Harold J. Becker Co.

National Labor Relations Board - Board Decisions

Sep 29, 2004

343 N.L.R.B. 51 (N.L.R.B. 2004)

HAROLD J. BECKER CO.
343 NLRB No. 11
51
Harold J. Becker Co., Inc. and Sheet Metal Workers’
International Association Local Union No. 24,
AFL–CIO, Petitioner. Case 9–RC–17814
September 29, 2004
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held July 21, 2003, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 6 for and 4
against the Petitioner, with 26 determinative challenged
ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations,2 and finds that a Certifi-
cation of Representative should be issued.
The Petitioner challenged the ballots of 21 employees
on the basis that they hold positions that are explicitly
excluded from the parties’ stipulated bargaining unit.
However, the Employer contends that these employees
are nonetheless eligible to vote as dual-function employ-
ees because they actually perform significant amounts of
unit work.3 The hearing officer sustained the challenges
to the 21 employees’ ballots on the grounds that the evi-
dence failed to establish that these employees did suffi-
cient unit work to warrant their inclusion. The Employer
excepts to this conclusion. We find no merit in the Em-
ployer’s exception and adopt the hearing officer’s rec-

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
The Employer contends that the judge’s rulings, findings, and con-
clusions demonstrate bias and prejudice. On careful examination of the
hearing officer’s report and the entire record, we are satisfied that the
Employer’s contentions are without merit.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to sustain the challenges to the ballots of Marvin
Garrett, Matthew Kempf, Dennis Singler, Anthony Devito, and Joseph
Greene.
3 The appropriate bargaining unit set forth in the parties’ Stipulated
Election Agreement is: “All employees of the Employer engaged in
sheet metal work, including architectural workers, but excluding all
full-time estimators, truck drivers, crane operators, roofers, laborers,
waterproofers and office clerical employees, and all professional em-
ployees, guards, and supervisors as defined in the Act.” The employees
whose voting eligibility is at issue were classified as roofers and water-
proofers but also performed some amount of sheet metal work.
ommendation that the challenges to the ballots of the 21
employees be sustained.
Under well-established Board law, “[t]he test for de-
termining whether a dual-function employee should be
included in a unit is ‘whether the employee [performs
unit work] for sufficient periods of time to demonstrate
that he . . . has a substantial interest in the unit’s wages,
hours, and conditions of employment.’” Air Liquide
America Corp., 324 NLRB 661, 662 (1997) (citing Berea
Publishing Co., 140 NLRB 516, 518–519 (1963)).4 The
Board has no bright line rule as to the amount of time
required to be spent performing unit work but rather
makes this determination according to the facts of each
case. Martin Enterprises, 325 NLRB 714, 715 (1998).
In support of the Employer’s contention that the 21
challenged employees performed sufficient unit work to
warrant inclusion in the unit, the Employer’s president,
Kevin Bechtel, supplied written summaries of the per-
centage of sheet metal work performed by each of the 21
employees. As the hearing officer found, Bechtel con-
ceded that he was not in a position to know the particular
breakdown of each employee’s work but referenced three
kinds of underlying documentation in compiling the
summaries: (1) daily crew logs; (2) daily work sheets
required by the general contractor; and (3) the employ-
ees’ individual weekly timesheets. Only the daily crew
logs, which show the jobsite to which the employees
were assigned on any given day, were introduced into
evidence. The employees’ weekly timesheets—which
document the type of work actually performed by indi-
vidual employees on an hourly basis and, thus, presuma-
bly would in themselves have been dispositive here—
were not supplied. The Employer has not explained why
it failed to provide them.
Instead, as found by the hearing officer, the Employer
estimated the amount of sheet metal work performed by
the disputed employees in the following manner. Using
its bid sheets, which contain separate estimates of roof-
ing hours and sheet metal hours needed to perform a
given job, the Employer calculated the percentage of the

