Steiny & Co.

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1323 (N.L.R.B. 1992)

1323
308 NLRB No. 190
STEINY & CO.
1 All journeymen wiremen, apprentices, material handlers, journey-
men alarm installation technicians, alarm installation technicians,
communication and systems installers, communication and systems
technicians, senior communication and systems technicians, and jour-
neymen sound electricians employed by the Employer within Los
Angeles County.
2 All journeymen traffic signal installers, utility technicians and
utility technician trainees employed by the Employer within Los An-
geles County.
3 The AFL–CIO, the AGC, and the ABC appeared as amici curiae.
4 No provision in the agreements provides for specifying particular
employees from the list. Employees discharged for cause are ineli-
gible for rehire.
Steiny and Company, Inc. and Local Union No. 11,
International Brotherhood of Electrical Work-
ers, AFL–CIO, Petitioner. Cases 21–RC–18897,
21–RC–18898, and 21–RC–18899
September 30, 1992
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
The issues in this case are (1) whether the Board
should continue to apply an eligibility formula to con-
struction industry elections; and (2) if so, what formula
should be used.
On December 12, 1991, the Regional Director for
Region 21 issued a Decision and Direction of Election
in which she found two separate units appropriate for
collective bargaining. The first unit included employ-
ees working in the Employer’s commercial and indus-
trial division;1 the second included employees working
in the traffic and signal division.2
After concluding that the Employer had not shown
compelling reasons why its operations should be dis-
tinguished from others in the construction industry, the
Regional Director applied to both units the eligibility
formula in S. K. Whitty & Co., 304 NLRB 776 (1991),
modifying Daniel Construction Co., 133 NLRB 264
(1961), as modified at 167 NLRB 1078 (1967).
The Employer filed a timely request for review of
the Regional Director’s decision to apply the eligibility
formula, arguing that she erred in applying the for-
mula, that the Board should clarify when, if at all,
such a formula should be used, and that the Board
should overrule or substantially modify S. K. Whitty.
The Employer also requested that the Board stay the
election and hold oral argument. On January 21, 1992,
the Board granted the Employer’s request for review,
and its requests for oral argument and to stay the elec-
tion.
On March 4, 1992, the Board scheduled oral argu-
ment in this case. The notice of hearing requested that
the parties address the following questions:
1. What should be the appropriate standard for
voter eligibility on the facts of this case? Is this
Employer properly characterized as one who has
a nucleus of regular employees who work year-
round from job to job but also hires additional
employees on a project-by-project basis?
2. Should the Board reconsider the Daniel Con-
struction (133 NLRB 264 (1961)), modified at
167 NLRB 1078 (1967)) eligibility formula as re-
vised by S. K. Whitty, 304 NLRB 776 (1991)?
3. To what extent should representation prin-
ciples, especially eligibility formulae developed in
the nonconstruction industry context under Sec-
tion 9(a), be applied in construction industry
cases? See John Deklewa & Sons, 282 NLRB
1375, 1386 fn. 45 (1987).
On April 8, 1992, the Employer, the Petitioner, the
Building and Construction Trades Department (AFL–
CIO), the Associated General Contractors of America,
Inc. (AGC), and the Associated Builders and Contrac-
tors, Inc. (ABC) presented oral argument before the
Board.3 The parties have filed briefs on review and the
amici curiae have filed statements of position.
I. FACTS AND CONTENTIONS OF THE PARTIES
The Employer is an electrical contractor involved in
projects throughout the State of California. For at least
30 years, the Employer and the Petitioner have been
parties to a series of agreements under Section 8(f) of
the Act that cover a number of classifications. Vir-
tually all the employees in the units found appropriate
are covered by 8(f) agreements effective by their terms
from June 1, 1989, to May 31, 1992. The Employer
obtains employees exclusively from the Petitioner’s
hiring hall pursuant to the terms of the collective-bar-
gaining agreements.
