RathGibson, Inc.

National Labor Relations Board - Unpublished Board Decisions

Sep 29, 2009

30-RC-006747 (N.L.R.B. Sep. 29, 2009)

NOT TO BE INCLUDED
IN BOUND VOLUMES
LS
Janesville, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
RATHGIBSON, INC.
and Case 30-RC-674
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 139, AFL-CIO
DIRECTION
The National Labor Relations Board has considered
objections and determinative challenges in an election held
April 2, 2009, and the hearing officer's report recommending
disposition of them.' The election was conducted pursuant to a
1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the
Board's powers in anticipation of the expiration of the terms of
Members Kirsanow and Walsh on December 31, 2007. Pursuant to
this delegation, Chairman Liebman and Member Schaumber
constitute a quorum of the three-member group. As a quorum,
they have the authority to issue decisions and orders in unfair
labor practice and representation cases. See Sec. 3(b) of the
Act. See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir.
2009), petition for cert. filed - U.S.L.W. (U.S. September 11,
2009) (No. 09-328) ; New Process Steel v. NLRB, 564 F.3d 840 (7th
Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May
22, 2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560
F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W.
3098 (U.S. August 18, 2009) (No. 09-213). But see Laurel Baye
Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir.
Stipulated Election Agreement. The tally of ballots shows 60
votes for and 59 against the Petitioner, with 4 determinative
challenged ballots.
The hearing officer resolved the challenged ballots that
were before her, and recommended that the Board sustain the
Petitioner's Objections 1, 4, and 6 and direct a new election,
if a revised tally of ballots does not establish a majority of
votes for the Petitioner. The Employer filed exceptions to the
hearing officer's sustaining of the objections. The Petitioner
filed a brief answering the exceptions. There are no exceptions
to the hearing officer's disposition of the challenged ballots.
The Petitioner challenged the ballots of four voters at the
election. Prior to the hearing, the Employer conceded that the
challenge of Al Kilcoyne's ballot should be sustained, and
therefore his ballot will not be counted. Following the close
of the hearing, the Petitioner withdrew its challenge of Robert
Dibble's ballot; therefore, his ballot is to be counted. In her
report, the hearing officer recommended that the challenges of
the ballots of Timothy Armstrong and Tracy Pankhurst be
overruled and that their ballots be counted.
2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
2
In the absence of exceptions, we adopt the hearing
officer's resolution of the Petitioner's challenges to ballots.
Accordingly, there are three ballots still to be counted in this
proceeding. We will direct the Regional Director to open and
count these ballots and prepare a revised tally. We find it
unnecessary at this time to consider the Employer's exceptions
to the hearing officer's sustaining of Objections 1, 4, and 6,
because these objections will be moot if the Petitioner receives
a majority of the votes in the revised tally.
IT IS DIRECTED that the Regional Director for Region 30
shall, within 14 days of the date of this Direction, open and
count the ballots of employees Timothy Armstrong, Robert Dibble,
and Tracy Pankhurst at a time and place set by him. The
Regional Director shall then prepare and serve upon the parties
a revised tally of ballots. If the revised tally of ballots
shows that the Petitioner has received a majority of the valid
ballots cast, the Petitioner's Objections 1, 4, and 6 will be
moot and the Regional Director shall issue a certification of
representative. If, however, the revised tally of ballots shows
that the Petitioner has not received a majority of the ballots
3
cast, then the Regional Director immediately shall transfer this
proceeding back to the Board for further appropriate action.
Dated, Washington, D.C. , September 29, 2009.
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD