Cast North American (Trucking)

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 980 (N.L.R.B. 1998)

980
325 NLRB No. 184
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1997 unless otherwise noted.
2 The hearing officer did not discuss the mail ballot issue.
3 The hearing officer further found that, although employees
Walinski and Wright were away from the polling place in the nor-
mal course of their duties, their inability to vote did not warrant set-
ting aside the election in this case because, in light of her findings
concerning Schiring, Zanazaro, and Craig, their two votes could not
have affected the results. There are no exceptions regarding the hear-
ing officer’s findings as to Walinski and Wright.
Coast North America (Trucking) LTD and Local
299, International Brotherhood of Teamsters,
AFL–CIO, Petitioner and Chicago Truck Driv-
ers, Helpers and Warehouse Workers Union.
Case 7–RC–21058
June 30, 1998
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 5, 1997,1 and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Decision and Direction of
Election. The tally of ballots shows 33 for the Peti-
tioner and 29 for the Intervenor, with no challenged
ballots and no ballots against both labor organizations.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings and recommendations, and finds that a certifi-
cation of representative should be issued.
The pertinent facts, more fully set out in the at-
tached hearing officer’s report, are briefly stated here.
The Intervenor filed objections to the election alleging
that five eligible employees were not given the oppor-
tunity to vote. The Employer joined in the Intervenor’s
objections and contended that it was the Petitioner’s
refusal to enter into a stipulation for a mail ballot elec-
tion which caused the employees to miss the oppor-
tunity to vote. The hearing officer recommended that
the objections be overruled, finding that only two em-
ployees were disenfranchised and that their votes could
not have affected the outcome of the election.2 In its
exceptions, the Employer contends (1) that the hearing
officer erred in failing to find that a determinative
number of voters were deprived of an opportunity to
vote and (2) that the Regional Director erred in failing
to direct a mail ballot election. Contrary to our dissent-
ing colleague, and for the reasons set forth below, we
find no merit in the Employer’s exceptions.
The election was conducted in two voting periods,
from 4 to 7 a.m., and from 4–7 p.m. on June 5. Em-
ployee Michael Schiring was on vacation at the time
of the election. Employees Edward Walinski and
Darrel Wright were away from the polling place in the
course of their normal duties for the Employer during
the entire polling period. Drivers John Zanazaro and
Richard Craig were off duty and in the area of the
polling place during the first polling period from 4 to
7 a.m., but were away during the afternoon sessions.
Zanazaro and Craig arrived back at the terminal at
about 10 and 11 p.m., respectively, the evening before
the election and, because the Employer assigns runs on
a ‘‘first in, first out’’ basis, they knew that evening
that their start times were 8 and 9 a.m. the following
morning. The Employer’s policy is to require 10
hours’ time between runs, i.e., 8 hours required by the
Department of Transportation (DOT) regulation for
over-the-road drivers and an additional 2 hours to ac-
commodate drivers’ travel time to and from the termi-
nal. Drivers are routinely allowed to switch routes as
long as the Employer’s 10-hour rule is met and a re-
placement driver is available. On the day of the elec-
tion, after the morning voting session, and a few min-
utes before their scheduled runs, Zanazaro and Craig
advised Joseph Starmach, manager for the Employer’s
midwest operations, that they wanted to switch their
runs so that they could vote in the 4 to 7 p.m. after-
noon session. Starmach replied that he had no sub-
stitute drivers available. Zanazaro and Craig made their
scheduled runs and returned to the terminal after the
closing of the polls.
Where the conduct of a party to the election causes
an employee to miss the opportunity to vote, the Board
will set aside the election results if the employee’s
vote is determinative and the employee was
disenfranchised through no fault of his own. Sahuaro
Petroleum & Asphalt Co., 306 NLRB 586 (1992);
Versail Mfg., 212 NLRB 592, 593 (1974). Analyzing
each employee’s situation under this precedent, the
hearing officer found that employee Schiring, who was
on vacation, was not prevented from voting by the ac-
tion of any party and his inability to vote did not war-
rant setting aside the election. We agree with the hear-
ing officer as to Schiring for the reasons stated in her
report.
