Town Concrete Pipe

National Labor Relations Board - Board Decisions

Jan 8, 1982

259 N.L.R.B. 1002 (N.L.R.B. 1982)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Town Concrete Pipe of Washington, Inc., Employer- mended that the overruled challenged ballots be
Petitioner and Laborers International Union of opened and counted and a revised tally of ballots
North America, Local No. 252, AFL-CIO. Case issued. Thereafter, the Employer filed timely ex-
19-RM-1656 ceptions and a supporting brief, and the Union filed
January 8, 1982 an answering brief to the Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
DECISION AND DIRECTION National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
BY CHAIRMAN VAN DE WATER AND thority in this proceeding to a three-member panel.
MEMBERS JENKINS AND HUNTER The Board has reviewed the Hearing Officer's
Pursuant to a Stipulation for Certification Upon rulings made at the hearing and finds that they are
Consent Election approved by the Acting Regional free from prejudicial error. They are hereby af-
Director for Region 19 on January 20, 1981, an firmed.
election by secret ballot was conducted in the The Board has reviewed the record in light of
above-entitled matter on April 16, 1981, among the the exceptions 2 and briefs and hereby adopts the
employees in the following appropriate collective- Hearing Officer's findings and recommendations, 3
bargaining unit: as modified herein. 4
We agree with the Hearing Officer's recommen-
All production and maintenance employees dation to overrule the challenges to 27 ballots, and
(including employees engaged in an economic to sustain the challenges to 4 ballots. However, for
strike which commenced less than 12 months the following reasons, we disagree with her recom-
before the election date and who retained their mendations that the challenges to the ballots of
status as such during the eligibility period and Roland Prouty and Robin Urich be sustained.
their replacements) employed at 4601 S. Or- 1. The Hearing Officer concluded that, as of the
chard, Tacoma, Washington; excluding office date of the election, Prouty was a temporary em-
clerical employees, professional employees, ployee and thus ineligible to vote. She found that
guards and supervisors as defined in the Act.
be sustained: Brian Cameron, Walter Davis, Eric Rehwaldt, Roland
The tally of ballots showed that, of approximately Prouty, Robin Urich, and James L. Sullens.
94 eligible voters, 23 cast ballots for and 38 cast In the absence of exceptions thereto, we adopt, pro forma, the recom-
ballots against the Union. There were 33 chal- mendation of the Hearing Officer to sustain the challenges to the ballotsballt against the Unon. There were 33 cha of Brian Cameron, Walter Davis, Eric Rehwaldt, and James L. Sullens,
lenged ballots which were sufficient to affect the and to overrule the challenges to the ballots of Robert Creger, Leroy
results of the election. Henke, and Ron Owens.
In its brief in support of its exceptions to the Hearing Officer's report
On May 1, 1981, following an investigation, the and recommendations, the Employer noted that, during the hearing, the
Acting Regional Director issued a Report on Chal- Employer withdrew its challenge to the ballot of Edward Combs and, in
lenged Ballots and Direction and Notice of Hear- its brief to the Hearing Officer, it withdrew its challenges to the ballots
of David C. Ell, Robert W. Halsey, Ralph Johnson, Chris A. Markum,
ing. Russell Morrison, Horace Olson, and Allan H. Stevens. The above-
Pursuant to the notice, a hearing on challenged named voters were all employed at Tacoma Boat at the time of the hear-
ing. However, elsewhere in this brief, the Employer excepted to the
ballots was held in Tacoma, Washington, on May Hearing Officer's recommendations to overrule the challenges to the bal-
12, 13, 26, and 27 and June 4, 8, 10, and 11, 1981, lots of these voters. Additionally, in its motion to reopen the record, the
before Hearing Officer Catherine M. Roth, in Employer requested that it be permitted to revoke its withdrawal of its
challenge to Ell's ballot. We find that, even if the Employer intended to
which the Employer and the Union participated. preserve its challenges to the ballots of these voters, the challenges
The parties were afforded full opportunity to be should be overruled for the reasons stated by the Hearing Officer in her
heard, to examine and cross-examine witnesses, and analysis with respect to the other strikers who subsequently were em-heard, to examine and cross-examine witnesses, and ployed at Tacoma Boat.
to introduce evidence bearing on the issues herein. 3 The Employer has excepted to certain credibility findings made by
On July 31, 1981, the Hearing Officer issued her he Hearing Ofice. It is the established policy of the Board not to over-
rule a Hearing Officer's credibility resolutions unless the clear preponder-
report in which she concluded that the challenges ance of all of the relevant evidence convinces us that the resolutions are
to 27 ballots should be overruled and the chal- incorrect. The Coca-Cola Bottling Company of Memphis, 132 NLRB 481,
lenges to 6 ballots should be sustained. She recoim- 483 (1961); Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have care-
enges to 6ballotsshould e ustained.' erfully examined the record and find no basis for reversing her findings.
4 On August 24, 1981, the Employer filed with the Board a motion to
Specifically she recommended that challenges to the ballots of the reopen the record. The Union opposed the motion. the Employer seeks
following voters be overruled: Raymond R. Bame, Edward Combs, to introduce evidence that, during July and August 1981, the Employer
Richard L. Crocenzi, David C. Ell, Duane M. Felix, Robert W. Halsey, offered reinstatement to several former strikers and that these offers were
Douglas Hite, Mark D. Hite, Ralph Johnson, Joseph H. Kistler, Chris A, refused. However, the voting eligibility of these individuals hinges upon
Markum, John H. McVey, Russell Morrison, Aaron Olson, Horace whether they had abandoned employment with the Employer as of the
Olson, Gary Lee Parkos, Stuart J. Schreiner, John E. Sears, Mario S. election date. See Pacific Tile and Porcelain Company, 137 NLRB 1358
Serka, Allen H. Stevens, Floyd Thompson, Timothy B. Wegner, Ken (1962). The Employer's allegations involve post-election conduct and,
Wolever, Ted Wilson, Robert Creger, Leroy Henke, and Ron Owens. even if true, are not relevant to our determination. Accordingly, we deny
She recommended that challenges to the ballots of the following voters the Employer's motion.
259 NLRB No. 137
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TOWN CONCRETE PIPE 1003
Prouty was on layoff status with his former em- mond Davis telephoned him the following day to
ployer, Southwest Deliveries, and that he main- ask why he quit, and Urich replied that he did not
tained a home in Vancouver, Washington, 135 like his supervisor and disapproved of the way the
miles from the Employer's facilities. 5 She further plant was run.' On April 9, Urich met with Davis
found that, at a February 28, 1981, union meeting, and Columbini at the company offices and admitted
Prouty told two union business agents that he was that he actually quit because he had severe prob-
employed at Town Concrete Pipe on a temporary lems with drugs and alcohol, and he believed that
basis. The Hearing Officer concluded that Prouty he was "falling apart." Upon his assurance that he
intended to stay at his job with the Employer only would seek professional help for his problems, the
until he was recalled by Southwest Deliveries. Employer changed Urich's status from voluntary
The Employer excepts to this conclusion, con- quit and granted him a medical leave of absence.
tending that Prouty was hired as a permanent em- Urich remained out of work until April 20, 1981.
ployee, and remained as such at the time of the The Hearing Officer found that Urich was not a
election. We believe that the weight of the record bona fide employee at the time of the election, but
evidence supports the Employer's contention. was rehired by the Employer in an effort to
Orville McKenzie, a mechanic with the Employ- "flood" the unit with antiunion employees. She em-
er who became incapacitated by a back ailment, phasized that Urich was an outspoken opponent of
recommended Prouty as his replacement. Pursuant the Union's organizing drive and served as a com-
to this recommendation, Plant Superintendent Dan pany observer at the election. The Hearing Officer
Columbini hired Prouty on November 25, 1980. also indicated that Urich had received disciplinary
Both Columbini and Prouty testified that there was warnings from the Employer, and observed that
no mention at the hiring interview that the job another employee who had also quit was not asked
would be temporary. Columbini stated, "[I]t was to return because he had disciplinary problems. In
understood when he was hired that he was a full- addition, the Hearing Officer found that Urich was
time employee."6 rehired although he did not get professional help as
Prouty had been laid off at Southwest Deliveries he had promised.
due to a lack of available work on February 5, We disagree with the Hearing Officer and find
1980, more than 9 months before he commenced that Urich was an eligible voter. Urich had been
employment with the Employer. James Barnes, the employed by the Employer since July 1977. Al-
general manager of Southwest Deliveries, testified thouh he received several warnins for absentee-
that Prouty was technically eligible for recall for 3 ism, he was not considered to be a serious disci-
years after being laid off. However, he also stated plin p m, nd here o evene tat heplinary problem, and there is no evidence that hethat Prouty's reemployment was extremely unlike- was not a competent employee
ly, and that Prouty was never given any indication
that he would be recalled. 7 Under these circum- Additionally, we find that the Employer's treat-
stances we find that while Prouty was working for ment of Urich was consistent with its past practice.
the Employer he did not have a reasonable expec- The record indicates that, during the past few
tation of returning to Southwest Deliveries. years, the Employer contacted several other em-
We do not attribute considerable significance to ployees who ad quit and asked them to return.
Prouty's statement at the union meeting that he With respect to the individual referred to by the
was only a temporary employee. Prouty may have Hearing Officer who was not requested t return,
hoped that he would soon obtain a job at South- Columbini testified that his disciplinary problems t t l s t i a j at outh- were such that the company management was of
west Deliveries or elsewhere, but there is no evi- were such that he company management was of
dence that he reasonably expected to leave at any- the opinion that he was "not salvageable."
time soon.Urich testified that, during the week that he was
Considering all of the relevant evidence, we find on leave, he applied to enter a free clinic but was
that the Petitioner has not demonstrated that not accepted. He told Columbini that he intended
Prouty was a temporary employee. Accordingly, to seek private counseling, but he needed to work
we overrule the challenge to his ballot. in order to pay for it. He also stated that he had
2. Urich resigned his position as a machine oper- not had any drugs or alcohol for a week. Colum-
ator with the Employer on April 7, 1981, 9 days bini believed that Urich was making a serious
before the election. Company Vice President Ray- effort to obtain professional help to get well and
therefore permitted him to return to work.
5 Prouty commuted to Vancouver each weekend.
The record indicates that Columbini granted Prouty's request for a 2- ' Davis testified that it is his policy to speak to employees who quit
week probationary period, after which he would be paid at his full salary. and to ascertain the reasons why.
The Employer generally required a 90-day probationary period. 9 His unexplained absences apparently resulted from his problems with
' The Hearing Officer fully credited Barnes' testimony. alcohol.
.
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stances, e find that hile Prouty was working for t fr consistent with its past practice.
t l r i t r l yT h e te c o r dE ldicates t t, i t t f
t ti f r t r i t t t liveries.years, t l y r c t ct several other e -
t ttri t i r l i ifi t Wihespc w h o it t t r t r .
r ty's state ent at the union eeting that he t h . Offict t o t h e individual referred to by the
l a t r r l . r t CHearing ffi r t r t to r t r ,
ha he ould oon ob ain ob S t - Columbini es ified that his disciplinary problems
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1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We note that the Employer granted medical we do not find it extraordinary that the Employer
leave from December 24, 1980, until March 2, contacted a longstanding employee such as Urich
1981, to another employee whose ballot was chal- to find out why he quit, and offered him an oppor-
lenged because he was hospitalized due to severe tunity to return to work. Accordingly, we overrule
psychological problems. In recommending that we the challenge to his ballot.
overrule the challenge to that ballot, 10 the Hearing
Officer stated, inter alia, that "there is a presump- DIRECTION
tion that an employee granted a leave of absence is The Regional Director is hereby directed to
still an employee." She further indicated that [t]he open and count the ballots of Raymond R. Bame,
only evidence presented by the Union to show that Edward Combs, Richard L. Crocenzi, David C.
the Employer was packing the unit was the place- El, Duane M. Felix, Robert W. Halsey, Douglas
ment of two employees on medical leave and the H , . , , .
Employer's alleged failure to give special consider- itle, M a rk .. Markur, J o h n so. McVey,
ation to a union adherent."" We find that these Kstler, hris A arkum, John H. McVey, Rus-
considerations support our conclusion that the Em- sel Morrson, Aaron Olson, Horace Olson, Gary
ployer granted medical leave to and rehired Urich Lee Parkos, Stuart J. Schreier, John E. Sears,
for legitimate reasons. Mario S. Serka, Allen H. Stevens, Floyd Thomp-
The evidence herein does not demonstrate that son, Timothy B. Wegner, Ken Wolever, Ted
the Employer rehired Urich as part of a scheme to Wilson, Robert Creger, Leroy Henke, Ron Owens,
pack the unit. In contrast to the Hearing Officer, Roland Prouty, and Robin Urich, and thereafter
prepare and cause to be served on the parties a re-
'D There was no exception to this recommendation and we adopted it, vised tally of ballots. Thereafter, the Regional Di-
pmo forma, in fn. 2, supra rector shall issue the appropriate certification.
" The facts with respect to this individual are not relevant herein.
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