Mec Construction, Incorporated v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1278
MEC CONSTRUCTION, INCORPORATED,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 05-1421
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
MEC CONSTRUCTION, INCORPORATED,
Respondent.
On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (6-CA-34417)
Argued: November 29, 2005 Decided: January 13, 2006
Before WILLIAMS, KING, and GREGORY, Circuit Judges.

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Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: Gregory Guidry, ONEBANE LAW FIRM, Lafayette, Louisiana, for
MEC Construction, Incorporated. Jason Walta, NATIONAL LABOR
RELATIONS BOARD, Office of the General Counsel, Washington, D.C.,
for the Board. ON BRIEF: Michael P. Maraist, ONEBANE LAW FIRM,
Lafayette, Louisiana; Gregory A. Morgan, YOUNG, MORGAN & CANN,
Clarksburg, West Virginia, for MEC Construction, Incorporated.
David Habenstreit, Supervisory Attorney, Arthur F. Rosenfeld,
Acting General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIUM:
MEC Construction, Inc. (MEC) petitions this Court for review
of the National Labor Relations Board’s (Board) September 13, 2004
Decision and Direction, which rejected MEC’s challenge to three
ballots cast in a union representation election and resulted in the
election being certified for Pipeliners Local Union 798 (Union).
After the Board rejected the challenge, MEC continued to refuse to
bargain with the Union, resulting in a finding by the Board that
MEC was in violation of the National Labor Relations Act. MEC now
petitions for review and the Board cross-petitions for enforcement
of its order. For the following reasons, we deny MEC’s petition
for review and grant the Board’s cross-petition for enforcement.
I.
MEC is a construction company based in West Virginia that
specializes in gas plant construction, bridge work, and industrial
construction. MEC, like many construction-industry companies, had
a continually fluctuating work force. Accordingly, the total
number of workers employed by MEC ranged anywhere from
approximately 75 employees to 200 employees, depending on the
amount of work available at any given time.
In November 2003, the Union petitioned to represent a unit of
regularly employed rig welders and certified welders who at times
performed work for MEC. Because the bargaining unit was comprised

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of construction employees who were subject to sporadic employment,
the parties stipulated that the eligibility of voters would be
determined according to a specific formula tied to the number of
days the employee had worked for MEC within the past year or two
years. If an employee was fired for cause or voluntarily quit
before the election, however, he was ineligible to vote.
The mail ballot election was held between December 17, 2003
and January 7, 2004. The initial results showed eight votes in
favor of the Union, ten votes against the Union, and an additional
five challenged ballots. Because the challenged ballots could be
outcome determinative, the Board’s Regional Director ordered a
hearing to determine whether the ballots should be counted.
The Union challenged the ballot of one voter -- Brian Jarvis
-- arguing that he was terminated for cause prior to the election.
Before the hearing, MEC agreed that Jarvis’s ballot should not be
counted. The remaining four challenges were made by MEC with
respect to the votes of Carl Hogue, Jr., David Swiger, Matthew
Saliga, and Carl Neal, all of whom voted in favor of union
representation. During the hearing, MEC withdrew its objection
with respect to Neal, resulting in a tally of 9 votes for the Union
and 10 against. Thus, if any two of MEC’s three remaining
challenges were overruled, there would be a majority of votes cast
for the Union.

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The remaining three challenges were heard by a hearing officer
on February 10, 2004. The chief dispute concerned whether Hogue,
Swiger, and Saliga quit their employment prior to casting their
votes.
Hogue is a Texas resident who worked for MEC sporadically for
approximately ten years. Hogue’s practice was to travel from Texas
to job sites in West Virginia and Pennsylvania when the project
provided enough hours to make it worthwhile.
During September 2003, an informational picket line was set up
at Hogue’s job site in Pennsylvania. Hogue refused to cross the
picket line and returned home to Texas. In November of that year,
the Union’s business agent contacted David Alvarez, MEC’s
president, and made an unconditional offer on behalf of the
striking employees to return to MEC. Alvarez accepted the offer
and agreed to contact the striking employees -- including Hogue --
and invite them back to work. Alvarez testified that he called
Hogue and left a general message on an answering machine asking
Hogue to call him, but that Hogue never responded to the call.
At the hearing, MEC argued that Hogue’s failure to reply to
Alvarez evidenced his intent permanently to sever his relationship
with MEC. The hearing officer disagreed, relying on the facts that
(1) Hogue never notified MEC of his intention to quit, (2) not
working for a period of time was consistent with Hogue’s employment
history with MEC, (3) Hogue actually cast a ballot, and (4) Hogue