In addition, the hearing officer found that Zanazaro
and Craig were off duty and in the area of the Chicago
terminal and polling place throughout the 3-hour morn-
ing polling period. The hearing officer found that they
could have voted in the morning session and were not
prevented from voting by any action of a party. We
agree.3
Zanazaro and Craig were both aware of the June 5
start time assigned to them on the evening before the
election, and they both knew that their assigned runs
would preclude them from voting in the afternoon ses-
sion. They also knew that their ability to switch runs
was not guaranteed, but was dependent on the avail-
ability of substitute drivers. Their one sure way of pre-
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981COAST NORTH AMERICA (TRUCKING) LTD
4 Starmach testified that Zanazaro, whose run was scheduled for 8
a.m., approached him about changing runs when Starmach came in
at about ‘‘four to eight.’’ Craig, who was scheduled for a 9 a.m. run,
came to Starmach’s office at about 8:40 or 8:45 a.m. to ask if he
could switch runs.
5 While Member Liebman agrees with Chairman Gould that this
would have been an appropriate case for a mail ballot election, she
does not agree that the Regional Director abused his discretion by
not conducting one. National Van Lines, 120 NLRB 1343 (1958),
London’s Farm Dairy, 323 NLRB No. 186 (June 20, 1997), and
Reynolds Wheels International, 323 NLRB No. 187 (June 20, 1997),
all cited by her dissenting colleague, actually reaffirm the broad dis-
cretion of the Regional Director and the Board’s deference to the
Regional Director’s discretion—albeit in those cases, his discretion
to order a mail ballot.
6 Sec. 11336 states in pertinent part:
Mail Ballots: Voting may be conducted by mail, in whole or in
part. Particularly where long distances are involved, or where el-
igible voters are scattered because of their duties, the possibility
should be explored. The Regional Director should decide wheth-
er, or to what extent, mail voting should be employed.
7 Member Brame notes that under existing Board precedent and
policy, the applicable presumption favors a manual election, not a
mail ballot election. Willamette Industries, 322 NLRB 856 (1997).
While Member Brame does not pass on the appropriateness of the
Continued
serving their franchise was to vote during the morning
session. Instead, they each chose to risk being
disenfranchised by waiting until the morning voting
session had ended to request a switch in runs.4
Contrary to our dissenting colleague’s contention,
the appearance of these employees at the facility dur-
ing the morning session would not have violated Em-
ployer policies or DOT regulations. As the Employer
recognizes in its brief, the DOT regulations (49 CFR
§ 395.3) ‘‘specify that no motor carrier may permit or
require any driver to drive without at least 8 hours off
duty between long runs.’’ (Emphasis added.) The Em-
ployer adds 2 hours to this off-duty period to allow for
the employees’ commuting time. Neither the Employer
nor the DOT prescribe what the employee does during
off-duty time. As Starmach testified, the Employer
does not regulate what its employees ‘‘do on their own
time.’’ Nor does the record reveal what these two em-
ployees in fact did during the off-duty period in ques-
tion. Thus, it does not support our dissenting col-
league’s speculation that they were sleeping during the
entire morning session or that, if they had voted during
that session before making their scheduled runs, they
would have violated the DOT regulation (49 CFR
§ 392.3) that generally prohibits operation of a com-
mercial motor vehicle ‘‘while the driver’s ability or
alertness is so impaired . . . through fatigue . . . as to
make it unsafe for him/her to begin or continue to op-
erate the commercial motor vehicle.’’
We do, however, certainly agree with our dissenting
colleague that strict adherence to DOT regulations
governing rest time for commercial motor vehicle driv-
ers is absolutely critical. We deny, however, that our
decision in this case endorses violations of rest time
provisions or poses a threat to highway safety, as indi-
cated by the record. Thus, the evidence shows that
Zanazaro actually clocked in at 7:14 a.m. on June 5,
only 14 minutes after the polls closed at 7 a.m. We
differ with our dissenting colleague’s speculation that
Zanazaro’s arrival at the polls just 15 minutes earlier
would have endangered his safety or that of the travel-
ing public. We similarly conclude that neither the Em-
ployer nor DOT regulations genuinely prevented Craig
(whose morning run was to begin at 9 a.m.) from ar-
riving in time to vote during the morning session.
As set forth above, the Board will set aside an elec-
tion if an employee is disenfranchised due to the con-
duct of a party to the election and through no fault of
his own, and if his vote is determinative. The applica-
tion of that rule is clear here: Walinski and Wright,
who were on scheduled runs during the voting ses-
sions, were disenfranchised due to the Employer’s con-
duct. Zanazaro and Craig were not. They were off duty
during the voting sessions. While we do not conclude
that Zanazaro or Craig were disenfranchised through
their own ‘‘fault,’’ this is not a case where we can find
that they were prevented from voting by their Employ-
er’s conduct. Accordingly, we agree with the hearing
officer that Zanazaro and Craig had the opportunity to
vote during the morning session and that their choos-
ing not to vote does not warrant setting the election
aside.
Therefore, only Wright and Walinski were prevented
from voting by the conduct of the Employer. Because
those two ballots are not determinative, the inability of
Wright and Walinski to vote does not warrant setting
aside the election. Sahuaro Petroleum, supra.
2. Nor do we agree with our dissenting colleague
that, under current standards, the Regional Director’s
failure to conduct a mail ballot election constituted an
abuse of discretion.5 The dissent states that NLRB
Casehandling Manual (Part Two) Representation, Sec-
tion 11336 ‘‘calls for a mail ballot in circumstances
presented here ‘where long distances are involved, or
where eligible voters are scattered because of their du-
ties.’’’ Contrary to our dissenting colleague, the
Casehandling Manual does not ‘‘call for’’ a mail ballot
election here.6 Section 11336 states only that the possi-
bility of mail balloting should be ‘‘explored’’ in these
circumstances. Here, the record shows that the Re-
gional Director did in fact ‘‘explore’’ the possibility of
mail balloting, but decided that it should not be em-
ployed in this case. The Regional Director apparently
agreed with the assessment of the Petitioner that two
manual voting sessions ‘‘would give everyone the ab-
solute best chance to vote.’’ We note that of the ap-
proximately 67 eligible voters, only 2 were deprived of
an opportunity to vote, and their votes could not have
affected the results.7
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982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mail ballot elections held in the cases cited by his dissenting col-
league, he notes that they are markedly different from the present
case. In London’s Farm Dairy, 323 NLRB No. 186 (June 20, 1997),
the over-the-road drivers worked out of four locations great distances
apart and had such staggered schedules that manual balloting would
have required two days for the election at each location, with the
polls being open substantially all of both days. Additionally, two of
the locations were substantial distances away from the Board’s Re-
gional Office that was conducting the election. In National Van
Lines, 120 NLRB 1343 (1958), ‘‘because of the nature of their wide-
spread over-the-road driving duties, the eligible voters had places of
employment and residences which were scattered throughout the
United States.’’ Id. at 1344. In Reynolds Wheels International, 323
NLRB No. 187 (June 20, 1997), the employees worked such varying
shifts that it would have been necessary to conduct the election over
3 consecutive days at a location some distance away from the
Board’s Regional Office if a manual ballot election had been held.
Unlike those cases, the manual ballot election here was readily held
in a single day. The employees do not work at such scattered loca-
tions or work such varying schedules as to require the manual ballot
election be held over an extended period. Moreover, the Employer’s
Chicago and Detroit terminals, from which the employees worked
and at which the balloting was conducted, were not located remotely
from the Board’s Regional Offices. Accordingly, under all the cir-
cumstances and the existing Board precedent, Member Brame cannot
agree with his dissenting colleague that the Regional Director erred
in failing to conduct the election by mail ballot.