4 In its exceptions, the Employer argues that the hearing officer erred
in applying the standard set forth in Caesar’s Tahoe, 337 NLRB 1096
(2002). Citing Air Liquide, the Employer argues that the appropriate
inquiry is whether the employee performs unit work for sufficient peri-
ods of time to demonstrate that he has a substantial interest in the unit’s
wages, hours, and conditions of employment. We agree with the analy-
sis as articulated in Air Liquide, but we do not find that it conflicts with
the standard applied by the hearing officer. Thus, in Air Liquide, the
Board considered the amount of unit work performed by the disputed
employee after determining that neither the parties’ Stipulated Election
Agreement nor any extrinsic evidence (i.e., a Norris Thermador agree-
ment) resolved the issue of whether the disputed employee should be
included in the unit. That is the same analysis applied by the hearing
officer in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
work at a given site that would be sheet metal work.
Using its crew logs, the Employer then determined the
jobsite to which each of the 21 disputed employees had
been assigned and applied the estimated percentage of
sheet metal work at that site to each disputed employee
assigned there. The problem is that this calculation fails
to take account of the fact that other crewmembers at a
site may have been doing the sheet metal work at any
given time, while the disputed employees, who also did
roofing and waterproofing work, may have been per-
forming other types of work.5 Because the Employer’s
estimate of the amount of sheet metal work performed by
each disputed employee was based on inconclusive, non-
specific documentation, the hearing officer found that the
record fails to establish how much sheet metal work was
actually done by the individual employees whose status
is at issue.
We agree with the hearing officer that the site-specific
rather than worker-specific evidence relied upon by the
Employer cannot establish the amount of unit work actu-
ally performed by individual employees. We are, thus,
unable to conclude that they “regularly perform duties
similar to those performed by unit employees for suffi-
cient periods of time to demonstrate that they have a sub-
stantial interest in working conditions in the unit.” Mar-
tin Enterprises, 325 NLRB at 715.
Our dissenting colleague observes that the challenging
party typically has the burden of proving that an em-
ployee is ineligible to vote and argues that here, we have
erroneously placed the burden on the Employer, instead
of the Petitioner. We disagree. The Petitioner has chal-
lenged the ballots of the 21 employees on the basis that
they are employed in positions explicitly excluded from
the parties’ stipulated unit. It is undisputed, in turn, that
the challenged employees do occupy these excluded po-
sitions. The Petitioner thus has substantiated the basis
for its challenges.
That suffices, we believe—especially where a stipu-
lated unit is involved—to place the burden on the Em-
ployer to establish that the challenged employees are
nevertheless eligible to vote, as the Employer seeks to do
here, by asserting that the employees have dual-function
status. It is the Employer, of course, who is in the best
position to establish that status, because it has superior
access to the relevant information. And, as we have ex-

5 Thus, Bechtel testified that he had other roofing and waterproofing
employees besides the 21 whose ballots are challenged doing smaller
amounts of sheet metal work and that some full-time sheet metal work-
ers also continued to work for the Employer. Bechtel did not offer any
evidence or explanation of the amount of sheet metal work, if any, that
these other workers may have been performing at sites where the 21
employees were also assigned.
plained, the Employer has failed to produce evidence
sufficient to demonstrate that, notwithstanding their ex-
plicit exclusion from the unit, the challenged employees
should be permitted to vote. Given the gaps in the Em-
ployer’s evidence, the Petitioner was under no obligation
to rebut it. The dissent cites no cases involving asserted
dual-function employees that are inconsistent with our
application of evidentiary burdens here.6
In addition, the Board’s decisions in Air Liquide, su-
pra, 324 NLRB at 662 fn. 9, and Faulks Bros. Construc-
tion Co., 176 NLRB 324, 331 (1969), cited by the dis-
sent, do not require a different result here. It is true that,
in those cases, the Board relied on vague and otherwise
questionable testimony regarding the breakdown of an
alleged dual-function employee’s work. Id. But, the
evidence relied on, however imprecise, went directly to
the work performed by the individual employee whose
status was at issue.7 As explained above, that is not our
case. By failing to introduce its contractor-required
worksheets and weekly employee timecards, and instead
relying only on its daily crew logs that do not address the
work of individual employees, the Employer has cast
doubt upon the reliability of its vague, albeit uncontra-
dicted, estimates of the amount of time the disputed em-
ployees spent performing unit work during the relevant
period. Accordingly, we are unwilling to rely on the Em-
ployer’s evidence to establish the eligibility of the dis-
puted individuals as dual-function employees.
Finally, our colleague contends that because the Em-
ployer “intended” to transition the employees to full-time
sheet metal positions in the future, the challenges to their
ballots should be overruled upon a showing that they
spent at least 20 percent of their time performing sheet

