Martin Enterprises

National Labor Relations Board - Board Decisions

Apr 30, 1998

325 N.L.R.B. 714 (N.L.R.B. 1998)

714
325 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereafter are in 1997 unless otherwise noted.
2 The ballots were mailed to eligible voters on September 3, 1997,
and were counted on September 19, 1997.
The Petitioner timely filed objections to the election but, with the
approval of the hearing officer, withdrew the objections during the
hearing.
3 In adopting the hearing officer’s finding that Palmer is not a su-
pervisor within the meaning of the Act, Member Brame does not
rely on the statement, on p. 11 of the report, that ‘‘supervisory status
should be narrowly construed lest an employee deemed a supervisor
be denied employee rights which the Act is intended to protect,’’ or
on the citation to Quadrex Environmental Co., 308 NLRB 101
(1992).
4 The Petitioner filed a ‘‘limited and conditional exception’’ to the
hearing officer’s report. It stated that if the Board were to reverse
the hearing officer and sustain the Employer’s challenge to the ballot
cast by Jon A. Schmidt, then the Petitioner wished to except to the
hearing officer’s recommended disposition of Palmer’s ballot. The
Petitioner requested leave to file a brief in support of the exception.
As discussed infra, we have decided to sustain the challenge to
Schmidt’s ballot. In accordance with the Petitioner’s request, we
have considered its exception to the hearing officer’s recommenda-
tion to overrule the challenge to Palmer’s ballot. However, as set
forth above, we find no merit in the Petitioner’s exception.
We deny the Petitioner’s request for leave to file a brief in support
of its exception. The Board’s Rules provide that exceptions and a
supporting brief are to be filed within 14 days from the date of
issuance of the hearing officer’s report on challenged ballots. See
Sec. 102.69(c)(2).
5 Phil Clark, although considered to be a city driver, spends 50
percent of his time performing operator functions and 50 percent
driving trucks. The parties agreed that Clark was eligible to vote.
Martin Enterprises, Inc. and International Union of
Operating Engineers, Local Union No. 103, Pe-
titioner. Case 25–RC–9696
April 30, 1998
DECISION AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in a mail-ballot election held in September 1997,1 and
the hearing officer’s report recommending disposition
of them.2 The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows eight for and seven against the Petitioner, with
two challenged ballots.
The Board has reviewed the record in light of the
exceptions and briefs, and has adopted the hearing of-
ficer’s findings and recommendations only to the ex-
tent consistent with this Decision and Direction.
1. We adopt the hearing officer’s recommendation to
overrule the Petitioner’s challenge to the ballot of
Lynn E. Palmer, and we shall direct that his ballot be
opened and counted. For the reasons stated by the
hearing officer,3 we agree that there is insufficient evi-
dence to establish that Palmer is a supervisor within
the meaning of Section 2(11) of the Act.4
2. For the reasons set forth below, however, we do
not agree with the hearing officer’s recommendation
that the Employer’s challenge to the ballot of Jon A.
Schmidt be overruled.
The Petitioner seeks to represent a unit of the Em-
ployer’s heavy equipment operators. The parties’ Stip-
ulated Election Agreement specifically excludes from
the unit truckdrivers and certain other classes of em-
ployees not relevant here.
From September 1995 until approximately August
26, 1997, Schmidt worked primarily as a heavy equip-
ment operator. As a result of an arthritic condition,
Schmidt had difficulty operating certain types of
cranes. The Employer had, to the extent possible, ac-
commodated Schmidt by refraining from assigning him
to the type of crane which he had a problem operating.
Schmidt, however, continued to work as an operator
between 50 and 80 percent of his time.
In April, Schmidt suffered a nonwork-related injury
to his ankle. With the exception of a week in July dur-
ing which he drove a tractor at an airport jobsite for
the Employer, Schmidt was out of work on disability
leave until about August 12. At that time, he returned
to duty and continued to perform operator functions
for approximately 2 weeks. On about August 26, one
of the Employer’s owners told Schmidt that he would
be driving a truck permanently. The record shows that,
after his transfer to truck-driving duties, Schmidt per-
formed unit work for about 6 hours on September 16,
an hour in late September, and once for an unspecified
period of time in October. In addition, Schmidt some-
times assisted another city driver, Phil Clark, in opera-
tor functions.5
The hearing officer found that Schmidt was eligible
to vote, concluding that, although Schmidt was trans-
ferred to a nonunit truckdriver position before the elec-
tion, he still functioned sufficiently as an operator for
him to qualify as a dual-function employee. In so find-
ing, the hearing officer relied on Schmidt’s perform-
ance of unit work during the calendar quarter prior to
the eligibility date (before his transfer into a nonunit
position), and found that Schmidt’s performance of
unit work during that time exceeded the average of 4
hours per week traditionally used by the Board to de-
termine eligibility. In the alternative, the hearing offi-
cer found that Schmidt was eligible to vote because his
medical condition may permit him in the future to re-
sume more operator duties. We disagree with the hear-
ing officer and find that Schmidt was not an eligible
voter.
To be eligible to vote in a Board election, an em-
ployee must be in the appropriate unit on the estab-
lished eligibility date and on the date of the election.
Plymouth Towing Co., 178 NLRB 651 (1969). An em-
ployee, as in this case, who is transferred out of the
unit before the election and who has no reasonable ex-
