Emro Marketing Co.

National Labor Relations Board - Board Decisions

Apr 10, 1984

269 N.L.R.B. 926 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELAIIONS BOARD
Speedway Petroleum, Division of Emro Marketing
Company and Local No. 35, United Food and
Commercial Workers International Union,
AFL-CIO, CLC, Petitioner. Case 14-RC-9740
10 April 1984
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to, and
determinative challenges in, an election held 29
July 1983 and the Regional Director's report rec-
ommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows four for and two
against the Petitioner, with two challenged ballots.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the Regional
Director's findings and recommendations,' and
The majority finds that the Regional Director correctly sustained the
challenge to the ballot of James Smith (which challenge is no longer de-
terminative because the challenge to the ballot of Kelly Corrigan is also
sustained). According to the evidence the Employer provided the Em-
ployer interviewed Smith on 24 June 1983, hired him as a regular part-
time employee, and told him to report I July 1983, the last day of the
finds that a certification of representative should be
issued.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Local No. 35, United Food
and Commercial Workers International Union,
AFL-CIO, CLC, and that it is the exclusive bar-
gaining representative of the employees in the fol-
lowing appropriate unit:
All employees employed by the employer at
its Bethalto, Illinois, facility, excluding station
manager, office clerical and professional em-
ployees, guards, and supervisors as defined in
the Act.
eligibility period. He was paid for approximately 2 hours of orientation
and training on I July but did not perform any unit work until 5 July.
Because Smith did not perform unit work until after the end of the eligi-
bility period the Regional Director recommended that the Board sustain
the challenge to his ballot. The Board has consistently held that in order
to be "employed during the payroll period" and be eligibile to vote, an
employee must perform unit work during the payroll period, unlesa, of
course, the employee is absent for certain specified reasons (e.g., illness,
temporary layoff). F d M Importing Co., 237 NLRB 628, 632-633 (1978).
Chairman Dotson dissents with respect to Smith. The Chairman finds
that the evidence clearly establishes that Smith was employed as of I
July, and he would not find Smith ineligible to vote merely becamuse he
received the type of instruction and training on that date that is common-
ly given to employees on their first day of work.
269 NLRB No. 165
926