Bichler and Sons, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1974

209 N.L.R.B. 841 (N.L.R.B. 1974)

BICHLER AND SONS, INC.
Bichler and Sous, Inc. and Local 406, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Petitioner.
Case 7-RC-11948
March 25, 1974
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, approved on September 4, 1973,
an election by secret ballot was conducted on
September 21, 1973, under the direction and supervi-
sion of the Regional Director for Region 7 among
the employees in the stipulated unit. The payroll
period for eligibility purposes was the week ending
Saturday, September 1, 1973. After the election a
tally of ballots was issued, which showed that of
approximately eight eligible voters, seven cast bal-
lots, of which three were for the Petitioner, and four
were challenged. The challenged ballots are determi-
native of the election results. The Employer filed
objections to conduct affecting the results of the
election.
The Regional Director caused an investigation of
the challenges and the Employer's objections to be
made. The Regional Director concluded that the
challenges and objections raised credibility issues
which could best ' be resolved by a hearing., Thereaf -
ter, he ordered a hearing which was conducted on
October 31 and November 1, 1973, in Grand Rapids,
Michigan, before the duly designated Hearing
Officer, Kenneth A. Rose. All parties participated in
the hearing and were given full opportunity to
examine and cross-examine witnesses and to intro-
duce evidence bearing on the issues.
On November 14, 1973, Hearing Officer Rose
issued his report and recommendations on determi-
native challenges and objections to conduct affecting
the results of the election. The Hearing Officer
recommended that the Petitioner's challenges to the
ballots of David Chrysler, Merwyn Brickell, and
Frank Mulder and the Board agent's challenge to the
ballot of Thomas Strickland be overruled and that
their ballots be opened and counted. He also
recommended, regarding the Employer's objections,
that inasmuch as the parties had stipulated that the
prounion activities of Supervisor Sam Hastings were
such as to create "a reasonable possibility that
employees were coerced into supporting the Union,"
the election should be set aside and a second election
I In the absence of exceptions , we adopt. pro forma, the Hearing Officer's
recommendation that the challenges to the ballots of David Chrysler,
Merwyn Bnckell , and Frank Mulder be overruled and that these ballots be
841
ordered, in the event the Union should win the
election as a result of the counting of the challenged
ballots. Thereafter, the Employer filed timely excep-
tions to the report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing representation of the employees within the
meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. We find, in accord with the stipulation of the
parties, that the following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed by the Employer at its
facility located at 622 Webster, N.W., Grand
Rapids, Michigan, including laborers, saw opera-
tors, truck drivers and mechanics; but excluding
office clerical employees, sales employees, operat-
ing engineers, guards and supervisors as defined
in the Act.
5. The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
record, the Hearing Officer's Report, and the
Employer's exceptions thereto,' and, finding merit in
the exceptions as to the eligibility of Thomas
Strickland, concludes that the challenge to the ballot
of Thomas Strickland should be sustained.
The Employer excepts, inter alia, to the Hearing
Officer's finding that Strickland had a reasonable
expectation of future employment with the Employ-
er. The Employer contends that Strickland was hired
as a temporary employee and was terminated prior to
the election without any reasonable likelihood of
recall in the foreseeable future. We agree.
The Employer is engaged in tree maintenance and
removal projects at a number of areas within the
State of Michigan. The employees work in crews
which may vary from as little as one or two men to as
many as seven or eight men, depending on the type
opened and counted.
Similarly, we adopt his recommendation with respect to the Employer's
objections.
209 NLRB No. 131
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of work involved. The Employer's business is
seasonal, the peak volume of work being from May
through August.
Strickland worked for the Employer as a crew
laborer from the third week of July to September 15,
1973, working in excess of 150 hours during these 2
months before the election on September 21, 1973.
Although the credited testimony shows Strickland
was told by Bichler when he was hired that the work
would be full time except that there might be a
couple of months he would not work during the
winter, subsequent events tend to negate or neutral-
ize that statement. Thus, the Hearing Officer found
that from the end of August to the middle of
September, Bichler on several occasions told Strick-
land that the work was curtailing and suggested that
Strickland should look for another job. And most of
the work made available to Strickland during the 2
weeks he worked in September resulted from another
employee's being absent due to illness. Furthermore,
it is clear that at that time Strickland was laid off. In
these circumstances, we find no evidentiary value in
Strickland's credited assertion that, at the time, when
he asked Bichler if he were "laid off," Bichler replied
in the negative. We note in this respect that although
Strickland appeared at the company premises every
morning until more than a week after the September
21 election, he was not called in to work.
We note further that the Employer's business has
seasonal fluctuation with employment increases
during the spring and summer months, and that the
Employer does not use a formalized system of
written layoff or termination notices for work slack
periods. The Employer does not maintain a list of
employees for use in recalls, and has no policy of
recalling former employees. In this regard the
Employer has in the past only infrequently rehired
employees who have performed work for it to meet
its summer seasonal demands. Normally, it hires high
school or college students who return to school in the
fall.
In view of the foregoing we conclude that Strick-
land had no reasonable expectancy of future employ-
ment and no continuing interest in the unit. We shall
therefore sustain the challenge to his ballot.2
Inasmuch as the Hearing Officer has recommended
that the challenges to the ballots of David Chrysler,
Merwyn Brickell, and Frank Mulder be overruled,
that their ballots be opened and counted, and that
the Employer's objections be sustained, we shall
direct the Regional Director to open and count said
ballots and prepare a revised tally of ballots. If the
revised tally shows that the Petitioner received a
majority of the valid votes cast, we shall direct the
Regional Director to set the election aside and order
a second election. If the revised tally shows that the
Petitioner did not receive a majority of the valid
votes cast, we shall direct the Regional Director to
certify the results of the election.
DIRECTION
It is hereby directed that the Regional Director for
Region 7 shall, pursuant to the Board's Rules and
Regulations, within 10 days of the date of this
Direction, open and count the ballots of David
Chrysler, Merwyn Brickell, and Frank Mulder, and
thereafter prepare and cause to be served upon the
parties a revised tally of ballots, including therein the
count of said ballots. If the revised tally shows that
the Petitioner received a majority of the valid votes
cast, the Regional Director is hereby directed to set
aside the election and order a second election. If the
revised tally shows that the Petitioner did not receive
a majority of the valid votes cast, the Regional
Director is hereby directed to certify the results of
the election.
2 See Leland M Hubbard d/b/a Hubbard Apiaries, 116 NLRB 1468