Iron Workers case shapes New York precast erector’s bargaining unit

National Labor Relations Board Regional Director (RD) Kathy Drew-King has determined a craft unit within the site crew of Kingston, N.Y.-based NYC Crane Hoist Operations LLC, and directed an election for its 27 members to vote on representation by the United Derrickmen & Riggers Association, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 197.

The Long Island City, N.Y. union had petitioned for an election with bargaining unit comprising a) all NYC Crane Hoist Operations staff, excepting crane operators or, b) as an alternative, all staff, excepting crane operators, drivers and yard workers. RD Drew-King affirms a community of interest across five functions in the alternative bargaining unit: Rigger, attaches precast elements to a crane hook or other lifting hardware; Connector, receives and aligns element with connection; Welder, secures precast connections and welding tie-ins for construction cranes; Fireguard, monitors welders’ work for fire hazards; and, Signalmen, maintains radio contact with crane operators and guides erection of elements out of operator line of sight. 

“Within the precast team, some of the petitioned-for employees have regular contact with the crane operator, as their daily duties intertwine with one another. Crane operators, however, rarely perform the duties of the petitioned-for employees, and the petitioned-for employees do not perform the duties of crane operators,” RD Drew-King writes in her election order. “I find that the Petitioner’s alternative unit of all employees, excluding crane operators, drivers, and yard workers, is appropriate for collective bargaining.”

“Although crane operators may spend up to 50 percent of their working time performing crane installation rigging duties, none of the employees in the alternative unit spend any amount of time performing the duties of a crane operator,” she elaborates. “The record clearly reflects that crane operators have the potential to earn significantly higher wages than employees in the alternative unit, and the employer grants some benefits to crane operators that it does not provide to employees in the alternative unit. The differences as measured by these factors would certainly result in different bargaining interests.”

Against NYC Crane Hoist Operations’ request for an election by in-person, manual method, the NLRB Region 29 office scheduled mail-in voting with a late-2021 deadline, citing agency guidance in the wake of Covid-19 response measures.

The National Labor Relations Board, along with the U.S. Department of Labor and Equal Employment Opportunity Commission, have launched a joint initiative to raise awareness about retaliation issues when workers exercise protected labor rights. The effort will include collaboration among the civil law enforcement agencies to protect workers on issues of unlawful retaliatory conduct, educate the public, and engage with employers, business or labor organizations and civil rights groups. A late-2021 virtual dialogue with the employer community focused on the importance of workers’ anti-retaliation protections for those exercising their rights, and the agencies’ shared commitment to vigorous enforcement.

“The enforcement of labor laws only works when workers who speak out for themselves and their fellow workers and not fear or suffer from retaliation,” says Solicitor of Labor Seema Nanda. “In the Department of Labor’s fight against wage theft, misclassification, discrimination, unsafe or unhealthy workplaces, and other unlawful employment practices, we will use all tools available to protect workers from retaliation. This collaboration among federal labor enforcement agencies will form a bulwark against unlawful retaliation.”

“All too often, workers face adverse action for speaking out about their pay, health and safety issues, discrimination, or other working conditions. Under the National Labor Relations Act, it is unlawful for employers to retaliate against workers for taking collective action to improve their working conditions,” adds NLRB General Counsel Jennifer Abruzzo. “These issues cut across multiple worker protection agencies, which is why it is so important to work collaboratively to effectively prevent and forcefully address retaliatory acts against workers.”

The initiative builds on the work of Memoranda of Understandings between the agencies, and strengthens interagency relationships. By doing so, the three agencies seek to ensure they cooperate effectively and efficiently to enforce related laws and protect workers’ rights. Typically, the agencies have dual mandates: Enforce laws that protect workers who exercise their workplace rights, and help employers understand their responsibilities under federal workplace laws.

“Retaliation is a persistent problem in American workplaces. Charges alleging retaliation have increased as a percentage of the total number of charges filed with the U.S. Equal Employment Opportunity Commission every year for the last 20 years,” explains EEOC Chair Charlotte Burrows. “Working with our interagency partners and employers, we must tackle this urgent problem and help ensure that employers have effective strategies for taking immediate action to stop retaliation.”