1 The hearing officer found that the other two drivers who failed
to vote, Edward Walinski and Darrell Wright, were prevented from
doing so because of their driving assignments. Another employee,
Michael Schiring, failed to vote because he was on vacation.
For these reasons, we agree with the hearing officer
that the objections should be overruled and the Peti-
tioner be certified.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Local 299, International Brother-
hood of Teamsters, AFL–CIO and that it is the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time drivers, me-
chanics, dock, yard, and garage employees of the
Employer at its Detroit, Michigan and Chicago,
Illinois terminals; but excluding dispatchers, fleet
maintenance managers, office clerical employees,
trip control clerks, confidential employees, and
guards and supervisors as defined in the Act.
CHAIRMAN GOULD, dissenting.
Contrary to my colleagues, I would sustain the ob-
jections filed by the Employer and Intervenor and set
aside the election on two grounds—(1) the Regional
Director’s refusal to conduct the election by mail, and
(2) the hearing officer’s failure to find that a deter-
minative number of voters were deprived of an oppor-
tunity to vote in the manual election.
The Employer operates a long-haul trucking busi-
ness. From terminals located in Chicago and Detroit,
it makes deliveries to various points throughout the
midwest. Due to the nature of this business which
often causes drivers to be away from the terminals on
long-distance assignments for extended periods, the
Employer requested that the election among the drivers
be conducted by mail ballot. All parties initially agreed
to this arrangement, but after the Petitioner reconsid-
ered and stated its preference for a manual election,
the Regional Director directed a manual ballot at the
Employer’s terminals.
As it turned out, long-distance assignments did re-
sult in the disenfranchisement of four employees from
the manual election which the Petitioner won by 4
votes, 33 to 29. The hearing officer concluded, how-
ever, that with respect to two of the drivers, John
Zanazaro and Richard Craig, it was not their work as-
signments that prevented them from voting; rather, it
was by personal choice that they failed to vote. Ac-
cordingly, because their disenfranchisement was not
caused by the Employer and because the votes of the
remaining two drivers who failed to cast ballots were
not determinative, the hearing officer recommended
overruling the objections and certifying the election re-
sults.1
The hearing officer did not address the objection al-
leging error by the Regional Director in refusing to
conduct the election by mail ballot. I would sustain
this objection and find that it alone warrants setting
aside the election.
As noted above, prior to the election the Employer
requested the Region to conduct a mail ballot because
of concerns that long-distance assignments might dis-
able unit drivers from casting a ballot in a manual
election. This prospect of disenfranchisement has long
been a recognized concern of the Board with respect
to employees engaged in long-distance truckdriving
and was the prime basis for the recent provision of a
mail ballot for over-the-road drivers in London’s Farm
Dairy, 323 NLRB No. 186 (June 20, 1997). See also
National Van Lines, 120 NLRB 1343 (1958). Indeed,
even our Casehandling Manual calls for a mail ballot
in circumstances presented here ‘‘where long distances
are involved, or where eligible voters are scattered be-
cause of their duties.’’ See NLRB Casehandling Man-
ual (Part Two) Representation Proceedings, Section
11336. The only apparent reason for the Region’s re-
fusal to conduct one here was the Petitioner’s backing
out of an all-party agreement to hold the election by
mail. Mail balloting, however, is not conditioned on
unanimous agreement of the parties, see Reynolds
Wheels International, 323 NLRB No. 187 (June 20,
1998) (mail ballot election directed, notwithstanding
the employer’s opposition), and the Region’s acquies-
cence to the Petitioner’s change of position not to hold
one reasonably tended to have the objectionable effect
of causing employees to ‘‘resent the change as some-
thing effectively forced on them by those who initiated
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983COAST NORTH AMERICA (TRUCKING) LTD
2 Glenn McClendon Trucking, 255 NLRB 1304 (1981); Cal Gas
Redding, Inc., 241 NLRB 290 (1979).
