NOTICE: This
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The Cajun Company, Inc. and International Association of Heat and Frost Insulators and
Asbestos Workers, Local Union No. 55, Petitioner. Case 15–RC–8615
May 4, 2007
DECISION ON REVIEW AND ORDER
By Chairmand Battista and Members Liebman
and Walsh
At issue in this case is whether the Regional Director properly found that the Employer is engaged in the building and construction industry as defined by the Board, and thus that the construction industry eligibility formula as set forth in Daniel Construction Co., 133 NLRB 264 (1961), modified at 167 NLRB 1078 (1967), reaffirmed and further modified in Steiny & Co., 308 NLRB 1323 (1992), is applicable.[1] As explained below, we affirm the Regional Director’s finding that the Daniel/Steiny eligibility formula is appropriate under the circumstances presented in this case, but find it unnecessary to pass on the issue of whether the Employer meets the definition of construction employer under the Act.
On June 24, 2005, the Regional Director for Region 15 issued a Decision and Direction of Election (pertinent portions of which are attached as an appendix), in which he found that the Employer is engaged in the building and construction industry, and that use of the Daniel/Steiny formula is necessary to enfranchise employees who are hired intermittently for “outages” that occur during the months of January through May. The Regional Director found that the “outage” employees are hired for a specific outage and not an entire outage season, rejecting the Employer’s contention that Daniel/Steiny should not apply in this case because the Employer is a seasonal employer.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s Decision. The Employer contended that it is not an
employer in the building and construction industry, and that the majority of
construction tasks are performed during the outage season, and not
year-round. The Employer further
contended that it is a seasonal employer, and thus that the Daniel/Steiny formula does not
apply. On
The Board has delegated its authority in this proceeding to a three-member panel.
We have carefully reviewed the entire record, including the briefs on review, with respect to the Regional Director’s use of the Daniel/Steiny formula. We have recently addressed this issue in a similar case, where, as here, the employer performed more than a de minimis amount of construction work and its work patterns were comparable to a construction employer. See Turner Industries Group, LLC, 349 NLRB No. 42 (2007). As in that case, we find that application of the Daniel/Steiny formula is reasonable here. We therefore find it unnecessary to pass on the issue of whether the Employer is actually engaged in the building and construction industry as defined under the Act.
i. background
The Employer is a contractor that provides maintenance services at power plants. For the last 17 to 18 years, the Employer has had contracts with Mississippi Power to supply maintenance services at two powerplants—Plant Watson in Gulfport, Mississippi and Plant Daniels in Escatawpa, Mississippi, 37 miles apart. The parties stipulated to, and the Regional Director found appropriate, a unit of “all mechanic specialists, mechanic 1, apprentice I/laborers, and working foremen employed by the Employer” at Plant Daniels and Plant Watson. The Employer currently employs 16 core permanent employees (6 at Daniels and 10 at Watson) and hires additional employees on a temporary basis each year during the January through May “outage season.” The core and outage employees build and tear down scaffolds; install insulation; remove asbestos; install cabinets/carpentry work, floor and ceiling tiles, and storm shutters; pour asbestos refract (a high temperature insulation that looks like concrete used to repair breaks in tubes); sandblast; and paint. In addition, these employees clean condensers and power equipment; cut grass; replace motor and air conditioning filters; shoot tubes; maintain and clean the coal area; clean marine docks, spills and bottom ash pits; set up tables and chairs for conferences; move furniture; and clean and maintain windows.
The workload at the plants varies with the seasons. In the summer months, the hot weather creates difficulties at both plants with water chemistry, and, as a result, the core employees do a lot more cleaning.[2] Conversely, the majority of the scaffolding, installation work, removal of insulation, and asbestos functions are performed during the outage season. During those months, the demand for electricity decreases and Mississippi Power schedules its boilers to be taken out of service for maintenance and repairs. During the outage season, the Employer’s workload increases, particularly its scaffolding work, because it builds scaffolds used by Mississippi Power employees as well as scaffolds used by other contractors on the jobsite. During this season, the employees continue to perform general plant maintenance, such as grounds maintenance, clean up of offices, set up for meetings, etc.
About 2 weeks before the scheduled outage, Mississippi Power provides the Employer with a list of tasks and the amount of work to be performed during the outage. Based on the work required, the Employer hires the necessary number of additional employees (the outage employees) to supplement its core permanent work force of 16 employees. During the 2005 outage season, the Employer hired 18 outage employees to supplement its core work force of 13 employees. The core work force employees and the outage employees receive the same benefits and perform the same work. At the end of the outage season, the Employer discharges about 60 percent of its work force due to its decreased workload. The employees who remain in the Employer’s core work force at the end of the outage season continue to work throughout the year performing multiple tasks, including scaffolding and some insulation work. The Employer maintains no-recall policy, and discharged employees must reapply for future employment. About 20 to 25 percent of the outage employees return for subsequent employment. Additionally, the Employer has hired outage employees as part of its core work force. At the time of the hearing, three of the Employer’s core employees were originally hired as outage employees.
