NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,450, DELTA DIVERSIFIED ENTERPRISES, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 357, AFL-CIO., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

DELTA DIVERSIFIED ENTERPRISES, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 357, AFL-CIO.

314 NLRB No. 157.Case No. 28-RC-5161. August 31, 1994

Before Stephens, Devaney and Cohen.

Elections--Rerun--Employer’s Motion to Reconsider.--An employer’s motion for reconsideration and clarification, filed after the NLRB directed a second union representation election, was denied in part and granted in part. The motion lacked merit as far as requesting reconsideration because the employer failed to file exceptions to a hearing officer’s disposition of ballots. However, the Board clarified the rules under which the rerun election would be held, finding that the second election should be conducted using the same voter eligibility formula used in the first election. Section 9(c).

Back reference: ¶2790.034.

From Text of Board’s Decision

On July 19, 1994, the National Labor Relations Board issued a Decision and Direction of Second Election in this proceeding [1] finding that the Employer had engaged in objectionable conduct, setting aside the election, and directing a second election.

On August 1, 1994, the Employer filed a Motion for Reconsideration and Clarification. The Employer contends that the Board adopted the recommendations of the hearing officer with respect to the challenged ballots in the absence of exceptions when, in fact, the Employer had excepted to the hearing officer’s recommendation that the ballots remain unopened and uncounted. The Employer further contends that the decision uses an eligibility formula different from that used by the Regional Director in the first election. Finally, the Employer requests that the Board clarify whether the eligibility formula used in Brown & Root, Inc., [1992-93 CCH NLRB ¶15,329] 314 NLRB No. 4 (June 7, 1994), a recent Board decision with respect to voter eligibility in the construction industry, should be the formula applied in the second election here.

The Board having duly considered the matter,

It is ordered that the Employer’s motion for reconsideration is denied as lacking in merit. [2]

It is further ordered that the Employer’s motion to clarify with respect to the direction of election is granted. [3]

¹	[1993-94 CCH NLRB ¶15,390] 314 NLRB No. 77.
²	It is clear that the Employer did not except to the hearing officer’s substantive disposition of the challenged ballots, i.e., that the challenge to the ballot of Cox be sustained and that the challenges to the ballots of Manwill and Goad be overruled, as the Board noted in its original decision. Rather, the Employer contested only the recommendation that the ballots of Manwill and Goad remain unopen and uncounted. The Board considered this recommendation in light of the exceptions and adopted the hearing officer’s recommendation.
³	In the first election the Regional Director applied the eligibility formula the Board currently uses in the construction industry. See Daniel Construction Co., [1961 CCH NLRB ¶10,400] 133 NLRB 264 (1961), modified [1968-1 CCH NLRB ¶21,864] 167 NLRB 1078 (1967), reaffd. in Steiny & Co., [1992-93 CCH NLRB ¶17,518] 308 NLRB 1323 (1992). We shall modify the Direction of Second Election here to clarify that the Regional Director shall use the same formula in the second election. In this regard, we note that the Board on July 15, 1994, corrected its original decision in Brown & Root, supra, to clarify that the eligibility formula to be used in that case was the same formula as set forth in Daniel and Steiny. Thus, there is no inconsistency between our decision here and Brown & Root, contrary to the Employer’s contention.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,450, DELTA DIVERSIFIED ENTERPRISES, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 357, AFL-CIO., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

DELTA DIVERSIFIED ENTERPRISES, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 357, AFL-CIO.

314 NLRB No. 157.Case No. 28-RC-5161. August 31, 1994

Before Stephens, Devaney and Cohen.

Back reference: ¶2790.034.

From Text of Board’s Decision

The Board having duly considered the matter,

It is ordered that the Employer’s motion for reconsideration is denied as lacking in merit. [2]

It is further ordered that the Employer’s motion to clarify with respect to the direction of election is granted. [3]

¹	[1993-94 CCH NLRB ¶15,390] 314 NLRB No. 77.
²	It is clear that the Employer did not except to the hearing officer’s substantive disposition of the challenged ballots, i.e., that the challenge to the ballot of Cox be sustained and that the challenges to the ballots of Manwill and Goad be overruled, as the Board noted in its original decision. Rather, the Employer contested only the recommendation that the ballots of Manwill and Goad remain unopen and uncounted. The Board considered this recommendation in light of the exceptions and adopted the hearing officer’s recommendation.
³	In the first election the Regional Director applied the eligibility formula the Board currently uses in the construction industry. See Daniel Construction Co., [1961 CCH NLRB ¶10,400] 133 NLRB 264 (1961), modified [1968-1 CCH NLRB ¶21,864] 167 NLRB 1078 (1967), reaffd. in Steiny & Co., [1992-93 CCH NLRB ¶17,518] 308 NLRB 1323 (1992). We shall modify the Direction of Second Election here to clarify that the Regional Director shall use the same formula in the second election. In this regard, we note that the Board on July 15, 1994, corrected its original decision in Brown & Root, supra, to clarify that the eligibility formula to be used in that case was the same formula as set forth in Daniel and Steiny. Thus, there is no inconsistency between our decision here and Brown & Root, contrary to the Employer’s contention.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,450, DELTA DIVERSIFIED ENTERPRISES, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 357, AFL-CIO., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,450, DELTA DIVERSIFIED ENTERPRISES, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 357, AFL-CIO., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

From Text of Board’s Decision

Footnotes