OHD Service Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 901 (N.L.R.B. 1994)

901
313 NLRB No. 154
OHD SERVICE CORP.
1 No exceptions were filed to the hearing officer’s recommendation
sustaining the challenge to the ballot of Pat McVicker. We adopt
that recommendation pro forma.
The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
OHD Service Corporation and Teamsters Local
Union No. 670 affiliated with International
Brotherhood of Teamsters, Petitioner. Case 36–
RC–5485
February 28, 1994
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The National Labor Relations Board has considered
determinative challenges in an election held April 20,
1993, and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of
ballots shows 15 for and 14 against the Petitioner, with
2 challenged ballots, a number sufficient to affect the
results.
The Board has reviewed the record in light of the
exceptions and briefs, and has adopted the hearing of-
ficer’s findings and recommendations,1 as modified by
this Decision and Direction.
The sole issue before us is whether Ginger Pagel
was eligible to vote in the election. We agree with the
hearing officer that, during the period that the Em-
ployer operated the swing shift, Pagel, as the floor
leader on the inspection belts of that shift, was a su-
pervisor within the meaning of Section 2(11) of the
Act. We disagree, however, that because of her status
during that period she was not an eligible voter on the
critical dates.
The hearing officer found that Pagel worked the first
5 months of the 1992–1993 processing season as a
floor leader (supervisor) on the swing shift and the last
3 months as a quality control technician, a unit posi-
tion. Relying on Canonie Transportation Co., 289
NLRB 299 (1988), she concluded that 5 out of 8
months is a substantial portion of Pagel’s working time
and that, therefore, Pagel was not an eligible voter.
Accordingly, she sustained the challenge to Pagel’s
ballot.
In its exceptions, the Employer noted that Pagel’s
supervisory job was generated by an extraordinary oc-
currence, a record hazelnut harvest that for the first
time in the history of the plant required a second shift
on the inspection belts. The Employer also noted that
the swing shift ended before the petition was filed, and
that Pagel was not working as a supervisor at the time
the petition was filed or the election was held. It con-
tends, therefore, that she was eligible to vote in the
election.
We agree with the Employer that Pagel is an eligible
voter in the circumstances here. The record establishes
that Pagel worked as a unit employee both before and
after her stint as a supervisor, and that her elevation
to supervisory status was temporary and limited to the
swing shift for the 1992–1993 season. The record fails
to show that, in the inspection belt area in which Pagel
worked, a swing shift would be required in future sea-
sons. It is undisputed that the creation of the swing
shift in the 1992–1993 season was necessitated by un-
usual and unforeseen circumstances. Thus, Supervisor
Pat McVicker, who had worked at the plant for 16
years, testified without contradiction that she had never
known the plant to work a swing shift until the 1992–
1993 season. These circumstances distinguish this case
from Canonie where the supervisory relief program
was a regular part of the employer’s tugboat operation
and the individual there who was found ineligible to
vote, unlike Pagel, had worked as a relief captain 3
years before, and in the year before the election had
moved back and forth between his unit and super-
visory positions for substantial periods of time. Con-
sequently, we find that Pagel’s supervisory experience
did not extinguish her community of interest with
other unit employees, because she had not previously
acted in a supervisory capacity, and because it does
not appear that Pagel will serve in the role of a tem-
porary or part-time supervisor in the foreseeable future.
Accordingly, we overrule the challenge to the ballot
cast by Pagel, and we shall issue the following
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 14 days from the date of this Decision and Di-
rection, open and count the ballot of Ginger Pagel and
prepare and serve on the parties a revised tally of bal-
lots. Thereafter, the Regional Director shall issue the
appropriate certification.