John A. Thomas Crane and Trucking Co., Inc

National Labor Relations Board - Board Decisions

May 28, 1976

224 N.L.R.B. 214 (N.L.R.B. 1976)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John A. Thomas Crane and Trucking Company, Inc
and General Truck Drivers, Chauffeurs & Helpers
Local 692 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America,
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO. Case 21-RC-14137
May 28, 1976
DECISION AND DIRECTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Pursuant to authority granted it under Section 3(b)
of the National Labor Relations Act, as amended, a
three-member panel has considered the Hearing
Officer's report recommending disposition of the det-
erminative challenges in an election held on July 18,
1975 1 The Board has reviewed the record in light of
the exceptions 2 and briefs 3 We hereby adopt the
Hearing Officer's recommendation with the excep-
tion of the recommendation pertaining to the chal-
lenged ballot of E K LeMeur Pertinent portions of
the Hearing Officer's Report and Recommendations
are attached hereto
The Hearing Officer recommended that the chal-
lenge to LeMeur's ballot be sustained on the ground
that, although LeMeur may have been in doubt as to
his status, there was no doubt on the part of the Em-
ployer that LeMeur had quit hisjob prior to the elec-
tion We do not agree 4
It is undisputed that on July 12 LeMeur declared
to Foreman Van Pelt that he was quitting because of
a misunderstanding between the two However, Van
Pelt then asked LeMeur to calm down and think over
his decision LeMeur agreed to do this, stating that
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was II for, 14 against, the Joint Peti-
tioners and 13 challenged ballots No objections to the conduct of the
election or to conduct affecting the results of the election were filed by
either party The Regional Director conducted an investigation and recom-
mended that the challenges to six of the voters be sustained and that the
factual issues raised with respect to the remaining seven ballots could best
be resolved in a hearing No exceptions were taken to the Regional
Director s recommendation
2 The Employer excepts inter alia, to the findings of the Hearing Officer
on the ground that she erred in crediting certain testimony It is the estab-
lished policy of the Board not to overrule a Hearing Officers credibility
resolutions unless they are clearly in error The Coca-Cola Bottling Company
of Memphis 132 NLRB 481 483 (1961) Stretch Tex Co 118 NLRB 1359
1361 (1957) We find insufficient basis for disturbing the credibility resolu-
tions in this case
3 The Employer s request for oral argumert is hereby denied, as the rec-
ord and the brief adequately present the issues and positions of the parties
° The only definitive statement from anyone about LeMeur's status came
from Foremen Van Pelt on July 21 when LeMeur reported for work and
asked for his keys At that point, Van Pelt said that he thought that LeMeur
had quit However, this statement came 3 days after LeMeur had voted in
the election
he would let the Employer know on the following
Monday his decision about quitting Employer's
president, Thomas, also asked LeMeur to reconsider
his decision, and LeMeur again said that he was
thinking over his decision to quit By the following
Monday, LeMeur was ill and did not give the Em-
ployer his final decision about quitting Instead, Le-
Meur's wife went to the shop and reported his illness
to Van Pelt who told her to have LeMeur call when
he was better After Mrs LeMeur's visit to the Em-
ployer, Thomas again urged LeMeur to get together
with Van Pelt to work out their differences
Mrs LeMeur's visit to the Employer and LeMeur's
two conversations with Thomas indicated that there
was not a clear opinion in anyone's mind that Le-
Meur had definitely quit Rather, these incidents es-
tablish that, on the date of the election, no final deci-
sion to quit had, in fact, been reached by LeMeur
and that, in fact, the Employer on that date did not
think that he had done so As there is no dispute that
LeMeur was an employee on the payroll eligibility
date, and as we have found him to be an employee
on the date of the election, we find that he is eligible
to vote in the election and hereby overrule the chal-
lenge to his ballot 5
Accordingly, we shall direct the Regional Director
to open and count LeMeur's ballot
DIRECTION
It is hereby directed that the Regional Director for
Region 21 shall, pursuant to the Board's Rules and
Regulations, within 10 days from the date of this di-
rection, open and count the ballots cast by E K
LeMeur, Charles Escriba, Kevin McGuire, Walter
Baker, Verlyn Mettler, and Jeff Pasquariello, and
thereafter cause to be served on the parties a revised
tally of ballots including therein the count of the
above-mentioned ballots Thereafter, the Regional
Director shall issue the appropriate certification in
accordance with the Board's Rules and Regulations
5 An employee is eligible to vote in an election if be is working on the
payroll eligibility date and on the date of the election Gulf States Asphalt
Company 106 NLRB 1212 (1953)
APPENDIX
FINDINGS OF FACT AND CONCLUSIONS
Background
The Employer is engaged in the business of pro-
viding crane and truck services and labor for various
