R.D.
# 001-08
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
REGION 22
|
K-T MARINE, INC. Employer and CASE NO. 22-RC-12911 DOCKBUILDERS, SHORERS, PILEDRIVERS, DIVERS, TENDERS AND FOUNDATION & MARINE CONSTRUCTORS, Local Union
#1456 Petitioner |
DECISION AND DIRECTION OF ELECTION
I. INTRODUCTION
As described more fully below, I
will direct an election in Case 22-RC-12911 in a unit of all the Employer’s general
labor employees.
On April 15, 2008, the Petitioner
filed a petition under Section 9(c) of the National Labor Relations Act, as
amended, seeking to represent a unit of full-time and regular part-time
dockbuilders, pile drivers, divers, tenders and marine foundation workers
employed by the Employer at its Perth Amboy, New Jersey facility, excluding operating
engineers, laborers, truck drivers, office clerical employees, guards and supervisors
as defined in the Act.
A hearing
on the petition was conducted on May 6, 2008.
Pursuant to the provisions of
Section 3(b) of the Act, the Board has delegated its authority in this
proceeding to the undersigned. Upon the entire record,[1] I find:
1. The hearing
officer's rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
2. The Employer is
engaged in commerce within the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.[2]
3. The labor
organization involved claims to represent certain employees of the Employer.[3]
4. A question
affecting commerce exists concerning the representation of certain employees of
the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of
the Act.
5. The following employees of the Employer
constitute an appropriate unit for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act for the reasons described below:
All full-time and regular part-time general labor employees including dockbuilders,
pile drivers, divers, tenders, marine foundation workers, operating engineers, shop
hands and truck drivers employed by the Employer at its Perth Amboy, New Jersey
facility, excluding office clerical employees, professional employees, guards
and supervisors as defined in the Act.[4]
II. CONTENTIONS
OF THE PARTIES
The parties
disagree with regard to the eligibility of nine (9) individuals. The Petitioner
contends that five of these individuals, Derrick Plunlett, Douglas Wolfe, Douglas
Wolfe, Jr., James Lebansky and Wayne Conroy, should be excluded from the unit because
they are operating engineers who perform a separate craft. The Petitioner also contends that Hilario Soto
should be excluded because he is a shop hand who does not share a sufficient
community of interest with the employees in the sought after unit. Further, the Petitioner contends that three
individuals, Kaziminer Augustyn, Sydney Lawrie and Thomas Hoffman, should be
excluded from the unit because they are
supervisors.
The Employer
contends that all nine individuals are field personnel who share a community of
interest with the other general labor employees the Petitioner seeks to
represent. In addition, regarding the
individuals who the Petitioner asserts are supervisors, the Employer maintains
they are working foremen who are not supervisors within the meaning of Section
2(11) of the Act, and thus should be included in any unit found appropriate by
the Board.
Petitioner
has expressed its desire to proceed to an election in any unit found
appropriate.
III. FACTS
The Employer is a general marine construction
contractor, engaged in the business of dockbuilding and performing various
general contracting functions - salvage work, marine towing work, pile driving
work, maintenance and new construction primarily on the waterfront in the
Tri-state area. The Employer is engaged
in approximately 100 marine construction projects a year.
There are 26
individuals on the Employer’s payroll, including its two owners, John Brown and
Bruce Edmonds, its two office workers, and its two admitted statutory supervisors,
Arthur Edmonds and James McHeffey, who carry the title of Job Superintendent. The remaining 20 individuals do not carry
specific titles, but rather, are hired with the expectation that they will
perform various functions for the Employer, as needed and as their skills
allow. The Employer categorizes these 20
employees as general labor employees.
The record
reveals that the majority of these employees’ work time is spent in the field
on jobsites, though they also will perform work at the Employer’s shop as
needed or when work is slow. In the case
of Hilario Soto, the breakdown is closer to 50-50. When in the field, they are
assigned to crews by the Job Superintendents, with each crew being assigned a
working foreman. The makeup of each crew
changes from day to day based on the requirements of the jobsite, with the Job
Superintendents being charged with assembling crews with the necessary skills
for the day’s assignment, be it welding or machine operation, or something else.
Although
the employees are assigned to different crews for each job site, the Employer
employs its employees on a long-term, not on a job, basis. Employees with multiple skills are considered
the most valuable, and a number of employees have developed some of their
skills over the course of their employment with the Employer, having been hired
without those skills. All employees are
expected to and do participate in whatever job functions are required at a
particular job site.
The
Employer uses many types of equipment in its field operations, including
cranes, piledrivers, air compressors, air hammers, welding machines,
generators, track excavators, hanging box leads, hydraulic power pack units and
a small aluminum work boat. The Employer
also uses equipment in its yard, including a fork truck, a rubber tire loader,
a backhoe and a dump truck. Though not
every employee has operated every piece of equipment, every employee has
operated at least the air compressor, the hydraulic power pack unit, the fork
truck and the boat. This is true both of
the employees Petitioner seeks to exclude as operating engineers as well as
those it does not.
For
example, Doug Wolfe, whom Petitioner seeks to exclude as an operating engineer,
and who frequently operates the crane, also operates the backhoe, the tractor
trailer and the air compressor. Another
operating engineer, James Lebansky, runs the backhoe, the dozer loader and the
boat. Similarly, operating engineer
Wayne Conroy runs the air compressor, the power pack unit and the backhoe and spends
as much as 25% of his time driving the boat. Indeed, no employee is exclusively assigned to
only operate equipment, or to only operate certain pieces of equipment. The operating engineers are expected to
perform the other functions of the Employer’s operations, whether in the field
or at the shop.
At the same
time, employee Curt Fuerstenberger, who Petitioner does not label an operating
engineer, has operated the crane, as well as the fork truck, the backhoe, and
the track excavator. Working foreman Sydney
Lawrie also runs the boat. Hilario Soto,
the shop hand, operates the fork truck, the loader and the dump truck. Splitting time in the field and at the yard,
Soto assists and works alongside both the petitioned-for unit employees and the
operating engineers.
Among the functions
performed by the Employer in its field operation is pile driving, which
requires employees to work in tandem to accomplish the task. Typically, this would involve a crew of four
to five employees, consisting of a person in the crane, a person starting and
stopping the air hammer, a person directing the hose, and a person to spot the
piling. Though not every employee can
operate a crane, nearly every employee has worked in one or more of the other
roles on a pile driving job for the Employer. Pile driving, a critical function of the
Employer’s operations, cannot be accomplished without the collaboration of
employees filling these various roles together.
The Job
Superintendents spend large portions of each day in the field at the sites, and
on most job sites they assign one of the crew members to be foreman. Most often, the employees chosen to be foremen
are Sidney Lawrie, Kazimierz Augustyn and Thomas Hoffman, though as many as ten
different employees have filled this role. The Job Superintendents provide the foremen with
work directions, instructions and assignments for the job site at the start of
each day, and when not on site, remain in close telephone contact with the
foreman throughout the day. The record
revealed that working foremen have no authority or responsibility for hiring,
firing or making other decisions concerning terms and conditions of work.
The Employer maintains the same
personnel policy for all of the general labor employees, including the working
foremen. Each is paid hourly and receives time and a half when working over 40
hours during a week. All are subject to
the same sick day, vacation day, and holiday pay policies. Each has the same eligibility and contribution
rates for the Employer’s health plan and its 401(k) retirement plan. When the Employer conducts meetings and/or
holds training for its employees, all the general labor employees are included.
All of the employees work out of
IV. ANALYSIS
Section 9(b) of the Act confers
upon the Board the discretion to establish a unit appropriate for collective
bargaining and to decide whether such unit shall be an employer unit, craft
unit, plant unit or subdivision thereof.
A craft unit is defined as consisting of a distinct and homogenous group
of skilled journey persons who are primarily engaged in the performance of
tasks that are not performed by other employees and that require the use of
substantial craft skills and specialized tools and equipment.
Burns and Roe Services Corp., 313 NLRB 1307, 1308 n.6 (1994) citing Phoenician, 308 NLRB 826 (1992).
To
determine whether a petitioned-for unit constitutes a separate craft, the Board
examines various factors including: (1) whether the petitioned-for unit
employees participate in a formal training or apprenticeship program; (2)
whether the work is functionally integrated with the work of the excluded
employees; (3) whether the petitioned-for employees’ duties overlap with the
duties of the excluded employees; (4) whether the employer assigns work
according to need rather than along craft lines; and (5) whether the
petitioned-for employees share common interests with other employees, including
wages, benefits and cross-training.
It is well established that
the Act requires only that a petitioner seek an appropriate unit, and not the
most appropriate or comprehensive unit. See Capital
Bakers, 168 NLRB 904 (1967); Morand
Brothers Beverage Co. 91 NLRB 409, enf’d,
190 F. 2d 576 (7th Cir. 1950).
In determining whether a unit is appropriate, the Board first considers
the union's petition and whether the unit sought is appropriate. Overnite
Transportation Company, 322 NLRB 723 (1996). A petitioner's desire concerning the
composition of the unit which it seeks to represent constitutes a relevant
consideration. Marks Oxygen Company of
Nevertheless, for a bargaining unit
to be appropriate, it has to be based on a community of interest shared by the
employees. Nomenclature notwithstanding,
what sought after employees do, how functionally integrated it is with what
other employees do, and the commonality of the conditions under which they work
are essential in establishing a community of interest. The unit to be established has to fit the
facts and not vice versa, Kalamazoo Paper
Box Co., 136 NLRB 134 (1962).
The Board generally
attempts to select a unit that is the “smallest appropriate unit” encompassing
the petitioned-for employee classifications.” Overnite Transportation Co., 331 NLRB 662 (2000). In the
circumstances here, I find that the operating engineers,
along with the shop hand, share a community of interest with the petitioned-for
unit. Dick Kelchner Excavating
The
Employer’s operations require a significant level of functional integration that
leads to my conclusion that the unit here should include all general labor
employees. The pile driving example is
instructive, demonstrating the degree to which employees whether sought or not
by the Petitioner work in tandem to accomplish the job. Combined with the evidence of overlapping job
functions, including operating engineers performing tasks other than machine
operation, and non-operating engineers performing work up to and including
crane operation, I find that the unit sought by the Petitioner cannot stand
alone. In reaching this conclusion, I
have noted that there is insufficient evidence that operating
engineers participate in a formal training or apprenticeship program, that
their work is functionally integrated with and they share overlapping duties
with the work of the other sought after employees, that the employer assigns
work according to need rather than along craft lines, that they share common
supervision and that they share a community of interest with other employees
with regard to terms and conditions of employment.
Based upon
the above and the record as a whole I find, therefore, that the appropriate unit
must include not only the general labor employees sought, but also the
operating engineers and the shop hand.[5]
B. The Supervisory Status of the “Working Foremen”
I find that
the Petitioner has not sustained its burden to show that the individuals it
identifies as working foremen are supervisors.
Section 2(11) of the Act defines a supervisor as:
Any individual having authority, in the interest of the employer, to hire,
transfer, suspend, layoff, recall, promote, discharge, assign, reward or
discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.[6]
As the
Board has noted in numerous cases, the statutory indicia outlined in Section
2(11) are listed in the disjunctive; only one need exist to confer supervisory
status on an individual. See, e.g.,
finding’ of
supervisory status under the Act.”
The
Board’s Oakwood trilogy decisions[7] clarified the circumstances in which it will
find that individuals exercise sufficient discretion in performing two of the supervisory
functions listed in Section 2(11) – assignment and responsible direction of
work. In addition to defining critical
terms, the Board concluded that assignment and responsible direction must have “a material effect on the employee’s terms and conditions
of employment” in order to confer supervisory status. Oakwood
Healthcare, 348 NLRB No. 37, slip op. at 10.
In Oakwood, the
Board construed the term “assign” as “the act of designating an employee to a
place (such as a location, department or wing), appointing an employee to a
time (such as a shift or overtime period), or giving significant overall
duties, i.e., tasks, to an employee.”
In Oakwood, the Board explained “responsible direction” as follows:
“If a person on the shop floor has men under him, and if that person decides
what job shall be undertaken next or who shall do it, that person is a
supervisor, provided that the direction is both ‘responsible’. . . and carried
out with independent judgment.”
Assignment
or responsible direction will produce a finding of supervisory status only if
the exercise of independent judgment is involved. Independent judgment will be found where the
alleged supervisor acts free from the control of others, is required to form an
opinion by discerning and comparing data, and makes a decision not dictated by
circumstances or company policy.
The
legislative history instructs the Board not to construe supervisory status too
broadly, because an employee who is deemed a supervisor loses the protection of
the Act.
The Petitioner claims that three individuals - Kazimierz Augustyn,
Sidney Lawrie and Thomas Hoffman - should be excluded from the petitioned-for
unit based on the testimony of its witness, Martin Coffeen, a former employee who
worked for the Employer from February to April 2007. According to Coffeen, both Augustyn and
Hoffman had made a comment to him that they were going to send him to the
office for discipline. It is undisputed
that Coffeen was not disciplined. Notably,
Coffeen did not testify that either of these individuals, or Lawrie, ever
disciplined him or anyone else, or that any of these three exercised any of the
other indicia of supervisory authority.
