Allegany Aggregates, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1999

327 N.L.R.B. 658 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
Allegany Aggregates, Inc. and International Union of
Operating Engineers Local No. 37, AFL–CIO,
Petitioner. Case 5–RC–14460
February 18, 1999
DECISION, ORDER, AND DIRECTION
BY MEMBERS FOX, HURTGEN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
conducted on May 29, 1997,1 and determinative chal-
lenged ballots therein and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Decision and Direction of Elec-
tion issued by the Regional Director on April 30.2 The
tally of ballots shows 10 ballots cast for and 11 against
the Petitioner, with 5 determinative challenged ballots.3
The Board has reviewed the hearing officer’s findings
in light of the exceptions and brief, and has decided to
adopt the hearing officer’s findings4 and recommenda-
tions only to the extent consistent herewith.5
For the reasons set forth below, we overrule the Peti-
tioner’s objections to the election, and we reject the hear-
ing officer’s recommendation to sustain the challenge to
the ballot of “floater” David Miller.
Since 1991, the Employer has operated two limestone
quarries, where it blasts and cuts rock from mountain-
sides and crushes it to government and customer specifi-
cation. The Bedrock quarry is in Flintstone, Maryland,
and the Short Gap quarry is a relatively short distance
away in Short Gap, West Virginia. The Employer em-
ploys approximately 29 people at both sites, of whom 7
or 8 are supervisors, dispatchers, and office clericals, and
are excluded from the production and maintenance unit.
The remaining employees at each location are quality
control employees, equipment operators, and mainte-
nance personnel, all of whom are included in the unit.

1 Except where specifically stated otherwise, all dates are in 1997.
2 On May 28, the Board issued an order denying the Employer’s re-
quest for review of the Decision and Direction of Election in all re-
spects, except for the Regional Director’s exclusion of the dispatchers
and the floater, whom the Board directed to be permitted to vote subject
to challenge.
3 The Petitioner withdrew its challenge to the ballot of employee
William Weaver, leaving four challenged ballots for determination.
4 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 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 For the reasons stated by the Regional Director in his Decision and
Direction of Election, with which the hearing officer agreed, we adopt
the hearing officer’s recommendation to sustain the challenges to the
ballots of the dispatchers, Paul McFarland and Jackie Hansel. Further,
for the reasons stated by the hearing officer, we adopt his recommenda-
tion to overrule the challenge to the ballot of Ralph Readd who was out
of work because of a work-related injury at all relevant times.
Member Hurtgen dissents with respect to the conclusion that em-
ployee Readd is eligible to vote. He would apply the test of whether
Readd has a reasonable expectation of returning to work in the unit.
That issue was not resolved by the hearing officer, and Member Hurt-
gen would therefore remand this issue. Without now resolving it,
Member Hurtgen notes that: Readd has been out of work on disability
since December 1995. Although he returned to work for 3 days in
March 1996, his disability prevented him from continuing to work.
From March 1996 through the date of the hearing here, Readd had not
worked at all, and there had been no determination by a physician or
reviewing authority whether he would ever return to the job.
The Objections
1. The hearing officer found that the Employer en-
gaged in objectionable conduct when, several weeks be-
fore the election, it placed a coffeemaker and a water
cooler for use by employees in a trailer located near the
crusher shed at its Bedrock quarry. The hearing officer
reasoned that this conduct constituted an objectionable
“sweetening” of an existing benefit because it gave em-
ployees significantly greater access to coffee and water
than they had previously had. We disagree.
