Eastern Rock Products, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1978

239 N.L.R.B. 892 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eastern Rock Products, Inc. and International Union
of Operating Engineers, Local 545, AFL-CIO, Pe-
titioner. Case 3-RC-6968
December 19, 1978
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS PENELt.LO
AND TRULSDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections and deter-
minative challenges in an election held on June 20,
1978,' and the Regional Director's report recom-
mending disposition of same. The Board has re-
viewed the record in light of the exceptions and
briefs and hereby adopts the Regional Director's
findings, conclusions, and recommendations2 as
modified below.
The Petitioner has excepted to the recommenda-
tion that challenges to the ballots of employees
George Lockwood and Albert Van Hatten be over-
ruled on the ground that these employees are not unit
members 3 and that the Regional Director improper-
ly appled our holding in Daniel Construction Compa-
ny, Inc.,4 in finding these individuals eligible to vote.
We find merit in this exception.
George Lockwood. an Eastern Rock employee for
14 years, had worked at its quarry operation until it
The election was conducted pursuant to a Stipulatioin for ( Crrltfla;llt
Upon Consent Election [he tall, was 12 for and II ag.ilin, the Petitlloner
there were 19 challenged ballots.
2 In the absence ,of exceptions thereto. we adopt ./,r, hrnmi the Regional
Director's recommendations with respect to the cha.llentges to Ihe hallots
cast by John Pylman. James Moore. ltarses Flander. Ra'nilond ()ghurn.
Sr.. Ronald Wood, Roger Krol. Albert iaijdasi. L)a:id \IcKcrrosm. and
Eugene McDonald. and his recmommendation that all ohieclvm.,n he ulser-
ruled.
In addition. Member I ruesdale. in the absence if exceptions.. adoiplt, p'
forma the finding that William Yoiung. the hrother-ln-la' ,f the Itm pllIoer'
job superintendent. is eligible tl vote despite his fainhil;ll relirltonship Io
management.
The parties stipulated to the follosu ing unit
All full-time and regular part-time hea.s equipment operatori. Ic-
chanics, and oilers employed by the Eimploser ai its s.ariou cIorstlru1-
tion jobsites in C asuga. ( ortland. Ilerkimer Jeffersorn. I ev . Madi-
son. Oneida. Onondaga. Oswego, Sit .au rence. Seneca. I hoirlpkln.
Tioga. Broome and (henango (Counlles \New 'rork . uh appear ont Ihe
payroll for the payroll period ending Sunda., Ma's 28. 1978. anid thoce
individuals who were not emplosed as of Ihat date hut Uho ecre emn-
ployed in the unit for a total of 30 das,s or nlmor e wthil the 12 niinihs
immediately preceding May 28. 1978. or thirse cnmplosee' sshi, hale
been employed by the Employer for 45 da'is or more uithin the 24
months immediately preceding Mas 28. 1978 . ad who have niot been
terminated for cause or quit volunlarll s prior to the comnpletion ,f Ithe
last job for which they were emploied
4 133 NRB 264 (19613) see also f)inue (Dai lloiri ltion (lltiri. It, l 167
NLRB 1078 (1967).
closed in 1976. Since then, he had worked intermit-
tently as a heavy equipment operator, amassing ap-
proximately 63 days as an operator in the year pre-
ceding the eligibility date. Since mid-May 1978,
however, he has worked as a materials tester in the
production division, a function which does not in-
volve the performance of unit work.
Albert Van Hatten, like Lockwood, has been em-
ployed by Eastern Rock for a number of years. In
1977, he spent approximately 64 percent of his time
operating heavy equipment. In 1978, however, he
was employed exclusively as driver of a "lowboy," a
flat bed truck used for hauling heavy equipment to
and from the various jobsites.
Although neither Lockwood nor Van Hatten was
performing unit work on the eligibility date, the Re-
gional Director nevertheless recommended that the
challenges to their ballots be overruled. He found
that, since the)' had previously performed unit work
for at least 30 days in the year preceding the eligiblity
date, they were eligible to vote pursuant to the rule
enunciated in Daniel Construction.
We do not agree with this conclusion, since our
holding in Daniel Construction was never intended to
extend voting eligibility to nonunit employees.