There is substantially more work to do at Plant Watson than at Plant Daniels. The Employer does a tremendous amount of scaffolding work and some insulation work at Plant Watson. The asbestos work constitutes about 2 percent of the work. The Employer installs floors and ceiling tiles and storm doors and shutters, changes windows, sandblasts, paints, installs furniture, cleans coolers and condensers, cuts grass, keeps all conveyors and live storage facilities clean, cleans marine decks and bottom ash pits, cleans spills and kinkers, and replaces air conditioning filters.
At the time of the hearing, the Employer employed five mechanic specialists, one mechanic 1, and two apprentice 1/laborers at Plant Watson. The mechanic specialists perform every task at the plant. The mechanic 1’s have some experience in sheet metal and insulation, and they assist with scaffolding and insulation work. The apprentice 1/laborers shoot coolers and are allowed to help out with filters and other tasks. The Employer also employs two working foremen who are more knowledgeable about the plant and the job, particularly scaffolding and insulation work.
Plant Daniels is an asbestos-free plant. The Employer performs scaffolding and insulation work, refractory work (a high temperature insulation that looks like concrete and provides constant cleanup of coal by-products), condenser cleaning, and grass cutting. The employees are constantly performing cleaning functions, since the coal facility is old and dumps a tremendous amount of dust and dirt. At the time of the hearing, the Employer employed at Plant Daniels one supervisor, one mechanic specialist, five apprentice 1/laborers, and no mechanic 1’s or working foremen. The mechanic specialist performs all tasks, and the apprentice 1/laborers generally perform cleanup functions.
In addition, the site manager testified that due to budgetary restraints imposed by Mississippi Power, the Employer has shut down the plants and laid off its entire work force at various times. At Plant Daniels, this has occurred three times during the last 1-1/2 years. The layoffs have lasted from 2 weeks to 4 months. The site manager testified that such shutdowns have occurred at Plant Watson twice, but the record is unclear as to when this occurred. It has been over 5 years since all employees were laid off at Plant Watson for lack of work. However, Plant Watson has had a very small work force at various times over the last 5 years due to the budgetary restraints.
The Employer, as often as weekly, interchanges employees between Plant Watson and Plant Daniels. The interchange occurs throughout the year and affects about two to three employees at a time. However, the same employees are not necessarily chosen each time for the interchange. The Employer will sometimes shift all employees at one plant to work on a particular project at the other plant.
ii. discussion
The issue presented in this case is whether the Regional Director correctly found that the Daniel/Steiny eligibility formula should be utilized. Here, the facts establish that the Employer performs a substantial amount of construction work during the outage season and a smaller amount the rest of the year. Thus, the Employer’s total year-round performance of construction work is clearly more than de minimis or incidental, and it is integral to the Employer’s overall work. In addition, the pattern of the Employer’s work operation of hiring additional employees on an outage-by-outage basis and laying off employees at various times is comparable to the pattern of employment in the construction industry. Under the circumstances of this case, we find that the application of the Daniel/Steiny eligibility formula is reasonable, regardless of whether the Employer meets the definition of construction employer under the Act. Thus, we find it unnecessary to determine whether the Employer is engaged primarily in the construction industry. See Turner Industries Group, LLC, supra.
A. The Regional Director’s Decision and the Positions of the Parties
The Regional Director found that 15 to 18 percent of the work that the Employer performs at Plant Watson and Plant Daniels is the removal and installation of insulation, and that even during the summer time when the boilers are on line, insulation-related tasks still account for 3 percent of the work the Employer performs at Plant Watson. Moreover, the Regional Director found that the Employer has a crew that constantly performs scaffolding-related work, which accounts for 85 percent of the work that the Employer performs at Plant Watson and Plant Daniels. He observed that the work performed by the outage employees is not the typical maintenance work performed by the Employer but instead is related more to the construction and repair of the facility. Further, he noted that because of the layoffs of core employees due to budgetary restraints, the core work force is also subject to intermittent employment with the Employer.