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*MEC objected to Hogue testifying by telephone and his
testimony was not allowed.
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was willing to testify by phone at the hearing.* Accordingly, the
hearing officer recommended overruling the challenge to Hogue’s
ballot.
Saliga, the second challenged voter, began working for MEC in
October 2002 at its Hastings electric compressor station project
(Hastings Project). As part of the Hastings Project, MEC employed
a significant number of rig welders, who were under the direct
supervision of David McPherson, a MEC Project Superintendent.
Saliga, a welder, had been working 60-70 hours per week at the
Hastings Project for a considerable stretch of time. He repeatedly
asked McPherson for a temporary layoff so that he could take a
vacation, but McPherson denied the layoff because the project was
not completed.
Saliga testified that in April 2003, he asked Alvarez for time
off to go turkey hunting, thinking that Alvarez was more likely
than McPherson to grant the layoff. According to Saliga, Alvarez
granted the time off and Saliga informed McPherson. Alvarez,
however, testified that he never had such a conversation with
Saliga, and McPherson likewise testified that Saliga simply failed
to report for work. Saliga testified that after his return from
hunting, he was unsuccessful in his attempts to contact Alvarez and
McPherson. Eventually, he contacted McPherson at home, but

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McPherson informed him that he had no work available. Accordingly,
Saliga began working for a different contractor.
The hearing officer found that Alvarez’s and McPherson’s
testimony was “inconsistent” and “troubling.” Although they
claimed that they could not grant Saliga a layoff because work was
so hectic, evidence was presented that another Hastings Project
welder was given a week off to go turkey hunting during the same
period. In short, the hearing officer found Saliga’s testimony to
be credible, and Alvarez’s and McPherson’s testimony not to be
credible. Accordingly, the hearing officer recommended that the
challenge to Saliga’s ballot be overruled.
Swiger, the third (and final) challenged voter, had worked
sporadically for MEC for approximately six years. In April 2003,
he expressed his desire to pursue other work, although he also
maintained that he did not wish to “burn bridges” with MEC. (J.A.
at 35-36.) After completing a job for MEC, Swiger placed his West
Virginia home on the market and relocated to North Carolina in an
attempt to find employment with NASCAR. Unable to sell his West
Virginia home, however, he reluctantly returned the following
winter. Swiger then contacted Alvarez, who informed Swiger that he
had no work available at that time.
At the hearing, MEC argued that by attempting to find work in
another industry, Swiger affirmatively severed his job with MEC.
The hearing officer, however, disagreed, and based partly on

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credibility determinations, found that Swiger did not voluntarily
quit his job, and was thus eligible to vote.
The Board, in a two-to-one decision, subsequently adopted all
of the hearing officer’s findings and recommendations.
Accordingly, the Board overruled MEC’s challenges to the ballots of
Hogue, Saliga, and Swiger. The Board’s decision resulted in a
final vote tally of twelve votes in favor of representation and ten
votes against. MEC, unsatisfied with the Board’s decision, refused
to recognize and bargain with the Union, resulting in the Board
finding that MEC was in violation of 29 U.S.C.A. § 158(a)(1) and
(5) (West 1998).
MEC filed a petition for review contesting the Board’s
decision with respect to the ballots of Hogue, Saliga, and Swiger.
The Board filed a cross-petition for enforcement. If we agree with
the Board with respect to any two of the three challenged ballots,
we will enforce its order. We have jurisdiction under 29 U.S.C.A.
§ 160(e) and (f) (West 1998).
II.
We review Board decisions with great deference because
“Congress has entrusted the [Board] with broad discretion to
establish procedures and safeguards to ‘insure the fair and free
choice of bargaining representatives by employees.’” NLRB v. Coca-
Cola Bottling Co., 132 F.3d 1001, 1003 (4th Cir. 1997) (quoting

