W. P. Butler Co.

National Labor Relations Board - Board Decisions

Nov 19, 1974

214 N.L.R.B. 1039 (N.L.R.B. 1974)

W. P. BUTLER COMPANY
W. P. Butler Company and International Union of
Operating Engineers , Local 18, AFL-CIO, Peti-
tioner . Case 9-RC-10622
November 19, 1974
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 16, 1974, the Regional Director for
Region 9 issued a Decision and Direction of Election
in the above-entitled proceeding wherein he directed
an election in a unit of all heavy equipment operators
and mechanics employed at the Employer's Erlanger,
Kentucky, facility, including certain dual-function
employees, but excluding all office clerical employ-
ees, administrative employees, and all other employ-
ees. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board's Rules and Re-
gulations, Series 8, as amended, the Employer filed a
timely request for review of the Regional Director's
decision on the grounds that, in including employees
Stewart, Tewes, and Conley in the unit, he departed
from precedent and made findings of facts which are
clearly erroneous.
By telegraphic order dated September 12, 1974, the
request for review was granted and the election was
stayed pending decision on review. Thereafter, the
Petitioner and the Employer filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Employer is engaged in the general construc-
tion industry and employs approximately 19 employ-
ees, 12 or 13 of whom work only as mechanics or
heavy equipment operators. The Petitioner contends,
and the Regional Director agreed, that the requested
unit of all heavy equipment operators and mechanics
should include employees Conley, Tewes, and Stew-
art because they spend a substantial amount of time
devoted to unit work and thereby share a substantial
community of interest with heavy equipment opera-
tors and mechanics. The Employer contends that the
three should be excluded because they are predomi-
nantly engaged in other functions. We find merit in
the Employer's contention.
Troy Conley spends approximately 58 percent of
his time as a truckdriver, either driving fuel trucks to
the locations of various pieces of equipment where he
1039
transfers the fuel into the machinery or driving to
pick up parts which the mechanics need. He also
spends 22 percent of his time performing general la-
bor such as seeding soil, laying pipe, and cleanup
work. Only 20 percent of his time involves greasing
the Employer's equipment. Edward Tewes either
drives a dump truck or performs general labor 83
percent of the time and spends only 17 percent of his
time assisting mechanics or operating a piece of
heavy equipment called a "roller." Paul Stewart
spends approximately 74 percent of his time either
driving the large flatbed truck used to transport the
Employer's heavy equipment from one site to anoth-
er or performing general labor. Only 26 percent of
his time is used to operate a Pitman crane and a
small dozer or to assist the mechanics.
The three disputed individuals share common su-
pervision with the mechanics and heavy equipment
operators, receive the same fringe benefits, are paid
in the same manner, and work the same hours as
mechanics and heavy equipment operators, and on
occasion perform their functions. However, the
Board stated in R. B. Butler' that, "[i]n the construc-
tion industry, collective bargaining for groups of em-
ployees identified by function as well as those groups
identified by craft skills has proven successful and
has become an established accommodation to the
needs of the industry and of the employees so en-
gaged." Thus, as in the case of craft units, the units
of heavy equipment operators and laborers in the
construction industry, based as they are upon the
function performed, are composed only of employees
predominantly engaged in the function.' Therefore,
as Conley, Tewes, and Stewart are predominantly en-
gaged in functions other than the operation and
maintenance of heavy equipment in the Employer's
construction operations, we shall, contrary to the Re-
gional Director, exclude them from the unit, as de-
scribed below:
All heavy equipment operators and mechanics
employed by the Employer who work in and out
of its Erlanger, Kentucky, location, but exclud-
ing all office clerical employees, administrative
employees , truckdrivers , laborers, all other em-
ployees and all professional employees , guards
and supervisors as defined by the Act.'
Accordingly, we shall remand the case to the Re-
gional Director in order that he may conduct an elec-
1 R B Butler, Inc, 160 NLRB 1595, 1599 (1966)
2 See R B Butler, Inc, supra, 1600, In 16, Hydro Constructors Incorporat-
ed, 168 NLRB 105 (1967), and New Enterprise Stone & Lime Company, Inc
and Blair Bedford Paving Company, 172 NLRB 2157 (1968)
J The unit description accords with the parties ' stipulation at the hearing
214 NLRB No. 91
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion pursuant to his Decision and Direction of Elec- payroll period therefor shall be that immediately pre-
tion , as modified herein, except that the eligibility ceding the date of this Decision on Review. [Excels-
ior footnote omitted from publication.]