6 Our dissenting colleague errs in asserting that the Union here can-
not meet its burden merely by asserting that the challenged employees
occupy positions excluded from the stipulated unit, because the unit
description is “ambiguous as to whether these dual-function employees
are to be included in the unit.” The issue here is not the correct interpre-
tation of the unit stipulation: dual-function employees may always
vote, provided they “regularly perform duties similar to those per-
formed by unit employees for sufficient periods of time to demonstrate
a substantial interest in working conditions in the bargaining unit.”
Caesar’s Tahoe, 337 NLRB 1096, 1096 (2002). The question then is
whether the employees at issue here meet those requirements. The
Employer argues that the employees in question are, in fact, dual func-
tion employees who should be included in the unit, in spite of their
undisputedly excluded job classifications. Because the Employer has
created the issue by asserting “dual function,” it therefore has the bur-
den of proving that the employees should be included on that basis.
7 In Air Liquide, 324 NLRB 661, the disputed employee was in-
cluded in the unit as a dual function employee based on his own testi-
mony regarding his work duties. In Faulks Bros., 176 NLRB 324, the
disputed employee was included in a unit of drivers as a dual-function
employee based on the employer’s estimate that he normally drove the
truck for a particular curb and gutter crew and spent about half his time
on driving responsibilities.
HAROLD J. BECKER CO. 53
metal work during the relevant period. Our colleague
provides no basis in law for the view that an employer’s
future intention with regard to work assignments bears
on whether alleged dual function employees should be
included in a unit. To the contrary, the Board has looked
exclusively to the quantity of unit work actually per-
formed by the employee in making that determination.
See, e.g., Martin Enterprises, supra (rejecting as “specu-
lative” an argument that a disputed employee is eligible
to vote as a dual-function employee because his perform-
ance of unit work may increase in the future).
Because we cannot conclude based on the evidence
presented in this case that the 21 disputed dual function
employees did sufficient unit work to be included in the
unit, we adopt the hearing officer’s recommendation to
sustain the Petitioner’s challenges to their ballots.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Sheet Metal Workers’ International Asso-
ciation Local Union No. 24, AFL–CIO, and that it is the
exclusive collective-bargaining representative of the em-
ployees in the unit found appropriate:
All employees of the Employer engaged in sheet metal
work, including architectural workers, but
EXCLUDING all full-time estimators, truck drivers,
crane operators, roofers, laborers, waterproofers and of-
fice clerical employees, and all professional employees,
guards, and supervisors as defined in the Act.
CHAIRMAN BATTISTA, dissenting.
Contrary to my colleagues and the hearing officer, I
find the evidence insufficient to warrant sustaining the
challenges to the ballots of 18 of the 21 disputed em-
ployees. As explained below, the record fails to establish
that these employees perform so little sheet metal work
as to warrant their exclusion from the unit. Therefore,
their ballots should be opened and counted.
At the outset, it is clear that the “party seeking to ex-
clude an individual from voting has the burden of estab-
lishing that the individual is, in fact, ineligible to vote.”
Regency Service Carts, Inc., 325 NLRB 616, 627 (1998)
(quoting Golden Fan Inn, 281 NLRB 226, 230 fn. 24
(1986)). Thus, it is not the Employer’s burden to estab-
lish that these employees are eligible. Rather, as the
party challenging the ballots of the disputed employees,
it is the Union’s burden to show that they are not eligible.
That burden has not been met.
The majority ignores this fundamental principle. In so
doing, the majority has incorrectly placed upon the Em-
ployer the burden of proving that the disputed employees
ought to be included in the unit, even though it is the
Union, not the Employer, which seeks their exclusion.
Thus, the majority’s premise, i.e., that the Employer has
not met this burden, fails to withstand scrutiny.
Applying the appropriate standard, I conclude that the
Union has not met its burden as to 18 of the 21 employ-
ees.1 The uncontradicted testimony establishes that, prior
to the expiration of the parties’ 8(f) agreement on May
31, 2003, the Employer decided that it no longer wished
to maintain a bargaining relationship with the Petitioner.
To that end, the Employer selected approximately 21 of
its extant roofers, laborers, and waterproofers to replace
the Union’s sheet metal workers at the end of the con-
tract. There is no dispute that the Employer planned to
transition all 21 of these employees to permanent sheet
metal positions. During the waning days of the contract,
these employees began their transition, but continued to
perform some of their previous job responsibilities. By
the end of the contract, only four union sheet metal
workers remained.
The record shows that 18 of the 21 employees per-
formed sheet metal work at least 20 percent of the time
during the relevant period. The calculations are based on
the Employer’s written daily summaries, daily crew logs,
employee timecards and the uncontradicted testimony of
Kevin Bechtel, the Employer’s president.
Despite this evidence, my colleagues contend that the
record does not adequately establish that any of the dis-
puted employees performed sufficient sheet metal work
to warrant their inclusion in the voting unit. As noted
above, my colleagues have misplaced the burden of
proof. The burden is on the party seeing exclusion.
While the Union does not dispute that these employees
perform some sheet metal work, it has offered no evi-
dence as to the actual performance of this work. In fact,
all of the relevant evidence was offered by the Employer.
The Employer has shown that these employees perform a
significant amount of sheet metal work and are in the
process of transitioning to full-time sheet metal work.
My colleagues say that the Employer’s evidence was
insufficient to show exclusion. However, where, as here,
the burden of proof is on the party who desires exclusion
(here, the Union), I do not understand how the Em-
ployer’s alleged deficiency can satisfy the Union’s bur-
den of proof.
Contrary to the majority’s contention, the Union’s
burden is not met merely by asserting that the challenged
employees occupy excluded positions. As the hearing
officer found, the election agreement is ambiguous as to
whether these dual-function employees are to be included