pectancy of returning to the unit is not eligible. Mrs.
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715MARTIN ENTERPRISES
6 The formula set forth in Davison-Paxon Co., 185 NLRB 21
(1970), is commonly used for determining the eligibility of on-call
employees who work on an irregular and unscheduled basis. Under
that formula employees who work on average 4 or more hours per
week in the calendar quarter prior to the eligibility date are eligible
to vote.
Baird’s Bakeries, 323 NLRB No. 103 (Apr. 30, 1997).
However, should that employee continue, after the
transfer, to regularly perform duties similar to those
performed by unit employees for periods of time suffi-
cient to demonstrate that he has a substantial interest
in working conditions in the unit, he may be found eli-
gible as a dual-function employee. Air Liquide Amer-
ica Corp., 324 NLRB No. 104 (Oct. 7, 1997).
Dual-function employees, employees who perform
more than one function for the same employer, may
vote even though they spend less than a majority of
their time on unit work, if they regularly perform du-
ties similar to those performed by unit employees for
sufficient periods of time to demonstrate that they have
a substantial interest in working conditions in the unit.
Continental Cablevision, 298 NLRB 973 (1990); Alpha
School Bus Co., 287 NLRB 698 (1987); and Oxford
Chemicals, 286 NLRB 187 (1987). As the hearing offi-
cer correctly stated, employees devoting less than 50
percent of their time to unit work may have sufficient
interest in the terms and conditions of employment to
warrant their inclusion in the unit. Avco Corp., 308
NLRB 1045 (1992); and Berea Publishing Co., 140
NLRB 516 (1963).
In determining whether dual-function employees
regularly perform duties similar to those performed by
unit employees for sufficient periods of time to dem-
onstrate that they have a substantial interest in the
unit’s working conditions, the Board has no bright line
rule as to the amount of time required to be spent in
performing unit work. Rather, the Board examines the
facts in each particular case. See, e.g., Oxford Chemi-
cals, supra (employee who regularly performed unit
work for 25 percent of each working day was included
in the unit); Davis Transport, 169 NLRB 557, 562–
563 (1968) (employees who spent less than 3 percent
of their time performing unit work during 10-month
time period were not included in unit); Mc-Mor-Han
Trucking Co., 166 NLRB 700, 702 (1967) (employee
who drove truck on 20 days during the year with no
regularity, pattern, or consistent schedule, was ex-
cluded from unit of truckdrivers). In Syracuse Univer-
sity, 325 NLRB No. 15 (Nov. 8, 1997), the Board held
that it was inappropriate to apply the Davison-Paxon6
formula in determining whether dual-function employ-
ees perform unit functions regularly and for a suffi-
cient amount of time to be deemed eligible to vote.
Applying these principles to the facts here, we find
that the hearing officer erred in finding Schmidt eligi-
ble to vote based on dual-function status. First, the
hearing officer inappropriately used the Davison-Paxon
4-hour-per-week formula (although he did not explic-
itly refer to that case) in determining Schmidt’s dual-
function status. That formula does not apply in dual-
function cases. See Syracuse University, supra.
Second, the hearing officer erred in using the hours
worked by Schmidt as a unit employee before his
transfer to a nonunit position to support his finding of
dual-function status after the transfer. The hearing offi-
cer concluded that Schmidt was transferred to a
nonunit position on August 26. That transfer rep-
resented a change of status. To the extent that Schmidt
might qualify as a dual-function employee, his quali-
fication must be based on his regular and substantial
performance of unit work after the transfer. Air
Liquide America Corp., supra; and Meadow Valley
Contractors, 314 NLRB 217 (1994). As noted above,
the record shows that after his transfer Schmidt only
performed unit work for about 6 hours on September
16, an hour in late September, and once for an unspec-
ified period of time in October. Schmidt himself testi-
fied that after the transfer he spent at most 10 percent
of his time working with operators and did very little
unit work. Based on this evidence, we conclude that
Schmidt’s performance of unit work after his transfer
was sporadic rather than regular and was for an insuf-
ficient period of time to warrant a finding that he was
eligible to vote as a dual-function employee.
In addition, we reject as speculative the hearing offi-
cer’s alternative rationale that Schmidt is eligible to
vote because in time he may be able to resume more
operator duties. Schmidt is not on sick leave, nor is
there any evidence that his transfer was temporary.
Schmidt himself testified that he was told he would be
driving a truck permanently. There is no evidence that
the transfer was related to Schmidt’s ankle injury. To
the contrary, the record shows that Schmidt had been
fully released to return to work in connection with his
ankle injury at least 2 weeks before he was transferred.
Thus, we cannot find on this record sufficient evidence
to warrant the conclusion that Schmidt’s performance
of unit work will substantially increase.
For these reasons, we conclude that Schmidt was a
nonunit truckdriver at the time of the election, and that
his performance of unit work after his transfer from
the unit was sporadic and insufficient to demonstrate
that he has a continued interest in the unit’s terms and
conditions of employment. Accordingly, the challenge
to Schmidt’s ballot is sustained.
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716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 25 shall, within 14 days from the date of this De-
cision and Direction, open and count the ballot of
Lynn E. Palmer, prepare and serve on the parties a re-
vised tally of ballots, and issue the appropriate certifi-
cation.
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