The commercial and industrial division unit works
primarily on long-term projects lasting from approxi-
mately 1 to 4 years, while the traffic and signal divi-
sion unit works primarily on short-term projects lasting
from 30 to 60 days. Although the Employer operates
from project to project, it attempts to ‘‘hang on’’ to or
transfer employees from one project to another when
a project ends or another needs assistance. When trans-
fers of existing employees do not meet its employment
needs, the Employer contacts Petitioner’s hiring hall
for referrals. Employees are then referred from the Pe-
titioner’s hiring hall ‘‘out-of-work’’ list.
If the Employer has no further work, an employee
is ‘‘terminated.’’ Terminated employees can be rehired
by the Employer if their name comes up for referral
by the Petitioner from the out-of-work list.4 But ac-
cording to Robert H. Alston, the Employer’s vice
president and manager of the commercial and indus-
trial division, referral of former employees at the cur-
rent time would be ‘‘highly unusual’’ as local condi-
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The hearing began September 3 and concluded September 23,
1991.
6 See, e.g., Atlas Metal Spinning Co., 266 NLRB 180 (1983),
where the Board stated that laid-off employees who have a reason-
able expectancy of recall in the near future are eligible to vote, and
that in determining this expectancy, the Board looks to the employ-
er’s past experience and future plans, the circumstances of the lay-
off, and what the employees were told about the likelihood of recall.
tions in the construction industry have caused ‘‘a lot’’
of individuals (300) to be placed on the out-of-work
list.
The Employer introduced a list of all unit employees
employed during the past 2-1/2 years.5 The list indi-
cates that during the period covered, 201 individuals
had been employed in the commercial and industrial
division, with 92 having been terminated and 109
being currently employed. Eighty-three individuals had
been employed in the traffic unit; 63 of those had been
terminated and 20 are currently employed. The list did
not indicate the number of projects worked by each
employee.
The Employer and amici AGC and ABC generally
contend that the Board should abandon the eligibility
formula of Daniel/S. K. Whitty, supra, and apply the
criteria traditionally used for determining the eligibility
of laid-off employees when formulas developed on the
basis of characteristics of a particular industry do not
resolve the eligibility issue.6 In so contending, the Em-
ployer argues that the construction industry is not now
materially different from other industries, and, thus the
traditional individualized multifactor eligibility test for
laid-off employees would adequately address the needs
in construction industry elections as it has for non-
construction industry elections. Amici ABC and AGC
argue that construction industry employment practices
are so diverse that no rigid formula could properly take
them into account. The traditional test calling for con-
sideration of numerous factors to determine eligibility
of each laid-off individual, these amici contend, is a
more flexible test than any numerical formula and thus
one that can better take into account distinct character-
istics of each employer and assure that only those em-
ployees who have a continuing interest in the employ-
er’s terms and conditions of employment will be
deemed eligible. Both the Employer and the two amici
argue that a numerical formula such as Daniel/S. K.
Whitty would improperly permit laid-off employees
who may never work again for the Employer to vote
in the election.
Alternatively, the Employer argues that even if the
Board adheres to the Daniel/S. K. Whitty formula, the
evidence does not support application of the formula
here, because the record fails to show policies under
which terminated employees had customarily been re-
employed on the Employer’s subsequent projects.
The Petitioner argues that the Board should return to
the formula in Daniel and overrule S. K. Whitty. Ami-
cus AFL–CIO argues that eligibility should be deter-
mined by the Daniel formula for all construction in-
dustry elections unless it is shown that an employer
does not hire a substantial portion of its employees on
an intermittent basis. The AFL–CIO also proposes that,
should the Board conclude that the Daniel formula
gives insufficient weight to the interests of future em-
ployees, it should simply expand the Daniel formula to
add employees who have a recent history of reemploy-
ment.
II. DISCUSSION AND CONCLUSION
The Regional Director applied the Daniel/S. K.
Whitty formula to this Employer because she consid-
ered the Employer’s ‘‘sporadic’’ employment patterns
to be typical of the construction industry. Because the
Regional Director also found that the Employer had a
‘‘relatively stable work’’ force, we granted review to
determine what eligibility formula, if any, should be
applied. We then broadened our inquiry to consider the
additional questions set forth in the notice announcing
the oral argument. After a careful review of the record,
including the briefs and oral argument by the parties
and amici, we have decided to: (1) continue use of an
eligibility formula in the construction industry; (2) re-
turn to the Daniel formula; and (3) apply the formula
to virtually all construction employers.