The Petitioner, which asserts that these individuals are statutory
supervisors and therefore bears the burden of proving supervisory status,
presented no evidence that these three adjusted the grievances of employees as
supervisors, held themselves out to employees as such or were perceived as
supervisors by other employees. Accordingly, based upon the
foregoing and the record as a whole, I find that the individuals identified as
working foremen are not supervisors as defined by the Act and I shall include
them in the unit found appropriate.[8]
V. DIRECTION
OF ELECTION[9]
An election by secret ballot shall be conducted by the
undersigned among the employees in the unit found appropriate at the time and place set forth
in the notice of election to issue subsequently, subject to the Board's Rules
and Regulations. Eligible to vote in the
election are those in the unit who are employed during the payroll period
ending immediately preceding the date of this Decision, including employees who
did not work during that period because they were ill, on vacation, or
temporarily laid off. Employees engaged
in an economic strike who have retained their status as strikers and have not
been permanently replaced are also eligible to vote. In addition, in an
economic strike that commenced less than 12 months before the election date,
employees engaged in such strike that have retained their status as strikers
but who have been permanently replaced, as well as their replacements, are
eligible to vote. Unit employees in the
military services of the United States Government may vote if they appear in
person at the polls. Ineligible to vote
are (1) employees who have quit or been discharged for cause since the
designated payroll period; (2) striking employees who have been discharged for
cause since the strike began and who have not been rehired or reinstated before
the election date; and (3) employees engaged in an economic strike which
commenced more than 12 months before the election date and who have been
permanently replaced. Those eligible shall
vote whether or not they desire to be represented for collective bargaining
purposes by Dockbuilders, Shorers,
Piledrivers, Divers, Tenders and Foundation & Marine Constructors, Local
VI.
LIST OF
VOTERS
In order to
ensure that all eligible voters may have the opportunity to be informed of the
issues in the exercise of their statutory right to vote, all parties in the
election should have access to a list of voters and their addresses which may
be used to communicate with them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966); NLRB
v. Wyman-Gordon Company, 394
In the Regional Office's initial
correspondence, the parties were advised that the National Labor Relations
Board has expanded the list of permissible documents that may be electronically
filed with its offices. If a party
wishes to file one of the documents which may now be filed electronically,
please refer to the Attachment supplied with the Regional Office's initial
correspondence for guidance in doing so. Guidance for E-filing can also be
found on the National Labor Relations Board web site at www.nlrb.Gov . On the home page of the website, select the E-Gov tab and click on E-Filing. Then select the NLRB office for which you
wish to E-File your documents. Detailed
E-filing instructions explaining how to file the documents electronically will
be displayed.
VII. RIGHT
TO REQUEST REVIEW
Under the
provision of Section 102.67 of the Board's Rules and Regulations, a request for
review of this Decision may be filed with the National Labor Relations Board,
addressed to the Executive Secretary,
Signed at
/s/
J. Michael Lightner
_______________________________
J.
Michael Lightner, Regional Director
NLRB
Region 22
Fifth
Floor
[1] In
support of its position, the Petitioner relies on the August 23, 2007 Decision
and Direction of Election in Structural Preservation Systems LLC, 22-RC-12793,
which it submitted in lieu of a brief. The Petitioner’s submission and the brief
filed by the Employer have been duly considered.
[2] The Employer is a New Jersey Corporation
engaged in general marine construction at its
[3] The parties stipulated, and I find, that the
Petitioner is a labor organization within the meaning of Section 2(5) of the
Act.
[4] There
are approximately 20 employees employed in the unit.
[5] By
including the shop hand in the unit found appropriate, I note that were the
shop hand to be excluded from the unit, he would be left to stand alone in a
potential unit of one, thereby stripping him of the possibility of obtaining collective
bargaining rights through a Board conducted election.
[6] Section 2(11) of the Act sets forth a
three-part test for determining supervisory status. Employees are statutory supervisors if they
hold the authority to engage in any of the 12 listed supervisory functions;
their "exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment;" and their authority
is exercised "in the interest of the employer." NLRB v.
Kentucky River Community Care, Inc., et al., 532
[7] See
cases cited in ftn. 6 above.
[8] Petitioner’s
reliance on a previous Decision issued by this Office in Structural Preservation Systems, LLC, Case 22-RC-12793 (R.D. #
010-07) is misplaced as there, unlike here, there was evidence supporting the
conclusion that operating engineers were traditional craft employees and, most
significantly, another labor organization which traditionally represents such
craft employees petitioned to represent them in a separate unit.
[9] As
indicated above, Petitioner has expressed its desire to proceed to an election
in any unit found appropriate. As the
unit found appropriate is larger than that petitioned for, the Petitioner is
accorded a period of 14 days in which to submit the requisite showing of
interest, if necessary, to support an election.
In the event the Petitioner does not wish to proceed to an election, it
may withdraw its petition without prejudice by notice to the undersigned within
seven (7) days from the date of the Decision and Direction of Elections. Folger’s
Coffee, 250 NLRB 1 (1980).