Meadow Valley Contractors

National Labor Relations Board - Board Decisions

Jun 30, 1994

314 N.L.R.B. 217 (N.L.R.B. 1994)

217
314 NLRB No. 40
MEADOW VALLEY CONTRACTORS
1 The case caption has been revised to reflect the Employer’s cor-
rect name.
2 All dates are 1993 unless otherwise indicated.
3 In the absence of exceptions we adopt pro forma the Acting Re-
gional Director’s recommendations to sustain the challenge to the
ballot of Glen Hafen and to overrule the Petitioner’s Objection 1.
We adopt the Acting Regional Director’s recommendation to set
aside the election if the revised tally of ballots discloses that a ma-
jority of the valid votes has not been cast for the Petitioner. We note
that Thrifty Auto Parts, 295 NLRB 1118 (1989), the case cited in
support of his conclusion that the omission of 8.3 percent of the eli-
gible voters from the eligibility list did not constitute substantial
compliance by the Employer with its obligations under Excelsior
Underwear, 156 NLRB 532 (1970), does not, as contended by the
Employer, establish a threshold omission rate of 9.5 percent as a
minimum prerequisite for finding lack of compliance. Although that
was the omission rate in Thrifty Auto, the Board relied on Chemical
Technology, 214 NLRB 590 fn. 3 (1974), as precedent for its finding
that Thrifty failed to meet its Excelsior list obligations. In Chemical
Technology, the omission rate was 8.3. percent.
4 The Acting Regional Director incorrectly stated that Rowley
worked only 40 hours as an equipment operator during this period.
5 The evidence shows that Smith spent 2.5 hours the first day of
this second week doing nonbargaining unit work, but performed only
bargaining unit work the remainder of the week.
6 According to an affidavit Smith submitted, he performed unit
work for 10 hours on October 2, although listed on the Employer’s
certified payroll as performing nonunit work. The Employer sub-
mitted with its exceptions a related timesheet which it claims cor-
roborates Smith’s statement. Assuming arguendo that Smith had per-
formed nonunit work on that date, we would not find that this as-
signment would negate the appropriateness of our analysis here.
7 In reaching this finding, we find it unnecessary to rely on state-
ments assertedly made to Smith prior to the actual change in work
assignments.
Meadow Valley Contractors, Inc.1 and Operating
Engineers Local No. 3, International Union of
Operating Engineers, AFL–CIO, Petitioner.
Case 27–RC–7408
June 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The National Labor Relations Board has considered
determinative challenges and objections to an election
held October 5 and 6, 1993,2 and the Acting Regional
Director’s report recommending disposition of them.
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows six for
and five against the Petitioner, with three challenged
ballots, a sufficient number to affect the results.
The Board has reviewed the record in light of the
Employer’s exceptions and brief. We adopt the Acting
Regional Director’s findings and recommendations
only to the extent consistent with this Decision and
Order.3
We affirm the Acting Regional Director’s rec-
ommendation that the challenge to the ballot of em-
ployee Casey Rowley be sustained. Rowley was hired
on June 24 as a laborer, an excluded unit classification,
and performed bargaining unit work only intermittently
before the election eligibility cutoff date of September
4, having worked as an equipment operator during the
weeks ending July 17, August 28, and September 4 for
50 hours4 out of a total of approximately 400 hours
worked from his hire through September 4. He contin-
ued to perform nonbargaining unit work during all or
most of the first 2 weeks after the eligibility cutoff
date, only thereafter beginning to perform equipment
operator work on a regular basis. On these facts, the
Acting Regional Director appropriately applied a dual-
function employee analysis in determining that Rowley
had not performed bargaining unit work for a suffi-
ciently substantial amount of time by the eligibility
cutoff date to be eligible to vote in the ensuing elec-
tion.
Contrary to the recommendation of the Acting Re-
gional Director, however, we overrule the challenge to
the ballot of Kevin Smith. Smith commenced employ-
ment on August 6, and performed only nonbargaining
unit work during his first 3 weeks of employment.
Smith first began performing unit work 2 weeks prior
to the election eligibility cutoff date, initially on a trial
basis the first week and then without interruption the
following week.5 After the eligibility cutoff date, and
through the date of the election, Smith performed only
bargaining unit work, with one disputed exception.6
Thus the record supports the Employer’s contention
that Smith, although initially hired to perform nonunit
work, in fact had transferred to performing unit work
before the election eligibility cutoff date, and contin-
ued performing bargaining unit work on a continuous
basis through the date of the election.7 Consequently,
we find that the Acting Regional Director erred in ap-
plying a dual-function employee analysis to Smith. We
find that he effectively transferred into the bargaining
unit before the eligibility cutoff date and was therefore
eligible to cast a ballot in the election.
ORDER
It is ordered that this case be remanded to the Re-
gional Director for Region 27, who shall, pursuant to
the Board’s Rules and Regulations, within 10 days
from the date of this Decision and Order, open and
count the ballot of Kevin Smith. The Regional Director
shall then prepare and cause to be served on the parties
a revised tally of ballots. If the revised tally of ballots
shows that a majority of the valid votes has been cast
for the Petitioner, the Petitioner’s Objection 2 will be
moot and the Regional Director shall issue an appro-
priate Certification of Representative. If, however, the
revised ballot tally shows that the Petitioner has not re-
ceived a majority of the valid votes cast, IT IS FUR-
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THER ORDERED that the election conducted on October
5 and 6, 1993, be set aside. The Regional Director
shall then conduct a new election at a time he deems
appropriate.