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Cement Masons bargaining unit decision nets Baker Concrete unfinished business

A case rooted in one of the National Labor Relations Board’s most contentious decisions during the Obama administration could disrupt efficient work flows that help define one of the best known names in concrete structures and slabs, and alter longstanding recognition of craft units unique to construction.

The Washington, D.C., arm of Monroe, Ohio-based Baker Concrete Construction Inc. is contesting an October 2014 election in which a finishers unit approved Operative Plasterers & Cement Masons International Association Local 891 as its collective bargaining representative. The NLRB agreed in late 2015 to investigate alleged union surveillance that Baker DC, LLC contends accompanied the election, held at the contractor’s District of Columbia office and resulting in a 15-10 vote.

Baker counsel notes in a request for review of an NLRB regional director’s decision validating the election: “Union officials stood at or near the entrance to the building lobby and all employees had to pass a few feet from [them] in order to vote … Union actions constituted unlawful surveillance and the election must therefore be set aside.”

While the Board reviews the allegation, a much bigger question affecting National Labor Relations Act-bound concrete contractors remains: Why was Cement Masons 891 able to select representation targets versus having to pitch its services across the Baker DC rank-and-file?

The local capitalized on the Board’s 2011 Specialty Healthcare decision, narrowing traditional “community of interest” terms for bargaining unit determination. As examined here in August 2012 (“Teamsters test insidious bargaining unit standard to split dump, mixer driver pool”), the decision holds that when “a party contends a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is nevertheless inappropriate because it does not contain additional employees, the burden is on the party so contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees.”

Baker DC shifted finishing work from subcontractors to employees in April 2014. Emboldened by a federal court decision the prior August upholding Specialty Healthcare bargaining unit determination, Cement Masons 891 successfully petitioned for an election to represent the finishing crews. Baker DC counsel explained the community of interest standard as it applied to its client’s “integrated team of carpenters, laborers, finishers and other employees. Each worker possesses certain skills described in the company’s job descriptions, but Baker does not restrict its employees’ job duties according to traditional union craft work assignment rules. Rather, to maximize employee work hours and efficiently complete work on a job site, Baker uses employees in all job categories—including finishers—to perform nearly all parts of the ‘pump, place, and finish’ operation.”

Representing the contractor is the Washington, D.C. office of leading labor management counsel Littler Mendelson, P.C. Littler Atlanta office colleagues Jack Lambremont and Kyllan Kershaw foreshadowed the Cement Masons’ strategy for Baker DC in an August 2013 analysis of the federal court decision favoring Specialty Healthcare’s bargaining unit determination. “Targeting smaller groups within an employer’s workforce provides labor unions with a great deal of flexibility,” they observed. “Such groups may be more susceptible to organizing activity than the larger, traditional employee complement that would have been included in a proposed bargaining unit under the Board’s prior standard … A finding of an appropriate ‘micro-unit’ will be very difficult to avoid in most operations.”

If presented compelling evidence of the Cement Masons 891 surveillance activities Baker DC alleges, the NLRB could give a questionably constituted bargaining unit another chance to consider if it wants an employer free to broaden all team members’ skill set and maximize their hours, or pigeonhole those assigned trowelling and floating duty.