                              UNPUBLISHED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.
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granted by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).




                                2
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


                                   3
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.




                                 4
      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


                                       5
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



     *
     MEC objected to Hogue         testifying    by   telephone   and    his
testimony was not allowed.

                                     6
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


                                 7
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


                                          8
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


                                  9
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


                                    10
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.


                                     11
        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


                                       12
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


                                        13
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




                                         14
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




                                 15
