M & B ASPHALT CO., INC.

National Labor Relations Board - Board Decisions

Dec 15, 2014

08-RC-127048 (N.L.R.B. Dec. 15, 2014)

Tiffin, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
M & B ASPHALT CO., INC.
Employer
and Case 08-RC-127048
INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL NO. 18
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered an
objection to an election held May 30, 2014, and the hearing officer’s report recommending
disposition of it. The election was conducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 10 for and 8 against the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the exceptions and briefs,1 has adopted the
hearing officer’s findings and recommendations,2 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. Member Johnson agrees with the Employer that the record demonstrates
that the meetings took place on company time, and that there is precedent supporting that
meetings with as few as three employees can trigger the Peerless Plywood rule, but even such
precedent requires an assembly of employees. See, e.g., Shirks Motor Express Corp., 113
NLRB 753, 755 (1955) ( “As the Employer permitted Local 107 to talk to the assembled night
shift employees on company time and property within 24 hours of the instant election, in
violation of the Peerless Plywood rule, we, in agreement with the Regional Director's
recommendations, sustain the Petitioner's objections.”) (emphasis added) ; Great Atlantic &
Pacific Tea Co., 111 NLRB 623, 624 (1955) (“On the day of the election, before the arrival of
2
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for International
Union of Operating Engineers, Local No. 18 and that it is the exclusive collective-bargaining
representative of the employees in the following appropriate unit:
All full-time and regular part-time equipment operators and paving laborers (operator
helpers), employed by M&B Asphalt Co., Inc., at 12525 County Road, Tiffin, Ohio,
44883, but excluding all other employees, including but not limited to, sealing laborers,
mechanics and maintenance employees, asphalt plant employees, lab technicians, truck
drivers, working foremen, flaggers, office clerical employees, professional employees,
confidential employees, managerial employees, guards and supervisors as defined in the
Act.
Dated, Washington, D.C., December 15, 2014.
________________________________
Mark Gaston Pearce, Chairman
________________________________
Kent Y. Hirozawa, Member
________________________________
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

the [National Labor Relations] Board traveling election team, [Employer’s] District Supervisor
Harris addressed groups of assembled employees during their working hours on company
premises…”) (emphasis added). There is insufficient evidence that employees were assembled,
so as to invoke the rule. See R. Br. at 12 (noting that union representatives “made their rounds”
among the individual employees).
2 In the absence of exceptions, we adopt pro forma the hearing officer’s recommendation to
overrule the Employer’s Objection 1.