M. B. Kahn Construction Co., Inc.

National Labor Relations Board - Board Decisions

May 29, 1974

210 N.L.R.B. 1050 (N.L.R.B. 1974)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. B. Kahn Construction Co., Inc. and Carpenters
District Council of Washington, D.C. and Vicinity,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Petitioner and Laborers
District Council of Washington, D.C. and Vicinity,
affiliated with Laborers International Union of
North America, AFL-CIO, Petitioner. Cases
5-RC-8792 and 5-RC-8801
May 29, 1974
DECISION ON REVIEW AND ORDER
On January 28, 1974, the Regional Director for
Region 5 issued his Decision and Direction of
Elections in the above-entitled proceeding in which
he directed elections in separate units of carpenters
and laborers, respectively, employed by the Employ-
er at its Winchester, Virginia, project. In his
Decision, the Regional Director denied the Employ-
er's request to dismiss the petitions because of the
imminent reduction in the employee complement
and cessation of these operations. Thereafter, the
Employer, in accordance with the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, filed a timely request for review of the
Regional Director's Decision on the grounds, inter
alia, that, in denying its motion to dismiss, he
departed from officially reported Board precedent
and made erroneous findings of fact.
By telegraphic order, as amended, February 26,
1974, the National Labor Relations Board granted
the request for review with respect to the issues
concerning the alleged cessation of operations,
denied it in all other respects, and stayed the
elections pending decision on review. The Employer
filed a brief on review.
The Board has considered the entire record in this
case with respect to the issues under review,
including the Employer's brief on review, and finds
no question affecting commerce exists herein con-
cerning the representation of certain employees of
the Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act, for the following
reasons:
The Employer contends that the Regional Director
erred in finding that target dates for the reduction in
the employee complement and the ultimate cessation
of operations are not definite and that a substantial
number of employees are now employed and will
continue to work for some time. We agree.
The Employer is engaged in the general construc-
tion business . On or about April I, 1973, it entered
into a contract for the construction of a plant for
General Electric Company in Winchester, Virginia.
The expected completion date of the entire project,
when all employees of the Employer will be terminat-
ed, was between June and July 1974. The first major
phase of the work was to be completed by March 4,
1974, when General Electric scheduled the moving of
production machinery into the plant; the second
major phase was to be completed April 15, 1974,
when General Electric is scheduled to begin prod-
uction of lamps; final completion of the plant is
expected in June 1974.
With respect to the Carpenters unit, it was
anticipated at the time of the hearing (December 13,
1973) that the complement of the 24 to 30 carpenters
and 12 helpers then employed would be reduced on
March 4 to approximately 10 carpenters and 5 or 6
helpers; and that, after April 15, there would be only
4 carpenters and 2 or 3 helpers employed. As to the
Laborers unit, it was anticipated that the 30 to 40
employees working at the time of the hearing would
be reduced on March 4 to 20 to 30, and further
reduced on April 15 to 10 to 15. After June, the work
force would be reduced to "practically nothing."
At the hearing, the Employer's project manager
stated that the March and April target dates are
expected to be met and that, while certain areas of
the project are behind schedule, the overall project is
on schedule. This evidence has not been controvert-
ed. Moreover, it appears that the employees involved
were recruited from the Winchester area, that the
Employer does not have any work, other than this
project, in the area, and that it does not contemplate
any in the future.
On the basis of the foregoing, we find that, in view
of the imminent completion of the construction
project here involved, no useful purpose would be
served by conducting elections in the units found
appropriate. The Employer's motion to dismiss the
petitions filed herein is hereby granted.'
' Our dissenting colleague suggests that we expedite cases such as this in
an effort to serve employee interests However, this suggestion ignores the
requirements of due process . Our colleague correctly notes that the "initial
step of the review procedure consumed most of the time during which an
election would ordinarily have been held " In this case, the Employer's
request for review was timely filed, but Petitioners' statements in opposition
were not due until February 19 The election , which had been scheduled for
February 22, was postponed Statements in opposition were not filed, and
on Friday, February 22, 3 days after these statements were due, the Board
met and considered the request for review. We granted review on Monday,
February 25, as amended on February 26, 1974, 4 working days after these
statements were due Any ruling on the request for review before February
19, 1974, would have deprived the Petitioners of their right to file statements
in opposition. Surely we cannot diminish the period of time afforded parties
who wish to file statements in opposition to requests for review To do so,
even in an effort to expedite cases, would effectively deprive parties of their
right to due process. Our colleague asserts we beg the question when we
state that evidence of the overall project being on schedule is not
controverted He notes that in its brief mailed on March 7, 1974, the
Employer did not attempt to confirm the actual occurrence of the initial
complement reductions anticipated for March 4 We note, however, that the
Petitioners had ample opportunity to inform us in their briefs of any failure
210 NLRB No. 166
M B. KAHN CONSTRUCTION CO., INC. 1051
ORDER
It is hereby ordered that the petitions herein be,
and they hereby are, dismissed.
MEMBER FANNING, dissenting:
On November 20 and 23, 1973, petitions were filed
by the Carpenters and the Laborers, respectively,
covering the employees of this Employer. On
December 13, 1973, a hearing was conducted and on
January 28, 1974, the Regional Director issued his
Decision and Direction of Elections to be held in two
units at a Winchester, Virginia, construction project
-one of carpenters and one of laborers.
The Employer requested Board review asking the
Board to find the units inappropriate or, in any
event, to dismiss the petitions, predicting completion
of the project "by" June 1974, with the work force
"after" June "reduced to practically nothing." This
contention had been denied by the Regional Director
inasmuch as the predictions of interim reductions
outlined by the Employer for March and April of
this year were based on "completing certain phases
of construction in accordance with projected time
targets." Noting that a substantial number of the
approximately 36 to 42 carpenters and helpers and 30
to 40 laborers employed would continue to work "for
some time," the Regional Director perceived no
reason to deprive them of the opportunity to select a
collective-bargaining representative "at this time."
On February 25, 1974, by telegraphic order,
amended February 26, the Board affirmed the ruling
of the Regional Director on the appropriateness of
the units, a Pyrrhic victory, for the Petitioners,
however, in view of the subsequent action by my
colleagues. Units of this sort are not uncommon in
the construction industry. R. B. Butler, Inc., 160
NLRB 1595.
My colleagues granted review of the Employer's
second contention only, and now, 5 months after the
petitions were filed and almost 3 months after an
election could have been held, they are reversing the
Regional Director and dismissing these petitions
during perhaps the most critical period of this
employment relationship. They are not reversing the
Regional Director because of any erroneous unit
determinations, but because they say, in effect, an
election cannot be conducted in timely fashion to
produce effective or worthwhile collective bargaining
to meet the target date Petitioners' briefs were due on March 8, 1974, but
none were filed Unlike the Regional Director, we find that the record as a
whole provides convincing evidence that the target dates will be met
Employer's project manager, Khalil, testified that although there had been a
strike at the project it had no effect on the target dates originally
contemplated Khalil also testified that obstacles such as bad weather, the
energy crisis in diesel fuel , and material shortages could not affect the target
dates of the project. Apparently, the Regional Director relied on Khalil's
affirmative responses to a series of hypothetical questions concerning the
in the time probably remaining in this employment
relationship.
This kind of "expertise," I think, is best left to the
parties and hardly comports with the statutory
mandate to encourage collective bargaining. I know
of no statutory observation that no collective
bargaining at all is better than limited collective
bargaining, or that a collective-bargaining relation-
ship must last for a certain period of time to be
effective. Obviously, if the mechanics of running an
election and certifying the results cannot be complet-
ed before the employment relationship terminates,
there is some argument for not investing time,
money, and effort in futile action. But that is not the
case here. Certainly, it was not when the Regional
Director directed elections on January 28, 1974.
When, at the December 13 hearing, the Employer
predicted completion of unit work in June, based on
a contract target date, 6 months of operations
admittedly remained and no layoffs were anticipated
for 3 months. The Employer thereafter filed a brief to
the Regional Director and urged dismissal. The
Regional Director denied this request in his January
28 decision, directing that elections be held within
the customary 30 days. Approximately 4 months of
postelection bargaining was then possible: March,
April, May, and June. The Employer then requested
Board review, which the Board majority granted on
February 26, again, I point out, not because of unit
problems.
