John A. Thomas Crane and Trucking Co., Inc

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John A. Thomas Crane and Trucking Company, Inc and General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, International Union of Operating Engineers, Local Union No. 12, AFL-CIO. Case 21-RC-14137 May 28, 1976 DECISION AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered the Hearing Officer's report recommending disposition of the det- erminative challenges in an election held on July 18, 1975 1 The Board has reviewed the record in light of the exceptions 2 and briefs 3 We hereby adopt the Hearing Officer's recommendation with the excep- tion of the recommendation pertaining to the chal- lenged ballot of E K LeMeur Pertinent portions of the Hearing Officer's Report and Recommendations are attached hereto The Hearing Officer recommended that the chal- lenge to LeMeur's ballot be sustained on the ground that, although LeMeur may have been in doubt as to his status, there was no doubt on the part of the Em- ployer that LeMeur had quit hisjob prior to the elec- tion We do not agree 4 It is undisputed that on July 12 LeMeur declared to Foreman Van Pelt that he was quitting because of a misunderstanding between the two However, Van Pelt then asked LeMeur to calm down and think over his decision LeMeur agreed to do this, stating that i The election was conducted pursuant to a Stipulation for Certification Upon Consent Election The tally was II for, 14 against, the Joint Peti- tioners and 13 challenged ballots No objections to the conduct of the election or to conduct affecting the results of the election were filed by either party The Regional Director conducted an investigation and recom- mended that the challenges to six of the voters be sustained and that the factual issues raised with respect to the remaining seven ballots could best be resolved in a hearing No exceptions were taken to the Regional Director s recommendation 2 The Employer excepts inter alia, to the findings of the Hearing Officer on the ground that she erred in crediting certain testimony It is the estab- lished policy of the Board not to overrule a Hearing Officers credibility resolutions unless they are clearly in error The Coca-Cola Bottling Company of Memphis 132 NLRB 481 483 (1961) Stretch Tex Co 118 NLRB 1359 1361 (1957) We find insufficient basis for disturbing the credibility resolu- tions in this case 3 The Employer s request for oral argumert is hereby denied, as the rec- ord and the brief adequately present the issues and positions of the parties ° The only definitive statement from anyone about LeMeur's status came from Foremen Van Pelt on July 21 when LeMeur reported for work and asked for his keys At that point, Van Pelt said that he thought that LeMeur had quit However, this statement came 3 days after LeMeur had voted in the election he would let the Employer know on the following Monday his decision about quitting Employer's president, Thomas, also asked LeMeur to reconsider his decision, and LeMeur again said that he was thinking over his decision to quit By the following Monday, LeMeur was ill and did not give the Em- ployer his final decision about quitting Instead, Le- Meur's wife went to the shop and reported his illness to Van Pelt who told her to have LeMeur call when he was better After Mrs LeMeur's visit to the Em- ployer, Thomas again urged LeMeur to get together with Van Pelt to work out their differences Mrs LeMeur's visit to the Employer and LeMeur's two conversations with Thomas indicated that there was not a clear opinion in anyone's mind that Le- Meur had definitely quit Rather, these incidents es- tablish that, on the date of the election, no final deci- sion to quit had, in fact, been reached by LeMeur and that, in fact, the Employer on that date did not think that he had done so As there is no dispute that LeMeur was an employee on the payroll eligibility date, and as we have found him to be an employee on the date of the election, we find that he is eligible to vote in the election and hereby overrule the chal- lenge to his ballot 5 Accordingly, we shall direct the Regional Director to open and count LeMeur's ballot DIRECTION It is hereby directed that the Regional Director for Region 21 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this di- rection, open and count the ballots cast by E K LeMeur, Charles Escriba, Kevin McGuire, Walter Baker, Verlyn Mettler, and Jeff Pasquariello, and thereafter cause to be served on the parties a revised tally of ballots including therein the count of the above-mentioned ballots Thereafter, the Regional Director shall issue the appropriate certification in accordance with the Board's Rules and Regulations 5 An employee is eligible to vote in an election if be is working on the payroll eligibility date and on the date of the election Gulf States Asphalt Company 106 NLRB 1212 (1953) APPENDIX FINDINGS OF FACT AND CONCLUSIONS Background The Employer is engaged in the business of pro- viding crane and truck services and labor for various customers Most of the Employer's jobs are dis- patched to the customers before 6 a in The Employ- 224 NLRB No 24 JOHN A THOMAS CRANE & TRUCKING CO er maintains a board at its facility, on which are list- ed the jobs to be done the following day and the employees assigned to them An employee can check the board the afternoon before the next day's sched- ule work to see if he has been assigned a job If he has, it is then unnecessary for him to be dispatched the following morning, he may report to the Employer's facility and leave for the scheduled job with the specified equipment If an employee has not been so scheduled, he may nonetheless report to the Employer's facility at 6 a m and receive a dispatch to a job If no job is available, employees generally wait at the facility for 2 to 3 hours and then depart, leaving a number where they can be reached Should jobs arise during the day which require immediate attention, an attempt is made to contact departed employees if none are present at the facility On or about March 10, Joint Petitioners initiated an economic strike against the Employer On or about May 5, Joint Petitioners, by telegram to the Employer, unconditionally terminated the strike, stating that all the striking employees were willing to return to work Upon receipt of the telegram, the Employer's president, John Thomas, herein called Thomas, instructed his foreman, Max Van Pelt, here- in called Van Pelt, to put the strikers back to work before hiring anyone new Credited testimony of Van Pelt revealed that, presumably because of the strike, work was slow during the period from May 5 to the date of the election 4 No new employees were hired during that time, and not enough work existed to keep the scheduled employees regularly busy During this time, the Employer assigned more employees than usual to certain jobs in order to spread the work E K LeMeur Thomas was on vacation from June 18 through July 22, leaving Van Pelt in charge On July 12, after a dispute with Van Pelt, E K LeMeur, herein called LeMeur, told Van Pelt, "I quit," and turned in his keys Van Pelt asked LeMeur to think about it and to change his mind LeMeur told Van Pelt that he would let the Employer know Monday morning of his decision about quitting On July 13, Van Pelt had a telephone conversation with Thomas and told Thomas about the incident with LeMeur Thomas telephoned LeMeur who told him that he had quit his employment but was think- ing it over Thomas also requested LeMeur to recon- sider his decision 4 Van Pelt s obvious sincerity and honest manner impressed me as to his credibility 215 On July 14, LeMeur's wife went to the Employer and notified Van Pelt that LeMeur was ill LeMeur himself did not contact the Employer Later that day, Van Pelt gave LeMeur's keys to Lorraine Beckman, the Employer's administrative assistant, herein called Beckman, telling her that LeMeur had quit On July 18, LeMeur went to the Employer and voted in the union election, but had no conversation with anyone in company management The following Monday, July 21, LeMeur appeared at the company office about 7 a in and spoke to Van Pelt LeMeur asked for his keys, and Van Pelt told him, "I under- stood you quit " Van Pelt instructed LeMeur to con- tact Thomas because Van Pelt assumed that LeMeur had quit since LeMeur had not informed him other- wise LeMeur then spoke to Thomas and was told that LeMeur would have to talk to Van Pelt about anything and that Van Pelt and LeMeur should get together and thrash the thing out LeMeur did not contact Van Pelt but left the Employer's premises and did not return The Board has consistently held that, when an em- ployee quits his employment and stops working at a date prior to election day, he is not eligible to vote Roy Lotspeich Publishing Co, 204 NLRB 517, 518 (1973) While the Employer contends that both Le- Meur and Van Pelt were of one mind had not quit, it is clear that, as of July 14, Van Pelt had accepted LeMeur's resignation and no longer considered him to be employed Although LeMeur may have been in doubt as to his status, the absence of any doubt on the part of the Employer is confirmed by Van Pelt's statements to LeMeur on July 22, tacitly affirmed by Thomas, that LeMeur was presumed to have quit when he failed to notify the Employer otherwise I find the Employer's assumption on July 14 that Le- Meur had quit and LeMeur's failure to work thereaf- ter, to control his employment status as of July 18 and, therefore, conclude that LeMeur's employment had terminated prior to the election date 5 Accord- ingly, I shall recommend to the Board that the chal- lenge to his ballot be sustained Charles Escriba, Kevin McGuire, Walter Baker, Verlyn Mettler, and Jeff Pasquariello Charles Escriba, herein called Escriba, partici- pated in the strike, and his name was among those on the Union's telegram of May 5 Shortly after the strike ended, Escriba, who had been injured during the strike, brought a doctor's release and a letter ask- s Pacific Gamble Robinson Co, 174 NLRB 541 (1969), affd 438 F 2d 112 (CA 9 1971) is not applicable inasmuch as LeMeur had already quit and the Employer awaited word of reconsideration by LeMeur That the Em- ployer did not believe LeMeur to have reconsidered is evidenced by the facts recited above 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mg for work to the Employer Thereafter, according to Escriba, he spoke to Thomas and Van Pelt on various occasions about returning to work and was told that things were slow Thomas testified that, al- though he did not recall conversations with Escriba occurring shortly after the strike, there may have been such Van Pelt affirmed that Escriba had come to the Employer about 6 a in, 1 week to 10 days after the strike, and on another occasion, and asked if there was any work Van Pelt told him that the peo- ple who had been working for the Employer were sitting, and there was no extra work In early June, Escriba began working for another company Thereafter, according to Escriba, he told Van Pelt that, although he was working elsewhere, he still wanted to return to the Employer, and he asked Van Pelt to let him know if they had any work Van Pelt told him they did not have any work 6 Thomas testified that Escriba told him he was working else- where, but that he would like to come back to the Employer if steady work were available Thomas told Escriba he had better stay where he was Escriba tes- tified that he intended to return to the Employer if work were available, and he did not condition his return on a guarantee of 40 hours per week as he knew from past employment that such was impossi- ble I find, in all the circumstances, and based upon the demeanor of the witnesses and the logical thrust of their testimony, that Escriba did not condition his return to work on any guaranteed number of hours Kevin McGuire, herein called McGuire, partici- pated in the strike, and his name appeared on the Union's May 5 telegram, and he testified that he had many conversations with Van Pelt and one conversa- tion with Thomas after the end of the strike regard- ing returning to work In all of his conversations with Van Pelt, McGuire asked if work were available for him, and Van Pelt replied that there was none' McGuire testified that, in his conversation with Thomas, he asked for his job back and was told that his position (as a carpenter's helper) had been filled When McGuire asked if there were any chance of coming back as a laborer, Thomas told him to check with Van Pelt Thomas, on the other hand, testified that, when he told McGuire there was no work for a carpenter's helper, McGuire stated that he did not want that kind of employment but wanted to be a truckdriver and was willing to work for nothing for the experience Thomas declined such an offer It is clear that Van Pelt regarded McGuire's later conversations with him as requests for employment ' This conversation is substantially corroborated by Van Pelt 7 Although Van Pelts version differs from McGuire s in regard to the number and the time of the conversations, Van Pelt substantially corrobo- rates McGuire as a carpenter's helper, as Van Pelt testified that Mc- Guire had been working as a carpenter's helper, and the Employer had nothing going in that position at the time of the requests In light of the fact that Mc- Guire apparently sought employment from Van Pelt similar to that which he had held prior to the strike, I find that McGuire did not condition his return to work on obtaining a different job classification Mc- Guire did not have employment between the end of the strike and the date of the election Walter Baker, herein called Baker, participated in the strike, and his name appeared on the Union's telegram of May 5 Baker testified that, after the strike ended, he had two conversations with Thomas and two with Van Pelt in which he asked for work but was told that no work was available Thomas testified that he told Baker in each conversation that Baker should appear at the Employer's premises at 6 a in and take his chances on being dispatched Van Pelt testified that he told Baker on one occasion that the Employer already had people they were not us- ing, but he could not tell if there would be work the next day and that Baker should report in the morn- ing On the second occasion, Van Pelt told Baker that there was not enough work to require additional employees and he had no way of telling when he might need more people Van Pelt further testified that he would have dispatched Baker if Baker had come in to work and no regular employees were available Baker held only sporadic employment be- tween the end of the strike and the date of the elec- tion Verlyn Mettler, herein called Mettler, participated in the strike, and his name also appeared on the Union's telegram of May 5 Mettler testified that, af- ter the strike, he had two or three telephone conver- sations with Thomas in which he expressed a desire to return to work, to which Thomas replied that work was slow and Thomas would call Mettler when work was available Mettler also testified that he went to the Employer twice after the strike about 6 a in and, looking at the board, found that work was slow and did not stay Mettler stated that he also spoke to Van Pelt sometime after the strike and asked if there were any work, to which Van Pelt replied there was none Thomas denied having any conversations with Mett- ler after the end of the strike Van Pelt testified that, several days after the strike, Mettler appeared about 6 to 7 a in and asked if there were anything new, to which Van Pelt replied that the same situation ex- isted-no work was available Mettler was unem- ployed from the end of the strike until the date of the election Jeff Pasquariello, herein called Pasquariello, par- ticipated in the strike, and his name appeared on the JOHN A THOMAS CRANE & TRUCKING CO Union's telegram of May 5 Pasquariello last worked for the Employer on January 9, when he received an industrial injury Pasquariello was released for work by the doctor on March 10, at which time he joined the picket line On that same date, while on the pick- et line, Pasquariello was struck by a car driven by Thomas Pasquariello received a release from his doctor from that injury sometime in mid-May Short- ly after the strike, Pasquariello saw Thomas away from the Employer and asked if there were any work Thomas told Pasquariello to go to the Employer and fill out an application, and asked if Pasquariello had a doctor's release According to Pasquariello, he then took a doctor's release to Thomas,' and told Thomas that he was available for work, to which Thomas re- plied that work was slow, but Pasquariello would be notified when there was anything Thomas denies that such a conversation occurred 9 Pasquariello had no conversations with Van Pelt Pasquariello re- ceived employment at another company about the end of June and worked there through the date of the election There is no evidence that Pasquariello was denied work based on his injury or failure to provide doctors' releases Thomas testified that Pasquariello was asked to fill out a new application in order to bring the Employer up to date on new personnel information Other strikers who did return to work also filled out new employment applications None of the above employees was ever told that he was terminated or that he would not be considered for work Nor did any express any disinterest in re- turning to work It is well established that an economic striker is presumed to continue in that status, and is, therefore, eligible to vote under Section 9(c)(3), and "[t]o rebut the presumption, the party challenging his vote must affirmatively show by objective evidence that he has abandoned his interest in his struck job " Pacific Tile and Porcelain Company, 137 NLRB 1358, Roylyn, Inc, 178 NLRB 197 10 Evidence that the striker ob- tained more remunerative employment in a perma- nent job elsewhere is not sufficient to rebut the pre- sumption of eligibility Pacific Tile, supra, Roylyn, Inc, supra Although the Employer contends that ' Beckman testified that only the March 10 doctor's release was given to her 9I credit Pasquariello's testimony to the effect that he notified the Em- plo^er he was available for work 1 Although the ballots of these strikers were challenged by the Board Agent, it is the Employers contention that they are not eligible voters 217 these economic strikers' failure to report to the Employer's premises each morning at 6 a in evi- denced a lack of interest in the struck job, tanta- mount to abandonment of the job, and they should be deemed to have voluntarily quit employment, such a contention is without merit in view of the slowness of work and Van Pelt's statements to the striking employees that no work was available for them Van Pelt testified, regarding various of the above strikers, that they would have been dispatched had work been available and no regular employees available to perform it There is no evidence that such a situation ever existed between May 5 and the date of the election, or that any of the above strikers would have been dispatched had he reported to the Employer's premises every morning at 6 am The Board has held that strikes frequently affect produc- tion and the number of jobs, and a striker's right to a job cannot depend upon job availability as of the moment he applies for reinstatement, but his employ- ee status continues until he has obtained "other regu- lar and substantially equivalent employment " Globe Molding Plastics, 200 NLRB 377, 378 11 I therefore find, based on the above and the record as a whole, my observations of the witnesses' de- meanor, manner of testifying, and the credibility res- olutions made herein, that it has not been affirma- tively shown by objective evidence that any of the above employees had abandoned his interest in his struck job the date of the election Accordingly, I shall recommend to the Board that the challenges to the ballots of Charles Escriba, Kevin McGuire, Wal- ter Baker, Verlyn Mettler, and Jeff Pasquariello be overruled and that their ballots be opened and count- ed Recommendation The undersigned, having made the above findings and conclusions based upon the entire record and her observations of the witnesses, hereby recom- mends to the Board that the challenges to the ballots of Charles Escriba, Kevin McGuire, Walter Baker, Verlyn Mettler, and Jeff Pasquariello be overruled and the challenges to the ballots of E K LeMeur and Fred Duff be sustained 12 11 1 find the cases cited by Respondent in this regard to be inapposite inasmuch as they do not involve the eligibility rights of economic strikers 12 Under the provisions of Section 102 69 of the Boards Rules and Regu- lations exceptions to this report may be filed with the Board in Washington D C Exceptions must be received by the Board in Washington b) February 3 1976