A & J Cartage

National Labor Relations Board - Board Decisions

Oct 23, 1992

309 N.L.R.B. 319 (N.L.R.B. 1992)

319
309 NLRB No. 37
A & J CARTAGE
1 In our previous decision in this matter, A & J Cartage, Case 30–
RC–5270 (Apr. 29, 1992) (not reported in Board volumes), we noted
that the parties stipulated at the hearing that the ballots of James
Casson and Mike Johnson should not be opened or counted. In addi-
tion, in the absence of exceptions, we adopted pro forma the hearing
officer’s recommendation to overrule the challenges to the ballots of
Desco Salaam and Bradley Lundgren. We did not, however, order
these ballots opened or counted, but held them pending resolution
of the challenge to Jeffrey Flores’ ballot, decided here. Finally, we
held in abeyance the challenge to the ballot of William Spang, which
we resolve here, see fn. 3, infra.
2 The Employer has renewed its motion, pending before the hear-
ing officer, to reopen the record in this matter. The Board’s Rules
and Regulations Sec. 102.65(e)(1) provides that ‘‘No motion . . . to
reopen the record will be entertained by the Board . . . with respect
to any matter which could have been but was not raised pursuant
to any other section of these rules.’’ In addition, the Rules require
that, ‘‘A motion . . . to reopen the record shall specify briefly . . .
the additional evidence sought to be adduced [and] why it was not
presented previously.’’ Finally, the Rules state that ‘‘Only newly dis-
covered evidence—evidence which has become available only since
the close of the hearing . . . will be taken at any further hearing.’’
(Emphasis added.)
In the absence of any showing by the Employer that the evidence
that it seeks to admit was newly discovered or previously unavail-
able, we deny its motion to reopen the record. Additionally, we note
that evidence of postelection, posthearing events, evidence which the
Employer now seeks to admit, does not provide a basis for reopen-
ing the record and would not affect the determination of an employ-
ee’s eligibility at the time of the election.
Finally, the Employer argued that in our decision remanding the
instant matter to the hearing officer, we implicitly directed the re-
opening of the record for the purpose of taking additional evidence.
We note that our decision remanding this matter to the hearing offi-
cer did not provide for such a direction, but merely ordered the re-
view of the ‘‘entire record.’’
3 We adopt the hearing officer’s initial findings and recommenda-
tion to sustain the challenge to the ballot of William Spang, which
we held in abeyance pending resolution of he challenge to Flores’
ballot.
4 The unit description expressly includes only employees engaged
in the Employer’s fly ash removal operation. The Petitioner argued
that Flores worked in the Employer’s sludge removal/injection oper-
ation as a sludge injector/operator, a nonunit position.
5 The work performed by Flores was driving a snowplow at the
Oak Creek Power Plant in the winter of 1990 in order to facilitate
fly ash removal.
6 In his revised report, the hearing officer cited testimony related
to Flores, stating that this was ‘‘all [the] testimony related to Flores
and his job functions contained within the transcript.’’ In its brief,
the Employer pointed to additional testimony by its witness, the Em-
ployer’s owner Jalovec, not cited by the hearing officer, which indi-
cates that prior to his injury, Flores performed fly ash removal (unit)
work.
Based on our review of the record, we find this omission to be
harmless error. In so finding, we note that the hearing officer stated
that he had ‘‘reviewed the entire record and considered all evi-
dence.’’ We further note that the hearing officer also failed to in-
clude in his report a cite to other relevant testimony—testimony
which supports his findings and recommendations and would serve
to rebut the testimony cited by the Employer. In these circumstances,
the hearing officer’s failure to cite every specific reference to Flores
is not fatal to his findings and recommendations.
A & J Cartage, Inc. and International Union of Op-
erating Engineers, AFL–CIO, Local 139, Peti-
tioner. Case 30–RC–5270
October 23, 1992
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held July 12, 1991, and the hearing offi-
cer’s revised report recommending disposition of them.
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 12 for
and 9 against the Petitioner with 6 challenged ballots,
a number sufficient to affect the results of the elec-
tion.1
The Board has reviewed the record in light of the
exceptions and brief,2 and has adopted the hearing of-
ficer’s findings and recommendations.3
The ballot of Jeffrey Flores was challenged by the
Petitioner on the basis that Flores was not a unit em-
ployee.4 The Employer maintained that Flores was a
unit employee who was out of work due to a work-
related injury. The hearing officer, in his initial report
on challenged ballots, found that Flores was ineligible
to vote in the election because there was ‘‘no evidence
that Flores ever performed any work related to the Em-
ployer’s fly ash hauling contracts [unit work].’’ The
Employer filed exceptions to this finding, citing record
testimony that Flores performed unit work during the
relevant time period. Based on that testimony, we re-
manded the case to the hearing officer to review the
entire record and to make any necessary revisions to
his initial report.
In his revised report on the challenged ballot, the
hearing officer, citing relevant testimony relating to
Flores and his job functions, found that Flores may
have performed unit work on 2 possible days over a
1-1/2-year period but that this was de minimis and not
sufficient to find that Flores was engaged in unit
work.5 Accordingly, he concluded that Flores was in-
eligible to vote in the election and renewed his rec-
ommendation that the challenge to Flores’ ballot be
sustained.
The Employer has excepted to this finding, arguing
that the hearing officer failed to consider allegedly
uncontradicted testimony that Flores was engaged in