The record reflects that the employees have always
had access to a coffeepot and water cooler maintained by
the Employer in a building at the quarry referred to as
“the House,” where unit employees report daily to punch
their timecards and turn in mechanical reports.6 Al-
though the House is located further from where the em-
ployees work than the trailer where the new coffeepot
and water cooler were set up in March, employees testi-
fied at the hearing that if they wanted water or coffee
while they were working, they could ask a supervisor and
the supervisor would get it for them from the House. In
addition, Supervisor Tony Flanagan often brought coffee
packets from the House to make coffee for himself and
other employees in a coffeemaker belonging to unit em-
ployee Terry Whorton which was set up in the crusher
shed.7
The evidence establishes that the Employer set up the
trailer to house electrical equipment for a new above-
ground fuel tank and to provide office space for Flanagan
and another supervisor who had been sharing office
space at the House, and that the coffeepot was installed
to accommodate the supervisors and to replace Whor-
ton’s coffeemaker, which had been removed from the
crusher shed. The water cooler was installed to provide
water for use in making coffee, because the trailer has no
running water. Although employees are permitted to use
the coffeepot and water cooler, the Petitioner’s witnesses
testified at the hearing that they had not used it regularly
and indeed, that only one pot of coffee had been made
since the new coffeepot was installed. Under these cir-
6 The House is a building in which the Employer’s vice president,
superintendent, dispatcher, clericals, and quality control “technician”
have offices or work areas.
7 Although Whorton’s coffeemaker was removed from the crusher
shed in December 1996, it is not disputed that the Employer had it
taken out because a safety inspector had cited it as not being properly
grounded. There is no evidence that the employees complained about
the removal of the coffee pot or that the Employer’s installation of the
new one was in response to employee requests.
327 NLRB No. 123
ALLEGANY AGGREGATES, INC. 659
cumstances, we do not regard the placement of the cof-
feepot and water cooler in the trailer as the granting of a
benefit or the enhancement of a benefit tending to influ-
ence the outcome of the election.8
2. The hearing officer also found that the Employer in-
terfered with employees’ free choice by announcing,
during the critical period, that the employees were enti-
tled to minimum “show up” pay for reporting to work.
The hearing officer concluded that such a policy had not
existed immediately before the critical period and that
the announcement therefore constituted institution of a
new benefit (or at least reinstitution of a benefit that had
existed in 1993, when the employees were under a union
contract). The hearing officer relied on certain documen-
tary evidence in finding differences between the policy in
effect immediately before the critical period and the pol-
icy the Employer was supposedly announcing. He also
concluded, on the basis of the omission of showup pay
on a list of benefits distributed a day after the election,
that the preelection statements about showup pay were
not accurate descriptions of an existing benefit but sim-
ply statements made to affect the election. For the fol-
lowing reasons we disagree.
Witnesses for both the Employer and the Petitioner
gave various descriptions of what they conceived
“showup pay” to be and what employees were told about
it, and the hearing officer found that “the Petitioner’s
witnesses are generally not reliable about specific state-
ments made by the Employer’s witnesses” on this sub-
ject. Although the hearing officer also perceived fatal
inconsistencies in the evidence offered by the Employer,
the record shows that the Employer’s witnesses testified
consistently that, under the showup pay policy as it had
existed continuously since 1993, although employees
were guaranteed a minimum of 2 hours’ pay for report-
ing for work, they in fact did not receive this pay without
performing work if there was work to be done.9 Accord-
ing to these witnesses, even when the quarry was not
fully operational—once when there had been a fire and
once when equipment had been stolen—employees were
assigned work if there was any available. Thus, contrary
to the hearing officer, the documentary evidence that an
employee was paid 2 hours’ pay in 1993, without an in-
dication that he had actually performed work, and that in
1997 an employee worked 2 hours for his pay, does not

8 Cf. Kinney Drugs, Inc., 314 NLRB 296, 300 (1994) (restoration of
access to coffee flowed directly from the employer’s solicitation of
grievances). In Amwood Homes, 243 NLRB 1006 (1979), cited by the
hearing officer, the employer engaged in conduct found to be objec-
tionable when it “sweetened the pot” by significantly increasing the
employees’ bonus. The substantial pecuniary benefit in Amwood
Homes is patently distinguishable from the alleged benefit in issue here.
9 Although the hearing officer stated that he “must resolve credibility
against the Employer” on the showup pay issue, he also stated that in
doing so he was relying on “the considerations discussed above,” which
were his perceptions of conflicts with documentary evidence. As we
explain below, there are no such conflicts.
necessarily reflect two different policies. It shows only
that on one day there was work to be done and on the
other there was not. Nor do we agree with the hearing
officer that the absence of any reference to an “employee
working” in the “written policy” reflected in Employer’s
Exhibit 20 (a provision of a collective-bargaining agree-
ment in effect in 1993–1994) is inconsistent with assign-
ing work to employees in connection with the 2-hour
guarantee.10 While the policy assures that employees
who have not been instructed to stay home will receive at
least 2 hours’ pay if they report, it does not negate the
Employer’s right to assign work to such employees.