3 The hearing officer found that Zanazaro’s and Craig’s driving as-
signments did prevent them from voting in the afternoon voting ses-
sion.
and supported the organizing campaign’’ London’s
Farm Dairy, supra, 323 NLRB No. 186 slip op. at 1
(discussing effect on employees if Region had rejected
petitioner’s request for mail ballot and accepted instead
employer’s offer to change employee work schedules
to accommodate manual balloting). In short, I find the
Regional Director’s refusal to direct a mail ballot was
an abuse of discretion.
This error led directly to what I find constitutes the
second basis for overturning the election results—the
hearing officer’s erroneous conclusion that drivers
Zanazaro and Craig were not prevented from voting in
the manual election by the work assignments made by
the Employer.
When employees are unable to vote because they are
away from the polling place in the normal course of
their duties for their employer, the Board will set the
election aside if the employees’ votes are determina-
tive.2 Applying this precedent here, I find that the elec-
tion clearly must be set aside. On the day before the
election, Zanazaro and Craig were assigned long-dis-
tance runs from which they did not return until late
that night. After completing necessary paperwork,
Zanazaro left for home at 10 p.m. and Craig went
home at 11 p.m. Zanazaro’s departure time for his next
day’s assignment was 8 a.m. and Craig’s was 9 a.m.
Both departure times were dictated by Federal law and
the Employer’s past practice which together mandated
a 10-hour layoff between driving assignments—8
hours to rest as required by Department of Transpor-
tation (DOT) safety regulations and an additional 2
hours of commuting time between the terminal and
drivers’ homes which the Employer allows to ensure
that drivers obtain the federally mandated rest between
runs. In accordance with these provisions, both drivers
did not arrive for work on election day until after the
close of the 4 - 7 a.m. polling period and neither re-
turned from their runs that day until after the close of
the 4 - 7 p.m. polling period.
On these facts, my colleagues affirm the hearing of-
ficer’s conclusion that because Zanazaro and Craig
were off duty and in the vicinity of the polling place
during the 3-hour morning polling session, their work
assignments did not prevent them from voting and,
hence, their failure to do so was not objectionable.3
This is absurd. Yes, Zanazaro and Craig were off duty
and in the vicinity of the polling place—they were
home sleeping where they should have been pursuant
to Employer’s 2-hour commuting policy and the man-
datory 8-hour rest period set forth in DOT’s regula-
tions covering drivers employed by commercial motor
carriers like the Employer! See 49 CFR § 395.3. The
obvious purpose of this 8-hour rest period is to ensure
that:
No driver shall operate a commercial motor vehi-
cle . . . while the driver’s ability or alertness is
so impaired, through fatigue . . . as the make it
unsafe for him to begin or continue to operate the
commercial motor vehicle. 49 CFR § 392.3.
Had Zanazaro and Craig arrived at the terminal by 7
a.m. to vote, as the hearing officer required, they
would have violated the Employer’s commuting policy
and the federal regulatory layoff requirements, thereby
endangering not only their own safety but that of the
traveling public as well. I cannot endorse the potential
for such a result and neither should any Board mem-
ber. By staying home to rest rather than getting up
early to vote, Zanazaro and Craig simply followed the
layoff rules applicable to them—rules which comprised
as valid a part of their overall employment obligations
as driving a truck. Their inability to cast ballots, there-
fore, was not their fault and as their votes, combined
with those of Wright and Walinski who were
disenfranchised because of their driving assignments,
were determinative of the election results, the election
must be set aside.
In sum, there are two independent grounds which I
find warrant setting aside the election—the failure to
conduct the election by mail and the disenfranchise-
ment of four eligible voters whose votes in the manual
election were determinative. Accordingly, I dissent
from my colleagues’ refusal to sustain the objections
and set aside the election.