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NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946)). Accordingly,
“this Court treats the outcome of a Board-certified election as
presumptively valid . . . [and if] seeking to have an election set
aside, the objecting party bears a ‘heavy burden.’” Id.
The Board’s factual findings must be affirmed if they are
“supported by the substantial evidence on the record considered as
a whole.” 29 U.S.C.A. § 160(e); NLRB v. Transpersonnel, Inc., 349
F.3d 175, 179 (4th Cir. 2003). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Transpersonnel, 349 F.3d at 179 (internal
quotation marks omitted). Most importantly, if we find that
substantial evidence exists, the NLRB’s decision must be upheld
“even though we might have reached a different result had we heard
the evidence in the first instance.” Id. (internal quotation marks
omitted).
Moreover, “absent extraordinary circumstances, we will not
disturb [a hearing officer’s] credibility determinations.” Id. at
184. We recognize that credibility determinations are “at the
heart of the fact-finding process,” and reviewing courts should be
careful not to second-guess the factfinder, who was actually
present during the testimony. See id.; Sam’s Club v. NLRB, 173
F.3d 233, 240 (4th Cir. 1999).
Prior to the election, MEC and the Union stipulated that the
eligibility of voters would be determined according to the NLRB’s

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Steiny/Daniel formula. In Steiny & Co., 308 NLRB 1323 (1992), and
Daniel Constr. Co., 133 NLRB 264 (1961), the Board created a
special formula to be used in construction worker elections because
the “construction industry is different from many other industries
in the way it hires and lays off employees.” Steiny, 308 NLRB at
1324. The formula recognizes that “construction employees may
experience intermittent employment, be employed for short periods
on different projects, and work for several different employers
during the course of a year.” Id. Accordingly, the formula is
designed to ensure that construction-industry employees with a
direct interest in a company are allowed to vote in any
representative election.
Under the formula, an employee is eligible to vote if he (1)
was employed by the company for 30 working days or more within the
12 months preceding the eligibility date for the election, or (2)
had some employment with the company during the 12-month period,
and had been employed for 45 working days or more within the 24-
month period preceding the eligibility date. Steiny, 308 NLRB at
1326. The formula, however, also excludes those employees who were
fired for cause or quit voluntarily prior to the election, no
matter the duration of their prior employment. See Metfab, Inc.,
344 NLRB No. 6, 2005 WL 263701, at *13 (Jan. 31, 2005) (“Employees
who had been terminated for cause or quit voluntarily prior to
completion of the last job for which they were employed would not

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be eligible under this formula.”). Employees who were merely laid
off prior to the election, however, are eligible to vote because
the construction industry deems them eligible to recall when the
need arises. Cf. NLRB v. Atkinson Dredging Co., 329 F.2d 158, 162
(4th Cir. 1964) (noting that an employee who is laid off with a
“reasonable expectation of being called back” should typically be
included in a voting unit). With this proper framework in mind, we
now address MEC’s challenges with respect to Hogue, Saliga, and
Swiger.
A.
MEC argues that the Board ignored substantial, objective, and
uncontroverted evidence that Hogue affirmatively abandoned his job.
Specifically, MEC points to the message Alvarez left on Hogue’s
answering machine and Hogue’s subsequent failure to return
Alvarez’s telephone call.
“It is presumed that an economic striker . . . is eligible to
vote. To rebut the presumption, the party challenging the vote
must affirmatively show by objective evidence that he has abandoned
his interest in his struck job.” P.B.R. Co., 216 NLRB 602, 603
(1975). The key question with respect to Hogue’s ballot, then, is
whether substantial evidence supports the Board’s finding that MEC
failed to rebut the presumption via objective evidence. We
conclude that it does.