Finally, we disagree that the omission of showup pay
from a list of benefits distributed by the Employer after
the election demonstrates that the preelection statement
described a nonexistent benefit. Tuition reimbursement,
which the hearing officer specifically found was an exist-
ing benefit that employees were similarly informed or
reminded of during the critical period, does not appear on
the list, so the list was evidently not exhaustive.
In sum, when agents of the Employer advised employ-
ees during the critical period that a showup pay policy
was still in effect, they were not announcing a new bene-
fit, and the Petitioner thus failed to establish that the Em-
ployer’s comments on the policy constituted objection-
able conduct.
The Remaining Challenged Ballot
The hearing officer reviewed the Decision and Direc-
tion of Election and summarily adopted the Regional
Director’s conclusion that Miller “does not share a com-
munity of interest that requires his inclusion in the same
bargaining unit as production employees.” We find that
the record supports Miller’s inclusion in the unit.
The Employer’s vice president, Robert Smith, testified
that Miller was hired in September 1996 to work as a
“floater,” i.e., to work in whatever capacity he may be
needed at a given time. In fact, the record establishes
that Miller had some prior experience and that he is
trained and performs numerous unit jobs, on an as-
needed basis, from dispatching to quality control testing
to operating heavy equipment. Further, unit employee
Gary Stallings testified that Miller ran the R-50, a piece
of heavy equipment, for 2 weeks in September or Octo-
ber 1996 at the Short Gap quarry. Employee Coledo
Long’s testimony verifies that Miller operated the R-50.
Most significantly, Miller performs or helps perform
gradation tests on rock samples that quality control em-
ployees William Weaver and Gary Smith are required by
10 That provision (art. VIII, sec. 2) reads as follows:
Employees who report to work as instructed by the Company
or are recalled to work after they have left the premises are enti-
tled to a minimum of two (2) hours pay; provided that the Com-
pany may notify employees by telephone not to report, and any
employees so notified shall not receive reporting pay.
An employer witness testified that although the unit was no longer repre-
sented by a union, the Employer still abided by the showup pay policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
law to perform 12 to 15 times a day, and he signs off on
quality control paperwork. The tests entail working with
unit employees operating heavy equipment out in the
quarry in order to dig out several core samples from each
of the stock piles there. Although there is little time for
conversation, according to Long, Miller likewise must
interact with the “pugmill” operator to collect the sam-
ples required to determine that the limestone meets con-
tent and moisture specifications for use in concrete. At
the time of the election, Miller was awaiting results of
the certification tests he took to be a quality control tech-
nician.11
Miller also regularly performs unit work when he
“runs parts” for the repair and upkeep of quarry machin-
ery. Miller uses a common desk in the scale area that
employees performing maintenance use. He also works
in the testing area located in the basement of the house,
where the quality control technician works. In addition
to the foregoing, Long testified that Miller delivers his
lunch on a daily basis when Long is operating quarry

11 Quality control technicians were previously determined not to be
technical employees and are included in the unit.
machines. We note that Miller is salaried, but that his
salary is not significantly different from the hourly wage
rates paid to unit employees.
Although Miller also performs dispatching duties, the
foregoing substantiates the Employer’s contention that
Miller spends a significant amount of time performing
unit work. On the basis of the foregoing, we find that the
floater position should be included in the unit, and we
overrule the challenge to Miller’s ballot.
ORDER AND DIRECTION
The National Labor Relations Board orders that the
Petitioner objections to the election are overruled. It is
further directed that the Regional Director for Region 5
shall, within 14 days from the date of this decision, open
and count the ballots of William Weaver, Ralph Readd,
and David Miller. The Regional Director shall then
serve on the parties a revised tally of ballots and issue the
appropriate certification.
IT IS FURTHER ORDERED that this matter is re-
manded to the Regional Director for Region 5 for action
consistent with this Order and Direction.