Davey McKee Corp.

National Labor Relations Board - Board Decisions

Sep 17, 1992

308 N.L.R.B. 839 (N.L.R.B. 1992)

839
308 NLRB No. 114
DAVEY MCKEE CORP.
1 All dates are 1992 unless otherwise indicated.
Davey McKee Corporation and United Association
of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the U.S. and
Canada, Local 469; Arizona State District
Council of Carpenters, including Millwrights,
Local 1914; International Brotherhood of Boil-
ermakers, Blacksmiths, Forgers and Helpers,
AFL–CIO, Local 627; Operative Plasterers and
Cement Masons, Local 394; International Asso-
ciation of Heat and Frost Insulators and Asbes-
tos Workers, Local 73; Operating Engineers,
Local 428; International Association of Bridge,
Structural and Ornamental Iron Workers,
Local 75; Painters Local Union No. 86; Con-
struction, Production and Maintenance Labor-
ers Union Local 383; Sheet Metal Workers’
International Association, Local Union No. 359,
AFL–CIO, Joint Petitioner. Case 28–RC–4996
September 17, 1992
ORDER DENYING REVIEW
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The Board has delegated its authority in this pro-
ceeding to a three-member panel, which has considered
the Joint Petitioner’s request for review of the Re-
gional Director’s Decision and Order (pertinent por-
tions of which are attached as an Appendix). The re-
quest for review is denied as it raises no substantial
issues warranting review.
APPENDIX
The Joint Petitioner in its amended petition seeks to rep-
resent a collective-bargaining unit consisting of all construc-
tion employees employed by the Employer at all projects
within the State of Arizona and the entire Navajo Reserva-
tion, excluding all other employees, clericals, supervisors and
guards as defined by the Act.
The Employer is a Delaware corporation engaged in the
construction, contracting, and engineering industry. At the
time of the hearing, the Employer was engaged as a general
contractor on two construction projects within the geographi-
cal area covered by the unit description for the El Paso Natu-
ral Gas Company. One of the projects known as the Window
Rock Project is located near St. Michaels, Arizona. The other
construction project, known as the Navajo Compressor Sta-
tion (the Navajo Project), is located at Chambers, Arizona.
Both projects involve the retrofitting of existing gas com-
pressors in order to boost gas production. Portions of the
projects were subcontracted to various subcontractors. At the
time of the hearing, the Employer employed approximately
fifty hourly and craft employees at each of the two sites.
The Employer contends that the petition should be dis-
missed because of the imminent cessation of both projects
scheduled for March 6, 1992,1 and because a representative
complement of employees does not exist within the unit
sought. In the event an election were nevertheless directed,
the Employer argues that the construction voter eligibility
rules enunciated by the Board in S. K. Whitty & Co., 304
NLRB 819 (1992), would not be applicable since the Em-
ployer does not have ongoing operations in the geographical
area encompassed by the petition, and because the current
employees do not have a reasonable expectation of future
employment.
The Joint Petitioner contends that the only issue in this
proceeding is whether the Employer will be likely to be per-
forming work within the ambit of the petitioned-for unit sub-
sequent to March 6, the currently scheduled completion date.
In this regard, the Joint Petitioner asserts that the record evi-
dence fails to establish that the Employer will complete the
two current projects by their scheduled March 6 completion
date; and, that the record evidence, instead, demonstrates the
likelihood that the Employer will continue to perform con-
struction work on other projects employing petitioned-for
unit employees.
The record establishes that the Employer entered into two
separate construction contracts on August 15, 1991, with the
El Paso Natural Gas Company. The Window Rock contract
has a tentative mechanical completion date of January 31,
whereas the tentative mechanical completion date for the
Navajo Project is February 15. Employer witnesses testified
without contradiction that the projects did not commence on
the originally scheduled dates because of an initial delay in
acquiring permits. As a consequence, the construction sched-
ules for the projects were revised for March 6 completion
dates. Since that initial revision in the scheduled completion
dates, there have been no further schedule changes.
The Joint Petitioner claims that notwithstanding the sched-
uled completion dates the Employer’s own reports establish
that the current construction schedules are not being met and,
therefore, that the March 6 completion date is speculative.
Moreover, the Joint Petitioner sought to establish that due to
winter weather conditions in northern Arizona, where the
projects are located, that it is unlikely that the projects can
be completed on time. Contrary to the Joint Petitioner, the
Employer’s manager of construction projects, W. B.
