Dravo Corp.

National Labor Relations Board - Board Decisions

Jan 18, 1980

247 N.L.R.B. 414 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dravo Corporation, Chris & Shaver Division and
International Union of Operating Engineers, Local
18C, AFL-CIO, Petitioner. Case 9-RC-12849
January 18, 1980
DECISION AND DIRECTION
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to and
determinative challenges in an election held on April
27, 1979,1 and the Hearing Officer's report recom-
mending disposition of same.' The Board has reviewed
the record in light of the exceptions and briefs, and
hereby adopts the Hearing Officer's findings and
recommendations.
DIRECTION
It is hereby directed that the Regional Director for
Region 9, pursuant to the Board's Rules and Regula-
tions, Series 8, as amended, within 10 days from the
date of this Decision and Direction, open and count
the ballot of James Hunt and, thereafter, prepare and
cause to be served on the parties a revised tally of
ballots, including therein the count of said ballots. In
the event that the revised tally of ballots shows that is
Petitioner has received a majority of the valid ballots
cast, the Regional Director shall issue the appropriate
certification of representative.
In the event that the revised tally of ballots shows
that Petitioner has not received a majority of the valid
ballots cast, a second election by secret ballot shall be
conducted among the employees in the unit found
appropriate, at such time as the Regional Director
deems appropriate. The Regional Director for Region
9 shall direct and supervise the election, subject to the
Board's Rules. Eligible to vote are those in the unit
who were employed during the payroll period ending
' The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 12 for, and II against, the Petitioner;
there were 2 challenged ballots.
' On March 15. 1979, Petitioner filed a petition seeking a representation
election at the Employer's Apple Grove plant. The Regional Director
approved a Stipulation for Certification Upon Consent Election on April 13,
1979, and an election was held. The Petitioner challenged two ballots and
later filed objections to conduct affecting the results of the election. The
Regional Director investigated the challenges and the objections, issued a
Report on Objections to Election and Challenged Ballots, and ordered a
hearing to resolve the issues raised by the challenges, Objection 3, and
Petitioner's assertion of an additional incident of objectionable conduct. The
Regional Director also recommended overruling Petitioner's Objections 1, 2,
and 4. No party filed exceptions to the Regional Director's report within the
immediately before the date of issuance of the Notice
of Second Election, including employees who did not
work during that period because they were ill, on
vacation, or temporarily laid off. Also eligible are
employees engaged in an economic strike which
commenced less than 12 months before the election
date and who retained their status as such during the
eligibility period and their replacements. Those in the
military services of the United States 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 designated payroll period and employees
engaged in a strike who have been discharged for
cause since the commencement thereof, and who have
not been rehired or reinstated before the election date,
and employees engaged in an economic strike which
commenced more than 12 months before the election
date and who have been permanently replaced. ' Those
eligible shall vote whether or not they desire to be
represented for collective-bargaining purposes by In-
ternational Union of Operating Engineers, Local 18C,
AFL-CIO.
MEMBER PENELLO, dissenting in part:
I agree with my colleagues that Objections 3 and 5
should be overruled, and that the challenge to the
ballot of Russell Roush should be sustained. However,
I would not direct a second election in the event that
the revised tally of ballots shows that Petitioner has
failed to receive a majority of valid votes cast. The
incidents upon which the majority relies to overturn
the election were not alleged in a timely filed written
objection. For the reasons set forth in my dissenting
opinion in Dayton Tire and Rubber Co., 234 NLRB
504 (1978), I would neither direct a hearing nor set an
election aside on the basis of conduct not specifically
alleged in such an objection. Accordingly, I would
overrule the Hearing Officer's finding that unlawful
interrogations occurred and reject the consequent
decision to direct a second election. I would direct the
Regional Director to open and count the ballot of
James Hunt, issue a revised tally of ballots, and issue
the appropriate certification based thereon.
time provided, and on July 5, 1979, the Board adopted the Regional
Director's recommendations as contained in the report. Pursuant to this
Order a hearing officer was designated and a hearing was held on July 5 and 6,
August 2 and 3, and September 6, 1979.
In the absence of exceptions, we adopt, pro forma. the Hearing Officer's
recommendations that the challenge to the ballot of James Hunt and
Objections 3 and 5 be overruled.
The Employer excepts, inter alia, to the findings of the Hearing Officer on
the ground that he erred in crediting certain testimony. It is the established
policy of the Board not to overrule a hearing officer's credibility resolutions
unless they are clearly in error. The Coca-Cola Bottling Company of Memphis.
132 NLRB 481, 483 (1969); Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
We find insufficient basis for disturbing the credibility resolutions in this case.
' [Excelsior footnote omitted from publication.]
247 NLRB No. 64
414