The Employer claims that its chief function is to provide maintenance services at Plant Watson and Plant Daniels on a year-round basis, and that most of the tasks fall outside of the definition of construction work found in the Standard Industrial Classification (SIC) manual, which the Board has used to define the construction industry in other contexts. See F.H.E. Services, 338 NLRB 1095, 1098 (2002), and cases discussed therein. Further, the majority of construction tasks are performed during the outage season, and the percentages relied upon by the Regional Director only relate to the Employer’s workload during this season, which only accounts for 33 to 38 percent of the year (4 to 4-1/2 months out of 12).[3]
The Petitioner emphasizes that between January and May, the Employer’s work force more than doubles, and its work consists almost entirely of construction work, particularly building and tearing down scaffolding and removing and replacing insulation. During the remainder of the year, the Employer continues to perform scaffolding and insulation, and other construction and non-construction tasks. The Employer’s argument that over the course of the year scaffolding work accounts for 28 to 32 percent of the Employer’s work (85 percent of 33 to 38 percent of the year) ignores that the Employer employs many more employees and works many more hours during that part of the year when outages are in progress, and that the Employer continues to perform scaffolding work throughout the entire year. Further, there have been periods during the nonoutage portion of the year when the Employer has laid off its entire work force at a single plant and no work of any kind has been performed, causing the work during the nonoutage period to be intermittent.
B. Analysis
As stated above, we find it unnecessary to decide whether the Employer is actually engaged in the construction industry. We find that, even assuming that the Employer is not a construction employer, the use of the Daniel/Steiny formula is reasonable.
The Employer performs a substantial amount of construction work during the outage months, when the bulk of the work force is employed.[4] Although it is clear that the construction work is also performed during the nonoutage months, the record does not establish with precision the percentage of construction work performed during this period. In any event, it is apparent that the amount of construction work performed by the Employer is more than incidental or de minimis when viewed year-round, and that the Employer’s hiring pattern is similar to that of the construction industry.
The largest percentage of construction work performed by
the Employer is scaffolding. That work
is performed throughout the year, with an increase during the outage
season. The site manager testified that
scaffolding constitutes almost 85 percent of the Employer’s work and that there
is a crew that does scaffolding work constantly. As noted, the Employer does a tremendous
amount of scaffolding at Plant Watson, albeit it cannot be determined what
percentage of this work is performed during the outage season versus the rest
of the year. In addition, the site
manager testified that at the time of the hearing, Plant Watson employees were
spending 3 percent of the day involved in insulation work. He explained that this work picks up during
the outage season (apparently at both plants) to 15 to 18 percent (installing
and removing). As discussed, in addition
to this work, there is some asbestos work performed at Plant Watson (2 percent
of the work). See U.S. Abatement, 303 NLRB 451 (1991), in which the Board found that
the removal of asbestos and the installation of insulation was construction
work as it affected the structure of buildings and equipment which became part
of the structure; because the asbestos was being removed for reinsulation, a
function which the employer conceded was construction, the Board determined
that “removal and substitution are but two halves of the whole.”
Further, the Petitioner correctly points out that in evaluating the percentage of construction work performed by the Employer, it is important to consider that not only does the construction work increase during the outage season, but the employee complement also increases substantially. Indeed, in 2005 the Employer hired 18 additional employees during the outage season to supplement its then core work force of 13 employees, thereby more than doubling the work force. In addition, even the core work force has been laid off for temporary periods during the nonoutage seasons due to budgetary restraints, and such layoffs have lasted from 2 weeks to 4 months (as noted, this has occurred three times at Plant Daniels in the last 1-1/2 years). Viewed in this context, it appears that the majority of the Employer’s work occurs during the outage season, and that most of this work is construction. In addition, construction tasks apparently continue throughout the year, along with the cleanup oriented tasks, which appear to increase in the summer months. Although the Employer asserts that the predominant amount of time is spent engaged in cleanup and general maintenance, the record does not establish the percentage of time spent performing such work.[5]
Thus, although we cannot quantify an exact percentage, we find that the Employer performs a substantial amount of construction work during the outage season, and a much smaller and unspecified amount the remainder of the year. Further, the Employer performs more than a de minimis or incidental amount of construction work when viewed year-round.
Moreover, contrary to the Employer, we find, in agreement with the Regional Director, that the Employer is not a seasonal operation, and that this case is distinguishable from Dick Kelchner Excavating Co., 236 NLRB 1414, 1416 fn. 10 (1978).[6] In Dick Kelchner, the employer was engaged in excavation and site development. The business was seasonal in nature. The general work force during the peak season (May to November) averaged approximately 60 employees and averaged 25 employees during the off season (November to April). In that case, the Board declined the employer’s proposal to apply the Daniel formula, and noted in a footnote that “[t]here is no evidence of intermittent, as opposed to seasonal, employment or that a substantial number of the employees involved work for several different employers during the year.” Accordingly, the Board found that the election should be held during a period when the employer was at full operation.
In the instant case, as found by the Regional Director, there are multiple outages during the January-May period. The outage employees are hired only to work for a specific outage and are thus hired intermittently, unlike the employees in Dick Kelchner who were hired for an entire season. The site manager is notified about 2 weeks prior to an outage about the amount of work required for that outage. Based on this information, the site manager estimates the number of employees needed and then hires the necessary number of employees to perform that work. The hiring occurs about a week to 10 days prior to the outage. The site manager testified that the employees are usually hired just for the outage, and upon hire they are told up-front the duration of the outage, such as 6 or 12 weeks. In Dick Kelchner, by contrast, based on the truly seasonal work of the employer, it was possible to determine when the employer was becoming fully staffed, and thus a seasonal test was appropriate.
In sum, the Employer performs a substantial amount of construction work during the January through May outage months (when the work force may more than double), and a smaller amount during the remainder of the year. Moreover, the total amount of construction work performed year-round is more than de minimis or incidental, and such functions are integral to the Employer’s work at these plants. In addition, the Employer’s employment pattern of hiring intermittent employees on an outage-by-outage basis and laying off employees at various times is similar to the hiring pattern in the construction industry. Further, the evidence does not establish that the Employer is a seasonal employer. Under these circumstances, in agreement with the Regional Director, we find that the application of the Daniel/Steiny formula is reasonable, regardless of whether the Employer meets the definition of construction employer under the Act. See Turner Industries Group, LLC, supra. See generally Trump Taj Mahal Casino, 306 NLRB 294, 296 (1992), enf. 2 F.3d 35 (3d Cir. 1993) (Board “has been flexible in carrying out its responsibility to devise formulas suited to unique conditions in the entertainment industry, as in other specialized industries, to afford employees with a continuing interest in employment the optimum opportunity for meaningful representation.” ).
iii. conclusion
For the foregoing reasons, we affirm the Regional Director’s finding that the application of the Daniel/Steiny formula is reasonable in this case.
ORDER
The Regional Director’s Decision and Direction of Election is affirmed with respect to the application of the Daniel/Steiny eligibility formula. The case is remanded to the Regional Director for further appropriate action consistent with this Decision.
Dated,
___________________________________
Robert J. Battista, Chairman
Wilma
B. Liebman, Member
Dennis P. Walsh, Member
(seal) National Labor Relations Board
APPENDIX
REGIONAL DIRECTOR’S DECISION AND Direction of election
The Employer is a contractor that provides maintenance services
at power plants. For the last seventeen
to eighteen years, it has had contracts with Mississippi Power, a Southern Company
entity, to supply maintenance services at two powerplants, Plant Watson in
At the hearing, the Petitioner and the Employer (herein collectively called the Parties) stipulated and I find that the mechanic specialists, mechanic 1, and apprentice 1/laborers shall be included in the bargaining unit. Additionally, the Parties stipulated and I find that office clerical employees, professional employees, managers, guards, and supervisors as defined by the Act shall be excluded from the unit. Further, the Parties stipulated and I find that Site Manager Timothy Gele, Office Manager Patsy Gele, and Supervisor Bryan Woodcock are statutory supervisors and are excluded from the bargaining unit. I note the evidence reflects that Timothy Gele, Patsy Gele, and Woodcock possess authority in the interest of the Employer to hire, fire, discipline, or responsibly direct employees using independent judgment. The Parties further stipulated, and I find, that the terms mechanic specialists, mechanic 1, and apprentice 1/laborers as well as the listed exclusions, encompasses all of the employees employed by the Employer. Accordingly, I find that there are no employees employed by the Employer classified as scaffold carpenters and that, therefore, the issue of their inclusion or exclusion is not before me.
The second issue to be decided is whether the Daniel/Steiny formula is applicable for determining voter eligibility. The Employer contends that it is engaged in the maintenance industry, not the construction industry. The Employer further contends that the majority of its work is done between the months of January and May each year, during the “outage season,” and as such, its business operation is seasonal. Therefore, the Employer argues that the Daniel/Steiny formula is not applicable. The Petitioner, in contrast, asserts that the Employer performs work that the Board has found to be construction work and is, therefore, engaged in the building and construction industry. As such, the Petitioner asserts that the Daniel/Steiny formula should be used.