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MEC put forth no direct evidence that Hogue affirmatively
abandoned his interest in his job. As the Board recognized, MEC
instead “relie[d] solely on the fact that Hogue failed to respond
to a message Alvarez left on his answering machine indicating that
work was available.” (J.A. at 63.) MEC, however, relying on Q-T
Tool Co., 199 NLRB 500 (1972) and Axelson, Inc., 285 NLRB 862
(1987), argues that Hogue’s failure to respond is legally
sufficient to signify his abandonment of employment.
In Q-T Tool, the Board found that two workers were ineligible
to vote in a union election because after their layoffs they
secured permanent work elsewhere and also failed to respond to the
company’s recall letters. 199 NLRB at 502-03. In Axelson, the
Board found that the employee in question had abandoned his job
when he failed to respond to the company’s specific recall letter,
which designated the time and location that he was to return to
work. 285 NLRB at 897-99.
These two cases are inapposite. First, MEC put forth no
evidence suggesting that Hogue sought or accepted permanent
employment elsewhere, like the employees in Q-T Tool. Second,
Alvarez did not send Hogue a specific letter instructing him on the
time and place of recall; rather, Alvarez left a single message on
Hogue’s answering machine that failed to specify when and where
Hogue should return to work. And most importantly, these cases did
not arise in the context of the construction-industry, where it is

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common for employees to alternatively work for multiple employers
during the course of the year. See Steiny, 308 NLRB at 1324.
Because this appeal concerns the sporadic construction
industry, even if Hogue’s failure to respond to the message --
assuming it was received -- evidenced his desire to decline recall
in this instance, it cannot automatically be presumed to evidence
a desire to abandon his relationship with MEC. See Metfab, Inc.,
2005 WL 263701, at *14 (“There is nothing in the Board’s decisions
in Steiny or Daniel that expressly holds that an employee who has
worked the requisite amount of time for an employer loses
eligibility by declining recall.”).
The Board found that Hogue’s conduct was entirely consistent
with his ongoing employment relationship with MEC, in which he
traveled east for work only when it was worthwhile. We conclude
that substantial evidence supports the Board’s finding that MEC
failed to show that Hogue abandoned his employment with the
company.
B.
We now address MEC’s arguments with respect to Saliga. MEC
contends that because a significant amount of welding work remained
on the Hastings Project, it would not have granted Saliga a
voluntary layoff. MEC also contends that the Board erred in
accepting the hearing officer’s credibility determinations, which

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MEC argues were unreasonable and contradicted by other findings of
fact. We disagree.
During the hearing, Saliga testified that he was granted a
voluntary layoff by Alvarez so that he could take a brief vacation,
and that after returning, he contacted MEC about returning to work
before starting work elsewhere. Alvarez and McPherson, however,
testified that Saliga simply walked away from his job and quit
without notice. Thus, the hearing officer was presented with
irreconcilable testimony and found Saliga’s testimony to be more
credible. In fact, the hearing officer found Alvarez’s and
McPherson’s testimony “inconsistent with their actions” and other
portions of Alvarez’s testimony with respect to Saliga “troubling.”
(J.A. at 34.) The hearing officer found Saliga’s testimony,
however, “quite plausible. . . . especially considering Saliga’s
demeanor.” (J.A. at 34.)
We decline to disturb the hearing officer’s credibility
determinations. The hearing officer was in the best position to
observe the demeanor of the respective witnesses, and MEC offers no
persuasive reason for us to “second-guess [the hearing officer’s]
determinations about who was the more truthful witness.”
Transpersonnel, Inc., 349 F.3d at 184. Moreover, because the Union
introduced uncontroverted evidence that another welder was given a
voluntary layoff to go turkey hunting at the same time, there was

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substantial objective evidence to support the Board’s conclusion
even absent the hearing officer’s credibility findings.
C.
Because we conclude that substantial evidence supports the
Board’s ruling with respect to Hogue and Saliga, we need not -- and
do not -- decide whether substantial evidence supports its decision
with respect to Swiger.
III.
In summary, we hold that substantial evidence supports the
Board’s findings that Hogue and Saliga were eligible to vote in the
Union election. Accordingly, there are a sufficient number of
votes in favor of the Union to sustain the Board’s ruling. We
therefore deny MEC’s petition for review and grant the Board’s
cross-application for enforcement.
PETITION FOR REVIEW DENIED AND
CROSS-APPLICATION FOR ENFORCEMENT GRANTED

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