Needham Excavating, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jan 19, 2018

25-RD-195949 (N.L.R.B. Jan. 19, 2018)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEEDHAM EXCAVATING, INC.
Employer
and Case 25-RD-195949
JAKE MADDEN
Petitioner
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL-CIO
Union
ORDER
The Union’s Request for Review of the Regional Director’s Decision and Direction of
Elections is denied as it raises no substantial issues warranting review.1 We find that the
Regional Director did not err when she permitted the Petitioner to amend and clarify the original
petition, and directed an election in the Heavy Highway unit (in addition to the Building unit)
because of her finding that two distinct units existed. First, as the Regional Director correctly
noted, the Petitioner has consistently sought an election for all machine operators, albeit in a
single bargaining unit.2 Moreover, it was reasonable for the Petitioner to attempt to clarify the
description of the bargaining unit given the uncertainty created by the Employer’s operations and
conduct under the Building and Heavy Highway Agreements.3 Under the circumstances of this
case, the Regional Director recognized that it would be unrealistic to expect an employee to

1 The Union’s request for oral argument is also denied.
2 We agree with the Regional Director that the original petition contemplated all machine
operators of the Employer who perform building or excavation work, which would include work
under the Quad Cities Building and Heavy Highway Agreements. Furthermore, neither the
Building Agreement nor the Heavy Highway Agreement was specifically referenced in the
petition. For these reasons, we reject the assertion by the Union and our dissenting colleague
that the Petitioner’s intent was to limit the scope of the original petition to the Employer’s
employees working under the Building Agreement.
3 The Building Agreement reflects a longstanding contractual relationship that has been in place
for approximately 14 years, while the Heavy Highway Agreement is new and has only been in
place since January 1, 2016. Further confusing the status of the employees’ work is the fact that
the Employer made all of the employees’ benefit fund payments pursuant to the Building
Agreement, irrespective of whether the work had been completed under that agreement.
Accordingly, there is merit to the Petitioner’s argument that at the time of the original filing, the
employees were likely unaware of the existence of two different agreements.
2
grasp the distinctions between two very similar bargaining units, especially given their overlap of
employees and their shared terms and conditions of employment. Thus, we disagree with our
colleague’s contention that the Petitioner impermissibly attempted to add a separate bargaining
unit to the original petition.
We further agree with the Regional Director that the petition, as amended, was timely.
Under the Board’s well-established Deluxe Metal Furniture standard, the filing date of the
original petition controls when “the employers and the operations or employees involved were
contemplated by or identified with reasonable accuracy in the original petition, or the
amendment does not substantially enlarge the character or size of the unit or the number of
employees covered.” 121 NLRB 995, 1000 fn. 12 (1958). Here, the original petition comprised
the same employer, union, and employees4 and sought an election among all of the Employer’s
machine operators. Additionally, as the Regional Director noted, the amendment did not
substantially expand the unit or change its character, because the same universe of machine
operating employees was contemplated. Furthermore, given the units’ similarities, the petition
would reasonably have put the Employer and Union on notice that the Petitioner might be
seeking to challenge the Union’s status in both units. Accordingly, under Deluxe Metal
Furniture, the timely filing of the original petition controls. 5
Last, we observe that the Regional Director’s decision to afford the employees in both
units an opportunity to express their desire for continued representation by the Union is
consistent with the Board’s longstanding policy promoting and protecting employee choice.
MARVIN E. KAPLAN, CHAIRMAN
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., January 19, 2018

4 The original petition indicated that there were eight employees in the bargaining unit.
Furthermore, the record supports the finding that five out of the eight employees perform work
under and regularly move back and forth between work under both agreements.
5 We necessarily disagree, then, with our dissenting colleague’s view that the amendment
amounted to the filing of a new petition and thus that the amendment’s filing date (not the filing
date of the original petition) applies in determining whether the contract bar is implicated.
3
MEMBER PEARCE, dissenting.
It is well settled that under the contract bar doctrine, election petitions will be dismissed
as untimely when filed within the 60-day “insulated” period prior to the expiration date of the
collective-bargaining agreement covering the petitioned-for employees. Deluxe Metal Furniture,
121 NLRB 995, 1000 (1958). The purpose of this rule is to “further industrial peace and stability
by assuring that the labor relations environment will not be disrupted during the term of a
collective-bargaining agreement.” Crompton Co., 260 NLRB 417, 418 (1982). Despite this
established precedent, the Regional Director granted the Petitioner’s motion to amend its petition
during the insulated period to add a second distinct bargaining unit, covered by a separate
collective-bargaining agreement. This was clear error under Deluxe Metal. Accordingly, and
contrary to my colleagues, I would grant the Union’s Request for Review of the Regional
Director’s Decision and Direction of Elections.
Factually this is a straightforward case. From 1992 until January 1, 2016, the Employer
and the Union were parties to successive collective-bargaining agreements known as the Quad
Cities Building Agreement. By their terms, these Quad Cities Building agreements covered
employees “engaged in the operation and maintenance of all hoisting and portable machines and
engines used on building work and excavating work …” (Emphasis added.) On January 1, 2016,
the parties executed a new, successor Quad Cities Building Agreement. On the same day, the
parties entered into a separate Heavy Highway Agreement which covered employees engaged in
different work, specifically those “engaged in the operation and maintenance of all hoisting and
portable machines and engines used in all open and heavy construction work …” (Emphasis
added.) Both contracts were in effect from January 1, 2016 to May 31, 2017.1
On March 31, the day before the 60-day insulated period commenced for both
agreements, the Petitioner filed the instant petition for an election in the unit of “Machine
operators for building and excavation,” i.e. the Building Agreement unit. The petition made no
reference to the Heavy Highway Agreement, or to the unit described in that agreement.
However, on April 10, after the window period for filing a petition had closed, the Petitioner
moved to amend the petition.2 The Regional Director rejected the Petitioner’s contention that
machine operators covered by the separate collective-bargaining agreements constitute a single
bargaining unit and agreed with the Union that there were two separate appropriate bargaining
units and two separate collective-bargaining agreements. Nevertheless, the Regional Director
granted the Petitioner’s motion, finding that the Petitioner’s amendment to add the separate
Heavy Highway Agreement unit, after the window period had closed, was a clarification of the
petitioned-for unit. Acknowledging, however, that a single election would not be appropriate for
the two distinct units, the Regional Director ordered separate elections for the two units. The
Regional Director explained that because it was her ruling rather than the amendment that
clarified the existence of two separate units, the timing of the amendment did not create a bar to
an election in the second unit.

1 All dates hereafter refer to 2017.
2 My colleagues contend that the timely-filed petition sought an election among all of the
Employer’s machine operators. The petition, however, did not reference “all” machine operators;
instead, it identified only those machine operators “for building and excavation.”
4
Contrary to my colleagues, I find that the Regional Director clearly erred when accepting
an untimely amendment to the petition and directing an election in the Heavy Highway unit.
First, the timely-filed petition unambiguously identified the unit as “Machine operators
for building and excavation” – corresponding to the unit described in the Building Agreement’s
recognition clause: employees performing “building work and excavating work.” Indeed, it is
undisputed that the Building Agreement makes no reference to employees performing “open and
heavy construction work.” That is the unit described in the Heavy Highway Agreement’s
recognition clause. It was not until the Petitioner’s April 10 motion that the Heavy Highway
Agreement was first referenced, well after the window period had closed.3
Second, the Petitioner’s amendment to add a separate bargaining unit “in effect
constituted the making of a new claim and the filing of a new petition.” Dunbar Glass Corp, 77
NLRB 742, 743 (1948) (amendment untimely sought to add skilled glassworkers to unit of
miscellaneous glassworkers). Under well-established precedent, the Board in such situations
applies the amendment’s filing date and not the date of the original petition in determining
whether a contract is in effect that bars an election. Id.; see also Hyster Co., 72 NLRB 937
(1947) (amendment seeking election in production and maintenance unit did not relate back to
timely-filed petition seeking election in craft unit). By accepting the amendment, the Regional
Director acted not only contrary to law but flatly contradicted her own determination that there
are two separate collective bargaining agreements and two separate units, warranting separate
elections for each of the two units. Her conclusion that the motion “sought to clarify the
description of the bargaining unit rather than to add an additional unit” is clear error.
Finally, the Regional Director and the majority’s reliance on the fact that certain
individuals performed work under both the Building Agreement and the Heavy Highway
Agreement, as support for her acceptance of the late amendment, is misplaced. It ignores the
critical fact that the amendment combines the petitioned-for unit with a clearly identified
separate unit. And their reliance on the personal identities of employees in this instance runs
contrary to the well-settled rule that “a petitioned-for unit in a decertification petition must be
coextensive with the certified or recognized unit.” Mo’s West, 283 NLRB 130, 130 (1987),
citing Campbell Soup Co., 111 NLRB 234 (1955).4

3 The majority claims, in essence, that it is irrelevant that the timely-filed petition referenced
only one unit, because it is “unrealistic to expect an employee to grasp the distinction between
the two units.” The fact that the unit described in the timely-filed petition very clearly and
distinctly referenced the unit described in the Building Agreement and included no language
corresponding to the unit description in the Heavy Highway Agreement, demonstrates otherwise.
Further, the majority’s reliance on the fact that neither the Building Agreement nor the Heavy
Highway Agreement was specifically referenced in the timely-filed petition is unavailing,
because the unit description in that petition very clearly corresponded only to the unit described
in the Building Agreement.
4 The majority contends that under Deluxe Metal Furniture, supra at 1000 fn. 12, the second unit
here can be added to the timely-filed petition simply because it implicates the same employer,
union and employees. Contrary to their contention, Deluxe Metal Furniture does not include any
5
In sum, because the separate Heavy Highway Agreement unit was never referenced in the
timely-filed petition, and the motion to include that separate unit was filed during the insulated
period, the Regional Director should have denied the motion as untimely. Accordingly, I would
grant the Union’s request for review and remand the case to the Regional Director for further
proceedings consistent with this opinion.
MARK GASTON PEARCE, MEMBER

language that would permit the untimely addition of a separate unit that, as here, is defined by
distinctly different work.