1 I find that the Union has shown that employees Charles Frisk,
Dennis Frisk, and Richard Lyons did not perform 20 percent sheet
metal work during the relevant period. Accordingly, I agree that they
are ineligible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
in the unit, and the extrinsic evidence fails to clarify the
ambiguity. The existence of this ambiguity necessitates an
inquiry as to whether the 21 employees are eligible under a
community-of-interest “dual function” analysis. However,
the burden in this inquiry rests with the party seeking to
exclude these individuals from voting, i.e., the Union.
My colleagues assert that the unit description is clear
and unambiguous. I disagree. The unit includes “all em-
ployees . . . engaged in sheet metal work.” It excludes
“roofers, laborers . . . waterproofers.” The employees in-
volved herein are engaged in sheet metal work. (The unit
description does not say exclusively engaged in that
work.) The employees are also nominally in the excluded
classifications, and perform that work as well. Thus, there
is an ambiguity as to these dual-function employees. My
colleagues say that, as to dual-function employees, the
burden of proof is on the party who wishes to include the
employees. The only case that they cite for this proposi-
tion is Caesar’s Tahoe. There is nothing in that case
which alters the general rule that the burden of proof is on
the party who wishes to exclude a statutory employee.
Indeed, the employee was included in Caesar’s Tahoe.
Thus, the challenges to these ballots have been improp-
erly sustained.
Moreover, even assuming the Employer actually had the
burden of proof in this case, I find that the record evidence
affirmatively establishes that the 18 disputed employees
perform sufficient sheet metal work to warrant their inclu-
sion in the unit.
The written daily summaries and Bechtel’s undisputed
testimony document the percentage of time each employee
spent performing unit work. The summaries themselves
were based on daily crew logs, daily work sheets, and in-
dividual weekly timesheets. Concededly, only the first of
these was admitted into evidence. However, those crew
logs were corroborated by the Employer’s uncontradicted
testimony. The percentage of sheet metal work performed
has been ascertained by considering the site to which an
employee was assigned on a daily basis, the percentage of
sheet metal work that was performed at that site, and the
calculation of a daily average based on these figures. The
Employer’s daily crew logs document the site to which
each employee was assigned on a daily basis. Bechtel, in
his uncontradicted testimony, provided the percentage of
unit work performed at each of the Employer’s jobsites.
Clearly, this evidence is sufficient to develop at least a
reasonable estimate of the amount of unit work performed
by each of the disputed employees.
My colleagues nonetheless contend that the Employer’s
evidence lacks sufficient specificity. In so doing, my col-
leagues not only ignore the burden of proof but also hold
the Employer to a higher standard than is typically re-
quired to establish the eligibility of dual-function employ-
ees. For example, in Air Liquide America Corp., 324
NLRB 661 (1997), the Board found a disputed employee
eligible to vote as a dual-function employee based on that
employee’s testimony, even though that testimony was
dubious. The Board found the employee’s testimony ade-
quate to establish dual-function status despite the hearing
officer’s finding that the employee was “purposefully at-
tempting to downplay” the percentage of nonunit work he
performed. Air Liquide, above at 664 fn. 9. See also
Faulks Bros. Construction Co., 176 NLRB 324, 331
(1969) (finding a disputed employee eligible to vote as a
dual-function employee based, in part, on “not precise”
estimates of the allocation of the employee’s worktime).
The majority erroneously contends that Air Liquide and
Faulks Brothers are distinguishable from the instant case
because the evidence was employee-specific. The cases
themselves mention no such distinction. Both cases raise
questions regarding the sufficiency of evidence submitted
to establish a disputed employee’s dual-function status.
These cases do not require, as the majority contends, that
the evidence must be employee-specific. Rather, they hold
that if there is some uncontradicted evidence, as here, then
there is an adequate basis upon which to determine dual-
function status. Neither Air Liquide nor Faulks Bros. go
so far as to hold that if the evidence submitted is not em-
ployee-specific, it must necessarily fail.
My colleagues further take issue with the fact that the
Employer has failed to account for the possibility that oth-
ers (beyond the 21) may have performed sheet metal work.
However, all that my colleagues can say is that these other
employees “may have been doing sheet metal work.” That
assertion falls woefully short of meeting the burden of
proof.
I recognize that the Board has generally found em-
ployees to be eligible as dual-function employees when
they have performed unit work 25 percent of the time.
However, this is not to say that a figure under 25 percent
will necessarily exclude employees. The rule is not a
hard and fast one. See Wayside Press, 104 NLRB 1028,
1029–1030 (1953). In the instant case, the 20-percent
figure is supplemented by the undisputed fact that the
Employer intended to transition these employees into
full-time sheet metal positions. These are the employees
who will in fact be represented if the Union is chosen,
and thus these are the employees who should have a
voice in deciding whether to choose representation.2

2 This case does not turn on the Employer’s intentions. The evi-
dence of intention simply provides additional support for the figures on
which I do rely.
In addition, I note that Martin Enterprise, 325 NLRB 714 (1998),
is distinguishable. There, the Employer’s intentions were speculative.