customers Most of the Employer's jobs are dis-
patched to the customers before 6 a in The Employ-
224 NLRB No 24
JOHN A THOMAS CRANE & TRUCKING CO
er maintains a board at its facility, on which are list-
ed the jobs to be done the following day and the
employees assigned to them An employee can check
the board the afternoon before the next day's sched-
ule work to see if he has been assigned a job If he
has, it is then unnecessary for him to be dispatched
the following morning, he may report to the
Employer's facility and leave for the scheduled job
with the specified equipment If an employee has not
been so scheduled, he may nonetheless report to the
Employer's facility at 6 a m and receive a dispatch
to a job If no job is available, employees generally
wait at the facility for 2 to 3 hours and then depart,
leaving a number where they can be reached Should
jobs arise during the day which require immediate
attention, an attempt is made to contact departed
employees if none are present at the facility
On or about March 10, Joint Petitioners initiated
an economic strike against the Employer On or
about May 5, Joint Petitioners, by telegram to the
Employer, unconditionally terminated the strike,
stating that all the striking employees were willing to
return to work Upon receipt of the telegram, the
Employer's president, John Thomas, herein called
Thomas, instructed his foreman, Max Van Pelt, here-
in called Van Pelt, to put the strikers back to work
before hiring anyone new Credited testimony of Van
Pelt revealed that, presumably because of the strike,
work was slow during the period from May 5 to the
date of the election 4 No new employees were hired
during that time, and not enough work existed to
keep the scheduled employees regularly busy During
this time, the Employer assigned more employees
than usual to certain jobs in order to spread the
work
E K LeMeur
Thomas was on vacation from June 18 through
July 22, leaving Van Pelt in charge On July 12, after
a dispute with Van Pelt, E K LeMeur, herein called
LeMeur, told Van Pelt, "I quit," and turned in his
keys Van Pelt asked LeMeur to think about it and to
change his mind LeMeur told Van Pelt that he
would let the Employer know Monday morning of
his decision about quitting
On July 13, Van Pelt had a telephone conversation
with Thomas and told Thomas about the incident
with LeMeur Thomas telephoned LeMeur who told
him that he had quit his employment but was think-
ing it over Thomas also requested LeMeur to recon-
sider his decision
4 Van Pelt s obvious sincerity and honest manner impressed me as to his
credibility
215
On July 14, LeMeur's wife went to the Employer
and notified Van Pelt that LeMeur was ill LeMeur
himself did not contact the Employer Later that day,
Van Pelt gave LeMeur's keys to Lorraine Beckman,
the Employer's administrative assistant, herein called
Beckman, telling her that LeMeur had quit
On July 18, LeMeur went to the Employer and
voted in the union election, but had no conversation
with anyone in company management The following
Monday, July 21, LeMeur appeared at the company
office about 7 a in and spoke to Van Pelt LeMeur
asked for his keys, and Van Pelt told him, "I under-
stood you quit " Van Pelt instructed LeMeur to con-
tact Thomas because Van Pelt assumed that LeMeur
had quit since LeMeur had not informed him other-
wise LeMeur then spoke to Thomas and was told
that LeMeur would have to talk to Van Pelt about
anything and that Van Pelt and LeMeur should get
together and thrash the thing out LeMeur did not
contact Van Pelt but left the Employer's premises
and did not return
The Board has consistently held that, when an em-
ployee quits his employment and stops working at a
date prior to election day, he is not eligible to vote
Roy Lotspeich Publishing Co, 204 NLRB 517, 518
(1973) While the Employer contends that both Le-
Meur and Van Pelt were of one mind had not quit, it
is clear that, as of July 14, Van Pelt had accepted
LeMeur's resignation and no longer considered him
to be employed Although LeMeur may have been in
doubt as to his status, the absence of any doubt on
the part of the Employer is confirmed by Van Pelt's
statements to LeMeur on July 22, tacitly affirmed by
Thomas, that LeMeur was presumed to have quit
when he failed to notify the Employer otherwise I
find the Employer's assumption on July 14 that Le-
Meur had quit and LeMeur's failure to work thereaf-
ter, to control his employment status as of July 18
and, therefore, conclude that LeMeur's employment
had terminated prior to the election date 5 Accord-
ingly, I shall recommend to the Board that the chal-
lenge to his ballot be sustained
Charles Escriba, Kevin McGuire, Walter Baker,
Verlyn Mettler, and Jeff Pasquariello
Charles Escriba, herein called Escriba, partici-
pated in the strike, and his name was among those on
the Union's telegram of May 5 Shortly after the
strike ended, Escriba, who had been injured during
the strike, brought a doctor's release and a letter ask-
s Pacific Gamble Robinson Co, 174 NLRB 541 (1969), affd 438 F 2d 112
(CA 9 1971) is not applicable inasmuch as LeMeur had already quit and
the Employer awaited word of reconsideration by LeMeur That the Em-
ployer did not believe LeMeur to have reconsidered is evidenced by the
facts recited above