Based on stipulations of the Parties and the entire record
in this proceeding, and for the reasons set forth below, I find that
individuals employed as working foremen and John Senter are not statutory
supervisors and shall be included in the bargaining unit. Further, I find that the Employer is engaged
in the construction industry and that the Daniel/Steiny
voter eligibility formula is applicable.
i. record evidence
In reaching my determination that individuals employed as
working foremen and John Senter are not statutory supervisors and that the Daniel/Steiny voter eligibility formula
is applicable, I considered the nature of the Employer’s business and its
current operations at Plant Watson and Plant Daniels. As to the nature of the Employer’s business,
I considered among other things more fully set out below, that the Board has
determined that the removal of asbestos and the installation of insulation
“affect the structure of buildings and equipment, such as boilers and pipes,
which, after installation, have become an integral part of the structure
itself” and accordingly, is work in the building and construction
industry. U.S. Abatement, Inc., 301 NLRB 451, 456 (1991). I have specifically considered the Board’s
well established policy to favor and not to restrict eligibility to vote. Ameritech Communications, 297 NLRB 654
(1990) Accordingly, I have found that
application of the Daniel/Steiny
formula in the instant case will best serve that goal by enfranchising
employees who, although they work on an intermittent basis, have sufficient
interest in the employers’ terms and conditions of employment to warrant being
eligible to vote. As to the supervisory
issue, I adhered to the well-established principle that the party alleging
supervisory status has the burden of proving that it exists. NLRB v.
Kentucky River Community Care, Inc., 532
A. Overview of Cajun Company, Inc.
(1) The work performed by Cajun Company, Inc.
The employees in the stipulated bargaining unit build and tear down scaffolds, install insulation, remove asbestos, install cabinets/carpentry work, install floor and ceiling tiles, install storm shutters, pour asbestos refract (a high temperature insulation that looks like concrete used to repair breaks in tubes), and sandblast and paint. The majority of such work is done between the months of January and May each year, during, what the Employer termed as the “outage season.” In addition to the aforementioned construction work, the Employer also performs maintenance services, including: cleaning condensers, cutting grass, weed eating, replacing motor and air conditioning filters, cleaning power equipment, cleaning the coal area, cleaning belts on the coal conveyor, digging out coal bunkers, cleaning marine docks, cleaning klinkers and spills, setting up tables and chairs for conferences, and moving furniture. The Employer does not repair any of the power equipment.
The removal and installation of insulation account for about fifteen to eighteen percent of the work done by the Employer at Plant Watson and Plant Daniels. Building and tearing down scaffolds account for about eighty-five percent of the work.
(2) Outages
The Employer provides its services at Plant Watson and Plant Daniels throughout the year. The Employer’s workload, however, fluctuates according to the needs of Mississippi Power. Specifically, there are unscheduled outages that occur throughout the year at the plants, such as when a boiler blows a tube and has to be repaired. Such unscheduled outages do not increase the Employer’s workload, and the work is performed by the Employer’s core work force, which consists of about sixteen (16) employees that perform multiple tasks.
In addition to unscheduled outages, there are times during the year when the demand for electricity decreases and Mississippi Power schedules its boilers to be taken out of service for maintenance and repairs. This is typically done each year between the months of January and May. The Employer refers to this period of scheduled outages as the “outage season.”
A couple of months in advance of the approximate date of a scheduled outage, Mississippi Power notifies the Employer. About 2 weeks before a scheduled outage, Mississippi Power provides the Employer with the tasks and the amount of work to be performed during the outage. The Employer’s site manager, using the information the Employer receives from Mississippi Power, estimates how many employees will be required to complete the work. About a week to ten days before an outage actually starts, and throughout the outage season, the site manager hires the necessary number of employees needed to supplement its core work force for the completion of the work. The site manager informs the newly hired employees of the estimated number of weeks for the outage, six to twelve weeks. The Employer refers to these supplemental employees as “outage employees.”
During the outage season, the Employer’s workload increases,
particularly its scaffolding work, because it builds scaffolds used by
Mississippi Power employees as well as scaffolds used by other contractors on
the jobsite. The Employer’s core work
force, supplemented with outage employees, handles the increased workload. The record testimony establishes that during
the 2005 outage season, the Employer utilized word of mouth advertising and the
The Employer’s site manager informs newly hired outage employees that they must perform multiple tasks. The site manager has hired outage employees that specialize in scaffold building or insulation work, such as sheet metal mechanics and scaffold builders. Nonetheless, as it does with employees in its core work force at Plant Watson and Plant Daniels, the Employer requires such employees to also perform other tasks in addition to their specialty.
The Employer’s workload decreases at the end of the outage season, and the Employer usually discharges about 60 percent of its work force at the end of the outage season each year due to lack of work. The employees that remain in the Employer’s core work force at the end of the outage season continue to work throughout the year performing multiple tasks, including mostly scaffolding work with some insulating work. The undisputed record testimony reflects that at the time of the hearing, the Employer employed about three (3) employees who were originally hired for an outage.
The Employer does not maintain or follow any recall policy, and discharged employees are not subject to recall; they must reapply for any job openings with the Employer. Outage employees are not afforded any special preference for rehire. About three or four outage employees hired each year return to work with the Employer.