A. Use of a Formula
We continue to believe that a formula is necessary
and appropriate for determining eligibility in the con-
struction industry. The construction industry is dif-
ferent from many other industries in the way it hires
and lays off employees. We recognized these dif-
ferences in the first Daniel decision and again in our
decisions modifying the Daniel formula when we stat-
ed that construction employees may experience inter-
mittent employment, be employed for short periods on
different projects, and work for several different em-
ployers during the course of a year. Daniel, 133 NLRB
at 267; Daniel, 167 NLRB at 1079; S. K. Whitty, 304
NLRB at 777. We also have recognized the fluctuating
nature and unpredictable duration of construction
projects. See generally Clement-Blythe Cos., 182
NLRB 502 (1970). Recent cases in which we have ap-
plied the Daniel/S. K. Whitty formula belie the Em-
ployer’s argument that the industry has significantly
changed in this respect, as they all have involved em-
ployers whose employees engage in various degrees of
intermittent employment. See, e.g., Oklahoma Installa-
tion Co., 305 NLRB 812 (1991); S. K. Whitty, supra;
Wilson & Dean Construction Co., 295 NLRB 484
(1989); and Dezcon, Inc., 295 NLRB 109 (1989).
We note that numerical formulas have also proved
their worth in some sectors outside the construction in-
dustry. The common denominator in these other spe-
1325STEINY & CO.
7 Our concern over the potential for prolonged litigation and great-
er expenditure of investigative resources is heightened by the bur-
geoning number of elections in the construction industry after John
Deklewa & Sons, 282 NLRB 1374 (1987). In the years since
Deklewa, the number of construction industry elections has increased
from 199 in 1986 to 255 in 1987, 365 in 1988, 500 in 1989, and
434 in 1990. And the number of eligible voters increased from 4346
in 1986 to 11,253 in 1990. See 51–55 NLRB Ann. Reps., Appen-
dices, Table 16 (Construction).
8 Amici cite two studies of construction industry employment pat-
terns. See Northrup, Open Shop Revisited, 11, 32, 407 (1983); and
‘‘Annual Hours of Construction Workers. Analysis of Worker Char-
acteristics.’’ Construction Labor Research Council at p. 7 (1983).
The Northrup study notes the diversity of the employers in the in-
dustry while also noting that some segments of the industry are able
to maintain a more stable work force. The Labor Research Council
study similarly indicates that while there is a wide range of work
experiences, there are a sizable number of construction workers who
work close to a full year and are likely to work for one employer.
According to the study, the opposite is true of employees working
a low number of hours. Both studies, however, acknowledge that
turnover is still an element in segments of the construction labor
market. Because turnover is an indicator of sporadic employment,
neither study in our view establishes that employment in the industry
is no longer intermittent. Amicus AGC cites a third study of union-
ized construction workers which found that in the single year cov-
ered, employees on average worked for two contractors, were laid
off 1.5 times and worked 25.2 weeks per project. Mahoney and
McFillen, Univ. of Michigan Center for Construction Engineering
and Management, Unionized Construction Workers and Their Work
Environment 60 (1984). Although this study may indicate limited
intermittent employment and work for just a few contractors for the
employees surveyed, the study was limited to construction workers
in a single major midwestern city over a 1-year period and therefore,
cannot be applied to the industry as a whole. Id. at 45. In any event,
the study still confirms that construction employees even in this par-
ticular city on average work for more than one contractor and are
subject to layoffs and rehire by projects.
cial industries is a pattern of employment that does not
reflect a prevalence of employees working regular
workweeks for extended uninterrupted periods of time
with the same employer. In fact, use of a formula is
consistent with the Board’s approach when faced with
other unusual employment patterns in other special in-
dustries. Thus, the Board has used eligibility formulae
to address short-term, sporadic, and intermittent em-
ployment in American Zoetrope Productions, 207
NLRB 621, 623 (1973) (entertainment); Hondo Drill-
ing Co., 164 NLRB 416 (1967), enfd. 428 F.2d 943
(5th Cir. 1970) (oil drilling); Seaboard Terminal Co.,
109 NLRB 1095 (1954) (longshore); Berlitz School of
Languages, 231 NLRB 766 (1977) (teachers); and Avis
Rent a Car System, 173 NLRB 1366 (1968) (auto shut-
tlers). Indeed, citing American Zoetrope as one exam-
ple, the Board recognized in John Deklewa & Sons,
282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988), that in gen-
eral terms the Board is ‘‘not inexperienced in develop-
ing election rules and procedures to accommodate
short-term and sporadic employment patterns.’’ Id. at
fn. 45. Our experience in this industry and others indi-
cates that we should continue to use an eligibility for-
mula.
A formula here also satisfies the Board’s objective
of simplifying and expediting the election process and
of assuring employees ‘‘the constant availability of an
electoral mechanism for expressing their representa-
tional desires.’’ John Deklewa & Sons, 282 NLRB at
1386. If a formula is not used for this industry, the
intermittent nature of work will require the individual
determination of the eligibility status of large numbers
of laid-off employees; in this case alone approximately
155 employees have been terminated or laid off. Indi-
vidualized eligibility determinations necessarily would
result in greatly prolonged litigation without, we be-
lieve, sufficient improvement in the accuracy of our
determinations of the reasonable expectancy of the fu-
ture employment of the particular individuals involved
to warrant such an expenditure of investigative re-
sources. Because use of an all-encompassing eligibility
formula would lessen this prolonged litigation, it is
preferable in this respect to individualized determina-
tions. Any delay in the election process caused by ex-
tended litigation would be especially critical in the
construction industry because of the limited duration of
many projects. See Clement-Blythe, supra.7
Although amici AGC and ABC point to an alleged
‘‘diversity’’ of construction industry employers and
their employment patterns as an argument for individ-
ualized determinations of laid-off employees,8 we do
not find their arguments persuasive. Neither of these
amici have established that any changes in the industry
have resulted in an elimination of common denomina-
tors for the industry: intermittent employment, work
for short periods or work for different employers. Al-
though we recognize that there are variations in how
pronounced these characteristics are among employers
and employees, it does not follow that these variations
are a reason for not applying a formula at all, or for
applying the formula to some construction employers
and not to others. See section C, infra.
The Employer and amici ABC and AGC argue that
a formula enfranchises laid-off employees who may
never work again for the Employer, to the detriment
of current employees. But there is no assurance under
any method of determining eligibility that the employ-
ees found eligible to vote will continue to work for the
Employer for a significant period after the election.
Even eligible employees working on the day of the
election may soon quit, or be discharged or laid off;
yet, their votes will determine the representation rights
of future employees. Nor, even if we were to make in-
dividual determinations with respect to the likelihood
of recurrent employment of each employee not cur-
rently working, would those determinations be guaran-
teed to be foolproof. An election necessarily occurs at
a single moment in an employer’s otherwise fluid work
force history. A formula serves as an easily ascertain-
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Member Devaney dissented in S. K. Whitty, as he would have
adhered to the Daniel formula. He has continued to believe that the
Daniel formula constitutes the best vehicle for determining voter eli-
gibility in the construction industry.
10 An employee could have worked for several periods to achieve
the 30 or 45 days, but this was not required; a single employment
stint would suffice.
11 None of the parties or amici suggested any viable alternative
formula. The Employer and the ABC suggested use of a formula but
only as part of the traditional test, which we have rejected. While
urging a return to the Daniel formula, the AFL–CIO suggested ex-
panding the formula to include employees who have a recent history
of reemployment, regardless of their total period of employment. Be-
cause we have decided to return to Daniel, and the AFL–CIO’s al-
ternative is not significantly different, we find no valid reason to
engraft this modification onto the familiar Daniel test.
able, short-hand, and predictable method of enabling
the Board expeditiously to determine eligibility by
adopting ‘‘a period of time which will likely insure eli-
gibility to the greatest possible number of employees
having a direct and substantial interest in the choice of
representatives.’’ See Alabama Drydock Co., 5 NLRB
149, 156 (1938). We conclude that continued adher-
ence to use of a formula in the construction industry
is not only warranted but can best meet this goal.
