C.T.L. Testing Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1965

150 N.L.R.B. 982 (N.L.R.B. 1965)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
CORRECTIONS TO HEARING TRANSCRIPT
Correction No.' Transcript
page
Lines Corrected from-
I----------------- 10 23 Harold----------------------
2----------------- 11 10 and Lenore
3----------------- 13 14 part
4----------------- 23 15 Leona
5----------------- 72 18 because the
6----------------- 74 5 I know
7----------------- 93 8 evidence
8----------------- 94 24-25 but the
0----------------- 113 10 talked
10---------------- 116 13 main
11---------------- 119 22 a grin
12---------------- 150 12 could be filed
13---------------- 152 4 at six
14---------•------ 183 19 she
15---------------- 184 17 have
16---------------- 185 1 Company, and Mr.
17---------------- 215 14 knew him
18---------------- 220 2 Mr.
19---------------- 220 19-20 election has been recom-
mended and designated
20---------------- 226 11 has
21---------------- 235 3 commerce
22 ---------------- 261 25 second
23---------------- 288 18 sister
24---------------- 290 7 us in
25---------------- 290 8 road, and we
27---------------- 295 18 issues
28---------------- 299 17 charging
29 ---------------- 303 9 Lynch
30---------------- 303 22 was testified to earlier
31---------------- 308 16 nowhere
32---------------- 308 17 in
33---------------- 310 3 as to a discharge
34---------------- 315 24 Holmstead
35---------------- 321 11 was authorized
36---------------- 329 9 thirty
37---------------- 329 10 forth
1 Corresponds to those on Respondent 's motion to correct the record.
Corrected to-
Carol
and also another employee
Lenore
point
Lenora
because at the
you know
question
but goes to the
walked
Mansfield
to say hello
could be followed
on the sixth
he
had
Company, Mr.
knew then
Mrs
Union has been elected and
certified
had
counter
twelfth
secretary
us. In
road, we
issuance
charged
Leonard
testified earlier
no more
than
will be to discourage a
Olmsted
was not authorized
three
four
C.T.L. Testing Laboratories , Inc. and Sand , Gravel , Crushed
Stone, Ashes and Material Yard Workers, Local No. 1175, of
International Hod Carriers, Building and Common Laborers
Union of America , AFL-CIO. Case No..2-RC-13387. Janu-
ary 13, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Julius Altman of the National Labor Relations Board. The
150 NLRB No. 90.
C.T.L. TESTING LABORATORIES, INC. 983
Hearing Officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
Upon the entire record in this case, the Board finds:'
1. The Employer is engaged in commerce within the meaning of
the Act, and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) .of the Act.
4. The Employer provides inspection services for concrete build-
ing materials. It presently employs 11 full-time inspectors, one of
whom is a professional engineer. It also employs, on an as-needed
basis, many part-time inspectors, some of whom are also profes-
sional engineers. The inspectors work at concrete plants where they
see that the proper dry ingredients are placed into the concrete mix-
ing trucks for shipment to the construction site and at construction
sites where they subject the mixed concrete to numerous tests to see
that it meets contract and code specifications.
In addition to the inspectors the Employer also hires two office
employees who inspect part of the time but who also assign jobs to
the individual inspectors, three laboratory employees who test sam-
ples of concrete taken from the building sites by the inspectors, and
a truckdriver who picks up and delivers materials that are to be
inspected and tested.
The primary question arising in this case involves the scope of the
appropriate unit .2 The Petitioner, seeks a unit of all regular full-
i Respondent 's request for oral argument is hereby denied as the record and briefs, in
our opinion , adequately set forth the issues and the positions of the parties.
'The Employer also contends that the inspectors are guards within the meaning of
the Act and that the Petitioner represents employees whose work is inspected by the in-
spectors and is therefore precluded by the Act from representing the inspectors . Alter-
natively, if the Board should find that the inspectors are not guards, the Employer con-
tends that the Board should exercise its discretion and not permit the Petitioner to
represent the inspectors because the Employer urges the inspectors ' independence of
judgment would be jeopardized if they had to inspect the work of fellow union members.
We find both of these contentions to be totally without merit. As to the first, the legis-
lative history of the Act establishes that Congress had no intention of considering inspec-
tors as guards . See H . Minority Rept. 245 on H.R. 3020, page 71, Legislative History of
the Labor Management Relations Act, 1947, page 362; S. Rept. 105 on S. 1126 page 19,
Legislative History of the Labor Management Relations Act, 1947, page 425; H. Conf.
Rept. 510 on H.R. 3020, pages 35, 36, Legislative History of the Labor Management
Relations Act, 1947 , pages 539 , 540. As to the second, we find no reason to believe 'the
performance of these inspectors ' duties would be in any way jeopardized by their being
represented by the same union which represents the laborers, shippers , batchers, or any
other employees at concrete plants or on jobsites.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time and part-time inspectors, truckdrivers and laboratory employees,
excluding professional engineers, office clerical employees, guards,
watchmen, and supervisors as defined in the Act, and all other em-
ployees. The Employer, on the other hand, contends that the appro-
priate unit should include the regular and part-time professional
engineers and exclude the laboratory employees and truckdrivers.
There is no history of collective bargaining with respect to any of
the Employer's employees.
The laboratory employees do very little actual inspecting. How-
ever, the inspectors, when there is no inspection work to be done,
work in the laboratory. Also most of the full-time inspectors worked
their way into their positions after working as laboratory employees.
The truckdriver's primary function is to transport samples taken, by
the inspectors from the field site to the laboratory. Because of the
progression of laboratory employee to inspector, the frequency of
inspectors working in the laboratory, the frequent contacts of both
laboratory employees and inspectors with the truckdriver and the
interrelationship of all of their duties, we find a substantial com-
munity of interest among the inspectors, laboratory employees, and
the truckdriver. Accordingly, we include truckdrivers and labora-
tory employees in the unit.
.The Employer also hires one full-time and several part-time pro-
fessional engineers. The 1962 New York City Code requires that a
licensed professional engineer at the mixing plant and at the work
site supervise' both the testing of materials and the inspection of
concrete construction. Professional engineers must also qualify the
inspectors as being capable to perform their duties. As their duties
are supervisory and as these employees are professional employees,
we exclude them from the unit.
The Petitioner and the Employer further disagree as to the cri-
teria which should be applied to determine who are regular part-
time inspectors. The Petitioner contends that only those part-timers
who worked at least 1 day a week every week in the preceding year
should be included in the unit; the Employer's position is that any
part-timer who worked at least 1 day during the preceding year
should be so included.
We find neither of these suggested criteria to be adequate. The
Petitioner's suggestion would exclude part-time inspectors who, per-
haps,because of a slack workweek in the past year, were not during
that one week assigned an inspection job even though they may have
worked a substantial number of hours during every other week
throughout the year and even though they may have relied exclu-
sively upon this work for their livelihood. Obviously such employees
have a sufficient interest in their jobs to be included in the unit. The
Employer's proposal, on the other hand, would include any inspector
C.T.L. TESTING LABORATORIES, INC . 985
who had worked only a single day in the past year. Equally obvi-
ously some of these employees would have no substantial interest in
the inspectors' working conditions and should not be included in the
unit. - The selection of an equitable formula for determining eligi-
bility, of part-time inspectors depends upon a careful balancing of
the factors of length, regularity, and currency of their employment.
In Motor Transport Labor Relations, Inc., 139 NLRB 70, and again
in Scoa, Inc., 140 NLRB 1379, we found it equitable to include in the
unit all part-timers who had worked * a minimum of 15 days in the
calendar quarter preceding the eligibility date.
In this case we must consider the further factor of the seasonal
nature of the construction industry. The data in the record reveal
that during the 30 payroll periods from May ' 3, 1963, to June" 10,
1964 (the payroll period constituting 2 weeks), some 69 part-time
inspectors appeared at least once on the Employer's payroll list. The
number of part-time inspectors appearing on the payroll lists varied
from 12 during the ebb of the slow season to 35 during the height
of the peak season, the peak season running from March 15 to
November 15. Taking the calendar quarter of October through
December 1963, which extends into the Employer's slow period, as
an example, only 15 of the 69 part-time inspectors would have been
eligible under the 15 days per calendar quarter formula. Under this
same formula applied in the peak period calendar quarter of July
through September 1963, 23 would have been eligible, only 10 of
whom would have been eligible under the test applied to the October
through December period. It would be unfair to exclude those in-
spectors who worked so consistently during the peak season from
eligibility merely because the administrative processes of the Board
have resulted in the scheduling of the election during a slack business
period. Nor would it be fair to exclude those who have currently
worked consistently enough to have met the formula requirements
even during the slack period immediately preceding the issuance
of this decision. Accordingly, we find in this case that all part-
time inspectors who are still considered as on call by the Employer
and who have worked a minimum of 15 days in either of the two
3-month periods immediately preceding the issuance of this Deci-
sion are regular part-time employees, and we therefore include them
in the unit.
The remaining point at issue is the question of whether Dan
Damiano and Matti Citardi, the office employees who direct the
work assignments of the inspectors, are supervisors within the mean-
ing of the Act. The record discloses that these employees spend
20 to 25 percent of their time inspecting. It further discloses that
Joseph Citardi retains some control over their work assignments.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It however provides no information as to whether they have the
authority to effectively recommend the hiring, transferring, suspen-
sion, layoff, recall, promotion, discharge, or discipline of other em-
ployees or to adjust grievances of other employees. Accordingly,
we are unable to resolve this issue on the present record and hereby
direct that Dan Damiano and Matti Citardi be permitted to vote if
they so desire, subject to challenge.
On the basis of the foregoing, we find the following employees of
the Employer constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time inspectors, truckdrivers, and
laboratory employees, excluding regular and part-time professional
engineers, office clerical employees, guards, watchmen, and super-
visors as defined in the Act and all other employees.8
[Text of Direction of Election omitted from publication.]
8 Because of the uncertainty as to which of the part-time employees will qualify as
regular part-time employees under the formula set forth above, we hereby direct the
Regional Director to determine for showing-of-interest purposes the identity of those em-
ployees who qualify as regular part-time employees, and to redetermine the adequacy of
Petitioner's showing of interest. In the event that the Petitioner's showing of interest
proves to be inadequate, Petitioner shall have 10 days from the date it has been informed
of the Regional Director's determination to demonstrate the necessary showing of interest;
If Petitioner fails to do so the Regional Director is hereby directed to dismiss the peti-
tion. The Regional Director's determination shall be final and conclusive only for show-
ing of interest purposes, and the parties shall retain all rights to challenge the eligibility
of voters in accordance with the Board's Rules and Regulations, Series 8, as amended,
and established Board policy.
Robert W. Hunt Company, Inc. and Sand, Gravel, Crushed
Stone, Ashes and Material Yard Workers, Local No. 1175, of
International Hod Carriers , Building and Common Laborers
Union of America , AFL-CIO , Petitioner. Case No. 2-RC-13388.
January 13, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Julius J. Altman of the National Labor Relations Board.
The Hearing Officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
150 NLRB No. 91.