Pike Co.

National Labor Relations Board - Board Decisions

Aug 4, 1994

314 N.L.R.B. 691 (N.L.R.B. 1994)

691
314 NLRB No. 112
PIKE CO.
1 The Regional Director found appropriate a unit of all bricklayers
employed by the Employer at its Monroe County jobsites, including
those employees eligible under the Steiny/Daniel formula. No request
for review was filed with respect to the scope or composition of the
unit.
2 In so finding, the Regional Director relied on an unpublished
order in Delta Diversified Enterprises, Case 28–RC–5161 (1993), in
which the Board majority (then-Chairman Stephens and Member
Devaney; Member Raudabaugh dissenting) denied the employer’s re-
quest for review of a Regional Director’s application of the same
showing-of-interest standard.
3 See Steiny & Co., 308 NLRB at 1324–1325, and cases cited
therein.
4 Id.
5 156 NLRB 1236 (1966). See also NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969).
The Pike Company and Bricklayers and Allied
Craftsmen, Local No. 11, AFL–CIO, Petitioner.
Case 3–RC–10124
August 4, 1994
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election issued on May 26, 1994. The request
for review is granted as it raises substantial issues war-
ranting review.
The sole issue presented is whether, in the construc-
tion industry, the numerical sufficiency of a peti-
tioner’s showing of interest should be measured
against the number of unit employees employed at the
time the petition is filed, or against the number of em-
ployees eligible to vote under the special construction
industry eligibility formula set forth in Steiny & Co.,
308 NLRB 1323 (1992), reaffirming Daniel Construc-
tion Co., 133 NLRB 264 (1961). The Regional Direc-
tor rejected the Employer’s argument that the appro-
priate standard for measurement was the total number
of employees eligible under the Steiny/Daniel for-
mula,1 and found that the appropriate standard for de-
termining numeric sufficiency was the number of unit
employees employed at the time the petition is filed.2
We agree with the Regional Director.
The Regional Director correctly found that to base
the showing-of-interest requirement on the number of
all employees eligible under the Steiny/Daniel formula
would place an almost impossible burden on peti-
tioners in the construction industry, as the petitioners
would have to track down individuals who may have
worked for a construction industry employer within the
prior 2 years to determine if the employees worked for
a sufficient period of time to be eligible to vote under
the formula, and then to procure authorization cards
from such employees. These individuals most likely
would be unknown to the petitioner, or to current em-
ployees, and may have moved to distant locales. We
agree with the Regional Director that given the unique
nature of the construction industry,3 tracking down
such individuals would be a difficult and burdensome
task. As we have stated previously, the construction in-
dustry is characterized by intermittent employment of
an unpredictable duration and often involving several
employers.4
Another impediment to the standard urged by the
Employer is that unlike the usual employment setting
where the number of employees in a petitioned-for unit
can be determined easily, a petitioner for a unit of con-
struction industry employees most likely would not
know when it files its petition the number of employ-
ees who ultimately will be found eligible to vote under
Steiny/Daniel, and thus would have no way of know-
ing the number of cards needed to support the petition.
A petitioner, therefore, would be at a distinct disadvan-
tage in obtaining a sufficient showing of interest. In
this regard, we note that an employer is under no obli-
gation prior to issuance of the Regional Director’s de-
cision directing compliance with Excelsior Under-
wear,5 to supply a petitioner with a list of eligible em-
ployees.
Requiring that the showing of interest be checked
against all eligible voters under the Steiny/Daniel for-
mula also would be a burden on the Board’s Regional
Offices and on employers. The Regional Offices would
have to determine eligibility under the Steiny/Daniel
formula well in advance of the election, on the filing
of a petition, and prior to directing a hearing. There
also likely would be frequent disputes regarding who
is ‘‘eligible’’ to be counted for purposes of the show-
ing of interest. The showing of interest, however, is an
administrative matter which is not subject to litigation.
O. D. Jennings & Co., 68 NLRB 516, 517 (1946).
Employers not only would have to submit a payroll list
of current employees, but presumably supporting docu-
mentation to establish that the laid-off employees on
the list are eligible. Moreover, employers often would
be required to prepare and submit two different lists of
eligible voters under the Steiny/Daniel formula—one
when the petition is filed, and another when (and if)
a direction of election is issued.
Under the above scenario, the burdens placed on the
parties and the Board may prove to be more time-con-
suming and costly than simply running the election. In
this regard, the purpose of the showing-of-interest re-
quirement is to save the time and needless expense of
conducting an election where there is insufficient em-
ployee interest in the representation issue; it is not in-
tended to determine if the employees ultimately desire
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We reject the Employer’s argument that the application of this
standard is contrary to Sec. 101.18 of the Board’s Statements of Pro-
cedure, and that it is illogical to apply different standards to the
showing-of-interest requirement and the eligibility formula. The
standard we affirm today is consistent with the Sec. 101.18 require-
ment that a petitioner submit a numerically adequate (normally 30
percent) showing of interest (e.g., valid cards), measured against the
number of employees. We here interpret the term ‘‘employees’’ in
Sec. 101.18 as those actually working in the unit at the time the peti-
tion is filed. For the reasons set forth in this opinion, we believe that
this standard is both logical and reasonable in an industry character-
ized by a fluctuating work force. The showing-of-interest require-
ment is an administrative expedient adopted by the Board to deter-
mine if further proceedings are warranted, and it is important that
the rule in fact serve to facilitate that goal and not to prolong and
complicate the procedures it is intended to expedite. The eligibility
formula, however, serves an entirely different purpose—that of de-
termining who may vote if an election is held. Because the purpose
behind the two rules are distinct, the groups of employees on which
they focus need not be identical.
7 Since we find that the currently employed work force is the ap-
propriate measure of the numerical sufficiency of the showing of in-
terest, valid cards will be acceptable only from employees within
that group. To permit the counting of cards from individuals eligible
solely under the Steiny/Daniel formula would be inconsistent with
our reasons for not measuring the showing of interest against the
number of Steiny/Daniel eligible voters; i.e., that an undue burden
would be placed on the Board and parties to determine who is eligi-
ble under the formula at an early stage of the proceeding.
representation, which is the purpose of the election.
See S. H. Kress & Co., 137 NLRB 1244, 1248 (1962).
A broadened showing-of-interest requirement in cases
involving eligibility under the Steiny/Daniel formula
would undermine the limited purpose of that showing-
of-interest requirement.6
Moreover, in at least one other industry with a fluc-
tuating work force and intermittent employment, the
Board has rejected measuring the adequacy of the
showing of interest against all employees eligible
under a special formula. In Hondo Drilling Co., 164
NLRB 416 fns. 5 and 10 (1967), enfd. 428 F.2d 943
(5th Cir. 1970), the Board fashioned an eligibility for-
mula for oil drilling employees. The Board rejected the
employer’s motion that the petitioner file a new show-
ing of interest because the unit had been expanded by
the eligibility formula. The Board found that the show-
ing of interest among the employees employed ‘‘at the
time the petition was filed’’ was adequate, and that it
would be ‘‘patently unjust’’ to require a showing of in-
terest in the unit expanded by the formula. Id. at fn.
10.
We agree with the Regional Director that to broaden
the showing-of-interest requirement as urged by the
Employer may, for the reasons we have discussed, ulti-
mately frustrate the purposes of the Act by severely re-
stricting construction industry employees in the exer-
cise of their rights under Section 7 of the Act. Accord-
ingly, we find that the Board’s resources can best be
utilized to effectuate the Act by requiring that the suf-
ficiency of the showing of interest supporting petitions
filed for units of construction industry employees be
determined based on the number of employees in the
unit at the time the petition is filed.7
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed, and the case is remanded to the
Regional Director for further appropriate action.