APPENDIX
Hearing Officer’s Report on Objections to Conduct
Affecting the Results of the Election with Findings and
Recommendations
Pursuant to a petition filed by Local 299, International
Brotherhood of Teamsters, AFL–CIO (Petitioner) on April 1,
1997, and pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 7 of the National
Labor Relations Board on May 8, 1997, an election by secret
ballot was conducted on June 5, 1997, under the direction
and supervision of the Regional Director in the following
unit of employees:
All full-time and regular part-time drivers, mechanics,
dock, yard and garage employees of the Employer at its
Detroit, Michigan and Chicago, Illinois terminals; but
excluding dispatchers, fleet maintenance managers, of-
fice clerical employees, trip control clerks, confidential
employees, and guards and supervisors as defined in the
Act.
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984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Accordingly, any failure to completely detail all conflicts in evi-
dence does not mean conflicting evidence was not considered. Walk-
er’s, 159 NLRB 1159 (1966).
2 The Employer, by letter dated June 16, 1997, advised Region 7
that it joined in the objections filed by the Intervenor.
The results of the election were as follows:
Approximate number
of eligible voters
68
Void ballots 0
Votes Cast for the
Petitioner
33
Votes Cast for the
Intervenor
29
Votes cast for neither
Intervenor nor
Petitioner
0
Valid votes counted 62
Challenged ballots 0
Valid ballots counted
plus challenged
ballots
62
On June 16, 1997, the Intervenor timely filed objections
to conduct affecting the results of the election, a copy of
which was served upon the Petitioner and the Employer.
Following investigation of the issues raised by the objec-
tions, the Acting Regional Director for Region 7 issued a Re-
port on Objections and notice of hearing on June 27, 1997.
The Acting Regional Director concluded therein that the ob-
jections involved substantial questions of fact and credibility
which could best be resolved on the basis of evidence devel-
oped at hearing. The notice of hearing further provided that
the hearing officer prepare and cause to be served on the par-
ties a report containing resolutions of witness credibility,
findings of fact, conclusions of law, and recommendations to
the Board concerning the disposition of the issues involved
herein. A hearing was held before me on July 9, 1997, in
Chicago, Illinois. The Employer, Intervenor, and Petitioner
were represented and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded
to all parties. The findings of fact and credibility resolutions
contained herein are based upon my consideration of the en-
tire record and upon my observations of the testimony and
demeanor of witnesses. All testimony has been reviewed and
evaluated in light of the demeanor of witnesses, the logical
probability of testimony, and the record as a whole. Where
any witness has testified in contradiction to the findings
herein, his testimony has been discredited as being either in
and of itself not worth credence or because it conflicted with
the weight of other credible evidence.1
The Objections
As provided in the notice of hearing on objections herein,
the objections filed by the Intervenor2 raised two related ob-
jections. The Intervenor objects to the election on the
grounds that five eligible employees were not given the op-
portunity to vote in the election, a number sufficient to affect
the results of the election; and in regard to at least four of
the employees, the Employer caused those employees to miss
the opportunity to vote. Testimony and documents were pre-
sented relating to the alleged disenfranchisement of the eligi-
ble voters and to the Employer’s actions which ostensibly led
to such disenfranchisement. None of the unit employees were
presented for testimony.
