Exposition Storage Services, L.L.C.

National Labor Relations Board - Board Decisions

May 28, 2014

28-RC-109730 (N.L.R.B. May. 28, 2014)

NOT INCLUDED IN PMH
BOUND VOLUMES Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
EXPOSITION STORAGE SERVICES, LLC
Employer
and Case 28-RC-109730
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS, LOCAL UNION NO. 631
affiliated with INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered
determinative challenges in an election held August 29, 2013 and the hearing officer’s
report recommending disposition of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots shows three for and two against the
Petitioner, with four challenged ballots.
The Board has reviewed the record in light of the exceptions1 and briefs, has
adopted the hearing officer’s findings2 and recommendations, and finds that a
certification of representative should be issued.

1 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 evidence convinces us that they are
incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully examined
the record and find no basis for reversing the findings.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for Teamsters,
Chauffeurs, Warehousemen and Helpers, Local Union No. 631, and that it is the
exclusive collective-bargaining representative of the employees in the following
appropriate unit:

2 The Employer argues that the four individuals who cast challenged ballots were
either seasonal employees or casual employees. We adopt the hearing officer’s finding,
for the reasons given in his report, that they were not seasonal employees. We further
find that they were not eligible casual employees. Absent special circumstances, the
Board applies the standard formula set out in Davison-Paxon Co., 185 NLRB 21 (1970),
to evaluate whether a casual employee has worked a sufficient number of hours with
sufficient regularity to share a “real continuing interest in the terms and conditions of
employment offered by the employer.” Columbus Symphony Orchestra, 350 NLRB 523,
524 (2007), quoting Trump Taj Mahal Casino, 306 NLRB 294, 296 (1992), enfd. 2 F.3d
35 (3d Cir. 1993). Under the Davison-Paxon formula, an employee who regularly
averages 4 hours or more per week for the last quarter prior to the eligibility date “has a
sufficient community of interest for inclusion in the unit and may vote in the election.”
Davison-Paxon, 185 NLRB at 23-24. Here, none of the four individuals who cast
challenged ballots worked at all during the last quarter, i.e. the 13-week period
immediately before the eligibility date. Woodward Detroit CVS, 355 NLRB 1115, 1115
(2010). Thus, none of them are eligible to vote under Davison-Paxon. Moreover, the
Employer has shown no special circumstances that would warrant deviating from the
Davison-Paxon formula in this case.
Contrary to his colleagues, Member Miscimarra would apply a modified version
of the Davison-Paxon eligibility test consistent with the parties’ stipulation. The
stipulation states that employees in the unit are eligible to vote if they “were employed
during the twelve-month period ending Sunday, July 28, 2013.” Therefore, Member
Miscimarra finds that challenged voters Roberto Soto and Michael Forrest were eligible
to vote as regular part-time casual employees if they averaged four hours or more per
week in any of the four quarters preceding the election eligibility date. During the
quarter from July 29 to October 28, 2012, Soto averaged 16.13 hours and Forrest 6.35
hours per week. However, Soto and Forrest were employed to perform both unit work
and nonunit janitorial work, and the record does not show how many of their hours were
spent doing unit work. Thus, Member Miscimarra would remand the case to the Region
to determine whether either or both of them averaged at least four hours per week of
unit work during the quarter in question. Member Miscimarra agrees that challenged
voters Keeter Galusha and Trey Bubak were not eligible to vote. Unlike Soto and
Forrest, Galusha and Bubak were not employed on the election date and had no
reasonable expectation of reemployment.
INCLUDED: All full-time and regular part-time casual and seasonal carpet
preparers and carpet cleaners employed by the Employer in Las Vegas, Nevada.
EXCLUDED: All other employees, clerical employees, guards and supervisors
as defined in the Act.
Dated, Washington, D.C. May 28, 2014
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Philip A. Miscimarra, Member
___________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD