Sunward Materials

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 780 (N.L.R.B. 1991)

780
304 NLRB No. 103
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The parties stipulated during the hearing that Bruce McDowell, Bruce
Gerke, Paul Winter, and Edward Harvey were ineligible to vote in the election.
In the absence of exceptions we adopt, pro forma, the hearing officer’s rec-
ommendation to sustain the challenges to their ballots. The two remaining
challenged ballots are an insufficient number to affect the results.
2 In its exceptions, the Employer argues that because only two eligible vot-
ers cast ballots at the AC/DC polling site where Vivian, an employee allegedly
closely identified with management, was serving as the Employer’s observer,
the use of Vivian as an observer could not have affected the outcome of the
election. In support of this argument, the Employer filed an addendum to Em-
ployer’s Statement of Exceptions or, in the alternative, a motion to reopen the
record, seeking to include in the record certain election documents, including
the voter eligibility list showing the names and numbers of voters at each of
the six polling sites. Neither party moved for the introduction of these docu-
ments at the hearing. The Employer’s motion is denied because the Employer
has not shown that the introduction of the documents would require a different
result. See Mid-Continent Spring Co., 273 NLRB 884 (1985) (Board set aside
election where employee closely identified with management served as the
company’s observer, notwithstanding the evidence presented which dem-
onstrated that such conduct did not result in any prejudice).
We find that the election must be set aside and the Employer’s motion to
reopen the record denied because, even if the facts were as represented by the
Employer, the Employer has not established that the outcome of the election
could not have been affected by the use of Vivian as an observer. The tally
of ballots showed 117 against and 113 for the Union, with 6 challenged ballots
of which 4 were agreed to be ineligible. Taking into account the two unre-
solved challenged ballots and the two potentially coerced ballots cast at the
AC/DC site, the outcome of the election could have been affected by Vivian’s
serving as the Employer’s observer.
3 The Employer has excepted to some of the hearing officer’s credibility
findings. The Board’s established policy is not to overrule a hearing officer’s
credibility 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.
4 In the absence of exceptions, we adopt, pro forma, the hearing officer’s
recommendation to overrule the Petitioner’s Objection 1 and approve the Peti-
tioner’s withdrawal of Objection 2.
BCW, Inc., d/b/a Sunward Materials and Trans-
port, Local Delivery and Sales Drivers, Ware-
housemen and Helpers, Construction, Mining,
Motion Picture and Television Production,
State of Arizona, Local Union No. 104, an affil-
iate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, Petitioner. Case 28–RC–
4905
August 27, 1991
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections and chal-
lenges to an election held January 25, 1991, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lation Election Agreement. The tally of ballots shows
113 for and 117 against the Petitioner, with 6 chal-
lenged ballots, a sufficient number to affect the re-
sults.1
The Board has reviewed the record in light of the
exceptions2 and briefs, has adopted the hearing offi-
cer’s findings3 and recommendations,4 and finds that
the election must be set aside and a new election held.
The Petitioner objected to the Employer’s use of
Ken Vivian as its election observer at the AC/DC poll-
ing site on the basis that he is a supervisor. Although
the hearing officer found that Vivian is not a 2(11) su-
pervisor or a managerial employee, the hearing officer
concluded that Vivian could reasonably be viewed by
the employees as closely identified with management
and, therefore, recommended that the Board set aside
the election. For the reasons set forth below, we agree
with the hearing officer.
The Employer produces concrete building products
for the construction industry, and delivers its products
to the customer by ready-mix trucks. The Employer
has six locations and approximately 400 employees in
the Phoenix, Arizona area.
Vivian was hired in May 1987 by the Employer as
a mechanic. In September 1988, he was transferred to
the personnel section as a training administrator. His
title was later changed to compliance/training specialist
because he was given additional compliance duties.
Vivian conducts monthly on-site safety and training
sessions for the employees, the topics of which are de-
termined by management. Vivian prepares the presen-
tation, often including the use of a VCR and television,
lecturing, passing out published information, and other
visual aids. At each training session, Vivian asks the
employees to sign an attendance sheet so that he can
monitor the Employer’s compliance with Federal train-
ing requirements.
Vivian is also responsible for training new employ-
ees on the operation of various equipment and making
sure the employees wear the proper safety equipment.
At his orientation meetings, Vivian lectures new em-
ployees on the Employer’s safety policies, passes out
safety information and employee handbooks, and
sometimes invites outside speakers to supplement his
presentations.
With regard to his compliance duties, Vivian re-
views the drivers’ logs of hours on the road to ensure
that they are within the Federal and state regulations.
He also monitors the employees’ traffic records and, if
he finds that an employee has failed to report an inci-
dent, he contacts the driver’s supervisor about getting
a report. Vivian maintains a file on each employee
containing information on their driving status.
The drivers were aware that Vivian occasionally
monitored their speed by using a radar gun. On such
occasions, Vivian was usually accompanied by a fore-
man. Vivian testified that he noted the names, speed,
and location of speeding drivers, but took no discipli-
nary actions against them. Employee Steven Russell
testified that he heard at a safety meeting (from either
Vivian or his foreman) that employees working out of
his plant had been caught speeding, although he did
not know whether any action was taken against these
speeders.
781SUNWARD MATERIALS
1 273 NLRB 884 (1985).
Since September 1988, Vivian has been very active
and visible in the hiring process. He greets applicants,
introduces himself as the training administrator, an-
swers preliminary questions, checks employment appli-
cations for completeness, and schedules interviews
with foremen when told to do so by the manager of
personnel services, Michael McGuckin. Later in the
hiring process, he administers written drivers’ tests,
corrects the tests and returns them to the employees to
look over, tells applicants where to go for their
physicals and drug tests, issues safety gear and in-
structs on its use, informs the employees of their pay
rate, and, if hired, tells them when and where to report
to work. The other employees who work in the person-
nel department earn between $13,000 and $19,000 per
year. Vivian was earning approximately $27,000 at the
time of the election.
During the Petitioner’s organizational drive, the Em-
ployer held election campaign meetings with unit em-
ployees at various plants. Vivian attended three of
these meetings and only parts of others. At the meet-
ings, Vivian sat in the front of the room by the tele-
vision facing the employees, next to and in line with
the managers who addressed the employees. The em-
ployees sat around a table facing the managers and
Vivian. Although Vivian did not make any campaign
speeches, he did wear a ‘‘Vote No’’ button, as did the
managers and some of the employees present.
Vivian has his own office at the Employer’s head-
quarters building where he stores his training materials
and meets with employees. He also drives a company-
owned truck.
The hearing officer concluded that Vivian could rea-
sonably be viewed by the employees as closely identi-
fied with management and, therefore, his serving as the
Employer’s observer interfered with the laboratory
conditions. In so finding, the hearing officer, in agree-
ment with our dissenting colleague, did not find Mid-
Continent Spring Co., 273 NLRB 884 (1985), to be
controlling because the employee found closely identi-
fied with management there was the personnel man-
ager. Rather, the hearing officer relied on B-P Custom
Building Products, 251 NLRB 1337 (1980), in finding
that Vivian would be viewed by employees as a person
closely identified with management.
Contrary to our dissenting colleague, we agree with
the hearing officer that, under all the circumstances,
the Employer had placed Vivian in a position in which
he could reasonably be viewed by employees as close-
ly identified with management. It is established Board
policy that persons closely identified with management
may not act as employer observers. See Peabody Engi-
neering Co., 95 NLRB 952, 953 (1951). Accordingly,
we find that the Employer’s use of Vivian as an ob-
server constitutes objectionable conduct and, therefore,
we direct that the election be set aside and a new elec-
tion held.
[Direction of Second Election omitted from publica-
tion.]
MEMBER OVIATT, dissenting in part.
Contrary to my colleagues, I would overrule Peti-
tioner’s Objection 3 and certify the election results. In
Objection 3, the Petitioner claimed that the Employer
tainted the election by using an alleged supervisor,
Ken Vivian, as its election observer at one of the sev-
eral polling places. At the preelection conference, the
Petitioner’s organizer asked the Employer representa-
tives whether there were supervisors on the list of ob-
servers. The Employer answered that there were none.
The Hearing Officer found, and my colleagues and I
agree, that Vivian is not a supervisor or a managerial
employee. The hearing officer went beyond the objec-
tion, however, and concluded that the election should
be set aside because Vivian could be viewed by em-
ployees as closely identified with management.
Mid-Continent Spring Co.1 cited by the majority is
in my view inapposite and neither compels nor war-
rants my colleagues’ result here. In that case, a panel
majority reversed the hearing officer and set the elec-
tion aside based on the employer’s selecting K. Marsh
as its observer in the election. The facts listed by the
Board and the hearing officer in that case showed that
the employees (and at least one management official)
considered Marsh the ‘‘personnel manager’’; she was
a member of the management negotiating team; regu-
larly attended supervisory meetings; represented the
employer at the first step of the grievance procedure;
sat in on third step grievance meetings; and partici-
pated in employees’ job evaluations. At the preelection
conference in that case, the union specifically objected
to Marsh’s serving as an observer on the ground that
she was the employer’s personnel manager. Here, Ken
Vivian is a compliance and training specialist who
conducts safety and training meetings for employees at
the various jobsites. He is also responsible for training
new employees on the operation of various equipment,
and making sure that employees wear proper safety
equipment. This case is completely different than the
situation presented in Mid-Continental Spring. None of
the factors cited in that case are present here. Vivian’s
actual status here does not in my view support setting
the election aside. Indeed, as the hearing officer spe-
cifically found, Vivian ‘‘clearly does not possess any
of the indicia of a supervisor. . . . nor does he meet
any of the criteria for a managerial employee . . . .’’
Accordingly, I would overrule Petitioner’s Objection 3.