Klochko Equipment Rental Company, Inc.

National Labor Relations Board - Board Decisions

May 21, 2014

07-RC-104929 (N.L.R.B. May. 21, 2014)

NOT INCLUDED IN PMH
BOUND VOLUMES Saginaw and
Melvindale, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
KLOCHKO EQUIPMENT RENTAL
COMPANY, INC.
Employer
and Case 07-RC-104929
LOCAL 324, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-CIO
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member
panel, has considered objections to a self-determination
election held on July 25, 2013 and the hearing officer’s report
recommending disposition of them. The election was conducted
pursuant to a Decision and Direction of Election. The tally of
ballots shows one vote for and none against the Petitioner, with
no challenged ballots.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the hearing officer’s findings1

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
- 2 -
and recommendations,2 and finds that a certification of
representative should be issued.

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.
The Employer excepts to the hearing officer’s failure to
include a full description of employee Brian Miller’s job
duties. To the extent the hearing officer’s report does not
completely set forth Miller’s job duties, we have taken
administrative notice of the fact that the Regional Director
described them in detail in his June 27, 2013 Decision and
Direction of Election.
2 The Employer filed eight objections, but withdrew
Objections 2-5 prior to the hearing. According to the hearing
officer, at the hearing, the Employer merged its remaining
Objections 1, 6, 7, and 8, and asserted that the Union
misrepresented to Miller that if he voted for representation, he
would be covered by a separate stand-alone collective-bargaining
agreement at the Employer’s facility in Saginaw, where he
worked. The Employer argued that the Board does not certify
bargaining units consisting of a single employee, and therefore
the Union misrepresented the law because it would not be able to
negotiate an agreement solely on Miller’s behalf.
We agree with the hearing officer that Objections 1, 6, 7
and 8, as merged at the hearing, should be overruled. As the
hearing officer found, Miller understood that if he voted for
representation by the Union, he would be included in the
existing bargaining unit at the Employer’s Melvindale facility.
In addition, the credited evidence fails to show that the Union
made any misrepresentations to Miller regarding a separate
collective-bargaining agreement. Further, as the hearing
officer found, even had there been evidence of an alleged
misrepresentation, it would not have warranted setting aside the
election under Midland National Life Insurance Co., 263 NLRB 127
(1982), the Board’s standard for evaluating campaign
misrepresentations, which applies equally to misrepresentations
of law. See, e.g., Metropolitan Life Insurance Co., 266 NLRB
507, 508 (1983). Moreover, although the Board adheres to the
Midland standard, the result would be the same under the
standard articulated in Van Dorn Plastic Machinery Co. v. NLRB,
736 F.2d 343, 348 (6th Cir. 1984), cert. denied 469 U.S. 1208
(1985). See Uniserv, 340 NLRB 199, 199-200 (2003), enfd. NLRB
v. United Steel Service, Inc., 159 Fed.Appx. 611 (6th Cir.
2005).
- 3 -
CERTIFICATION OF REPRESENTATIVE
It is certified that Local 324, International Union of
Operating Engineers, AFL-CIO may bargain for Brian Miller as
part of the existing collective-bargaining unit of mechanics and
truck drivers working at the Employer’s Melvindale, Michigan
facility, which unit is currently represented by the Petitioner.
Dated, Washington, D.C., May 21, 2014
_________________________________
Mark Gaston Pearce, Chairman
_________________________________
Philip A. Miscimarra, Member
_________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

Finally, we do not rely on the hearing officer’s finding
that the Union made no impermissible promise of benefits
regarding a separate collective-bargaining agreement, as there
was no such objection before the hearing officer.