J.K. Pulley Co.

National Labor Relations Board - Board Decisions

May 5, 2003

338 N.L.R.B. 1152 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
J.K. Pulley Co. and Ancel Products and International
Association of Machinists & Aerospace Work-
ers, AFL–CIO. Case 14–RC–12367
May 5, 2003
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held on July 26, 2002, and the hearing of-
ficer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 14 for and 12
against the Petitioner, with 2 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 only to the extent consis-
tent with this decision, and finds that a certification of
representative should be issued.2
The Petitioner challenged the ballot of Robert
Soehngen, a high school student who worked for the
Employer3 during the summer of 2002.4 The hearing
officer concluded that Soehngen was a temporary sum-
mer employee who was not eligible to vote and recom-
mended that the challenge be sustained. The Employer
has excepted to the hearing officer’s recommendation
and contends that Soehngen was a regular part-time em-
ployee whose ballot should be counted. For reasons dis-
cussed below, we agree with the hearing officer that
Soehngen was ineligible to vote.
The evidence shows that Soehngen, who is the nephew
of J.K. Pulley President Brian Koch, asked Koch for a
job during a family gathering in the spring of 2002.
Soehngen was a high school sophomore at the time, and
asked about the job after his mother suggested that he
find work for the summer. Koch told Soehngen that he
would hire him once the school year ended. Soehngen
did not speak with Koch about the job again until several
days after the end of the school year, when he phoned

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.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the challenge to the ballot of Randy
Sneed. Additionally, we agree with the hearing officer that Sneed’s
ballot is not determinative, and it is therefore not necessary to count it.
3 J.K. Pulley Co. and Ancel Products are named as a single employer
in the representation petition.
4 All dates hereafter are in 2002 unless otherwise noted.
Koch about employment on June 9. The record does not
detail what was said between Koch and Soehngen in that
phone conversation. He started work the next day, 4
days prior to the filing of the representation petition.
There is no evidence that Koch and Soehngen dis-
cussed the possibility of Soehngen’s employment con-
tinuing through the upcoming school year until July 25,
the day before the election. At that time Soehngen told
Koch that he was considering leaving his job because he
wanted some time off before school started again. In
response, Koch asked Soehngen if he would continue to
work until the school year started and also if he would be
willing to work during the school year on his days off
and after school. Soehngen agreed to continue working
for the rest of the summer, and told Koch he would also
like to work during the school year. However, Soehngen
was laid off on August 8 due to a lack of available work.
He had not been recalled to work at the time of the hear-
ing.
To be eligible to vote in a Board election, an employee
must be in the appropriate unit on both the established
eligibility date and the date of the election. Martin En-
terprises, 325 NLRB 714 (1998); Plymouth Towing Co.,
178 NLRB 651 (1969).5 Where a student is hired for the
summer vacation and will terminate employment at the
beginning of the school year, the student is a temporary
employee and not included in the unit. See Georgia-
Pacific Corp., 195 NLRB 258, 259 (1972); Crest Wine &
Spirits, 168 NLRB 754 (1967); see also Davis Super-
markets, 306 NLRB 426, 428 (1992).
Applying these cases, we conclude that Soehngen was
a temporary employee—and therefore not included in the
unit—on the eligibility date.6 The evidence shows that
Soehngen, a high school sophomore, did not begin work-
ing until June 10, after the school year had ended and 4
days before the petition was filed. There is no evidence
that, at the time he was hired, Soehngen’s employment
was to continue into the next school year, or even that
this prospect was considered or discussed. Instead, the
only record evidence that Koch and Soehngen discussed
the possibility of Soehngen’s employment continuing
through the upcoming school year occurred on July 25,
the day before the election and approximately a month
after the eligibility date. Because Soehngen was a tem-
porary employee who was not in the unit on the eligibil-
5 That Soehngen was laid off after the election is not relevant to our
analysis. See Dakota Fire Protection, Inc. 337 NLRB 92 (2001).
6 The record indicates that the payroll period for eligibility is the pe-
riod ending June 16, 2002.
338 NLRB No. 178
J.K. PULLEY CO. 1153
ity date, he was ineligible to vote in the election.7 We
therefore sustain the challenge to his ballot.
The hearing officer also recommended sustaining the
challenge to Soehngen’s ballot because Soehngen’s
status as Koch’s nephew precluded him from sharing a
community of interest with other employees. The Em-
ployer has excepted to this recommendation because the
issue was not before the hearing officer, and because the
Employer was denied the opportunity to present evidence
that Soehngen was treated no differently than other em-
ployees. In its brief, the Employer proffered evidence
that other employees benefited from scheduling flexibil-
ity similar to that afforded Soehngen. We find merit in
the Employer’s exception.
Soehngen’s relationship with Koch was not a stated
basis for the Petitioner’s challenge to his ballot, nor was
the issue arguably within the scope of the Petitioner’s
challenge based on Soehngen’s status as a summer em-
ployee. The parties adduced little evidence at the hearing

7 The Employer’s reliance on the discussion between Koch and
Soehngen on July 25, about the possibility of Soehngen continuing his
employment through the upcoming school year, does not alter the fact
that Soehngen was ineligible on the eligibility date. Compare Meadow
Valley Contractors, 314 NLRB 217 (1994) (employee initially hired to
perform nonbargaining unit work transferred to performing bargaining
unit work before the eligibility cutoff date and continued to perform
bargaining unit work through the date of the election, held eligible to
vote).
on this issue and were given no indication by the hearing
officer that he would consider Soehngen’s relationship
with Koch as a basis for determining Soehngen’s voting
eligibility. Therefore, we find that this issue was not
properly before the hearing officer, and that he erred by
considering Soehngen’s eligibility on this basis. See,
e.g., Precision Products Group, 319 NLRB 640 (1995);
Iowa Lamb Corp., 275 NLRB 185 (1985). Accordingly,
we rely solely on Soehngen’s status as an ineligible tem-
porary employee on the eligibility date as grounds to
affirm the hearing officer’s recommendation that the
challenge to his ballot be sustained.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for the International Association of Machinists
& Aerospace Workers, AFL–CIO, and that it is the ex-
clusive representative of the employees in the following
appropriate unit:

All full-time and regular part-time production and
maintenance employees employed by the Employers
at its St. Louis, Missouri, facility, excluding office
clerical and professional employees, temporary em-
ployees employed by temporary agencies, guards
and supervisors as defined in the Act, and all other
employees.