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mg for work to the Employer Thereafter, according
to Escriba, he spoke to Thomas and Van Pelt on
various occasions about returning to work and was
told that things were slow Thomas testified that, al-
though he did not recall conversations with Escriba
occurring shortly after the strike, there may have
been such Van Pelt affirmed that Escriba had come
to the Employer about 6 a in, 1 week to 10 days after
the strike, and on another occasion, and asked if
there was any work Van Pelt told him that the peo-
ple who had been working for the Employer were
sitting, and there was no extra work
In early June, Escriba began working for another
company Thereafter, according to Escriba, he told
Van Pelt that, although he was working elsewhere, he
still wanted to return to the Employer, and he asked
Van Pelt to let him know if they had any work Van
Pelt told him they did not have any work 6 Thomas
testified that Escriba told him he was working else-
where, but that he would like to come back to the
Employer if steady work were available Thomas told
Escriba he had better stay where he was Escriba tes-
tified that he intended to return to the Employer if
work were available, and he did not condition his
return on a guarantee of 40 hours per week as he
knew from past employment that such was impossi-
ble I find, in all the circumstances, and based upon
the demeanor of the witnesses and the logical thrust
of their testimony, that Escriba did not condition his
return to work on any guaranteed number of hours
Kevin McGuire, herein called McGuire, partici-
pated in the strike, and his name appeared on the
Union's May 5 telegram, and he testified that he had
many conversations with Van Pelt and one conversa-
tion with Thomas after the end of the strike regard-
ing returning to work In all of his conversations with
Van Pelt, McGuire asked if work were available for
him, and Van Pelt replied that there was none'
McGuire testified that, in his conversation with
Thomas, he asked for his job back and was told that
his position (as a carpenter's helper) had been filled
When McGuire asked if there were any chance of
coming back as a laborer, Thomas told him to check
with Van Pelt Thomas, on the other hand, testified
that, when he told McGuire there was no work for a
carpenter's helper, McGuire stated that he did not
want that kind of employment but wanted to be a
truckdriver and was willing to work for nothing for
the experience Thomas declined such an offer
It is clear that Van Pelt regarded McGuire's later
conversations with him as requests for employment
' This conversation is substantially corroborated by Van Pelt
7 Although Van Pelts version differs from McGuire s in regard to the
number and the time of the conversations, Van Pelt substantially corrobo-
rates McGuire
as a carpenter's helper, as Van Pelt testified that Mc-
Guire had been working as a carpenter's helper, and
the Employer had nothing going in that position at
the time of the requests In light of the fact that Mc-
Guire apparently sought employment from Van Pelt
similar to that which he had held prior to the strike, I
find that McGuire did not condition his return to
work on obtaining a different job classification Mc-
Guire did not have employment between the end of
the strike and the date of the election
Walter Baker, herein called Baker, participated in
the strike, and his name appeared on the Union's
telegram of May 5 Baker testified that, after the
strike ended, he had two conversations with Thomas
and two with Van Pelt in which he asked for work
but was told that no work was available Thomas
testified that he told Baker in each conversation that
Baker should appear at the Employer's premises at 6
a in and take his chances on being dispatched Van
Pelt testified that he told Baker on one occasion that
the Employer already had people they were not us-
ing, but he could not tell if there would be work the
next day and that Baker should report in the morn-
ing On the second occasion, Van Pelt told Baker
that there was not enough work to require additional
employees and he had no way of telling when he
might need more people Van Pelt further testified
that he would have dispatched Baker if Baker had
come in to work and no regular employees were
available Baker held only sporadic employment be-
tween the end of the strike and the date of the elec-
tion
Verlyn Mettler, herein called Mettler, participated
in the strike, and his name also appeared on the
Union's telegram of May 5 Mettler testified that, af-
ter the strike, he had two or three telephone conver-
sations with Thomas in which he expressed a desire
to return to work, to which Thomas replied that work
was slow and Thomas would call Mettler when work
was available Mettler also testified that he went to
the Employer twice after the strike about 6 a in and,
looking at the board, found that work was slow and
did not stay Mettler stated that he also spoke to Van
Pelt sometime after the strike and asked if there were
any work, to which Van Pelt replied there was none
Thomas denied having any conversations with Mett-
ler after the end of the strike Van Pelt testified that,
several days after the strike, Mettler appeared about
6 to 7 a in and asked if there were anything new, to
which Van Pelt replied that the same situation ex-
