Broomall Construction Co.

National Labor Relations Board - Board Decisions

May 25, 1962

137 N.L.R.B. 344 (N.L.R.B. 1962)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its disclaimer. We cannot agree. As the majority opinion stated in
the Ht mko I case which is now being overruled, the Union, by pressing
its appeal on and beyond the date of the hearing, was necessarily seek-
ing a Board order that the Employer bargain with the Union. Also
implicit therein was the position that, irrespective of any loss of
majority by reason of these asserted unfair labor practices, the Union
was still entitled to be bargained with as the majority representative
of the employees involved. In such circumstances, a disclaimer of
present majority status is not to be equated unequivocally with an
abandonment of such bargaining status.
Our colleagues further assert that, because a finding of a violation
of Section 8 (a) (5) necessarily requires an implicit conclusion that
no valid question concerning representation exists, the conduct of the
Union in pressing the 8(a) (5) charge was not inconsistent with its
disclaimer. This, we believe, misconceives the point at issue. For,
an 8 (a) (5) finding would mean that the Board was affirming the bar-
gaining status of the Union and declaring that such status was not
open to the challenge of an election. While a necessary corollary of
such a conclusion would be that there was no valid question concerning
representation to support an election challenging the Union's status,
what is relevant here is that the Union was, by pressing the charge,
seeking affirmation of its majority status and that the disclaimer was
inconsistent therewith.
Accordingly, we would reject the Union's disclaimer as equivocal
and affirm the Regional Director's direction of an election.
b Humko, A Division of National Dairy Products Corporation , supra. We cannot accept
the Chairman 's assertion that Humko departed from long-standing precedent and that
prior to that decision the Board had always perinitted withdrawal of a claim of repre-
sentation at the time of the hearing or after the Board 's Decision and Direction of Elec-
tion. In all the cases cited by Chairman McCulloch such disclaimers were clear and un-
equivocal and the Union had taken no action Inconsistent therewith . The Board has,
throughout the years , rejected disclaimers which . were equivocal . See, e . g., Standard
Brands, Inc., 77 NLRB 992, 994-995. In view of this Union ' s pattern of inconsistent
behavior, we cannot give credence to the belated disclaimers alleged in Its request for
review and Its brief. Cf. Casey-Metcalf Machinery Co., at al., 114 NLRB 1520, 1524.'
Broomall Construction Company and Local 312, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Independent , Petitioner . Case No. 4-RC-
4659. May 25, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William Draper Lewis,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
137 NLRB No. 37.
BROOMALL CONSTRUCTION COMPANY 345
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. The Employer contends that the nature of its operations are such
that its employees are essentially casual and that therefore no election
should be held.
Broomall Construction Company is engaged as a general contractor
and a subcontractor in concrete, roadbuilding, earth and sewer, and
related construction work, throughout several counties in the eastern
part of Pennsylvania and contiguous portions of New Jersey. The
Employer maintains an office and equipment yard at King of Prussia,
Pennsylvania. At this location the employees are hired and sent to
the various jobsites, except for unusual situations where the jobs are
located at a distance from King of Prussia. There is no fixed working
complement as the Employer operates an informal shapeup at the
King of Prussia yard each morning and the makeup of any particular
work force depends on the requirements of the particular job and the
number of people who appear at the yard. However, the Employer
does have a nucleus of employees who obtain rather continuous em-
ployment and approximately 25 percent of the employees worked for
the Employer in the preceding year. We therefore reject the Em-
ployer's contention that no election should be directed herein.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer
within Section 9(c) (1) and Section 2(6) and (7) of the Act?
4. The Petitioner initially sought to represent all of the Employer's
employees including truckdrivers, but when the Laborers and Operat-
ing Engineers intervened at the hearing, it amended its petition to
include a unit composed of "carpenters, cement finishers, and truck
drivers." The Laborers sought to represent a unit of "all laborers at
King of Prussia including the cement finisher's helper and the blaster
from York." The Operating Engineers sought a unit of "all who
operate and/or maintain mechanical construction equipment on the
King of Prussia and York lists."
The Employer contends that each of the three units sought by
the respective unions is inappropriate, and accordingly moves to dis-
miss the petition.
I At the hearing, the Laborers District Council of Philadelphia and Vicinity, Local 413,
affiliated with International Hod Carriers , Common Laborers & Building Construction
Employees , AFL-CIO, hereinafter referred to as Laborers , and Local 542, International
Union of Operating Engineers, AFL-CIO, hereinafter referred to as Operating Engineers,
each intervened , without objection by any party , on the basis of a sufficient showing of
interest
2 Trammell Construction Company, Incorporated, 126 NLRB 1365; Masonry Resurfacing
& Construction Company, Inc , Case No 5-RC-3349 ( not published in NLRB volumes).
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To grant the requested units would seriously fragmentize the com-
munity of interest among all the employees. Furthermore there is no
evidence that the Employer has a truckdriver as such. Instead it
appears that many employees drive a truck for short periods of time,
none for more than 50 percent of the time. Additionally, the two job
classifications with the strongest community of interest would be
placed in different units; namely the cement finisher and the cement
finisher's helper.
Neither the laborers nor the operating engineers constitutes a craft
or departmental unit.' Accordingly, the only appropriate unit would
be an overall unit including all the employees employed by the Em-
ployer, excluding supervisors.
The Employer contends that the petition should be dismissed be-
cause none of the Unions involved herein has geographical jurisdiction
broad enough to embrace the Employer's normal area of operations.
The Board has consistently refused to predicate unit findings upon
the scope of a local's territorial jurisdiction. The Petitioner and In-
tervenors may withdraw from the election upon timely notice to the
Regional Director.'
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act: All employees em-
ployed by Broomall Construction Company in the Pennsylvania
counties of Northampton, Bucks, Montgomery, Chester, Delaware,
Lancaster, Dauphin, Lebanon, Schuylkill, Carbon, Luzerne, Monroe,
Lehigh, Berks, and York; and the county of Burlington in New
Jersey; but excluding watchmen, guards, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Decision and Direction of Election.
3 Trues-Mart Corporation, et al, 121 NLRB 1430, Greene Construction Company, et al,
133 NLRB 152.
4 Paxton Wholesale Grocery Company, 123 NLRB 316.
Montgomery Ward & Co., Incorporated and Retail Store Em-
ployees Union Local No. 1099 , Retail Store Clerks International
Association , AFL-CIO. Case No. 9-RM-9267. May 25, 1962
SUPPLEMENTAL DECISION AND ORDER
On November 22, 1961, the Board issued a Decision and Direction
of Election 1 in the above-entitled case, finding appropriate a unit of
1 Not published in NLRB volumes.
137 NLRB No. 26.