Chambless, who has total responsibility for the management
and completion of both projects, testified that those projects
will be 95 to 96 percent complete by the end of February,
and that the scheduled March 6 completion dates will be
met. He also testified that when the projects are completed,
the unit employees will all be terminated. The controls man-
ager for the Employer, Sami Beidoun, who is responsible for
budgeting the projects and monitoring and preparing the
scheduling reports, testified that he tracks manpower for the
projects on a weekly basis. His last such reports as of Feb-
ruary 1, show completion dates for the projects as the first
week of March. While conceding that certain portions of the
work were not completed as forecast by the prior schedules,
Beidoun testified that to make up for any previous project
delays and to meet the scheduling targets, the Employer has
increased its manpower and provided for overtime work. He
testified further, without contradiction, that the March 6 com-
pletion dates have never been modified since the work actu-
ally commenced, and that the Employer has an economic in-
centive to complete the projects because they are lump-sum
projects. Accordingly, the Employer would lose money to the
extent the completion dates for the projects are not met. With
respect to the Joint Petitioner’s assertion that cold weather
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and snow may delay the projects, there is no probative
record evidence to establish that notwithstanding the weather
conditions that the projects will not be completed on time or
that they will be substantially delayed as a result of weather-
related problems. The Employer adduced evidence that most
of the work which would be affected by weather conditions
has already been completed.
The Joint Petitioner also maintains that since the Employer
is also in the process of securing other bids for work in the
area covered by the petition, that the petition remains viable
in any event. Contrary to the Joint Petitioner, W. B.
Chambless, manager of construction projects, testified that
the Employer had no other construction work under bid in
Arizona or on the Navajo Reservation at the time of the
hearing. No probative evidence was adduced to contradict
this testimony, even though it appears that the Employer
would bid additional work if the opportunity arose.
Based upon the foregoing, it is my view that a preponder-
ance of the record evidence supports the Employer’s conten-
tion that both the Window Rock Project and the Navajo
Project will be completed or substantially completed by
March 6, at which time all of the hourly and craft employees
employed by the Employer at those sites will be terminated.
In this regard, I view the Joint Petitioner’s claim that the
weather may affect the completion dates as purely specula-
tive, particularly given the fact that most weather-affected
work has already been completed. Similarly, I view the Joint
Petitioner’s contention that the Employer may secure addi-
tional work through select bids or other bids as conjectural.
The representation hearing in this matter was held on Feb-
ruary 5 and 6. Thus, as of the date the hearing closed, there
were 29 days, including weekends, before the scheduled
close of the projects. There have been numerous Board deci-
sions establishing that where an employer’s operations are
scheduled to terminate within 3 to 4 months that no useful
purpose is served by directing an election. See M. B. Kahn
Construction Co., 210 NLRB 1050 (1974); General Motors
Corp., 88 NLRB 119 (1950); Todd-Galveston Dry Docks, 54
NLRB 625 (1944); Fraser-Brace Enqineering Co., 38 NLRB
1263 (1942), and Fruco Construction Co., 38 NLRB 991
(1942). In the instant case, given the fact that the projects
will be completed in approximately 1 month, there is no
basis for proceeding to an election, even assuming the possi-
bility of a slight delay beyond March 6 in the completion of
the projects. Moreover, the record establishes that the Em-
ployer has no other ongoing construction projects within the
geographical scope of the unit or that it has such work under
bid. The Joint Petitioner’s claim to the contrary is based on
wholly uncorroborated hearsay evidence and, accordingly, I
must reject the Joint Petitioner’s assertions in this regard.
Based upon the foregoing facts and circumstances, I hereby
conclude that it would serve no useful purpose to conduct an
election at this time. I shall, therefore, dismiss the petition
in this matter. However, should the petitioned-for unit remain
in existence for a substantially longer period of time than is
now anticipated or should the Employer acquire additional
construction projects within the geographical scope of the
unit covering the classification of employees described in the
petition, I will entertain a motion by the Joint Petitioner to
reinstate the petition.
Under the foregoing circumstances, I find it unnecessary
to resolve any other issues raised by the parties in this pro-
ceeding.
ORDER
IT IS HEREBY ORDERED that the petition in the above mat-
ter be, and it hereby is, dismissed.