Fish Engineering & Construction

National Labor Relations Board - Board Decisions

Sep 16, 1992

308 N.L.R.B. 836 (N.L.R.B. 1992)

836
308 NLRB No. 113
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Joint petitioner is the same in that case.
1 All dates are 1992 unless otherwise indicated.
Fish Engineering & Construction Partners, Ltd.
and United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting In-
dustry of the U.S. and Canada, Local 469; Ari-
zona State District Council of Carpenters, In-
cluding Millwrights, Local 1914; International
Brotherhood of Boilermakers, Blacksmiths,
Forgers and Helpers, AFL–CIO, Local 627;
Operative Plasterers and Cement Masons,
Local 394; International Association of Heat
and Frost Insulators and Asbestos Workers,
Local 73; Operating Engineers, Local 428;
International Association of Bridge, Structural
and Ornamental Iron Workers, Local 75;
Painters Local Union No. 86; Construction,
Production and Maintenance Laborers Union
Local 383; Sheet Metal Workers’ International
Association, Local Union No. 359, AFL–CIO,
Joint Petitioner. Case 28–RC–4998
September 16, 1992
DECISION ON REVIEW AND ORDER
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 Joint Petitioner’s request for review of the Re-
gional Director’s Decision and Order (pertinent por-
tions of which are attached as an Appendix), as well
as the Employer’s statement in opposition and motion
to strike. On February 27, 1992, the Regional Director
issued a Decision and Order dismissing the petition be-
cause he found it was speculative as to whether the
Employer would secure additional work within the ge-
ographic boundaries of the petitioned-for unit. The Re-
gional Director also found it unnecessary to reach unit
issues because of his dismissal of the petition. After
careful consideration of the undisputed facts, we have
decided to grant review and remand the proceeding to
the Regional Director for further processing.
The Regional Director dismissed the petition despite
finding that the Employer had worked on four projects
in the past year, had two current projects at the time
of the hearing, and had bid on another project for the
same company with which it currently is under con-
tract (El Paso Natural Gas). That project will com-
mence approximately 2 months from the end of the
Employer’s current project, and in the same geographic
area as the sought unit. Based on this undisputed evi-
dence of the Employer’s past and current work, and its
bidding on future work within the unit sought by the
Joint Petitioner, the Board finds that it would serve a
useful purpose to conduct an immediate election after
resolving the remaining unit issues. See S. K. Whitty
& Co., 304 NLRB 776 (1991).
This case is distinguishable from Davy McKee
Corp., 308 NLRB 839 in which we denied review of
the Regional Director’s Decision and Order dismissing
a petition.1 The uncontradicted findings of the Re-
gional Director in that case indicated that when the
work of Davy McKee Corporation on its current
projects was complete, Davy McKee’s operations
would cease and all employees would be terminated.
The Regional Director also found in Davey McKee that
the employer had no ongoing projects within the geo-
graphic scope of the unit sought by the joint petitioner,
and no projects under bid. Although the joint petitioner
contended that the employer had bid on future projects,
it failed to provide any evidence of such bidding or to
contradict the Regional Director’s finding that this
contention was based on uncorroborated hearsay. In
contrast, there is no dispute that the Employer here has
worked on several recent projects in the area and has
bid on future work with its current contractor.
ORDER
Accordingly, the proceeding is remanded to the Re-
gional Director to resolve the remaining unit issues
and, if appropriate, to conduct an immediate election.
MEMBER DEVANEY, dissenting.
I would deny the request for review, as I agree with
the Regional Director’s determination that no useful
purpose would be served by conducting an election at
this time.
APPENDIX
The Joint Petitioner in its amended petition seeks to rep-
resent a collective-bargaining unit consisting of all full-time
and regularly employed part-time construction employees
employed by the Employer at any project within the State of
Arizona and within that portion of the Navajo Reservation
within the State of New Mexico, excluding all other employ-
ees, including office clerical employees, professional employ-
ees, engineers, guards and supervisors as defined by the Act.