In Daniel Construction, the issue presented was
whether admitted unit employees not working for the
employer on the eligibility date but who had previ-
ously been employed by the employer should be per-
mitted to vote in an election. Recognizing the pecu-
liarly intermittent nature of employment in the
construction industry, where employees may experi-
ence short layoffs or may work for more than one
employer during the course of a year, we fashioned
an alternative eligibility formula which permits em-
ployees who do not meet the traditional eligibility
standard to vote if they have been employed for at
least 30 days in the 12-month period preceding the
eligibility date or have had some employment in that
period and have worked at least 45 days in the 2
years preceding the eligibility date. We did not hold
that employees working for the employer on the eligi-
bility date but performing exclusively nonunit work
may vote in an election merely because, as here, they
at one time performed unit work for a period suffi-
cient to meet the Daniel Construction test. On the
contrary. the alternative criterion enunciated in that
case is applicable only to employees not working for
the employer on the eligibility date, since it is pre-
cisely because the employee does not meet the tradi-
tional standard of working in the unit on the eligibili-
ty date that the alternative test becomes necessary.
Our holding in Daniel Con.slruction was in no way
intended to permit nonunit employees to vote in an
election.
892
EASTERN ROCK PRODUCTS. INC.
It is undisputed that both Lockwood and Van Hat-
ten were engaged full time in nonunit work on the
eligibility date and foi a time prior thereto. The mere
fact that they had at some time in the past performed
unit work is insuffient in itself to make them eligible
to vote in the election.' Accordingly. since neither
Lockwood nor Van Hatten is a unit employee, they
are not entitled to vote in the election and the chal-
lenge to their ballots is sustained.'
DIRECTION
It is hereby directed that the Regional Director for
Region 3 shall, within 10 days from the date of this
Decision, open and count the challenged ballots of
Albert Hajdasz, David McKerrow. William Young,
Our holding that the Daniel (Construction criteria are Inappilcahle to the
facts of this case does not necessarily preclude an employee currenlls sork
ing for an employer in a nonunlt capacity Irom roiting 'Under well-etalh-
lished Board rules. employees temporarily assigned to nmonunml work or
dual-function employees may vote, since thes possess a substantidu and icon-
tinuing interest in the terms and conditions of emplo))menl of the unit See,
e.g.. Atlantic International Corporation. etc. 228 Nl.RB 1308 ( 1977.: )-lilAs.
Sydney, and Oliver Faulks d/ba Faulkls Brotheri Conirr'tiuon (i',, 176
NLRB 324 (1969): Berea Publishing Company. 140 NLRB 516 (1963). lo'w-
ever. no such claims of special status are made here and we see no reason io
extend the Daniel Construction rationale by presuming as sour colleague
would that these nonunit employees have a prospect of returning ito the unit
merely because they performed some unit work In the past
6 We also note that the parties' own stipulation describing the scope olf the
unit precludes application of the Daniel Consiruction formula to thes em-
ployees. since it specificall) provides that the formula he applied to "those
individuals who were not employed as of that leliglbiltyl date ' See fIn
3. supra.
William Bootie. Robert Strong, and Timothy Dutch-
er. and thereafter prepare and cause to be served on
the parties a revised tally of ballots, upon which basis
he shall issue the appropriate certification.
CIAIRMSAN Fax'Nl(;. concurring and dissenting:
I do not agree with the interpretation my col-
leagues give to Daniel Construction, and therefore dis-
sent from their reversal of the Regional Director's
rulings on the ballots of Lockwood and Van Hatten.
My colleagues' analysis begins with their statement
that the holding in Daniel, in which I participated,.
was never intended to extend voting eligibility to
nonunit employees. How they know this is far from
clear. But more important. such a statement is no
help to analysis. but only a begging of the question.
The Daniel criteria are designed to deal with the spe-
cial problems of intermittent employment in the con-
struction industry. What that means is that someone
who is not now working in the unit can still expect to
be back in it, and therefore should be permitted a
vote, if he satisfies the Daniel criteria, even though
now working elsewhere. What my colleagues are say-
ing is that such a person has more interest in the unit
than someone still working for that very employer
albeit in a nonunit job, a somewhat anomalous re-
suit. I can see no logical justification for such a result
unless it is shown that the employee has no prospect
of returning to the unit that is being voted. That has
not been shown in this case. Accordingly. I would
affirm the Regional Director in all respects.
893