Grange Debris Box & Wrecking Co.

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1004 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 123
1004
Grange Debris Box and Wrecking Company, Inc. and
Teamsters Union, Local 624. Case 20–RC–17987
June 30, 2005
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered a
determinative challenge in an election conducted March
10, 2005, in a unit of all full-time and regular part-time
truckdrivers and yard employees, and the administrative
law judge’s report recommending disposition of it. The
election was conducted pursuant to a Decision and Direc-
tion of Election issued on February 8, 2005. The tally of
ballots shows that five ballots were cast in favor of the
Petitioner, two were cast against the Petitioner, and three
were challenged. The challenged ballots are sufficient in
number to affect the results of the election.
A hearing was held before Administrative Law Judge
William L. Schmidt on May 3, 2005. At the hearing, the
Petitioner withdrew its challenges to the ballots of J.
Guadalupe and Alvaro Jimenez. On May 10, 2005, the
judge issued the attached supplemental decision and rec-
ommended Order on disposition of challenged ballots,
recommending that the case be remanded to the Regional
Director to open and count the ballots of Guadalupe and
Jimenez, as well as the ballot of Nick Hultberg Sr.,1
whom the judge found to be an eligible voter.
The Employer filed limited exceptions and a support-
ing brief. The Employer excepted only to the judge’s
findings that Hultberg was an eligible voter. The Peti-
tioner filed an answering letter brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions. We shall remand this proceeding
to the Regional Director to open and count the chal-
lenged ballots of those employees found eligible to vote
and to take further appropriate action.
ORDER
It is directed that the Regional Director for Region 20
shall, within 14 days from the date of this Decision, Or-
der, and Direction, open and count the ballots of J. Gua-
dalupe, Alvaro Jimenez, and Nick Hultberg Sr. The Re-
gional Director shall then serve on the parties a revised
tally of ballots and issue the appropriate certification.
J. Mark Montobbio, Esq. (Ragghianti/Freitas, LLP), of San
Rafael, California, for the Employer.

1 The record makes clear that the correct spelling of the name of the
voter at issue is “Hultberg,” not “Hulbert.” We hereby correct the
judge’s misspelling of his name.
Sheila K. Sexton and Sharon Seidenstein, Esqs. (Beeson, Tayer
& Bodine), of Oakland, California, for the Petitioner.
SUPPLEMENTAL DECISION AND RECOMMENDED
ORDER ON DISPOSITION OF CHALLENGED
BALLOTS
WILLIAM L. SCHMIDT, Administrative Law Judge. The issues
for resolution here pertain to the eligibility of J. Guadalupe,
Alvaro Jimenez, and Nick Hultberg Sr., to vote in the pending
representation election. Based on my findings and conclusions
detailed below, I find all three employees eligible to vote and
recommend the challenges to their ballots be overruled.
Pursuant to the Decision and Direction of Election (D&DE)
issued on February 8, 2005,1 by the Regional Director for Re-
gion 20, the National Labor Relations Board (NLRB or Board)
conducted a secret ballot election among the employees in the
following appropriate unit:
All full-time and regular part-time truck drivers and yard em-
ployees employed by the Employer at its San Rafael, Califor-
nia, facility during the payroll period ending February 3,
2005.
At the conclusion of the ballot count on March 23, the Regional
Director caused to be served on the parties a copy of the official
tally of ballots showing the following results:
Approximate number of eligible voters 10
Number of void ballots 0
Number of votes cast for the Petitioner 5
Number of votes cast against participating 2
labor organization
Number of valid votes counted 7
Number of challenged ballots 3
Number of valid votes counted plus 10
challenged ballots
As reflected in the above tally, sufficient challenged ballots
exist to affect the election result. On March 29, the Petitioner
filed timely objections to the election.
Following an investigation under Section 102.69 of the
Board’s Rules and Regulations, the Regional Director issued a
Report on Challenged Ballots and Objections, and notice of
hearing dated April 19. In that Report, the Regional Director
concluded that substantial and material issues of fact existed
with respect to the three challenged ballots and Petitioner’s
objections. Accordingly, he ordered a hearing to resolve those
issues. On April 27, the Regional Director approved the with-
drawal of Petitioner’s objections and ordered that the hearing
be limited to the issues arising from the three challenged bal-
lots. (Board Exh. 1(h).)
I conducted the hearing concerning the challenged ballots at
San Francisco, California, on May 3. On the entire record,
including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Employer and the Peti-
tioner, I make the following

1 Where not shown otherwise, all further dates refer to the 2005 cal-
endar year.
GRANGE DEBRIS BOX & WRECKING CO. 1005
FINDINGS OF FACT
A. The Challenged Ballots of Guadalupe and Jimenez
The Board agent and the Petitioner challenged the ballots of
J. Guadalupe and Alvaro Jimenez when they appeared to vote
at the election on the ground that their names did not appear on
the voting list. During the administrative investigation, the
Employer explained that it inadvertently failed to include these
two temporarily laid-off employees names on the preelection
Excelsior list. (Board Exh. 1(f):2.) At the hearing, Petitioner
did not contest the Employer’s assertion and withdrew its chal-
lenge to these two ballots with my approval. As no evidence
shows that employees Guadalupe and Jimenez to be ineligible
to vote, I recommend that the challenges to their ballots be
overruled and that they be opened and counted.
B. The Challenged Ballot of Nick Hultberg Sr.
The Employer challenged Hultberg’s eligibility to vote on
the ground that he submitted notices terminating his employ-
ment agreement with the Employer prior to the election.
As found in the D&DE, the terms and conditions of em-
ployment of the Employer’s driver employees are contained in
an “Owner/Operator/Transporter Agreement” (agreement) be-
tween each driver and the Employer. Hultberg executed such
an agreement on August 18, 2000, and has worked continu-
ously for the Employer since then. By its terms, Hultberg’s
agreement is effective for a “period of 60 months, commencing
on delivery of truck.” (P. Exh. 1:1.) Hultberg’s agreement
automatically renews itself unless one of the parties gives no-
tice to terminate the agreement “not later than 180 days prior to
the termination date” of the agreement. (P. Exh. 1:6.)
On February 14, Hultberg provided the Employer’s owner,
Fred Grange, with a written notice of his intent to terminate the
agreement. The letter states:
Please accept this as written notification that as of the anniver-
sary of my contract, August 18, 2005, I choose [sic] not to re-
new said contract. On that date, I will cease working at
Grange Debris Box. This is done to satisfy the terms of my
contract, even though such contract may be deemed null and
void. Should you request it of me, two weeks prior to my
leaving, I will submit an official notice of my intention to
terminate my working relationship with you on that date.
P. Exh. 2.)
Subsequently, Grange asserted, in effect, that Hultberg’s
February 14 notice sought to prematurely terminate the agree-
ment because Hultberg had not placed his truck in service until
substantially after he executed the written agreement. For that
reason, Hultberg sent a more detailed notice to Grange dated
March 14. It states in pertinent part:
Please accept this as an updated written notification that as of
the anniversary of my contract, August 18, 2005 I choose [sic]
not to renew said contract. I received my truck from ACME
Truck Parts & Equipment Inc. on November 7, 2000 and No-
vember 7, 2005 is the date sub-paragraphed in my contract as
the final release or non-renewal date of my contract with
Grange Debris Box. On that date, I will cease working at
Grange Debris Box. This is done to satisfy the terms of my
contract, even though such contract may be deemed null and
void. Should you request it of me, two weeks prior to my
leaving, I will submit an official notice of my intention to
terminate my working relationship with you on that date. I
still reserve the right to renew/re-negotiate a new contract
with Grange Debris Box should I intend to do so at any time
prior to the end of my said contract.
(P. Exh. 3.)
Regardless of these two notices, Hultberg continued working
for the Employer without interruption right up to the date of
this hearing.2 Moreover, he credibly testified that he sent these
two notices solely to forestall the automatic renewal of his
agreement. In any event, he plans to continue working for the
Employer at least through November 7. In addition, Hultberg
also credibly testified that he would work beyond November 7
if he succeeds in negotiating another agreement with Grange.
However, Hultberg admitted that he has had discussions about
selling his truck to another enterprise, relinquishing his apart-
ment in the area, and moving to Sacramento. But, to date,
Hultberg has not sought employment elsewhere.
The Employer argues that Hultberg’s agreement-termination
notices, provided before the election, establish that he “effec-
tively resigned his employment with Grange.” For this reason,
the Employer contends that Hultberg was not eligible to vote in
the election. The Petitioner contends that Hultberg met the
eligibility requirements as he worked continuously for the em-
ployer through the payroll eligibility date specified in the
D&DE and at all times thereafter, including the date of the
election.
In order to qualify as a voter in an NLRB representation
election, an employee ordinarily must be (1) employed in the
appropriate unit during the established eligibility period, here
the payroll period ending February 3, and (2) in employee
status on the date of the election. See Dakota Fire Protection,
Inc., 337 NLRB 92 (2001), citing Plymouth Towing Co., 178
NLRB 651 (1969). Hultberg unquestionably met both eligibil-
ity requirements.
The Employer’s contentions about Hultberg’s lack of eligi-
bility lack merit. Hultberg’s agreement-termination notices
cannot reasonably be construed as an immediate resignation
notice. His postnotice work record proves that beyond all
doubt. Instead, I find Hultberg sent the termination notices to
forestall automatic renewal of his existing work agreement.
Although it might well be that Hultberg’s employment could
eventually be affected, that eventuality is far in the future and
purely speculative at this early date. The Employer’s apparent
argument that the Board should assess Hultberg’s community
of interest with the unit found appropriate on conditions that
may or may not exist 6 or more months from now would throw
the entire election process established under Section 9 into
turmoil and completely destabilize the system for the selection
of employee representatives. The Employer makes no case for

2 Apparently, Hultberg worked for the Employer driving an Em-
ployer-provided truck from August 18, 2000, when he executed his
agreement, to November 7, 2000, when he put his own truck in service.
The agreement provides for such a contingency. (P. Exh. 1:1.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1006
such a radical departure from the Board’s historical eligibility
rules.
Inasmuch as Hultberg actively worked on the requisite eligi-
bility dates and continuously thereafter, I find him eligible to
vote in the election the Regional Director directed in this case.
Accordingly, I recommend that the challenge to his ballot be
overruled and that his ballot be opened and counted.
Based on the foregoing findings and conclusions, I issue the
following recommended3

3 Within 14 days from the issuance of this supplemental decision,
any party may file exceptions to it with the Board in Washington, D.C.
Sec. 102.69 requires that a party filing exceptions must file an original
ORDER
This case is hereby remanded to the Regional Director for
Region 20 with directions to open and count the challenged
ballots of J. Guadalupe, Alvaro Jimenez, and Nick Hultberg Sr.;
prepare a revised tally of ballots; and issue an appropriate certi-
fication.

and eight copies with the Board together with a supporting brief, if
desired. Any party filing exceptions must immediately serve a copy
thereof on all other parties, and the Regional Director. Exceptions, if
any, must be received by the Board in Washington, D.C. on or before
May 24, 2005.