the plasterers, they are employed because of
their ability to do plastering work. Consequently, their work
requires that they possess a degree of skill in that area. Al-
though noting that they are paid at a wage rate comparable
to carpenters and may at times work with carpenters, such
assignments are secondary in nature and are made basically
to give them something to do when there is no plastering
work for them to perform. The primary function of the plas-
terers at all times remains plastering work. Contrary to the
Employer’s contention, the plasterers’ functions are not high-
ly integrated with those of the carpenters, carpenter helpers,
and jobsite laborers. Neither are they in that line of progres-
sion. The plasterers’ duties are separate and distinct from the
carpentry functions. See New Enterprise Stone & Lime,
supra. I will therefore exclude the possibly 5 or 6 plasterers
from the unit found appropriate herein. The Employer’s reli-
ance on S. J. Groves & Sons Co., 267 NLRB 175 (1983),
and Sunray Ltd., 258 NLRB 517 (1981), is misplaced since,
in both of these cases, the units of combined classifications
were found appropriate solely because the evidence did not
establish distinct functions of the unit requested. It is appar-
ent that, in the instant case, these distinctions are present be-
tween the plasterers and other jobsite classifications dis-
cussed herein.