Mid-Gulf Industrial, Inc.

National Labor Relations Board - Board Decisions

May 24, 1990

298 N.L.R.B. 656 (N.L.R.B. 1990)

656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mid-Gulf Industrial, Inc. and International Union of
Operating Engineers, Local 450, AFL-CIO.
Case 16-RC-9067
May 24, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held on June 28, 1989, and the
hearing officer's report recommending disposition
of them. The election was conducted pursuant to a
Direction of Election. The tally of ballots shows
three votes for and three against the Petitioner,
with two challenged ballots.'
1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer's recommendation that the challenge to the ballot of Robert Whitmire
be sustained.
The Board has reviewed the record in light of
the exceptions and briefs, and has adopted the
hearing officer 's findings2 and recommendations.
ORDER
The challenge to the ballot of Manuel Keith
Ackel is overruled and this proceeding is remanded
to the Regional Director for Region 16 who is di-
rected to open and count the challenged ballot of
Manuel Keith Ackel and, based on the revised tally
of ballots, to issue the appropriate certification.
2 The employer has excepted to some of the hearing officer's credibil-
ity findings . The Board 's established policy is not to overrule a hearing
officer's resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect . Stretch-Tex Co., 118 NLRB
1359, 1361 (1957). We find no basis for reversing the findings.
The hearing officer, crediting Petitioner 's witness Ackel largely on the
basis of demeanor, concluded that Ackel was laid off on December 6,
1988, because of a lack of work. The Employer challenges this conclu-
sion, claiming that Ackel voluntarily quit his employment that day. Al-
though the testimony is confusing , we find, based on Ackel's credited
denial that he quit, the Employer's admission that there was not much
work to do at the time Ackel left, and the fact that work Ackel was to
have done was discontinued for 3 months after he left, that the evidence
is insufficient to demonstrate that Ackel voluntarily quit on December 6,
1988, rather than being laid off for a lack of work, as he testified.
298 NLRB No. 88