B. Return to the Daniel formula
We have decided to re-adopt the Daniel formula be-
cause it has proven to be an effective, efficient, and fa-
miliar means of determining voter eligibility in this in-
dustry for over 30 years. The Daniel formula provides
that, in addition to those eligible to vote under the
standard criteria, unit employees are eligible if they
have been employed for 30 days or more within the
12 months preceding the eligibility date for the elec-
tion, or if they have had some employment in those 12
months and have been employed for 45 days or more
within the 24-month period immediately preceding the
eligibility date. 133 NLRB at 267. The Daniel formula
was later clarified to exclude those employees who had
been terminated for cause or quit voluntarily prior to
the completion of the last job for which they were em-
ployed. 167 NLRB at 1081.
Very recently, in S. K. Whitty, the Board modified
the Daniel formula.9 First, the Board added a ‘‘recur-
rency’’ factor. Under Daniel it was sufficient to have
worked one period totaling at least 30 days within the
12 months immediately preceding the eligibility date,
or to have had some employment within the past year
and at least 45 total days in the 2 years preceding the
eligibility date.10 S. K. Whitty modified this formula in
two ways. First, for employees who had worked less
than 90 days, it added a recurrency factor so that the
employee must have worked for more than one period
of employment to be eligible to vote. Second, if the
employee had worked for only one period, it must
have been 90 days rather than 30 days, to demonstrate
a ‘‘sustained’’ period of employment. Id., slip op. at
7.
In S. K. Whitty we attempted to establish, through
a priori reasoning, a revised formula we believed to be
more likely to identify employees with a reasonable
expectancy of future employment. We added the recur-
rency factor because we thought Daniel was overinclu-
sive. We increased the single period of employment to
90 days because we thought 30 days might be an in-
sufficient period. But it now appears that S. K. Whitty
may have created more problems than it solved. Our
careful reconsideration of the issue now causes us to
believe our decision in Whitty may have operated un-
fairly, in practice, to deny eligibility to construction
employees who had as direct and substantial interest in
the choice of a representative as others we have en-
franchised.
For example, the retention of an employee for a sin-
gle sustained period may suggest employer satisfaction
and likelihood of recall should a layoff occur. Yet, the
S. K. Whitty modifications would deny eligibility to an
employee with up to 89 days of consecutive employ-
ment in the past year who is laid off shortly before the
election, while it would grant eligibility to an em-
ployee with a total of 30 days of employment who
meets the recurrency test by having worked a mini-
mum of two periods of employment. In this example,
the recurrency requirement would operate to deny eli-
gibility to an employee with nearly three times the
total amount of employment as the employee who
meets the recurrency requirement. Moreover, in this
example, the employee with 89 days of employment
would be denied eligibility even if he or she had
worked more recently than the recurrent employee. Al-
though the recurrency requirement represented a good-
faith effort by the Board to add a measure of reason-
able expectancy of reemployment to the Daniel for-
mula, we fear that in practice it has not taken into ac-
count the employees who, despite the absence of re-
current employment, nevertheless have a direct and
substantial interest in the selection of a representative
because of their single, long-term period of employ-
ment.
We also note that each of the parties and amici in
this case reject the modifications made to Daniel by
S. K. Whitty, albeit for different reasons. The Em-
ployer and amici ABC and AGC see S. K. Whitty as
a further extension of the use of an unnecessary eligi-
bility formula. Petitioner and amicus AFL–CIO see the
S. K. Whitty modifications as being without any foun-
dation and unnecessary in view of the 30-year use of
the Daniel formula. In any event, it is clear that all
parties and amici are dissatisfied with this S. K. Whitty
modification of Daniel.11
Our own concerns over the result of the S. K.
Whitty modifications, as well as the rejection of those
modifications by the parties and amici, have led us to
1327STEINY & CO.
12 The Board has conducted over 6000 elections in the construction
industry in the past 30 years with a minimum amount of reported
difficulty regarding eligibility. See 26–55 NLRB Ann. Reps., Table
16 (Construction).
