CWM, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 495 (N.L.R.B. 1992)

495
306 NLRB No. 91
CWM, INC.
1 All dates are 1991 unless otherwise indicated.
2 The Occupational Safety and Health Administration (OSHA) re-
quires 24 hours of initial training and an annual 8-hour refresher
course in workplace safety and health. The Environmental Protection
Agency mandates certain types of training within the first 6 months
of employment. Pursuant to its licensing authority, the State of
Texas also requires detailed training and orientation of all new em-
ployees.
3 There were about 15 other new employees, in addition to the
challenged voters, who attended the week-long training. They were
not members of the unit.
4 Thus, the training undergone by the challenged voters in this case
is distinguishable from the mere orientation and ‘‘preliminaries’’ at
issue in Tom Wood Datsun, 767 F.2d 350 (7th Cir. 1985), enfg. 270
NLRB No. 162 (June 8, 1984) (not included in bound volumes),
Emro Marketing Co., 269 NLRB 926 (1984), and F. & M. Importing
Co., 237 NLRB 628 (1978), cited by the hearing officer.
5 Three of the challenged voters were transfers from other waste
processing facilities operated by the Employer. The record indicates
that at least some of the transfers were not required to attend a por-
tion of the first day’s orientation program.
6 The uncontradicted testimony was that the challenged voters
were instructed to bring their Employer-provided, steel-toed shoes on
Friday, June 14. They were not, however, wearing the shoes on Fri-
day.
CWM, Inc.—Port Arthur and International Broth-
erhood of Electrical Workers, Local 479, AFL–
CIO, Petitioner. Case 16–RC–9397
February 28, 1992
DECISION AND DIRECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held on July 3, 1991,1 and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The tally of ballots was seven votes
for and two votes against the Union, with five chal-
lenged ballots, a sufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief and has determined, for the fol-
lowing reasons, that the challenges to the five ballots
should be overruled.
The Petitioner challenged the ballots of five employ-
ees—David Austin, Jerry Boling, Joseph Cormier, Jeff
Cullum, and Glen Graham—on the ground that they
were not employed in the unit performing bargaining
unit work as of the June 15 payroll eligibility date and,
thus, were ineligible to vote in the election. The hear-
ing officer found that the challenged voters—new em-
ployees at the Employer’s Port Arthur facility—spent
their first 5 days of employment, June 10 through 14,
in an orientation/training program during which they
performed no actual bargaining unit work. The hearing
officer concluded that the challenged voters had not
begun to perform bargaining unit work on the eligi-
bility date and recommended that the challenges to
their ballots be sustained. For the reasons that follow,
we do not adopt the hearing officer’s recommendation.
The Employer operates several waste treatment fa-
cilities, among them an organic waste treatment facility
at Port Arthur, where the challenged voters were hired
as permanent employees. In accordance with Federal
and state regulations covering the licensing and oper-
ation of waste treatment plants,2 the Employer requires
all new employees to complete successfully a 5-day
orientation and training program and associated tests
before beginning hands-on work at the facility. The
challenged voters were new employees at Port Arthur
and attended an orientation and training program from
June 10 to 15.3 The training was comprehensive, in-
cluding site safety and accident procedures, identifica-
tion and handling of hazardous waste, emergency re-
sponse and reporting procedures, contingency plans,
use of personal protective equipment, regulatory cov-
erage and compliance requirements, substance abuse,
confined space entry procedures, lockout/tagout proce-
dures, heat stress, and a variety of other work-related
matters.4 Part of the first day was devoted to com-
pleting various employment forms and learning about
Employer policies.5
On Friday morning, June 14, the final day of ori-
entation and training and the day before the June 15
payroll eligibility date, the challenged voters took a
bus tour of the Employer’s 3600-acre facility. In the
early afternoon, around 1 or 2 p.m., they were released
to their supervisor, Dale Young, to begin their as-
signed jobs. The challenged voters, however, did not
have all the protective clothing and equipment required
for working in the waste processing areas of the plant.6
After consulting his supervisor, Maintenance Super-
intendent Dave Matthews, Young released the chal-
lenged voters for the balance of the day with instruc-
tions to report back on Monday, June 17.
It is settled that, to be eligible to vote in a Board-
conducted election, the employee must be employed
and working on the eligibility date, unless the em-
ployee is absent for one of the reasons set out in the
Direction of Election. Ra-Rich Mfg. Corp., 120 NLRB
1444, 1447 (1958); Tom Wood Datsun, supra. The
Board defines ‘‘working’’ under this ‘‘hired and work-
ing’’ requirement as meaning ‘‘actual performance of
bargaining unit work,’’ excluding ‘‘participation in
training, orientation or other preliminaries.’’ Emro
Marketing Co., supra at 926 fn. 1 (1984); Roy N.
Lotspeich Publishing Co., 204 NLRB 517 (1973). The
Board’s so-called prework rule has two purposes: it
operates as a prophylactic against an employer’s ma-
nipulation of an election by hiring employees favorable
to its position just prior to the election, and it provides
a simple and fair means of determining whether newly
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See Saint Jean Des Pres Restaurant, 279 NLRB 109 (1986), in
which the Board overruled a challenge to the ballot of an employee
who was in training during part of the week prior to the eligibility
cutoff date but was performing unit work the last 2 days of that
week.
8 Thus, unlike the challenged voters in cases like Tom Wood
Datsun, supra, Emro Marketing Co., supra, and F. & M. Importing
Co., supra, relied on by the hearing officer, the newly trained em-
ployees here had been expected to physically perform, and would
have physically performed, bargaining unit work but for the special
circumstances described above.
hired employees are part of the bargaining unit. Tom
Wood Datsun, supra at 352.
In this case, it is clear that the challenged voters
were employed on the June 15 payroll eligibility
date—they were in pay status and had attended the
Employer’s required training program beginning on
June 10. Thus, the issue is whether they were ‘‘work-
ing’’ and eligible to vote or merely engaged in ‘‘pre-
liminaries.’’
We find that the challenged voters were working in
the unit and eligible to vote no later than the time they
were released to their supervisor to begin working at
their assigned jobs on Friday, June 14.7 The challenged
voters were hired as permanent employees. They began
their employment at Port Arthur by attending a week-
long training program. Training was required by Fed-
eral and state laws, and the Employer’s training pro-
gram was comprehensive and substantive in nature, as
opposed to merely involving orientation or ‘‘prelimi-
naries.’’ By Friday afternoon the challenged voters had
successfully completed the training and were released
to their duties in the processing areas of the facility.
At that point they were ‘‘working’’ on the job. They
would have physically begun their job duties had it not
been for their failure to have adequate protective
equipment.8 Under these circumstances, the Employ-
er’s decision to release the challenged voters from
work on Friday afternoon, when they would otherwise
have been working at their assigned duties, does not
negate their ‘‘hired and working’’ status.
Based on all these factors, we find that David Aus-
tin, Jerry Boling, Joseph Cormier, Jeff Cullum, and
Glen Graham were eligible to vote. Accordingly, we
overrule the challenges to their ballots and order that
their ballots be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 16 shall open and count the ballots of David Aus-
tin, Jerry Boling, Joseph Cormier, Jeff Cullum, and
Glen Graham within 10 days of the date of this deci-
sion; prepare and serve on the parties a revised tally
of ballots; and thereafter issue the appropriate certifi-
cation.