Mercury Distribution Carriers

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 840 (N.L.R.B. 1993)

840
312 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt, pro forma, the Regional
Director’s recommendation that the challenge to the ballot of Wil-
liam Tinney should be overruled and that his ballot should be
opened and counted.
In its exceptions, the Employer asserts that the Regional Director’s
report contains certain factual discrepancies related to Allamby’s
terms and conditions of employment. Specifically, the Employer,
through affidavits attached to its exceptions, maintains that Allamby
does not call the Employer every day to find out if work is available
and has declined work on more than one or two instances. Even ac-
cepting these factual assertions, we reach the same result as the Re-
gional Director. In Tri-State Transportation Co., 289 NLRB 356
(1988), the Board held, inter alia, that an employee’s ability to de-
cline work ‘‘is not determinative of their employment status so as
to exclude them from the unit.’’ Accordingly, even assuming that
Allamby does not call the Employer every day seeking work and
even assuming that he has declined work on more than ‘‘one or two
instances,’’ the Regional Director properly found him to be includ-
able in the unit as a regular part-time employee.
Mercury Distribution Carriers, Inc. and Teamsters
Local 676, affiliated with International Broth-
erhood of Teamsters, AFL–CIO, Petitioner.
Case 4–RC–18103
September 30, 1993
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
determinative challenges in an election held June 9,
1993, and the Regional Director’s report recommend-
ing disposition of them. The election was held pursu-
ant to a Stipulated Election Agreement approved by
the Regional Director on May 13, 1993. The tally of
ballots shows 9 for and 8 against the Petitioner, with
2 challenged ballots, a number sufficient to affect the
election results.
The Board has reviewed the record in light of the
exceptions1 and brief and has adopted the Regional Di-
rector’s findings and recommendations.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 4 shall, within 14 days of the date of this Deci-
sion and Direction, open and count the ballots of Wil-
liam Tinney and Gerald Allamby, and prepare and
serve on the parties a revised tally of ballots. There-
after, the Regional Director shall issue the appropriate
certification.