Bentson Contracting Co. v. N.L.R.B.

• Decision Date: 27 August 1991
• Docket Number: 90-1473,Nos. 89-1691,s. 89-1691
• Citation: 941 F.2d 1262
• Parties: 138 L.R.R.M. (BNA) 2167, 291 U.S.App.D.C. 345, 119 Lab.Cas. P 10,893 BENTSON CONTRACTING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent (Two Cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1262

941 F.2d 1262

138 L.R.R.M. (BNA) 2167, 291 U.S.App.D.C. 345,

119 Lab.Cas. P 10,893

BENTSON CONTRACTING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent (Two Cases).

Nos. 89-1691, 90-1473.

United States Court of Appeals District of Columbia Circuit.

Argued April 25, 1991.

Decided Aug. 27, 1991.

Petitions for Review and Cross-Applications for Enforcement of Orders of the National Labor Relations Board.

Gerard Morales, with whom William P. Allen, Phoenix, Ariz., was on the brief, for petitioner in 89-1691 and 90-1473.

Beverly A. Oyama, Atty., N.L.R.B., with whom Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Collis Suzanne Stocking, Supervisory Atty., N.L.R.B., Washington, D.C., were on the brief, for respondent in both cases. Howard E. Perlstein, Washington, D.C., also entered an appearance for respondent.

Before BUCKLEY, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

This case is here on consolidated petitions for review of three orders of the National Labor Relations Board finding that Bentson Contracting Company unlawfully refused to bargain with three unions, and on the Board's cross-applications for enforcement of its orders requiring the company to bargain.

Bentson is an Arizona corporation engaged in the business of highway and heavy construction work such as dirt excavation, asphalt paving, and resurfacing roads. At any one time, the company is engaged in approximately ten projects, with a crew at each jobsite. For many years, the company recruited its work force from the hiring halls of three labor unions ¹--the Operating Engineers, the Teamsters and the Laborers--with whom it had signed voluntary pre-hire collective bargaining agreements, in accordance with section 8(f) of the National Labor Relations Act (NLRA or the Act), 29 U.S.C. § 158(f). Section 8(f) allows employers in the building and construction industry to bargain with a union without an initial election or showing of majority support. When the then-current collective bargaining agreements expired at the end of May 1988, Bentson repudiated its section 8(f) relationships with the unions and instituted new working conditions emphasizing on-the-job employee cross-training. At the time, Bentson employed some 40 construction workers.

The three unions filed separate petitions with the National Labor Relations Board, under section 9(c) of the NLRA, 29 U.S.C. § 159(c), seeking certification as the exclusive bargaining agent of the workers it had traditionally represented under the expired section 8(f) collective bargaining agreements. The Operating Engineers sought to represent a unit consisting of "[a]ll equipment operators, servicemen, mechanics, and apprentices"; the Teamsters sought to represent a unit composed of "[a]ll drivers, warehousemen, mechanics, and field servicemen"; the Laborers sought to represent a unit composed of "[a]ll employees performing laborers work under the recently expired collective bargaining agreements." Bentson claimed that the only appropriate unit was a company-wide unit composed of all "construction employees."

After hearings, the NLRB Regional Director issued two decisions--one on the "Laborers" petition, the other on the "Operating Engineers" and "Teamsters" petitions--describing the bargaining units and ordering representative elections among the employees in the units. In the first decision, issued in July 1988, the Director found that an appropriate unit was composed of "laborers primarily ... engaged in manual work." The laborer unit included approximately 15 employees. Of these, there were five "combination" employees, who perform "substantial general laborer work" as well as "drive trucks which haul asphalt or debris." In the second decision, issued in September 1988, the Director found that "the operating engineers employed by the Company spend virtually all of their work time engaged in the operation of heavy equipment, which includes compaction rollers, scrapers, blades, front end loaders, and sweeping devices called power brooms." The Director also found that the "Employer's truckdrivers spend virtually all of their work time driving various types of trucks." Again, the Director noted that there were five "combination" employees who "perform substantial general laborer work and [ ] spend a substantial portion of their work time driving trucks." Although the Director acknowledged that these "combination" workers had already been found eligible to vote in the laborers election, he concluded that they also should be permitted to vote in the truckdrivers election. The Director found that the heavy equipment operators and the truckdrivers each constituted an appropriate bargaining unit, distinct from one another and from the laborers. The operators unit included about 20 workers, while the truckdrivers unit included 7.