Moreover, the evidence reflects that due to budget restraints imposed by Mississippi Power within the last year and a half, the Employer has laid off its entire work force three times at Plant Daniels. The layoffs have lasted from 2 weeks up to four months. Likewise, at Plant Watson, the Employer has laid off nearly its entire work force twice due to budget restraints.
(3) Plant Supervision and employee interchange
The Employer’s site manager, Timothy Gele, and Office Manager Patsy Gele are stationed at Plant Watson. Supervisor Bryan Woodcock is stationed at Plant Daniels. The Parties have stipulated that Timothy Gele, Patsy Gele, and Bryan Woodcock are statutory supervisors.
The record discloses that Site Manager Gele travels the 37 miles to Plant Daniels at least once every 2 to 3 weeks to check on the work being performed. Additionally, Gele, using link radios provided by Mississippi Power, communicates with Bryan Woodcock about work assignments. There is conflicting testimony in the record as to whether Woodcock and Gele are the only individuals employed by the Employer that are provided with link radios. Specifically, there is testimony that suggests that on at least one occasion, an apprentice I/laborer and John Senter had a link radio.
Gele and Woodcock spend about fifty percent of their time interacting with Mississippi Power, and they spend the other fifty percent of their time performing the same work as employees in the stipulated unit.
The Employer, as often as weekly, interchanges employees between Plant Watson and Plant Daniels. The interchange occurs throughout the year and affects about two to three employees at a time. However, the same employees are not necessarily chosen each time for the interchange. At times throughout the year, the Employer will shift all employees at one of the plants to work on a particular project at the other plant. Recently, for instance, Plant Daniels experienced a leak in some high temperature re-heater tubes and the Employer moved all of its Plant Watson employees to Plant Daniels to build scaffolds that were used to repair the valves.
(4) Plant Watson
The Employer has had the contract to perform the work at Plant Watson since at least 1989. The Employer does a tremendous amount of scaffolding work and a little insulation work at Plant Watson. The Employer also does asbestos abatement work year round. Additionally, the Employer installs floor and ceiling tiles, storm doors and shutters, changes windows, and sandblasts and paints. Further, the Employer installs furniture, cleans coolers and condensers, cuts grass, weed eats, keeps all conveyors and the live storage facilities clean, cleans marine decks and bottom ash pits, and cleans spills and klinkers. Moreover, throughout the year, the Employer replaces about five to six hundred air conditioning filters throughout the plant on a 2, 4, 8, or 12-week basis.
Excluding Site Manager Timothy Gele and Office Manager Patsy Gele, the Employer employs 10 to 11 employees at Plant Watson. The Employer employs five (5) mechanic specialists, one (1) mechanic 1, and two (2) apprentice 1/laborers at Plant Watson. The mechanic specialists perform every task that the Employer performs at the plant. They cut grass, insulate, build scaffolds, hang cabinets, paint, sand blast, clean coolers, shoot condensers (a cleaning process), and change filters. The mechanic 1s have some experience in sheet metal and insulation, and they assist with scaffolding and insulation related work. The apprentice 1/laborers shoot coolers and are allowed to help out with filters and other tasks.
The employees work 4 10-hour days Monday through Thursday, from 6 a.m. to 4:30 p.m. The employees receive a 9 a.m. break, a lunchbreak at 12:00 p.m., and a 2:30 p.m. break. The employees work overtime as requested.
. . . .
(6) Plant Daniels
Similar to Plant Watson, the Employer has had its contract at Plant Daniels for about 17 to 18 years. Bryan Woodcock is the Employer’s supervisor at Plant Daniels. Woodcock spends fifty percent of his worktime interacting with Mississippi Power and communicating with Site Manager Gele, and he spends the other 50 percent in the field working alongside employees in the stipulated unit. At the time of the hearing, the Employer did not employ any working foremen at Plant Daniels, but the record reflects that when there are working foremen at Plant Daniels, Woodcock supervises them. The Parties agree that Woodcock is a statutory supervisor and is excluded from unit.
Plant Daniels is an asbestos free plant. The Employer also performs scaffolding and insulation work at Plant Daniels. In addition to the scaffolding work, the Employer also performs refractory work, which is a high temperature insulation that looks like concrete, and provides constant clean up of coal by-products. Additionally, the Employer also shoots the condenser.
The Employer employs one (1) mechanic specialist and about five (5) apprentice 1/laborers at Plant Daniels. At the time of the hearing, the Employer did not employ any employees classified as mechanic 1 at Plant Daniels. The mechanic specialists perform every task that the Employer performs at the plant. They cut grass, insulate, build scaffolds, hang cabinets, paint, sand blast, clean coolers, shoot condensers, and change filters. The apprentice 1/laborers at Plant Daniels are generally limited to doing cleanup. They clean conveyors, base slabs, and spills throughout the plant. The apprentice 1/laborers are not allowed to cut grass at Plant Daniels, but they do weed eat during the summertime and fall.