isted-no work was available Mettler was unem-
ployed from the end of the strike until the date of the
election
Jeff Pasquariello, herein called Pasquariello, par-
ticipated in the strike, and his name appeared on the
JOHN A THOMAS CRANE & TRUCKING CO
Union's telegram of May 5 Pasquariello last worked
for the Employer on January 9, when he received an
industrial injury Pasquariello was released for work
by the doctor on March 10, at which time he joined
the picket line On that same date, while on the pick-
et line, Pasquariello was struck by a car driven by
Thomas Pasquariello received a release from his
doctor from that injury sometime in mid-May Short-
ly after the strike, Pasquariello saw Thomas away
from the Employer and asked if there were any work
Thomas told Pasquariello to go to the Employer and
fill out an application, and asked if Pasquariello had
a doctor's release According to Pasquariello, he then
took a doctor's release to Thomas,' and told Thomas
that he was available for work, to which Thomas re-
plied that work was slow, but Pasquariello would be
notified when there was anything Thomas denies
that such a conversation occurred 9 Pasquariello had
no conversations with Van Pelt Pasquariello re-
ceived employment at another company about the
end of June and worked there through the date of the
election There is no evidence that Pasquariello was
denied work based on his injury or failure to provide
doctors' releases
Thomas testified that Pasquariello was asked to fill
out a new application in order to bring the Employer
up to date on new personnel information Other
strikers who did return to work also filled out new
employment applications
None of the above employees was ever told that he
was terminated or that he would not be considered
for work Nor did any express any disinterest in re-
turning to work
It is well established that an economic striker is
presumed to continue in that status, and is, therefore,
eligible to vote under Section 9(c)(3), and "[t]o rebut
the presumption, the party challenging his vote must
affirmatively show by objective evidence that he has
abandoned his interest in his struck job " Pacific Tile
and Porcelain Company, 137 NLRB 1358, Roylyn,
Inc, 178 NLRB 197 10 Evidence that the striker ob-
tained more remunerative employment in a perma-
nent job elsewhere is not sufficient to rebut the pre-
sumption of eligibility Pacific Tile, supra, Roylyn,
Inc, supra Although the Employer contends that
' Beckman testified that only the March 10 doctor's release was given to
her
9I credit Pasquariello's testimony to the effect that he notified the Em-
plo^er he was available for work
1 Although the ballots of these strikers were challenged by the Board
Agent, it is the Employers contention that they are not eligible voters
217
these economic strikers' failure to report to the
Employer's premises each morning at 6 a in evi-
denced a lack of interest in the struck job, tanta-
mount to abandonment of the job, and they should
be deemed to have voluntarily quit employment,
such a contention is without merit in view of the
slowness of work and Van Pelt's statements to the
striking employees that no work was available for
them Van Pelt testified, regarding various of the
above strikers, that they would have been dispatched
had work been available and no regular employees
available to perform it There is no evidence that
such a situation ever existed between May 5 and the
date of the election, or that any of the above strikers
would have been dispatched had he reported to the
Employer's premises every morning at 6 am The
Board has held that strikes frequently affect produc-
tion and the number of jobs, and a striker's right to a
job cannot depend upon job availability as of the
moment he applies for reinstatement, but his employ-
ee status continues until he has obtained "other regu-
lar and substantially equivalent employment " Globe
Molding Plastics, 200 NLRB 377, 378 11
I therefore find, based on the above and the record
as a whole, my observations of the witnesses' de-
meanor, manner of testifying, and the credibility res-
olutions made herein, that it has not been affirma-
tively shown by objective evidence that any of the
above employees had abandoned his interest in his
struck job the date of the election Accordingly, I
shall recommend to the Board that the challenges to
the ballots of Charles Escriba, Kevin McGuire, Wal-
ter Baker, Verlyn Mettler, and Jeff Pasquariello be
overruled and that their ballots be opened and count-
ed
Recommendation
The undersigned, having made the above findings
and conclusions based upon the entire record and
her observations of the witnesses, hereby recom-
mends to the Board that the challenges to the ballots
of Charles Escriba, Kevin McGuire, Walter Baker,
Verlyn Mettler, and Jeff Pasquariello be overruled
and the challenges to the ballots of E K LeMeur
and Fred Duff be sustained 12
11 1 find the cases cited by Respondent in this regard to be inapposite
inasmuch as they do not involve the eligibility rights of economic strikers
12 Under the provisions of Section 102 69 of the Boards Rules and Regu-
lations exceptions to this report may be filed with the Board in Washington
D C Exceptions must be received by the Board in Washington b) February
3 1976