Agar Supply Co.

National Labor Relations Board - Board Decisions

Nov 15, 2002

338 N.L.R.B. 506 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506
Agar Supply Company, Inc. and Teamsters, Local 25,
a/w International Brotherhood of Teamsters,
AFL–CIO. Case 1–RC–21417
November 15, 2002
ORDER GRANTING MOTION
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On September 6, 2002, the National Labor Relations
Board issued a Decision and Order1 in this proceeding
adopting the Regional Director’s findings and recom-
mendations, overruling the challenge to Robert Koch’s
ballot, and directing that the ballot be opened and
counted.
On September 26, 2002, the Employer filed an Emer-
gency Motion to Stay the Opening of Koch’s Ballot, to
Reopen the Record, and for Reconsideration of the
Board’s Decision and Order. The Employer asserts that
new evidence makes clear that (1) Koch was not in the
bargaining unit at the time of the election and (2) he will
never be able to work in a bargaining unit position due to
his injury; thus, there is no reasonable expectation that he
will ever return to the unit. The Petitioner filed an oppo-
sition to the Employer’s motion.
We have decided to grant the Employer’s motion.2
Accordingly, the Board having duly considered the mat-
ter,

1 337 NLRB 1267.
2 Contrary to the dissent, Member Bartlett does not agree that the
evidence presented in the Employer’s motion for reconsideration re-
garding Koch’s status is irrelevant because it only addresses Koch’s
status on August 23, 2002, approximately 10 months after the election.
That evidence may tend to support the Employer’s contention that, in
fact, Koch had been removed from, or was no longer employed in, the
unit at the time of the election. In any event, even without considering
the Employer’s new evidence, Member Bartlett believes that a hearing
should have been held in this proceeding. Although he previously
voted to adopt the Regional Director’s findings in the absence of a
hearing, he has reconsidered his position. In the words of Justice
Frankfurter, “Wisdom too often never comes, and so one ought not to
reject it merely because it comes late.” Henslee v. Union Planters Nat.
Bank & Trust Co., 335 U.S. 595, 600 (1949) (dissenting). See also
Reichhold Chemicals, 288 NLRB 69 (1988) (granting motion for re-
consideration and modifying prior decision), enfd. in part 906 F.2d 719
(D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991).
Member Cowen dissented from the Board’s prior order and would
have sustained the challenge to Koch’s ballot. However, he agrees that,
at a minimum, the Regional Director should have held a hearing regard-
ing Koch’s status. Accordingly, he joins Member Bartlett in remanding
for such a hearing.
IT IS ORDERED that the Employer’s motion is granted
and the proceeding is remanded to the Regional Director
to conduct a hearing on the issue of Koch’s eligibility.
Thereafter, the Regional Director shall issue a Supple-
mental Report on Challenged Ballots.

MEMBER LIEBMAN, dissenting.
I would deny the Employer’s motion for reconsidera-
tion of our September 6, 2002 Decision and Order and
for reopening of the record. Section 102.48(d)(1) of the
Board’s Rules and Regulations requires a party to show
“extraordinary circumstances” to justify reconsideration
of a Board decision, and also requires a party to show
that any new evidence it seeks to introduce “would re-
quire a different result,” in order to justify reopening the
record. My colleagues have identified no “extraordinary
circumstances” that would justify reconsideration. In
fact, the only new circumstances set forth in the Em-
ployer’s motion is evidence of the challenged voter’s
status on August 23, 2002, nearly 10 months after the
election. An employee’s eligibility, however, is judged
as of the date of the election, and thus this evidence is
completely irrelevant under any standard. As such, it
does not constitute an “extraordinary circumstance” justi-
fying reconsideration, or evidence that “would require a
different result,” justifying reopening the record in this
proceeding. Accordingly, I would deny the Employer’s
motion.

338 NLRB No. 59