G & K Services, Inc. (15-RD-843; 340 NLRB No. 103) New Orleans, LA Oct. 16, 2003.

The Board affirmed the hearing officer's finding that the Union's (UNITE Southwest Regional Joint Board) objections to the election were timely filed and his recommendation that the Employer's challenge to the ballot of Jennifer Ellsworth be sustained, that the Union's challenges to the ballots of Donna Martin and Lucinda Williamson be overruled, and that the Union's objections to the election be overruled. In the absence of exceptions, the Board adopted the hearing officer's recommendation that the challenge to the ballot of Angel Cantrell be overruled.

Contrary to the hearing officer, the Board determined that Raphael Chambliss, who was hired for the Employer's Saint Rose facility, was not an employee in the bargaining unit and sustained the challenge to his ballot. The Board noted that the language of the unit description clearly and unambiguously describes the unit as "all production and maintenance employees employed by the Employer at its facility in New Orleans" and, thus, by its clear language, the unit includes only employees at that location and, by implication, excludes production and maintenance employees employed at any other facility.

The Board directed the Regional Director to open and count the ballots of Cantrell, Martin, and Williamson and thereafter, to prepare and serve on the parties a revised tally of ballots and to take further appropriation action. The tally of ballots for the decertification election held on December 19, 2002, showed 13 votes cast for and 11 votes cast against, the Union, with 5 determinative challenged ballots.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Omahaline Hydraulics Co., a Division of Prince Manufacturing Corp. (18-RM-1355; 340 NLRB No. 104) North Sioux City, SD Oct. 15, 2003.

Members Liebman and Walsh, with Chairman Battista dissenting, agreed with the hearing officer's finding that 27 employees who had been on strike since May 3, 2001 were still employees at the time of the election held on March 28, 2002, and adopted his recommendation that the challenges to their ballots be overruled. Members Liebman and Walsh concluded that the Employer failed to meet its burden of establishing that the strikers' jobs had been permanently eliminated and directed the Regional Director to open and count their ballots and thereafter, to prepare and serve on the parties a revised tally of ballots and the appropriate certification.

Contrary to his colleagues, Chairman Battista would sustain the Employer's challenges to the ballots of the striking employees. He held that the strikers were not eligible voters in the election as their jobs had been eliminated and they had no reasonable expectation of recall. He wrote:

The Employer made that clear in letters of February 27 and March 25. Indeed, even the Union was not contesting this fact. It simply wanted to assure that certain vacation benefits were paid to these employees and it wanted to secure a more advantageous termination date. My colleagues contend that these letters were mere proposals to the Union. The contention has no merit. The letters set forth facts which made it clear that there was no reasonable expectancy of recall. The proposal was that the Union agree to a termination date as a condition of receiving vacation pay.

In the absence of exceptions, the hearing officer's recommendation to sustain the challenges to the ballots of eight employees who were separated in February 2001 was upheld. The tally of ballots for the decertification election held on March 28, 2002 showed 0 votes cast for and 21 votes cast against, the Machinists, with 35 challenged ballots.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

TKC, a Joint Venture (5-CA-30504, 30554; 340 NLRB No. 102) Oxon Hill, MD Oct. 17, 2003.

The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by interrogating employee Marcus Lumpkin, implying that Lumpkin's union activity was the reason for his layoff, and issuing disciplinary warnings to employees Daniel McVicker and Clay Cunningham for engaging in protected activity; and violated Section 8(a)(3) and (1) by laying off Lumpkin because of his activities in support of Operating Engineers Local 77. In the absence of exceptions, the Board approved the judge's finding that the Respondent did not violate Section 8(a)(3) by reducing McVicker's overtime hours or by discharging McVicker.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Operating Engineers Local 77; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Washington, DC, April 28 and 29, 2003. Adm. Law Judge Richard A. Scully issued his decision Aug. 7, 2003.

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