The Employer is a Texas partnership that provides engi-
neering procurement and construction services to a variety of
customers in the petrochemical refining, and gas transmission
industry. At the time of the hearing, the Employer was en-
gaged as a general contractor on two construction projects
within the geographic boundaries of the petitioned-for unit.
The Dilkon project was initiated pursuant to a contract be-
tween the Employer and the El Paso Natural Gas Company
which provided for a move-in date by the Employer of Au-
gust 20, 1991, and a completion date of March 11, 1992.1
The Dilkon project is located on the Navajo Reservation in-
side Arizona. The job at Dilkon involves the building of an
additional compressor at an existing compressor station for
the purpose of moving natural gas through pipelines. The
White Rock project is located on the Navajo Reservation at
White Rock, New Mexico. The White Rock contract between
the Employer and El Paso Natural Gas Company provides
for an Employer move-in date of August 20, 1991, and com-
837FISH ENGINEERING & CONSTRUCTION
pletion date of February 24th. The job at White Rock in-
volves the same type of work as at Dilkon, i.e., adding a
compressor to an existing compressor station. According to
the Employer, the Dilkon project, as of the date of the hear-
ing on February 6th, was approximately 80 percent complete
and had a target date for the completion of all mechanical
work as of March 1st. The White Rock project was approxi-
mately 83.5 percent complete with a target date for the com-
pletion of the mechanical work of February 28th. After the
mechanical work is completed at the Dilkon project, certain
cosmetic work remains to be completed pursuant to the con-
tract, including the application of insulation, painting, the
construction of a road within the project property, as well as
grading and covering the area with cosmetic rock and gravel.
Of the remaining cosmetic work to be performed at Dilkon,
the Employer has subcontracted to other contractors the insu-
lation work, the painting, the grading, and the road construc-
tion. After the cosmetic work at Dilkon is completed, the
only work left is demobilization. Demobilization encom-
passes the Employer’s removal and shipping out from the
project all of its own construction equipment as well as other
leased equipment still on the property. With respect to the
demobilization, the Employer utilizes some riggers, equip-
ment operators, and a few laborers for final housekeeping
chores. The demobilization at Dilkon will be completed ap-
proximately at the end of the third week of March. At the
White Rock project, in addition to the mechanical work, the
Employer is responsible for the completion of some electrical
work inolving area lighting as well as some electrical work
within the compressor station, grading, insulating, painting,
and demobilization. The electrical and painting work is to be
completed by the Employer’s own employees, while the in-
sulation and grading work have been subcontracted. As at
Dilkon the Employer, at White Rock, will utilize its own em-
ployees for demobilization which is scheduled for the last
quarter of March.
The Employer contends that the petition should be dis-
missed because its two ongoing projects at Dilkon and White
Rock will be completed shortly and, thus, that no useful pur-
pose will be served by conducting an election. The employer
further contends that while it has submitted an unsolicited
bid to perform work for the El Paso Natural Gas Company
at the Navajo Station project, which is located within the
geographical boundary of the petitioned-for unit, that is an
insufficient and speculative basis to direct an election since
the Employer is not on a select or exclusive list of contrac-
tors with which El Paso Natural Gas prefers to do business,
and that, as of the date of the hearing, it has secured a total
of only four contracts within that geographical area, includ-
ing Dilkon and White Rock, with the other two contracts
having been completed in 1991, as described in more detail
hereinafter. The Employer also asserts that the proposed
multi-site bargaining unit is not appropriate, but instead
should be limited to specific jobsites. The Employer took no
position with respect to the petitoned-for unit’s inclusion of
all construction employees regardless of craft, as distin-
guished from separate craft units.
Contrary to the Employer, the Joint Petitioner asserts that
the petitioned-for unit which seeks the inclusion of all con-
struction employees is a presumptively appropriate unit and
that the record demonstrates that since the Employer is quite
likely to continue to perform work within the geographical
area of the unit description that it would be contrary to the
policies and purposes of the Act to dismiss the petition.