unit work prior to his injury.6 Based on our review of
the entire record, including the testimony cited by the
Employer, we adopt the hearing officer’s recommenda-
tion to sustain the challenge to Flores’ ballot.
It is well settled that ‘‘an employee on sick leave is
presumed to be part of the unit absent evidence that
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Custom Bent Glass Co., 304 NLRB 373 (1991); see Red Arrow
Freight Lines, 278 NLRB 965 (1986).
8 We note that the parties have not argued that Flores has been ter-
minated or has resigned.
9 Because the Employer has not argued that Flores is a dual-func-
tion employee engaged in both sludge removal/injection work and
fly ash removal work, but rather that Flores is solely a fly ash re-
moval employee, our analysis here is to determine whether Flores
was either a sludge injector/operator or a fly ash removal employee.
10 Indeed, we also note that Jalovec’s previous testimony is not in-
consistent with the testimony of Mamerow and Rayeske; Jalovec ad-
mitted that Flores was hired as a sludge injector and was performing
sludge removal/injection work at the time of his injury.
the employee has been terminated or has resigned.’’7
Thus, the relevant question with regard to Flores’ eligi-
bility to vote in the election is whether he performed
unit work prior to his work-related injury; if he per-
formed unit work, he remains eligible to vote in any
representation election, notwithstanding that he is on
sick leave.8 If, however, he did not engage in unit
work prior to his sick leave, he is not considered a unit
employee for voter eligibility purposes, notwithstand-
ing the Employer’s intent to place him in the unit after
his return to work.9
Our review of the relevant evidence as it relates to
the question of the work performed by Flores prior to
his injury convinces us that Flores was a nonunit
sludge injector/operator. The Employer’s owner
Jalovec testified that Flores was initially hired in 1984
as a sludge injector/driver. In addition, he testified that
at the time of Flores’ injury in May 1989, Flores was
performing sludge removal/injection work. Jalovec fur-
ther testified that although some employees perform
both fly ash removal and sludge removal/injection
work, some employees are engaged solely in sludge
removal/injection. Finally, Jalovec testified that sludge
removal/injection is seasonal work performed only in
the spring and fall of the year and that Flores was in-
jured in the spring while doing sludge removal/-injec-
tion work.
In addition to Jalovec’s testimony, the credited testi-
mony of the Petitioner’s witness, Rayeske, discloses
that Flores was a sludge injector/operator in 1984.
Rayeske also credibly testified that sludge
injector/operators work exclusively with sludge
removal/injection and do not engage in fly ash removal
work. Further, the testimony of the Petitioner’s
witness, Mamerow, discloses that Mamerow worked
for the Employer for the past 6 years (the relevant time
before and after Flores’ injury) and that Flores was a
sludge injector/operator during that time. Mamerow
also corroborated Rayeske’s testimony that sludge
injector/operators are not involved in fly ash removal
work. This point was also supported by Jalovec’s testi-
mony that some employees perform only sludge
removal/injection work. Mamerow further testified that
he witnessed Flores performing sludge removal/-injec-
tion work in 1989 just prior to his injury.
The only evidence which arguably contradicts the
above testimony is the testimony of Owner Jalovec in
which Jalovec had the following exchange with the
Employer’s counsel:
Q. What job if any will Mr. Flores return to at
A & J Cartage when he is released by his physi-
cian?
A. Well, initially when he comes back from the
wrist surgery I imagine he is going to be put on
some light duty, but eventually he will be back to
his normal functions.
Q. Okay, what would his normal functions be?
A. His primary normal function, up until the
time he got hurt, was working at the Oak Creek
Power Plant.
Q. Okay, and when you say working at the Oak
Creek Power Plant what type of work would he
be doing at the Oak Creek Power Plant?
A. I believe he did some driving, operating
equipment.
Q. What type of equipment?
A. Front end loader, compactor, driving truck.
Q. Would this be fly ash removal work?
A. Yes.
This testimony, although not directly cited by the hear-
ing officer, was discredited by implication. In his re-
vised report, he stated, ‘‘I thus do not credit Jalovec
whenever conflicts in testimony exist with that of the
Union witnesses.’’ Therefore, in light of the credited
testimony of Mamerow (that Flores was a sludge
injector/operator at the time of his injury and that
sludge injector/operators do not perform fly ash re-
moval work) and Rayeske (that sludge
injector/operators do not perform fly ash removal
work), we find that the hearing officer discredited
Jalovec’s conclusory and contradictory comments re-
garding Flores’ ‘‘normal functions.’’10
Based on the weight of the foregoing testimony and
relevant evidence as it relates to Flores’ work prior to
his injury, we find that Flores was a sludge
injector/operator prior to his injury and thus ineligible
to vote in the election. Accordingly, we sustain the
challenge to his ballot.
Based on our decision here, the ballots of Desco Sa-
laam and Bradley Lundgren are no longer determina-
tive. Accordingly, we will not order those ballots
opened or counted, but rather will issue the appropriate
Certification of Representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for International Union of Operating
Engineers, AFL–CIO, Local 139 and that it is the ex-
321A & J CARTAGE
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time equipment op-
erators, mechanic/welders, laborers, and truck-
drivers employed at or out of the Employer’s Oak
Creek, Pleasant Prairie and Port Washington, Wis-
consin facilities engaged in fly ash removal; but
excluding all office clerical employees, guards
and supervisors as defined in the Act.