Queen City Paving Co.

QUL(EN (CI'Y PAVING CO. Queen City Paving Co. and Congress of Independent Unions, Petitioner and International Union of Op- erating Engineers, Local 16-16B, Petitioner and General Drivers, Salesdrivers, Warehousemen and Helpers Local 245, affiliated with International Brotherh(ood of Teamsters, Chauffeurs. Warehouse- men & Helpers of America, Petitioner. ('ases 17 RC 8328.' 17 R(' 8337.' and 17-R(' 8338 June 26, 1979 DECISION, DIREC'ION TO OPEN AND COUNT CERTAIN CHALLENGED BALLOTS, CONTINGENT DIRECTION OF IHEARING. AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING ANI) MEMBERS JNKINS ANI) MURPIIY 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 considered the exceptions to and chal.. lenged ballots in an election held between January 26. 1978, and February 9, 1978,2 and the Hearing Offi- cer's Report and Recommendations on Objections and Challenges.3 The Board has reviewed the record in light of the exceptions and briefs and hereby adopts the Hearing Officer's findings and recommen- dations,4 with the following modifications, all relating to Case 17-RC-8337: I Laborers International Union of North America. Local 676. AF. CIO. intervened in Case 17 R( 8328. Congress of Independent Unions inter- vened and had its name placed on the ballots n Cases 17 RC 8337 and 17 RC 8338. 2 The tally of ballots at the close of the period of voting in these three elections showed the following results: Case /7 RC 8328. One vote for CIU, 2 votes for Lahorers, and 20 challenged ballots, a sufficient number to affect the results. Case 17 RC 8337- No votes for CIU. 4 votes for Operating Engi- neers, and 27 challenged ballots, a sufficient number to affect the results. Case 17-RC-8338. No votes for CIU, 3 votes for Teamsters. and 10 challenged ballots, a sufficient number to affect the results. The Employer's request for permission to file more detailed exceptions is hereby denied as lacking in merit. 'As to Case 17 RC 8328. In the absence of exceptions thereto, we adopt, proforma, the Hearing Officer's recommendations with respect to challenges to the ballots cast by Tony Avey. Charles Hensley, Charles Bulla, Ken Cavi- ness, Robert Lawson, Lester McGuire, James Hensley. Max Avey, Junior Avey, Perry Bruns. and Becky Goodman. The Employer has filed indentical objections to all three elections. The Employer filed no exceptions concerning Case 17 RC-8328. Therefore, we adopt, proformia, the Hearing Officer's recommendations with respect to the Employer's objections in this case. As to Case 17- RC- 8337: In the absence of exceptions thereto, we adopt, proforma, the Hearing Officer's recommendations with respect to the chal- lenges to the ballots cast by Danny lotll, Marshall Miller. Bruce Chaney. Arthur Phillips, William Graves, Howard Hibden, Bruce Turner, David Douglas, Clark Voorheis, Billy Duckworth, Tommy Haase, Robert Miller, Charles Naylor, and Cecil Debler and his recommendation that the Employ- er's Objections 4, 5, 6. 11, and 12 be overruled. The Employer contends that the Hearing Officer was biased and preju- diced and thus that his findings and recommendations should not he adopted I. International Union of Operating Engineers, Local 16 16B, has filed a motion to reopen the hear- ing to permit it to present newly discovered evidence.' The Board is of the opinion that the Operating Engi- neers' proffer of newly discovered evidence raises the substantial and material issue as to whether the mail ballots ostensibly cast by I.eroy Hansen and Dewey Anderson were in fact cast by these individuals. Since these ballots were challenged on other grounds (over- ruled without exception to the Hearing Officer), they have not been counted. Accordingly, we shall direct that if, after the revised tally issues, these ballots re- main determinative, a hearing shall he held as to their validity. 2. The Employer has excepted to the Hearing Offi- cer's recommendation that the ballots of John Wick- ham and Earl Smith should not be counted because these individuals are independent contractors. We find merit in this exception. The Employer had a written lease agreement with Wickham and Smith concerning the use of equipment (grader and spreader box) on the Nevada, Missouri, construction project. The written lease agreement provided that compensation for the use of the equip- ment was to be determined on the basis of' profit ob- tained by the Employer and that it the Employer were to sustain a loss on the project, Wickham and Smith would not receive monetary compensation for the use of the equipment. The Hearing Officer found on the basis of the written agreement that Wickham and Smith were independent contractors and there- fore ineligible to vote. We disagree. In practice,6 Wickham and Smith were compen- to the extent they are adverse to the Employer's positions on challenged ballots and the clection objections n (ases 17 RC 8337 and 17 RC 8338 Upon careful examination of the Hearing Officer's report and recommenda- tions and the entire record herein. we are satisfied that the contentions of the Employer in this regard are without merit. The Employer also requested that the Board take official notice of at internal National Labor Relations Board arbitration proceeding involving Hearing Officer Nixon. Counsel for the Regional Office thereafter filed a motion to strike that portion of the Employer's exceptions. We deny the motion to strike. Further, we deny the Employer's request that the Board take official notice of the arbitration proceeding as lacking in merit. As to Case 17 RC-8338- In the absence of exceptions thereto, we adopt. proforma. the Hearing Officer's recommendations with respect to the chal- lenges to the ballots cast by James Faucet and Wilbur Hyder and his recom- mendation that the Teamsters' objection and the Employer's Objections 4, 5. 