RathGibson, Inc.

National Labor Relations Board - Unpublished Board Decisions

Feb 23, 2010

30-RC-006747 (N.L.R.B. Feb. 23, 2010)

NOT TO BE INCLUDED
IN BOUND VOLUMES
LS
Janesville, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
RATHGIBSON, INC.
and Case 30-RC-6747
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 139, AFL-CIO
DECISION AND DIRECTION OF SECOND ELECTION
The National Labor Relations Board' has considered objections
to an election held April 2, 2009, and the hearing officer's
report recommending disposition of them. The election was
1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated ' to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the
Board's powers in anticipation of the expiration of the terms of
Members Kirsanow and Walsh on December 31, 2007. Pursuant to
this delegation, Chairman Liebman and Member Schaumber
constitute a quorum of the three-member group. As a quorum,
they have the authority to issue decisions and orders in unfair
labor practice and representation cases. See Sec. 3(b) of the
Act. See Teamsters Local 523 v. NLRB, 590 F.3d 849 (10th Cir.
2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654 (4th Cir.
2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir.
2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11,
2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th
Cir. 2009), cert. granted 130 S.Ct. 488 (2009); Northeastern
Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for
cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213).
But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564
conducted pursuant to a Stipulated Election Agreement. The
revised tally of ballots shows 60 votes for and 62 against the
2Petitioner .
The Board has reviewed the record in light of the
3
exceptions and briefs , has adopted the hearing officer's
findingS4 and recommendations, as specified below, and finds that
5
the election must be set aside and a new election held .
F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W.
3185 (U.S. Sept. 29, 2009) (No. 09-377).
2 The initial ballot tally showed 60 votes for and S9 against
the Petitioner, with challenged ballots sufficient in number to
affect the result. In the absence of exceptions to the hearing
officer's resolution of the ballot challenges, the Board, on
September 29, 2009, directed the Regional Director to open and
count the ballots of Robert Dibble, Timothy Armstrong, and Tracy
Pankhurst. Subsequently, the Regional Director issued the
revised tally and transferred this proceeding back to the Board
for consideration of the Employer's exceptions to the hearing
officer's findings of objectionable conduct.
3 We affirm the hearing officer's approval of the Petitioner's
post-hearing request to withdraw its challenge of employee
Dibble's ballot. Accordingly, we deny the Employer's exception
that the hearing officer erroneously failed to consider the
challenge on the merits.
In the absence of exceptions, we adopt pro forma the hearing
officer's recommendation to overrule objections 2, 5, and A, and
portions of Objections 1, 4, and 6.
4 The Employer has excepted to some of the hearing officer's
credibility findings. The Board's established policy is not to
overrule a hearing officer's credibility resolutions unless the
clear preponderance 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.
5 We find no merit in the Employer's exception to the hearing
officer's denial of its request to reopen the record for
evidence of its post-hearing bankruptcy filing under Chapter 11.
The hearing officer found the filing irrelevant to the issues in
this proceeding, and we agree. Even assuming arguendo a measure
of relevance, the Employer has not demonstrated that an
2
We agree with the hearing officer that the Employer engaged
in objectionable conduct when Supervisor Tony Cichella
threatened employee Robert Powers that the Employer's corporate
owner might "come in and run a company like this into the ground
to keep the union out." We also agree that Supervisor Otto
Maldonado's statements to employee Brady Schultz that Schultz
and other employees would be "crazy" to think that they would be
able to keep their current wage rates in negotiations
constituted objectionable threats that the Employer would cut
wages if the Petitioner were elected to represent the employees.
Because this objectionable conduct is sufficient to require a
new election, we find it unnecessary to consider the hearing
officer's findings of additional misconduct.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the
employees in the unit found appropriate, whenever the Regional
Director deems appropriate. The Regional Director shall direct
and supervise the election, subject to the Board's Rules and
Regulations. Eligible to vote are those employed during the
payroll period ending immediately before the date of the Notice
of Second Election, including employees who did not work during
evaluation of its proffered documents would require a different
result concerning the findings of objectionable conduct we
affirm here. Thus, the Employer has not established
3
the period because they were ill, on vacation, or temporarily
laid off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of the
first election and who retained their employee status during the
eligibility period and their replacements. Jeld-Wen of Everett,
Inc., 285 NLRB 118 (1987). Those in the military services may
vote if they appear in person at the polls. Ineligible to vote
are employees who have quit or been discharged for cause since
the payroll period, striking employees who have been discharged
for cause since the strike began and who have not been rehired
or reinstated before the election date, and employees engaged in
an economic strike that began more than 12 months before the
date of the first election and who have been permanently
replaced. Those eligible shall vote whether they desire to be
represented for collective bargaining by International Union of
Operating Engineers, Local 139, AFL-CIO.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory
right to vote, all parties to the election should have access to
a list of voters and their addresses that may be used to
communicate with them. Excelsior Underwear, 156 NLRB 1236
(1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969).
"extraordinary circumstances" for reopening the record. See
Sec. 102.65(e) of the Board's Rules and Regulations.
4
Accordingly, it is directed that an eligibility list containing
the full names and addresses of all the eligible voters must be
filed by the Employer with the Regional Director within 7 days
from the date of the Notice of Second Election. North Macon
Health Care Facilit , 315 NLRB 359 (1994). The Regional
Director shall make the list available to all parties to the
election. No extension of time to file the list shall be
granted by the Regional Director except in extraordinary
circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election if proper objections are
filed.
Dated, Washington, D.C., February 23, 2010.
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD