J.I. Brown Tree Expert Co.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1246 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. I. Brown Tree Expert Co., Inc. and Teamsters Local
:515, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, & Help-
ers of America, Petitioner. Case 10-RC-1 1612
September 28, 1979
DECISION ON REVIEW AND DIRECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.F
On January 18, 1979, the Regional Director for Re-
gion 10 issued a Decision and Direction of Election in
the above-entitled proceeding, in which he directed
an election in the Petitioner's requested unit including
"all groundmen, treemen, assistant treemen, and me-
chanics employed by the Employer at its South Pitts-
burg, Tennessee, operations, excluding all office em-
ployees, guards, and supervisors as defined in the
Act." Thereafter, in accordance with Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
timely filed a request for review of the Regional Di-
rector's decision on grounds that 16 employees in-
cluded in the unit were seasonal employees who were
permanently laid off with no reasonable expectancy
of reemployment and therefore they should be ex-
cluded from the appropriate unit. The Employer also
contends that two employees excluded from the unit
as supervisors should be included in the unit.
On February 14, 1979, the National Labor Rela-
tions Board by telegraphic order granted the Employ-
er's request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, including
the Employer's brief,' and has decided to affirm the
Regional Director's report.?
I The Employer moved to reopen the record to adduce additional evidence
regarding the unavailability of tree trimming moneys to Sequachee Valley
DIRECTION
It is hereby directed that the Regional Director for
Region 10 shall, pursuant to the Board's Rules and
Regulations, Series 8, as amended, within 10 days
from the date of this Decision on Review and Direc-
tion, open and count the valid ballots cast in an elec-
tion held on February 15, 1979, and prepare and
cause to be served on the parties a tally of ballots in
accordance with Section 102.69 of the Board's Rules
and Regulations, Series 8, as amended, which shall
thereafter be applicable to the further processing of
this matter.
Electric Cooperative in February 1979 and requested that the Board stay the
election pending resolution of its motion. We hereby deny the Employer's
motion as such evidence is not relevant in a determination as to whether the
employees had a reasonable expectancy of reemployment at the time of the
hearing.
2 The Regional Director found and we agree that the 16 employees sepa-
rated from their jobs on December 1. 1978. were temporarily laid-off em-
ployees who retained a reasonable expectancy of recall and therefore were
eligible to vote in the representation election. As noted by the Regional
Director, several employees testified that when they were laid off in Decem-
ber they were told that they could expect to return when funds became
available and that funds might become available in February. The Employ-
er's president, Parker Layne. denies making the remarks to that effect attrib-
uted to him by employees. However, two employees such testified that their
respective foremen made remarks to the same effect. This testimony stands
uncontradicted and would tend to show, as the Regional Director found,
that the employees had a reasonable expectancy of recall. In contending
otherwise, the Employer claims that its past practice of hiring employees in
June or July and then laying them off in September. along with its practice of
not rehiring employees from the previous season, shows that, regardless of
the employee statements as to what they were told, the employees did not
have a reasonable expectation of recall. The difficulty with this position is
that the situation in December was not at all in keeping with past history.
Thus, on this occasion the season lasted much longer than usual and as a
result the Employer had on board a much more experienced work force than
it was accustomed to having at the time of the layoff. Further, because the
November 24, 1979. letter to the Employer from its sole source of work,
Sequachee, stated, inter alia, that Sequachee was "hoping ... [to] enlarge our
crews again about February . ..." the Employer had reason to believe it
might be restarting as early as February instead of experiencing the usual 8
to 9 months hiaais - 'tween busy periods. Since the Employer had not previ-
ously. insofar as the record shows, been faced with a situation such as this its
past procedures do not establish that the employees in these different circum-
stances did not have a reasonable expectation of recall. Thus, the Regional
Director properly relied on the employees' testimony. some of which is un-
contradicted, in finding that these 16 employees in question retained a rea-
sonable expectation of recall and were therefore eligible to vote in the elec-
tion.
245 NLRB No. 158
1246