6. 11, and 12 be overruled. I The Operating Engineers asserts, inter alia. in its proffer of newly discov- ered evidence that Woodrow Ellison (the Employer's vice president and gen- eral manager) told Leroy Hansen and other employees not to appear at the hearing even though they had been subpenaed and mileage fees had been tendered to them. The proffered evidence is not newly discovered evidence. The attorneys for the Operating Engineers were aware prior to the hearing that some witnesses may have been told that they need not honor the sub- penas. When the subpenaed witnesses did not appear, the Operating Engi- neers elected to proceed with the hearing rather than seek a continuance to obtain enforcement of the subpenas. Accordingly, we find that the proffered evidence does not constitute newly discovered evidence requiring a reopen- ing of the hearing herein I While the terms of the contract were somewhat at variance with the practice. it is the actual practice which controls. 243 NLRB No. 12 71 )Ii('ISI()ONS ()i NA II()NAI. I.AB()R R A I II()ONS HOARI) sated for the use of their equipment without regard to the Employer's profit or loss on the job. he E1-- ployer determined who would work on leased equip- ment, as well as its own, and how the job would he performed. The Employer also maintained supervi- sory control over Wickham and Smith while they were on this job and paid them an hourly wage for their own labor over and above the compensation for use of their equipment. Additionally, Wickham and Smith were assigned to the Employer's own equip- ment, and the Employer assigned other employees to use the equipment of Wickham and Smith.7 Thus, under the arrangement between the Em- ployer and Wickham and Smith, these two individ- uals, notwithstanding that they leased certain equip- ment to the Employer, worked lor the Employer as employees under the Employer's supervision and con- trol. Consequently, we find that at all times material herein John Wickham and Earl Smith were employ- ees of the Employer rather than, as found by the Hearing Officer, independent contractors within the meaning of the Act and thus that they were eligible to vote in the election in Case 17 RC- 8337.0 Accord- ingly, we overrule the challenges to their ballots and shall direct that their ballots be opened and counted. 3. The Hearing Officer also found that David Decker was ineligible to vote due to his employment status with John Wickham. The Hearing Officer rea- soned that, because of the contractual arrangement between John Wickham and the Employer, Decker was an employee of Wickham and not of the Em- ployer. However, in light of our finding above that Wickham is an employee of the Employer, and there is no evidence that Decker was an employee of Wick- ham, and inasmuch as Decker was carried on the Em- ployer's payroll, and his work was supervised by the Employer, we find that at the time of the election in Case 17 RC 8337, David Decker was an employee of the Employer who was eligible to vote therein. Ac- cordingly, the challenge to his ballot is overruled, and his ballot shall be opened and counted. 4. The Employer has also excepted to the Hearing Officer's sustaining the challenge to the ballot of Da- vid Ellison. Ellison's ballot was challenged on the grounds that he was a supervisor and a son of the owner. The Hearing Officer found that there was no evidence offered showing that Ellison possessed su- pervisory authority; that his father, Woodrow Ellison (vice president and general manager), has never held ' Although the agreement provided that Wickham and Smith would pro- vide all supervision of their equipment, in fact the use of the equipment was supervised by the Employer. I Wickham did recommend the hire of David Decker. who had previously operated Wickham's equipment. Without more information as to the circum- stances surrounding Decker's hire by the Employer. we find that this one act is insufficient to establish that Wickham was a supervisor. ownership interest in the Employer: and that the rec- ord reflects that David Ellison worked under the same conditions as other employees and was not granted special privileges or benefits. Thus, the Hear- ing Officei concluded, and we agree, that the chal- lenge on these grounds was without merit.9 The Hear- ing Officer, however, found llison to be ineligible to vote because he concluded that Ellison had perma- nently quit his employment. The record discloses that in November 1977 the Employer laid off a number of employees due to ad- verse weather conditions. David Ellison also ceased working for the Employer at that time. Shortly there- after he expressed an intention to attend school. Sub- sequently, as testified to by the Employer's job super- intendent, Ellison was recalled, and he returned to work. All told, by the time of the election he had worked for the Employer for I I years,"' during which period he was subject to recurrent layofls geared to adverse weather conditions. Thus, we find that Elli- son was a longtime employee who briefly stopped working fir the Employer at the same time that sev- eral other employees were admittedly laid off. While he did indicate that he was going to attend school, this fact, standing alone, is insufficient to demonstrate that he quit, since it appears he was merely indicating how he was going to spend his time while not work- ing. That Ellison's expression of a desire to attend school did not evidence a quit is established further by the fact that subsequently, when asked to return to complete another task, he did so. On this basis we find that D)avid Ellison did not quit, but was laid off with a reasonable expectancy of recall, and that he is therefore eligible to vote. Accordingly, we overrule the challenge to his ballot and shall direct that his ballot be opened and counted. 