The Law
It is the Board’s responsibility to establish the proper pro-
cedure for the conduct of its elections, which procedure re-
quires that all eligible employees be given an opportunity to
vote. Alterman-Big Apple, Inc., 116 NLRB 1078, 1080
(1956). Where the conduct of a party to the election causes
an employee to miss the opportunity to vote, the Board will
find that to be objectionable if the employee’s vote is deter-
minative and the employee was disenfranchised through no
fault of his or her own. Sahuaro Petroleum, 306 NLRB 586
(1992); Versail Mfg., 212 NLRB 592, 593 (1974). When an
employee is prevented from voting by reason of sickness or
some other unplanned occurrence beyond the control of a
party or the Board, the inability to vote is not a basis for set-
ting aside the election. Id. The burden is on the objecting
party, in this case the Employer and the Intervenor, to come
forward with evidence in support of its objection. Campbell
Products Dept., 260 NLRB 1247 (1982). It is well estab-
lished that where employees are prevented from casting de-
terminative ballots in an election because they are away from
the polling place in the normal course of their duties for the
employer, thereby having no opportunity to cast their ballots
through no fault of their own, it is proper to set the election
aside. Yerges Van Lines, 162 NLRB 1259 (1967); Alterman-
Big Apple, Inc., 116 NLRB 1078 (1956). In Yerges, the
Board found that the employee driver at issue had been as-
signed a route far away from the polling place at the time
of the election. The driver was away from the polling place
in the normal course of his duties for the Employer through
no fault of his own. As his vote could have affected the elec-
tion results in the unit of only two eligible voters, the Board
set aside the election. In Versail Mfg., 212 NLRB 592
(1974), however, the absence of an eligible over the road
driver was held to be insufficient reason to set aside the elec-
tion. This driver was assigned a route which kept him away
from the Employer’s facility for 2 or 3 days. The driver vis-
ited friends during his route, leaving his trailer unattended.
When the driver returned to the location at which he had left
the trailer, in what he thought was time enough for the return
trip and voting, the trailer was missing. It took the driver an
extra day to enlist the aid of the state police in an attempt
to locate the missing trailer. Stating that the driver’s inability
to vote was caused by the personal frolic outside the normal
course of his duties, rather than the fault of any party or any
unfairness in scheduling or the mechanics of the election, the
Board did not set aside the election. Id at 593.
Facts
At hearing, only one witness, Joseph Starmach, Chicago
terminal manager, was presented. Through his testimony and
certain documents identified by Mr. Starmach, the following
facts were established. Starmach is in charge of the daily op-
erations of the Chicago terminal. The drivers at the Chicago
terminal are assigned work on a ‘‘first in, first out’’ basis
without regard to seniority. (Tr. 9–10.) A driver’s route is
determined by the order in which the drivers return to the
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985COAST NORTH AMERICA (TRUCKING) LTD
terminal on the preceding run. Those first to punch out after
their route on one day, receive the first routes assigned for
the next day. The driver will pick up the following day’s
work assignment when they punch out for the day. (Tr. 10.)
This method of assigning work accommodates the Depart-
ment of Transportation regulation requiring that over-the-
road drivers receive at least an 8-hour break between runs.
(Tr. 11.) The Employer has implemented a policy of requir-
ing 10 hours between runs due to the distance most drivers
live from the terminal. (Tr. 11.) The additional 2 hours are
adjustments for the drivers’ travel time to and from the ter-
minal. (Tr. 12.) Thus if a driver punches out at 10 p.m., he
may not perform another run until at least 8 a.m. the follow-
ing day.
Drivers are routinely allowed to switch routes with each
other or take time off upon request as long as the Employer’s
10-hour rule is met and a replacement driver is available.
(Tr. 10–11.) The Employer uses casual drivers to supplement
its regular work force in case of illness or to accommodate
time off requests by the drivers. (Tr. 32.) At the time of the
election and for 2 to 3 weeks preceding the election, the Em-
ployer had no casual drivers in its employ. (Tr. 32–34, 77.)
On the day of the election, two drivers called in sick and an-
other was on vacation. The election was held on June 5,
1997, from 4 to 7 a.m. and from 4 to 7 p.m. (Tr. 13.)
One of the five drivers identified by the Intervenor’s ob-
jections, Michael Schiring, was on a hunting trip during the
week of the election. (Tr. 13–14.) This trip was prepaid prior
to the direction of election, and Schiring did not vote in the
election. (Tr. 28.) According to Starmach, Schiring expressed
an interest in obtaining an absentee ballot, however, there
was no provision for an absentee or mail ballot in this elec-
tion. (Tr. 27.)