This initial step of the review procedure consumed
most of the time during which an election would
ordinarily have been held. It also consumed most of
the period during which the Employer admitted that
the units would be at maximum strength. When
finally this process of Board review has been
completed by decision, scarcely 2 months of bargain-
ing time will remain-assuming the projected March
and April layoffs have in fact occurred and the
project is actually completed in June as the Employer
predicted last December.2 Thus, in a case of this sort,
which by its very nature should be expedited if
employee interests are to be served, the standard
review procedure can be used to build support for
the dismissal result desired by the party requesting
review.
There are, of course, Board decisions-issued
before the delegation of the initial decision function
construction industry in general, such as, "Do strikes ever have an impact
upon target dates " We prefer to rely on the evidence which relates to this
particular project rather than that which related to hypothetical situations.
2 My colleagues ' statement that evidence on the target dates predicted at
hearing "has not been controverted" begs the question Neither has there
been any attempt to confirm the actual facts to the Board though 4 months
have passed since the hearing The Employer's brief to the Board mailed on
March 7, which was after the initial layoff predicted for March 4, makes no
contention that target dates were then being met
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Regional Directors-where the Board itself
dismissed because an operation would close down
"very shortly," or in a month, or 2 to 3 months.
Without necessity for appeal, those Board decisions
were, timewise, much closer to hearing, and were
based on short-term predictions which the Employer
made at the hearing.3 Often the period had passed
when the decision issued.
In this case I view the Employer's 6-month
prediction as long term, compared with the predele-
gation cases to which I have just referred. Inasmuch
-as present procedures permit the period of even a
long-term prediction to be consumed in litigation, I
consider it unfair to dismiss when the Employer's
prediction itself still has perhaps 2 months to run,
and particularly so when the dismissal assumes
-contrary to the Regional Director-that construc-
tion target dates will be met like clockwork. With all
due respect to my colleagues' due process conten-
3 Pride Manufacturing Company, 98 NLRB 445 , "shortly after date of
hearing"; G H Swalley Logging Company, 91 NLRB 921, "within 30 days
of hearing", Lamar-Rankin Company, 81 NLRB 222, at hearing employer
predicted no employees a month later ; Weber Showcase and Fixture
Company, 85 NLRB 1202 , "within 60 to 90 days" after hearing; General
Motors Corporation (GMC Truck & Coach Division), 88 NLRB 119, a 3-
month prediction at hearing of which less than 2 months remained at the
time of Board decision ; Parsons Corporation, 86 NLRB 74, a 3-month
prediction at hearing which showed drastic employment cuts already made;
W P Fuller & Company, 122 NLRB 814 , a December 31 decision where the
tions, the fact is that these employees, through their
unions, filed petitions requesting an election in
November 1973, and the Board is now telling them in
May 1974 that there is not enough time left for
collective bargaining. Whether the due process
period started from the last day on which a request
for review was due, is of no moment. What is of
moment is the passage of time since February 26
when the amended telegram granting review was
sent. The whole process of considering what is solely
a question of time and progress on a construction
job-time to bargain effectively-has been extended
inordinately at this stage of review, and foiled one of
the primary purposes of the statute.
I find no basis for granting review here or for
reversing the Regional Director. I would affirm the
Regional Director with instructions to proceed with
an election without further delay.
Board said that the employer's work on the project "will be finished in
January"; Clark Construction Company, Inc, 129 NLRB 1348, where project
was 95 percent completed at hearing and employer predicted completion of
"all" work on January 24, 1961, 8 days after the Board decision issued:
Douglas Motors Corp., 128 NLRB 307, where "fundamental" nature of
business would change in about 2 months from Board decision and only 25
percent of the work force employed at hearing would then remain An
additional case where the prediction date had occurred a week before the
Board's decision is Sparton Teleoptic Company, 81 NLRB 1228, cited by
Employer