The employees work 6:30 a.m. to 2:30 p.m. 5 days per week, Monday through Friday. The employees work overtime as requested.
ii. analysis
B. The Daniel/Steiny Formula Application in the Construction Industry
The Board has a long established policy to favor and not to restrict eligibility to vote. Ameritech Communications, 297 NLRB 654 (1990) In 1967, the Board noted that in the construction industry, many employees experience intermittent employment and may work for short periods on different projects for several different employers in a year. Daniel Construction Co., 167 NLRB 1078 (1967). Therefore, the Board established the following eligibility formula to insure that all employees with a reasonable expectation of future employment with an employer engaged in the construction industry would have the fullest opportunity to participate in a representation election:
In addition to those in the unit who were employed during the payroll period immediately preceding the date of the Decision and Direction of Election, all employees in the unit who have been employed for a total of 30 days or more within the period of 12 months, or who have had some employment in that period and who have been employed 45 days or more within the 24 months immediately preceding the eligibility date for the election hereinafter directed, shall be eligible to vote.
Daniel at 1078–1079.
The formula further excludes any employees who have been terminated for cause or quit voluntarily prior to the completion of the last job for which they were employed. Daniel at 1081.
In 1992, the Board confirmed the appropriateness of applying
the Daniel formula when an employer
has a relatively stable work force but also experiences sporadic employment patterns
typical of the construction industry. Steiny
&
The Board defines construction work in broad terms. For instance, the Board has held that the
statutory definition of the “building and construction industry” encompasses “the
provision of labor whereby materials and constituent parts may be combined on
the building site to form, make, or build a structure.” Carpet, Linoleum and Soft Tile(
In the instant case, the Employer contends that it is not engaged in the building and construction industry, and that therefore, the Daniel/Steiny formula is not applicable. Rather, the Employer argues that its chief function is to provide maintenance services at Plant Watson and Plant Daniels year round and that its primary and regular tasks, such as cleaning condensers, cutting grass, weed eating, replacing motor and air conditioner filters, keeping the power equipment clean, shooting tubes, maintaining a clean coal area, cleaning belts on the coal conveyor, digging out coal bunkers, cleaning marine docks, cleaning klinkers and spills and bottom ash pits, setting up tables and chairs, and cleaning and maintaining windows, are maintenance oriented tasks. The Employer acknowledges in its brief that in addition to the maintenance oriented tasks, the services it provides at Plant Watson and Plant Daniels also include building and tearing down scaffolds, installing insulation, removing asbestos, installing cabinets, floors, ceiling tiles, and storm shutters, pouring refract, and sandblasting and painting. Nonetheless, the Employer asserts that such tasks are only minimally associated with the building and construction industry.
The Board has found that the removal of asbestos and the installation of insulation “affect the structure of buildings and equipment, such as boilers and pipes, which, after installation, have become an integral part of the structure itself” and accordingly, is work in the building and construction industry. U.S. Abatement, Inc., 303 NLRB 451, 456 (1991). Like the removal of asbestos and the installation of insulation, clearly the installation of cabinets and floor and ceiling tiles, as well as the pouring of refract, affect the structure of buildings and equipment and become an integral part of the structure itself. The Employer even acknowledges that some of the work it performs at Plant Watson and Plant Daniels can be classified as within the building and construction industry. However, the Employer asserts that the majority of such work is done only during the scheduled outages and accounts for only a small to medium percentage of its daily work. The record evidence betrays the Employer’s assertion.
Contrary to the Employer’s assertion, the evidence reflects that about fifteen to eighteen percent of the work the Employer performs at Plant Watson and Plant Daniels is the removal and installation of insulation. Even during the summer time when the boilers are on line, insulation related tasks still account for three percent of the work the Employer performs at Plant Watson. Moreover, the evidence reflects that the Employer has a crew that constantly performs scaffolding related work, which accounts for about 85 percent of the work the Employer performs at Plant Watson and Plant Daniels.
Further, the Employer, on the basis of footnote 16 in Steiny & Co. that provides “[o]ne exception to the application of the formula in the construction industry exists where the employer clearly operates on a seasonal basis,” contends that the work it performs is not considered construction because its business operation is seasonal, “consisting of the power industry’s outage and peak seasons.” The Employer cites Dick Kelchner Excavating Co., 236 NLRB 1414 (1978), in support of its contention that the Daniel/Steiny formula is inapplicable to employers that clearly operate on a seasonal basis.
