Valley Power Systems North, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 23, 2009

32-RD-001533 (N.L.R.B. Mar. 23, 2009)

JD(SF)–13–09
Calistoga, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
VALLEY POWER SYSTEMS NORTH, INC.
Employer
and Case 32-RD-1533
TERRANCE J. MECHAM, AN INDIVIDUAL
Petitioner
and
OPERATING ENGINEERS LOCAL UNION NO. 3,
INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO
Union
Lawrence H. Stone, Esq., (Jackson Lewis LLP)
of Los Angeles, California, for the Employer.
Terrance Mecham, Pro Se, of Alameda, California,
for the Petitioner.
Michael D. Nelson, Esq., (Law Offices of Michael D. Nelson)
San Francisco, California, for the Union.
ADMINISTRATIVE LAW JUDGE’S REPORT ON OBJECTIONS
Jay R. Pollack, Administrative Law Judge: Pursuant to Section 102.69 of the National
Labor Relations Board’s Rules and Regulations, Series 8, as amended, the Regional Director
for Region 32 entered a Supplemental Decision and Notice of Hearing, and ordered a hearing
before an Administrative Law Judge. I heard the matter in Oakland, California, on
February 25, 2009.
The Representation Petition in this matter was filed by Terrance J. Mecham, an
individual, herein called the Petitioner or Mecham, on April 20, 2007. On November 7, 2008,
the Regional Director Region 32 issued a Decision and Direction of Election ordering an election
in the following unit:
All persons regularly employed by Valley Power Systems North, Inc. at its
facility located at 1775 Adams Ave., San Leandro, California, including only
those classifications set out in Section 07.00.00 of the November 1, 2004
through October 31, 2007, collective bargaining agreement between the Union
and Sierra Detroit Diesel Allison, d/b/a Stewart and Stevenson
(leadmen/foremen, power generation technicians, field servicemen, shop
mechanics, scheduled service technicians, parts leadmen/foremen. Partsmen,
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warehousemen, utilitymen yardmen, steam cleaners, stock clerks, packers,
deliverymen, and warehousemen trainees) excluding all other employees,
office and clerical employees, guards, salesmen, professional employees,
technical and engineering employees, shop maintenance and janitorial
employees, plant sweeper and sweeper operations, grounds keepers, and
supervisors as defined in the LMRA of 1947 (as amended).
On December 5, 2008, an election by secret ballot was conducted on in the appropriate unit
above.
The Tally of Ballots served on all the parties at the conclusion of the balloting showed
the following results:
Approximate number of eligible voters 30
Number of void ballots 0
Number of votes cast for Operating Eng. Local # 3 0
Number of votes cast against participating labor organization 8
Number of challenged ballots 22
Number of valid votes counted plus challenged ballots 30
Thereafter, Operating Engineers Local Union No.3, International Union of Operating Engineers,
AFL-CIO, (the Union) filed timely objections to the election; a copy of which was served on the
Union by the Region. On February 11, 2009, the Regional Director issued a Supplemental
Decision and Notice of Hearing in which he sustained 14 of the 22 challenged ballots. The
Director overruled the challenges to six of the challenged ballots and made no ruling as to the
remaining two challenges. The Director dismissed the Union’s objections to the election except
one objection which was set for hearing. The Regional Director set for hearing the following
objection filed by the Union:1
The Petitioner kept lists of which employees voted in the NLRB election
destroying the laboratory conditions necessary for the conduct of a fair election.
The Union presented Michael Croll, business representative/organizer, who testified that
he served as the Union’s observer at the election. Croll testified that during the election he
heard a beeping sound and then observed the Petitioner, who served as his own observer,
holding a cell phone. Croll objected and the Board agent told the petitioner to turn off the
phone. The Union contends that the petitioner was texting the names of voters into his phone.
However, Mecham, the Petitioner, testified that his only cell phone does not have texting
capacity. Mecham credibly testified that after all the voters had voted, he turned on the phone
to ascertain the time of day because he does not wear a watch. When Croll objected, Mecham
turned off the phone. Mecham did not text the names of voters into the phone.

1 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence
or because it was in and of itself incredible and unworthy of belief.
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Board policy has long prohibited the keeping of lists of persons who have voted in an
election. International Stamping Co., 97 NLRB 921 (1951). Observers may keep a list of those
they intend to challenge but may not keep lists of those voting. Cerock Wire & Cable Group,
273 NLRB 1041 (1984). See also Avante at Boca Raton, Inc., 323 NLRB 555 (1997). While the
Union contends that Mecham may have made a list in his telephone, the credible evidence
reveals that he did not. Rather, after the voters had voted, Mecham turned on his phone to
check the time. When told to turn off the phone, Mecham did so. The phone did not have
texting ability and Mecham did not type any list into the phone. Accordingly, this objection is
dismissed.
Conclusions and Recommendations
I recommend that the Union’s objections to conduct affecting the results of the election
be overruled and that the results of the election be certified.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:
ORDER2
The Union’s objections to conduct affecting the results of the election in the above
matter are overruled. The Regional Director for Region 32 shall certify the results of the
election.
Dated, Washington, D.C. March 23, 2009
____________________
Jay R. Pollack
Administrative Law Judge

2 Any party may, under the provisions of Sec. 102.69 of the Board’s Rules and Regulations,
file exceptions to this Report with the Board in Washington, D.C., within fourteen (14) days from
the issuance of this Report. Immediately upon filing of such exceptions, the party filing the same
shall serve a copy thereof on the other parties and shall file a copy with the Regional Director.
Exceptions must be received by the Board in Washington, D.C. by April 6, 2009.