JD–-02–-07
`New York, NY
`
`UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`DIVISION OF JUDGES
`
`Case 29–RC–11107
`
`DEFOE CORPORATION,
`Employer
`
`and
`
`THE SHEET ASPHALT WORKERS LOCAL
`UNION 1018 OF THE DISTRICT COUNCIL
`OF PAVERS AND ROAD BUILDERS OF THE
`LABORER’S INTERNATIONAL UNION
`OF NORTH AMERICA,
`Petitioner
`
`and
`
`UNITED PLANT AND PRODUCTION
`WORKERS, LOCAL 175, INTERNATIONAL
`UNION OF JOURNEYMAN AND
`ALLIED TRADES,
`
`Intervenor
`
`Eric Boerschinger, Esq., for the Regional Director.
`Raymond G. McGuire and S. Peter Clark, Esqs.
` (Kauff, McLain & McGuire, LLP), of New York, New York,
`for the Employer.
`Barbara S. Mehlsack, Esq. (Gorlick, Kravitz & Listhaus, P.C.),
` of New York, New York, for the Petitioner.
`Eric Bryon Chaikin, Esq. (Chaikin & Chaikin),
`of New York, New York, for the Intervenor.
`
`RECOMMENDED DECISION AND ORDER ON CHALLENGES
`
`MICHAEL A. ROSAS, Administrative Law Judge. Pursuant to a notice of hearing
`on objections to election and challenged ballots issued by the Regional Director for
`Region 29 on October 25, and Order Rescheduling Hearing, dated November 9, 2006, I
`conducted a hearing on this matter on December 7, 8, and 12, 2006, in Brooklyn, New
`York. Based on the evidence submitted in that hearing, including the testimony of the
`witnesses and my assessment of their demeanor, as well as closing statements by
`counsel, I make the following findings and conclusions.
`
`

`

`In accordance with a stipulated election agreement signed by Local 1018, Local
`175, and Employer DeFoe Corporation (DeFoe Corporation), and approved by the
`Acting Regional Director for Region 29 on August 1, 2005, an election was conducted
`on August 31, 2006, in the following unit:
`
`JD–-02–-07
`
`All full-time and regular part-time workers who primarily perform asphalt paving,
`including foremen, rakers, screenmen, micro pavers, AC paintmen, liquid tar
`workers, landscape planting and maintenance/fence installers, play
`equipment/safety surface installers, slurry/seal coaters, shovelers, line striping
`installers, and small equipment operators employed by the Employer, who work
`primarily in the five boroughs of New York City, but excluding all employees who
`primarily perform the laying of concrete, concrete curb setting work, or block
`work, and/or who are currently represented by Highway, Road and Street
`Construction Laborers, Local Union 1010 of the District Council of Pavers and
`Road Builders, Laborers International Union of North America, or by Highway,
`Road and Street Construction Laborers, a Division of Amalgamated Local Union
`450A, and excluding clerical employees, guards, and supervisors as defined in
`Section 2(11) of the Act.
`
`The election resulted in a tie—one vote for Petitioner (Local 1018) and one vote
`for Intervenor (Local 175). There were no void or challenged ballots. On September 7,
`2006, however, Local 1018 and Local 175 filed timely objections to conduct affecting the
`results of the election. Local 1018’s objection alleged that Local 175 held a captive
`audience meeting within 24 hours of the election and, at that meeting, its
`representatives threatened, coerced, and misinformed members to vote in favor of
`Local 175. Local 175 filed seven objections. Its first, second, third, fourth, fifth, and sixth
`objections alleged that Local 1018 threatened to “blackball” employees who supported
`Local 175, demanded during the critical period prior to the election that Employer
`DeFoe, among others, dismiss any employee not a member of Local 1018, and
`threatened employees with expulsion, loss of employment, and loss of benefits if they
`supported Local 175. Local 175’s seventh objection alleged that Employer DeFoe
`threatened employees that they would be fired if they voted for Local 175.
`
`Pursuant to Section 102.69 of the Board’s Rules and Regulations, the Acting
`Regional Director caused an investigation to be conducted concerning the parties’
`objections and afforded the parties full opportunity to submit evidence bearing on the
`issues. After conducting an investigation and considering the proof offered by the
`parties, the Acting Regional Director recommended overruling 1018’s objection and
`Local 175’s first, second, third, fourth, fifth, and sixth objections. He found, however,
`that Local 175’s seventh objection, which Employer DeFoe denied, raised material and
`substantial issues of fact and credibility requiring a hearing before a hearing officer.
`Accordingly, the Acting Regional Director also directed that the hearing officer’s report
`contain resolutions of credibility of witnesses, findings of fact, and recommendations to
`the Board.
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`The Objection
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`JD–-02–-07
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`As the proponent of the election objection, Local 175 has the burden of proving
`that the conduct complained of had the tendency to interfere with the employees’
`freedom of choice. Double J. Services, 347 NLRB No. 58, slip op. at 1–2 (2006). That
`burden is a heavy one because there is a strong presumption that ballots cast under
`Board rules and supervision reflect the true desires of the electorate. See Safeway, Inc.,
`338 NLRB 525 (2002), and cases there cited.
`
`In its offer of proof submitted to the Acting Regional Director, Local 175 asserted
`that “named employees will testify that a few days before the election, representatives
`of Employer DeFoe threatened employees while they were at work that they would be
`fired if they voted for Local 175.” As Employer DeFoe’s alleged conduct occurred “within
`the critical period prior to the election,” if true, it would warrant setting aside the election.
`See Regional Director’s Report on Objections and Notice of Hearing, p. 20.
`
`Local 175 called two witnesses—Keith Waterbury and Roland Bedwell. Neither
`Employer DeFoe nor Local 1018 called witnesses. Waterbury, a labor foreman
`employed by the DeFoe Corporation for the past 7 years, voted at the election on
`August 31, 2006. He testified that, prior to the election, he received literature from
`Employer DeFoe indicating that the General Contractor’s Association was not
`recognizing Local 175. However, Waterbury denied having any discussions with any of
`Employer DeFoe’s supervisors prior to the election. He was approached by a Local
`1018 representative named “Todd”, but their discussion focused generally on the future
`of Local 1018 and concluded with a statement by Todd that he looked forward to
`speaking with Waterbury in the future. (Tr. 72–81.) Waterbury also testified that he
`spoke to Roland Bedwell just before entering to vote in the election. However, he could
`not recall the details of this conversation beyond simply “shooting the breeze.” (Tr. 83–
`84.) They also spoke the following day at Local 175’s office. At that time, Bedwell asked
`Waterbury why he did not vote in favor of Local 175. Waterbury responded that he
`chose “to stay in International for my well being.” (Tr. 86–88.)
`
`Bedwell’s testimony corroborated Waterbury’s testimony regarding that they had
`conversations before and after the election. Their conversation before the election did
`not indicate that Waterbury was threatened in any way. However, in their conversation
`on September 1, Waterbury told Bedwell that he voted in favor of Local 1018 because
`he was approached by “someone” and told that, if he voted in favor of Local 175, he
`would be discharged and his employer could lose its contract. (Tr. 92–93.) They also
`spoke again about 6 to 8 weeks later. Bedwell testified that Waterbury informed him
`then about an “indication” from Employer DeFoe that he would lose his job and the
`Company would lose its contract if employees voted in favor of Local 175. However, he
`conceded that Waterbury did not attribute this threat to any particular person or entity.
`(Tr. 94–95.)
`
`I found Bedwell more credible than Waterbury. Waterbury’s testimony was
`guarded, inconsistent, and conveyed a general reluctance to recall the details of any of
`the conversations that he had regarding the election on August 31. That stated,
`Bedwell’s testimony regarding his conversations with Waterbury failed to reveal the
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`JD–-02–-07
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`source of the alleged threats. Therefore, there is no credible evidence attributing the
`alleged threats to any supervisor or agent of Employer DeFoe. Under the
`circumstances, I find that Local 175 has not met its burden of showing that Employer
`DeFoe engaged in conduct that tended to interfere with employees’ free choice.
`Accordingly, I overrule Objection 7.
`
`Conclusions and Recommended Order
`
`In accordance with the above findings, I conclude that the Objections of
`Employer DeFoe to the election held on August 31, 2006, have no merit and that the
`election was valid. I hereby recommend that those Objections be overruled in their
`entirety. The case is remanded to the Regional Director for Region 29 to process the
`matter in accordance with this recommended decision and to issue an appropriate
`certification.1
`
`Dated, Washington, D.C. January 16, 2007
`
`
`
`____________________
` Michael A. Rosas
`Administrative Law Judge
`
`
`
` 1 Pursuant to the provisions of Section 102.69 of the Board’s Rules and
`Regulations, within 14 days from the date of the issuance of this recommended decision
`and order, either party may file with the Board in Washington, D.C., an original and eight
`copies of exceptions thereto. Immediately upon filing such exceptions, the party filing
`them shall serve a copy upon the other parties and a copy with the Regional Director. If
`no exceptions are filed to this decision and order, the Board may adopt the decision and
`order as its own.
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