I have concluded that the issue which is dispositive of this
case is whether it will serve any useful purpose to proceed
with a determination of representative at this time in view of
the scheduled completion dates of the Dilkon and White
Rock projects. As noted, the White Rock project has an ap-
proximate mechnical completion date of February 28th, and
the Dilkon project as of March 1. Testimony established that
the remaining work at both projects, part of which is to per-
formed by subcontractors of the Employer, and the demobili-
zation of the sites should be completed prior to the end of
March. No evidence was adduced to contradict the Employ-
er’s projection for completion of the projects by that time.
The Joint Petitioner argues that since the Employer has per-
formed work in the unit area, both on the current and some
past projects, for the El Paso Natural Gas Company, and that
since there is a possibility that the Employer may secure a
job in the near future, and that some employees in the cur-
rent work force have reasonable expectations of continued
employment on this anticipated project, that it would be in-
appropriate to dismiss the petition.
I am not persuaded by the Joint Petitioner’s contention
that it would be inappropriate to dismiss the petition for the
following reasons. Accordiny to General Manager Colquitt,
who is involved in the formulation of bids and proposals for
the Employer, the Employer does not currently have any
contracts for construction work with El Paso Natural Gas
Company or any other company within the geographical area
of the petition other than the Dillon and White Rock
projects. Colquitt testified further that the Employer has sub-
mitted an unsolicited bid to El Paso Natural Gas Company
hoping to secure work on a possible project near Chambers,
Arizona, known as the Navajo Station project. According to
Colquitt, the Employer has a number of business competitors
who have performed the same type of work for El Paso Nat-
ural Gas Company, including the Davy McKee Corporation.
[See my Decision and Order in Davy McKee Corp., Case
28–RC–4996, dated February 24, 1992, where it was noted
that Davy McKee was engaged at that time as a general con-
tractor for the El Paso Natural Gas Company at the Navjo
Compressor Station (the Navajo Project) located at Cham-
bers, Arizona.] The project at the Navajo Station is estimated
to commence, if at all, during this coming summer. The
project will take six months to complete, and will employ
some 55–65 construction employees, approximately the same
number as were employed at the Dilkon project. Colquitt tes-
tified that except for the Navajo Station the company has no
immediate plans to submit any other bids for construction
work in the geographical area embraced by the petition.
The record reveals that as of the date of the hearing, Feb-
ruary 6th, the Employer employed approximately 53 con-
struction employees at Dilkon and 72 at White Rock. By
March 1st, the employment complement will be reduced to
approximately 15 at Dilkon and 20 at White Rock. There-
after, the numbers will continue to be reduced through the
demobilizations, which will occur prior to the end of March
at which time all employees will be terminated.
It is clear under existing Board precedent that when an
employer’s operations are scheduled to wholly terminate
within two months of the date of the representation hearing,
that no useful purpose is served by directing an election.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
M. B. Kahn Construction Co., 210 NLRB 1050 (1974); Gen-
eral Motors Corp., 88 NLRB 119 (1950); Todd-Galveston
Dry Docks, 54 NLRB 625 (1944); Fraser-Brace Engineering
Co., 38 NLRB 1263 (1942); and Fruco Construction Co., 38
NLRB 991 (1942). The only remaining issue is whether there
is a sufficient basis to direct an election based upon the Em-
ployer’s past work history within the geographical area cov-
ered by the petition and its pending unsolicited bid to El
Paso Natural Gas Company for work at the Navajo Station
Project. In my view, the record does not warrant directing an
election based upon the sheerly speculative possibility that
the Employer may secure additional work within the geo-
graphical boundaries of the petition, particularly where, as
here, the El Paso Natural Gas Company has awarded similar
projects to various contractors other than the Employer. In
the event the Employer secures a contract for a new project,
the Joint Petitioner will have the opportunity to file a new
petition, and, if appropriate, the other issues raised by the
parties herein may be resolved at that time.
ORDER
IT IS HEREBY ORDERED that the petition in the above mat-
ter be, and it hereby is, dismissed.