5. The Hearing Officer sustained the challenge to the ballot cast by Bryan Smith because he concluded that there was no credible evidence that Smith was employed by the Employer at times material. We dis- agree. The challenge to Bryan Smith's ballot was made by a Board agent solely on the ground that the ballot was not received in the mail until after the closing time for the receipt of all ballots. The Hearing Officer, however, stated that the asserted ground for the chal- lenge was moot because the record is barren as to ' Member Jenkins would find David Ellison, son of the Employer's vice president and general manager, ineligible to vote for the reasons stated in his dissents in Tops Club, Inc., 238 NLRB 928 (1978), and Toyola Midtown, Inc., 233 NLRB 808 (1978). '° The issue of whether Ellison had previously had a long history of em- ployment was not in issue at the hearing, and therelore the Employer was not put on notice that evidence as to his previous employment record had to he produced. Thus, in sustaining this challenge. the Hearing Officer mprop- erly relied on the Employer's failure to present work records for the I -year period of Ellison's employ. 72 73 Smith's work history. e thus sustained the chal- lenge, as noted above, on that ground. However. there was never any contention that Smith was not an employee. To the contrary. the E mployer's superin- tendent testified that Bryan Smith worked for him on the Nevada, Missouri, project and that Smith, and other employees were laid off due to adverse weather conditions. The superintendent stated, in reference to future employment, that Smith and other employees would be recalled in the spring. We therefore find that Bryan Smith was an eligible voter. With respect to the challenge made by the Board agent concerning the late receipt of Bryan Smith's ballot, as the Hearing Officer states, a party's failure to meet a deadline for the filing of some matter may be excused if there is a showing that he mailed the matter at a time when he could reasonably anticipate its timely receipt. Bryan Smith's ballot was post- marked 3 days prior to the closing time for casting ballots. It was reasonable for Smith to assume that, in the normal course of the mails, his ballot would be received by the Regional Director prior to the closing date. Therefore, the challenge to the ballot of Bryan Smith is hereby overruled, and we shall direct that it be opened and counted. DIRECTION TO OPEN AND COUNT CERTAIN CHALLENGED BALLOTS AND CONTINGENT DIRECTION OF HEARING It is hereby directed with respect to Case 17-RC- 8328 that the Regional Director for Region 17 shall, within 10 days from the date of this Decision, open and count the challenged ballots of Jack Rathman, Craig Bott, Dennis Smith, William Satterfield, and Max Hopper and thereafter prepare and cause to be served on the parties a revised tally of ballots, upon which basis he shall issue the appropriate certifica- tion. Ir IS FURlTHER DIRE('TED with respect to Case 17 RC-8337 that the Regional Director for Region 17 shall, within 10 days from the date of this Decision, open and count the challenged ballots of Marshall Miller, Michael Smothers, William Graves, David Douglas, Robert Miller, John Wickman, Earl Smith. David Decker, David Ellison, Bryan Smith, Ralph Murray. Jim ('riner. and Jim Berry and thereafter prepare and serve on the parties a revised tally of ballots and issue a certification of representative if the tally shows a conclusive majority in favor of Peti- tioner. It Is FIRIItIR DIRF (':I) that in Case 17 RC 8337. in the event the revised tally indicates that the ballots of Dewey Anderson and Leroy Hansen remain deter- minative, a hearing be held before a duly designated hearing officer for the purpose of receiving evidence to determine whether Anderson and Hansen actually cast the ballots received from them and that after such hearing the hearing officer shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said challenges. Within 10 davs trom the issuance of such report, either party may file with the Board in Washington, D.C., eight copies of excep- tions thereto. Immediately upon the filing of such ex- ceptions, the party filing shall serve a copy thereof on the other parties and shall file a copy with the Re- gional Director. If no exceptions are ftiled thereto, the Board will adopt the recommendations of the hearing officer. CERTIFICATION OF REPRESENTATIVE It is hereby certified that with respect to C'ase 17 RC 8338 a majority of the valid ballots have been cast tbr General [)rivers. Salesdrivers. Warehouse- men and HIelpers ocal 245, affiliated with Interna- tional Brotherhood of learmsters, Chauffeurs. Ware- housemen & Helpers of America. and that. pursuant to Section 9(a) of the Act. as amended, said labor organization is the exclusive representative of all the employees in the tfollowing unit found herein for the purposes of collective bargaining in respect to rates ot pay, wages. hours of employment, or other conditions of employment: All full-time and regular part-time truck drivers and warehousemen employed by Queen City Paving Co.. within the State of Missouri, hut ex- cluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. QUITN C11-Yu PAV'ING CO.(