13 Although we return to the Daniel formula, as modified, and
overrule the S. K. Whitty modification, we make one slight modi-
fication to Daniel. To avoid any confusion regarding the meaning of
the Board’s use of the term ‘‘days,’’ all references to the number
of days of employment necessary within the periods specified in the
formula will be revised to add the words ‘‘working’’ days, i.e., ‘‘30
working days,’’ and ‘‘45 working days.’’ The purpose of this change
is to make clear that if an employee works any portion of a working
day, it is counted as 1 day for purposes of the formula.
14 At oral argument, counsel for the Employer stated that the
Board did ‘‘not need rulemaking’’ to take into account the diversity
of the construction industry, that such an approach would ‘‘bog’’
down the Board and would constitute an ‘‘unnecessary approach.’’
Counsel for the AGC stated that rulemaking was ‘‘not the most de-
sirable approach . . . for the Board to take here.’’ Similarly, coun-
sel for the ABC stated that rulemaking was not needed, as it would
serve ‘‘no useful purpose.’’ Furthermore, neither the Petitioner nor
the AFL–CIO forcefully urged that the Board engage in rulemaking.
At oral argument, counsel for the Petitioner stated that rulemaking
might be an ‘‘option’’ the Board would have to pursue. In its brief,
the AFL–CIO noted that Congress had sanctioned the model of the
construction industry as one characterized by short-term, transient
employment, and that any attempt to modify that model should ‘‘re-
quire extremely strong proof developed on a record with the full op-
portunity for all parties to challenge the presentation of others.’’ The
AFL–CIO suggested that rulemaking would be of no avail to the
Employer’s, AGC’s, and ABC’s assertion that intermittent employ-
ment was no longer the norm.
15 We note that in John Deklewa & Sons, 282 NLRB at 1383,
where the Board abandoned the so-called conversion doctrine, it
pointed to the practical difficulties associated with use of the doc-
trine. More specifically, the Board noted the ‘‘complex and pro-
tracted nature’’ of the litigation necessary to demonstrate prelimi-
narily whether a work force is permanent and stable or project by
project. Id. at fn. 37, citing Construction Erectors, 265 NLRB 786
(1982).
rethink the issue, and to conclude that we should re-
turn to the Daniel formula. The Daniel formula is
well-settled, time-tested, and familiar to construction
industry employers and unions alike. It has been used
in elections and administered by the Board for over 30
years.12 It is our considered judgment that the ease of
administering the Daniel formula and the familiarity to
all concerned outweigh any perceived limitations. As
the Board noted in one of its earliest decisions estab-
lishing an eligibility formula, ‘‘absolute accuracy [in
determining eligibility] is probably unattainable here.’’
Alabama Drydock, supra at 156. As Daniel has stood
the test of time and proven to be an effective formula
for determining voter eligibility in the construction in-
dustry, we choose at this time to return to it.13
We do not disagree with our concurring colleague’s
expression of interest in ultimately utilizing the
Board’s rulemaking procedures to base future decisions
in this area on a more empirical footing. We note,
however, that, both in oral argument and in their
briefs, no party or amicus seemed particularly anxious
to engage in rulemaking as a means of studying this
issue afresh.14 And, because of the short-term duration
of most construction projects, to defer resolution of a
particular case for the relatively extended rulemaking
process is unfair to the parties in that case.
C. Breadth of Application of the Formula
We have decided that the Daniel formula is applica-
ble in all construction industry elections. We find no
reasonable, feasible, or practical means by which to
distinguish among construction industry employers in
deciding whether a formula should be applied.
Because there is admittedly some degree of variety
among construction employers and their hiring pat-
terns, any attempt to distinguish between employers re-
quires an elaborate and burdensome set of criteria to
be applied and litigated at each hearing. These criteria,
for example, must distinguish between employers who
hire project-by-project, and those who have a so-called
stable or core group of employees. The employers with
a stable group would presumably resemble industrial
employers and, perhaps, obviate the need for the Dan-
iel formula. Our experience, however, indicates that
the line between these two types of employers is not
distinct. Indeed, many employers are a hybrid of these
two models of employment. Moreover, such criteria
also would have to define the proper period for exam-
ination of the employer’s records regarding hiring and
layoff ‘‘patterns.’’ Even assuming that reasonable cri-
teria could be established, we believe the litigation re-
quired at the hearing would be an undue burden on the
parties and the Board.15
Adoption of a set of criteria for deciding whether
Daniel applies would mean, in effect, application of
yet another formula—a formula on top of a formula.
Engrafting another level of analysis onto eligibility de-
terminations in this industry would undermine our ob-
jective of simplifying and speeding the election proc-
ess.
Further, we believe this additional level of analysis
is unnecessary because application of the Daniel for-
mula itself will, to a substantial extent, answer the
question whether a particular construction employer is
similar or dissimilar to an industrial employer, or
whether it operates with or without a stable core of
employees. Thus, if no employees are eligible by vir-
tue of the formula, that shows the employer has an en-
tirely stable work force whose voter pool should not
and will not be augmented by intermittently employed
employees. On the other hand, if application of the for-
mula renders a number of other voters eligible, to that
extent it has been demonstrated that the employer hires
intermittently from a group of employees with signifi-
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 One exception to the application of the formula in the construc-
tion industry exists where the employer clearly operates on a sea-
sonal basis. See Dick Kelchner Excavating Co., 236 NLRB 1414,
1416 fn. 10 (1978). The parties also are free to stipulate not to use
the Daniel formula. Of course, all employees eligible under the
Board’s traditional eligibility standard also would be eligible.
17 That aspect of S. K. Whitty concerning whether any eligibility
formula should be applied when a construction employer has no suc-
cessful bid or committed work for the immediate future is not dis-
turbed by our decision here. Cf. Fish Engineering & Construction,
308 NLRB 836 (1992) (Member Devaney, dissenting); Davey
McKee Corp., 308 NLRB 839 (1992). 1 133 NLRB 264 (1961), as modified at 167 NLRB 1078 (1967).
cant contacts to that employer as determined by the
formula.
Use of a formula by no means excludes core em-
ployees, however that term may be defined; it simply
enfranchises employees who, although working on an
intermittent basis, have sufficient interest in the em-
ployers’ terms and conditions of employment to war-
rant being eligible to vote and included in the unit. For
these reasons, we have decided to apply the Daniel
formula regardless of the construction employer’s
method of operation.16
Accordingly, for the reasons set forth above, the eli-
gibility formula in S. K. Whitty is overruled, and the
Regional Director’s Decision and Direction of Election
is modified to apply the eligibility formula of Daniel
Construction, 133 NLRB 264 (1961), as modified, 167
NLRB 1078 (1967), and consistent with this deci-
sion.17 This case is remanded to the Regional Director
with instructions to conduct an election pursuant to her
Decision and Direction of Election as modified, except
that the payroll eligibility period shall be that period
ending immediately before the date of this decision,
and the Employer shall furnish an Excelsior list (Excel-
sior Underwear, 156 NLRB 1236 (1966)) within 7
days from the date of this decision, as otherwise de-
scribed in the Regional Director’s decision.
ORDER
It is ordered that Cases 21–RC–18897, 21–RC–
18898, and 21–RC–18899 be remanded to Region 21
for action consistent with these findings.
MEMBER RAUDABAUGH, concurring.
I concur with my colleagues’ decision to return to
the eligibility formula used in Daniel Construction
Co.1 However, I believe that the Board should engage
in rulemaking in this area. The Board applies the Dan-
iel formula to all employers in the construction indus-
try. Without a broad empirical study of employment
patterns in the industry, it is difficult to say whether
that formula is appropriate and whether there should be
some exceptions to it for certain segments of that in-
dustry. My colleagues note that the parties and amici
are not ‘‘particularly anxious’’ to engage in rule-
making. In my view, this is simply reflective of the
particular result that each organization seeks to
achieve. I believe that from an objective and neutral
standpoint, there are insufficient data to establish any
particular rule, and there are insufficient data to estab-
lish the all-encompassing rule established by my col-
leagues. However, in the absence of such a study, I
agree that the Daniel formula should be applied. It has
the advantage of historical usage and familiarity.
Hence, I concur.