In the elections, each union received a majority of the votes cast and was duly certified. Bentson continued to insist that a company-wide unit was the only appropriate one and refused to bargain. The unions then filed individual charges alleging that Bentson was engaging in unfair labor practices. In Bentson I, 297 N.L.R.B. No. 27 (Oct. 31, 1989) ("Operating Engineers"), Bentson II, 297 N.L.R.B. No. 84 (Jan. 31, 1990) ("Teamsters"), and Bentson III, 298 N.L.R.B. No. 14 (Apr. 11, 1990) ("Laborers"), the Board held that Bentson had violated section 8(a)(5) and (1) of the NLRA, 29 U.S.C. § 158(a)(5) and (1), and ordered the company to bargain with the unions.

I

We will first consider the Board's orders in Bentson II (Teamsters) and Bentson III (Laborers). ² In Bentson II, the Board sustained the following unit All truckdrivers, combination truckdrivers, truck mechanics, warehousemen, and field servicemen employed by the [Employer], but excluding all other employees, heavy equipment operators, servicemen, mechanics, heavy equipment operator apprentices, laborers, guards and supervisors as defined in the Act.

Of the 7 workers in this unit, 5 were "combination" employees--that is, individuals who not only drove trucks but also performed laborer work. As a result, these combination employees were not only members of the truckdrivers unit but also among the 15 members of the laborers unit sustained in Bentson III (Laborers), which consisted of:

All laborers employed by the [Employer] within the State of Arizona; but excluding all other employees, heavy equipment operators, truckdrivers, truck mechanics, servicemen, office clerical employees, guards and supervisors as defined by the Act.

In designating an appropriate bargaining unit, the Board performs the function assigned to it by section 9(b) of the Act. ³ The Board has wide discretion in these matters and reviewing courts must generally defer to its judgment that a particular unit is appropriate. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975); Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 171-72, 92 S.Ct. 383, 393-94, 30 L.Ed.2d 341 (1971). The central test is whether the workers share a "community of interest," that is, " 'substantial mutual interests in wages, hours, and other conditions of employment.' " Allied Chemical & Alkali Workers, 404 U.S. at 172, 92 S.Ct. at 394 (citation omitted); see also Food Store Employees Union v. NLRB, 422 F.2d 685 (D.C.Cir.1969). The Board considers several factors, but "there are no per se rules" to resolve unit determinations: "we examine the community of interest of the particular employees involved, considering their skills, duties, and working conditions, the Employer's organization and supervision, and bargaining history, if any, but no one factor has controlling weight." Airco, Inc., 273 N.L.R.B. 348 (1984).

The unusual feature of this case is that the Board has placed the same employees in two separate bargaining units despite the statutory principle of exclusive representation. Section 9(a) of the Act provides that representatives selected by a majority of employees in an appropriate unit "shall be the exclusive representatives of all employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment." 29 U.S.C. § 159(a). As a result of the Board's unit determinations, however, all "combination" employees wound up with two representatives, neither of which had any claim to exclusivity.

The Board asserts that the "combination" workers are dual-function employees who are properly eligible to vote in representation elections for both units since they have a substantial interest in the wages, hours, and other terms and conditions of employment of both units. The Board has treated dual-function employees like part-time workers, considering them eligible to vote in a unit if they spend a substantial amount of time working within it and thereby have a significant interest in the terms and conditions of employment. See Berea Publishing Co., 140 N.L.R.B. 516 (1963); The Ocala Star Banner, 97 N.L.R.B. 384 (1951). In Sunray Ltd., 258 N.L.R.B. 517, 518 (1981), however, the Board stated that the Berea Publishing and Ocala Star rule regarding dual-function employees "does not, and was never intended to, create more than one unit consisting of an entire work force just because all employees perform several craft functions. To do so could cause a situation where an appropriate unit of all of the Employer's employees elected separate unions to be their exclusive collective-bargaining representative in two or more separate units--a result we find incongruous with the policies of the Act."

Two unions, in other words, simply cannot be the "exclusive" bargaining representative of the same employee with respect to the same conditions of employment. There is...