In Kelchner Excavating, the employer was engaged in excavation and site development. The employer hired laborers to work during the summer season such that the employer’s general work force averaged approximately 60 employees between May and November, the “peak season” whereas, between November and April, the “off season,” the employer’s general work force averaged approximately 25 employees. In declining to utilize the Daniel formula, the Board noted in a footnote, “[t]here is no evidence of intermittent, as opposed to seasonal, employment or that a substantial number of the employees involved work for several different employers during the year.” Accordingly, the Board found that the election should be held during a period when the employer was at full operation.
The record reflects that the Employer maintains a core work force throughout the year of approximately sixteen (16) employees, excluding the stipulated statutory supervisors Timothy Gele, Patsy Gele, and Bryan Woodcock. Ten of these employees work at Plant Watson and the other six employees at Plant Daniels. The record reflects that the work performed by the outage employees, is not the typical maintenance work performed by the Employer but instead is related more to the construction and repair of the facility. Clearly, the use of the Daniel formula “by no means excludes core employees, however that term may be defined; it simply enfranchises employees who, although working on an intermittent basis, have sufficient interest in the employer’s terms and conditions of employment to warrant being eligible to vote and included in the unit.” Steiny at 1328. The record discloses that, in addition to its core work force, each year, the Employer employs “outage employees” for short periods of employment during the period January through May. During the 2005 scheduled outages, the Employer hired approximately eighteen (18) outage employees. The “outage employees” are told at the beginning of their employment the number of weeks they will be working. Each year, the Employer retains about forty percent of it’s work force at the conclusion of the scheduled outages. The remaining “outage employees” are then free to seek employment with a different employer. Thus, the record shows that the Employer employs outage employees on an intermittent basis for short periods of time and that the “outage employees” are terminated when the work is complete. Some terminated “outage employees,” approximately three or four a year, return to work with the Employer from one year to the next. I find the Employer’s reliance on the “termination” of the outage employees to be misplaced. In this regard, I note that the employees are not “terminated” for cause but are simply terminated due to lack of work. The Board has found that the “termination” element of the test relates to the “reasonable expectation of future employment.” Thus, in both Wilson & Dean Construction Co., Inc., 295 NLRB 484 (1989), and Steiny, the Board found that the reasonable expectation of return of terminated employees warranted their inclusion in the unit. There is no evidence that the former employees will not be considered for reemployment. Moreover, the evidence actually demonstrates that some “outage employees do, in fact, return year after year.
The evidence reflects that within the last year and a half, the Employer, due to budget restraints imposed by Mississippi Power, has laid off its entire work force three times at Plant Daniels. The layoffs lasted from 2 weeks up to four months. Likewise, at Plant Watson, the Employer has laid off nearly its entire work force twice due to budget restraints. Thus, like the outage employees, the Employer’s core work force is also subject to intermittent employment with the Employer.
Based on the foregoing, I find that the Employer is engaged in the building and construction industry and, as is common in the construction industry, the Employer’s work force needs vary based on the needs of the job. Further, I find that the facts in the instant case demonstrate that “outage employees” do have an expectation of future employment. In making this finding I note particularly that 20 to25 percent of the “outage employees” return for subsequent employment. I find that “outage employees” possess a substantial interest in the Employer’s terms and conditions of employment to warrant being eligible to vote and be included in the unit. Steiny, 308 NLRB at 1328. Moreover, I find that, unlike the employees in Kelchner who were hired to work for an entire season, the “outage employees” in the instant case are hired only to work for a specific outage. In Kelchner, based on the truly seasonal work of the employer, it was possible to determine when the employer was becoming fully staffed, thus, a seasonal test was appropriate. In contrast, in the instant case, because of the intermittent nature of the outages themselves, I find it more appropriate to use the DanielSteiny formula. Accordingly, I find that the Employer is engaged in the building and construction industry as defined by the Board and that the Daniel/Steiny formula is necessary to enfranchise outage employees that possess a substantial interest in working conditions at Plant Watson and Plant Daniels.
Accordingly, eligible to vote in this matter are all unit employees that have been employed by the Employer for a total of 30 working days or more within the period of 12 months, or who have had some employment in that period and who have been employed 45 working days or more within the 24 months immediately preceding the date of this Decision and Direction of Election, and who have not been terminated for cause or quit voluntarily prior to completion of the last job for which they were hired.
. . . .
iv. the unit
Based on the foregoing, the record as a whole and careful consideration of the arguments of the parties at the hearing and in their briefs, I shall direct an election in the unit as set forth below:
All mechanic specialists, mechanic 1, apprentice
I/laborers, and working foremen employed by the Employer at Plant Daniels in