Dredge Operators

National Labor Relations Board - Board Decisions

Mar 30, 1992

306 N.L.R.B. 924 (N.L.R.B. 1992)

924
306 NLRB No. 187
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1991. The ballots were mailed out on July 9 and
were due back in the Board’s Resident Office not later than August
6. They were opened and counted on September 4.
2 The record establishes that the Employer applied for Hong Kong
work permits for the laid-off employees in question on July 15 and
August 6, rather than in late April or early May, as found by the
hearing officer. Also, contrary to the hearing officer’s finding, the
record does not establish that the government of Hong Kong has
granted final approval to the Employer’s application for permanent
work permits. Correction of these errors does not affect the result
we reach in this case.
3 Member Oviatt previously voted to grant the Employer’s request
for review of the Regional Director’s Decision and Direction of
Election, and the Employer’s subsequent request for reconsideration
in this case. As the majority denied these requests, however, Mem-
ber Oviatt joins his colleagues in considering the merits of the Em-
ployer’s exceptions to the hearing officer’s report on Challenged
Ballots.
4 See generally Apex Paper Box Co., 302 NLRB 67 (1991) (laid-
off employees with a reasonable expectancy of recall in the near fu-
ture are temporarily laid-off employees, who are therefore eligible to
vote).
5 Carl Brown, Terrance Colgrove, Richard Gilpin, Thomas
Hoagland, William Jacques, William Kincaid, Andrea Lewis, J.
Porteous, Laura Rodriguez, Stewart Stackhouse, Jeffrey Terry, and
Leonard Thigpen.
6 Sadler Bros. Trucking & Leasing Co., 225 NLRB 194, 195–196
(1976) (Winters and Hamblin); Eck Miller Transportation Corp., 211
NLRB 251 fn. 2 (1974); Plymouth Towing Co., 178 NLRB 651
(1969).
Dredge Operators, Inc. and Unlicensed Division of
District No. 1 MEBA/NMU, AFL–CIO, Na-
tional Marine Engineers Beneficial Association.
Case 16–RC–9388
March 30, 1992
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
to ballots in a mail ballot election held September 4,
1991,1 and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Decision and Direction of Election. The tally
of ballots shows 6 for and none against the Petitioner,
with 14 challenged ballots, a sufficient number to af-
fect the results.
The hearing officer has recommended that all the
challenges be overruled. The Board has reviewed the
record in light of the Employer’s exceptions and the
Petitioner’s response. The Board adopts the hearing of-
ficer’s findings2 and recommendations, as discussed
below.3
1. We affirm the hearing officer’s finding that the
12 laid-off employees whose ballots were challenged
had a reasonable expectancy of being recalled in the
near future. Thus, they were temporarily laid-off em-
ployees, who were eligible to vote.4 Accordingly, we
adopt the hearing officer’s recommendation to overrule
the challenges to the ballots of these 12 employees.5
2. The ballot of 1 of the above 12 employees, Stew-
art Stackhouse, along with the ballots of 2 additional
voters, Tommy Keene and Daniel Ehinger, were chal-
lenged on the grounds that, because of resignation or
promotion following the eligibility cutoff date, these 3
were no longer in the unit at the time of the election.
The hearing officer recommended that these chal-
lenges also be overruled. We adopt this recommenda-
tion for the following reasons, and with a qualification
as to the ballot of Ehinger.
In mail ballot elections, individuals are deemed to
be eligible voters if they are in the unit on both the
payroll eligibility cutoff date and on the date they mail
in their ballots to the Board’s designated office.6 Here,
the mail ballots were due to be returned to the Resi-
dent Office not later than August 6.
Both Keene and Stackhouse were in temporary lay-
off status, and thus in the unit, on the May 28 payroll
eligibility cutoff date. The parties stipulated that Keene
mailed his ballot to the Resident Office before he was
recalled from layoff on August 5 to a nonunit job (li-
censed engineer) on the dredge.
As for Stackhouse, there is no assertion or evidence
that his ballot was not received in the Resident Office
by the August 6 deadline. Therefore, we infer and find
that Stackhouse mailed his ballot on or before August
6. He subsequently resigned from employment on Sep-
tember 3, the day before the ballots were opened and
counted. Thus, we find that Stackhouse, like Keene,
mailed his ballot to the Resident Office while still on
temporary layoff, prior to terminating his employment
effective September 3.
Applying the above-cited rule to the facts of this
case, we find that Keene and Stackhouse were eligible
voters when they cast their ballots, because they were
still in the unit as temporarily laid-off employees on
the dates they mailed their respective ballots to the
Resident Office. Accordingly, the challenges to their
ballots are overruled.
Unlike Stackhouse and Keene, Daniel Ehinger was
not in layoff status. Rather, he resigned from his unit
job aboard the dredge on July 25. If his ballot was
mailed while he was still a unit employee, i.e., on or
before July 25, then he was an eligible voter when he
cast his ballot, and the challenge to his ballot is over-
ruled. Otherwise, the challenge to his ballot is sus-
tained.
925DREDGE OPERATORS
DIRECTION
The Regional Director for Region 16 shall, within
14 days from the date of this Decision, open and count
all the challenged ballots, including the ballot of Dan-
iel Ehinger if it is postmarked on or before July 25.
The Regional Director shall prepare, issue, and serve
on the parties a revised tally of ballots and an appro-
priate certification.