Vaughn & Taylor Construction Co., Inc.

National Labor Relations Board - Board Decisions

May 24, 1956

115 N.L.R.B. 1404 (N.L.R.B. 1956)

1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vaughn & Taylor Construction Co., Inc., Petitioner and Inter-
national Union of Operating Engineers , Hoisting & Portable
Local No. 627 and International Union of Operating Engineers,
Local No. 101 and United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Steam and Refrigeration Fitters
Local No . 344 and United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Pipeliners Local Union 798.1 Cases
Nos. 16-RM-97, 16-RMM1-102, 16-RM-100, 16-RM-98, 16-RM-99,
and 16-RM-101. May 24, 1956
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 ( c) of the National Labor
Relations Act, a consolidated hearing was held before Lewis A. Ward,
hearing officer . The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Operating Engineers moved to dismiss the petitions in Cases
Nos. 16-RM-97,16-RM-100, and 16-RM-102 on the ground of contract
bar. For reasons stated hereinafter , the motion is hereby denied.
The Operating Engineers urges two sets of agreements as a bar to this
proceeding . The first of these is entitled an "Agreement between
the International Union of Operating Engineers and the Main Pipe-
line Contractors," and is dated September 1, 1949. It is signed by the
Operating Engineers, the Employer , and a number of other contractors
who, it was conceded , were then members of a multiemployer associ-
ation known as the Pipeline Contractors Association . The contract
was not signed by the Association , but bears the individual signatures
of the several contractor members. It is to continue in effect until
January 1 , 1951, and thereafter from year to year absent 60 days'
notice to terminate . The second agreement asserted as a bar is be-
tween the Operating Engineers and the "Pipeline Contractors Asso-
ciation, its contractor members and such other mainline pipeline con-
tractors who execute an acceptance " of its terms 2 It is signed only by
3 The unions are hereinafter respectively referred to as the Operating Engineers, the
Fitters, and the Pipeliners.
A Attached to the contract is a form letter of acceptance with blanks provided for the
signatures of representatives of the "Company" and of the Operating Engineers. Pre-
sumably , a contractor not a member of the Association wishing to execute the agreement,
need only sign one of these form letters to become bound by the terms of the contract.
115 NLRB No. 226.
VAUGHN & TAYLOR CONSTRUCTION CO., INC. 1405
the Operating Engineers and by the Association. None of the pipe-
line contractors appear to have individually signed this agreement. It
is effective until May 31, 1955, and has the same termination provision
as the earlier contract. The two agreements cover the same classifica-
tions of employees and the same type of work, consisting of the con-
struction and installation of main pipelines. The later agreement
in addition covers work on gathering systems.
In answer to the Operating Engineers' contract-bar contention,
the Employer takes the position that it is bound by neither contract
because of its withdrawal from the Association. According to the
uncontradicted testimony of the Employer's secretary-treasurer, the
Employer withdrew from the Association in 1951 or 1952, and at some
undisclosed time thereafter, was formally advised that it had been
stricken from the rolls of the Association for failure to renew its
annual membership. The Employer's witness futher testified that the
1949 agreement was the only contract the Employer had ever signed
covering any of its employees, and that it never thereafter entered into
a new agreement with the Operating Engineers. The union submitted
no evidence to rebut these assertions or to show that the Employer
ever became, in any manner, a party to the 1953 contract.
In these circumstances, and particularly in view of the fact that
both contracts purport to cover the same classifications of employees
and generally the same type of work, we find that the 1949 agreement
has been superseded by the more recent contract and is no longer in
effect. We are likewise satisfied, in view of the uncontroverted evi-
dence, that the Employer has never been bound by the 1953 agree-
ment.' We find, therefore, contrary to the Operating Engineers'
contention, that neither contract can operate as a bar to a present de-
termination of representatives .4
Accordingly, we find that questions affecting commerce exist con-
cerning the representation of employees of the -Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer's employees are presently working at two separate
locations, Lindsay, Oklahoma, and Hardtner, Kansas.' The Employer
filed six separate petitions, in each case seeking an election at one or
8 Pacific Metals Company, Ltd., et al., 91 NLRB 696.
* As set forth above, the 1949 contract appears to have been an agreement entered into
by the Operating Engineers with an employer association, embodied in a single document
signed by all the various employers. The Operating Engineers nevertheless asserted at
the hearing that this contract constitutes the individual obligation of this Employer. The
facts as to the issue thus raised were not litigated. Assuming, as contended by the Oper-
ating Engineers, that the Employer's separate signature may have bound it individually
to this contract, the record discloses that, in any event, the Employer filed its petitions on
November 1, 1955, 1 day before this contract's current Mill B date of November 2, thereby
precluding the contract from serving as a bar to these proceedings. Bethlehem Pacific
Coast steel Corporation, 114 NLRB 1197,
8 The Employer is also engaged in construction work at Perryton, Texas. This opera-
tion is not involved herein.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-the other of these two construction sites among the employees in a
particular craft group claimed to be represented by one of the several
labor organizations here involved. At the hearing the Employer
moved, without objection, to amend its unit requests from craft units
on a separate job-site basis to craft units on a companywide basis.
As amended, the petitions are for three separate units composed of
the classifications claimed to be represented by the Operating Engi-
neers, the Pipeliners, and the Fitters respectively.
At the hearing, the Employer and the Operating Engineers stipu-
lated as to the appropriateness of a companywide unit of operators of
various machines and other mechanical equipment. The Employer
and the Pipeliners entered into a similar stipulation with respect to a
unit of welders and related categories. The Fitters would not agree
to a companywide unit because of its limited territorial jurisdiction
which, although encompassing the Employer's Lindsay operations,
does not extend beyond 34 counties in the State of Oklahoma. In these
circumstances, the Employer requested permission to withdraw its
petition in Case No. 16-RM-98, which request was referred to the
Board in view of the fact that the Fitters was actively picketing
the Lindsay project at the time of the hearing. No ruling having
been made on the request for withdrawal, the Employer and the Fit-
ters tentatively agreed that a unit made up inter alia of the Employer's
welders, and confined to the Fitters' territorial jurisdiction, might be
appropriate for the purposes of collective bargaining. The proposed
unit, then would include such of the Employer's employees, in the
agreed categories, as are presently employed at the Lindsay, Okla-
homa, project.
The Fitters' failure to agree to a companywide unit has thus raised
an issue concerning the scope of the unit in this case, which issue, how-
ever, was not specifically litigated at the hearing. Although the
- Fitters opposed the establishment of the broader unit on the sole
ground of its own jurisdictional inhibitions,6 it offered no positive
evidence in support of its unit contention. On the other hand, the
bargaining history disclosed by the record shows that the Employer's
employees have been bargained for under contracts as part of
Employerwide or multiemployer units. On this state of the record,
and in the absence of any substantial factors indicating the appropri-
ateness of separate units at each of the Employer's operations, we find,
in accord with the previously existing pattern of bargaining, that
companywide units are appropriate for the purposes of collective bar-
gaining in this case, and hereby grant the Employer's request to with-
9 The Board has consistently refused to accord controlling weight to the Surisdictional
limitations of a union in making its unit determinations . Jewel Food Stores, 111 NLRB
:1368; cf. The Heating, Piping A Air Conditioning Contractors, 110 NLRB 261.
VAUGHN & TAYLOR CONSTRUCTION CO., INC. 1407
draw its petition in Case No. 16-RM-98 without prejudice. However,
as the Fitters was picketing the Employer's Lindsay operations, and
as it has indicated an interest in representing the Employer' s welders
employed at that location, we shall place its name on the ballot in the
election for the welders' unit hereinafter found appropriate?
Accordingly, we find, in accord with the stipulations of the parties,
that the following groups of employees of the Employer whose main
office is located at Odessa, Texas, constitute separate appropriate units
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act :
(a) Operators of trenching machines, boom cats, bulldozers, back
fillers, cleaning and doping machines, backhoes, draglines, cranes and
other shovel type machines, and mechanics; operators of bending ma-
chines, tow cats, gin trucks, dope pots, power agitators, small pumps,
welding machines, air compressors, greasers and fuel trucks, and
mechanic helpers, oilers, or swampers on trench machines and shovel
type equipment, but excluding all other classifications, office and
clerical employees, professional and technical employees, guards, and
supervisors as defined in the Act.
(b) Welders, welders' helpers, stabbers, spacers, and clamp men, but
excluding all other classifications, office and clerical employees, profes-
sional and technical employees, guards, and supervisors as defined in
the Act.
5. It was indicated at the hearing that a strike at both of the
Employer's establishments started on or about October 12, 1955, and
that several of the strikers have been permanently replaced. The
Pipeliners and the Fitters contend that only the employees working
during the week ending before the strike should be permitted to vote.
No unfair labor practice charges having been filed by any of the
parties herein, we find no merit in this contention. It is well estab-
lished that economic strikers lose their right to reinstatement upon
being permanently replaced in a specific job.' In accordance with that
principle, we shall adhere to our usual practice of determining voting
eligibility by employment during the payroll period immediately pre-
ceding the date of issuance of the Decision and Direction of Electidn.B
We shall permit all strikers and all persons hired since the date of the
strike to vote subject to challenge, as the record is incomplete as to
their eligibility to vote.
[Text of Direction of Elections omitted from publication.]
I Should the Fitters not wish to participate in the election , it may upon prompt request
to, and approval by, the Regional Director , have its name removed from the ballot in ac-
cordance with Section 102 61 of the Board ' s Rules and Regulations.
e John W. Thomas Co, 111 NLRB 226
0 Walterboro Manufacturing Corporation , 106 NLRB 1383.