Testifying from Petitioner’s exhibits 1 through 11 and In-
tervenor’s exhibit 1, Starrnach reviewed the runs assigned to
the remaining four drivers whose opportunity to vote is at
issue. According to the testimony and the documentary evi-
dence, Edward Walinski left the Chicago terminal on June 2,
1997, and had an unplanned delivery delay in Detroit.
Walinski unloaded at 9 a.m. and was also late in his second
delivery which was made on June 5 at 6 a.m. Walinski’s
June 5 delivery was in Fargo, 630 miles away from the Chi-
cago terminal. Thus, leaving the Fargo terminal at 7 a.m. and
driving straight to the Chicago terminal, Walinski would
have missed the polling period. Walinski was assigned an-
other run from Fargo and arrived back in Chicago on June
6, 1997. (Tr. 18; P. Exh. 4.) Therefore he was away from
the terminal, performing his normal work assignments for the
Employer during the entire polling period and beyond.
Walinski requested a trade in assignments, but due to a lack
of casual drivers and the vacationing and sick drivers, there
was no one to take Walinski’s assignment.
Darrel Wright was also away from the Chicago terminal
during the polling periods held on June 5, 1997. Wright ar-
rived at the terminal at 5 p.m. on June 3 and punched out.
He was assigned a 2:30 a.m. start for June 4 and returned
to the terminal at 3:30 p.m. the same day. (P. Exh. 10. Tr.
24, 72.) On June 5, Wright began his run at 2 a.m. to make
a delivery in Minnesota by noon. Wright arrived at his des-
tination at ll:50 a.m. on June 5 and left the stop at 1:15 p.m.
Wright was 457 miles from the Chicago terminal and could
not have returned in time for the afternoon polling period.
(Tr. 25; P. Exh. 11.) Wright then took his layover and con-
tinued on a run to Oregon. Wright was also away from the
polling place in the course of his normal duties for the Em-
ployer, through no fault of his own.
Richard Craig ended his shift on June 4 at 10:58 p.m. (P.
Exh. 6; Tr. 22, 66. Craig picked up his paperwork showing
his June 5 start time of 9 a.m. (P. Exh. 7. Craig returned to
the terminal on June 5, after the morning polling session was
over and requested a trade of his run so that he would be
able to vote in the afternoon session. (Tr. 23.) No trade was
available, so Craig made his run and returned to the Chicago
terminal the day after the election.
John Zanazaro ended his run on June 4 at 9:40 p.m. and
picked up his papers with a start time for 8 a.m. the follow-
ing day. (Tr. 19; P. Exh. 2. On the morming of June 5,
Zanazaro made a request to trade runs so that he could vote
in the afternoon polling period, but no trade was available.
(Tr. 20–21.) Craig made his run to Iowa and Oregon and re-
turned to the terminal at 9 p.m. on June 5. (Tr. 21, 46; P.
Exh. 3.)
Analysis
In the case of both John Zanazaro and Richard Craig,
these drivers were in the area of the Chicago terminal and
polling place throughout the 3-hour morning polling period.
Craig returned to the terminal at about 11 p.m. the evening
before the election and knew that he had an 9 o’clock start
time the following morning. Zanazaro arrived at the terminal
before 11 p.m. the evening before the election and knew his
start time was 9 a.m. the following morning. (Tr. 30.) So for
the first polling period from 4 to 7a.m. on June 5, both
Zanazaro and Craig were off duty and in the area of the poll-
ing place. (Tr. 46.)
In Versail Mfg., 212 NLRB 592 (1974), the Board de-
clined to set aside the election because the employee was
prevented from voting by personal activities away from the
polling place which were outside the nommal scope of his
employment. See also Berryfast, Inc., 265 NLRB 82 (1982)
(eligible employee’s own conduct was instrumental in her
not voting). Such is the case here. Michael Schiring, who
was on vacation at the time of the election, was clearly not
prevented from voting by the action of any party. Although
work assignments did keep Zanazaro and Craig away from
the polling place for the afternoon sessions, they both could
have voted in the moming sessions. They were both aware
of the start time assigned to them the evening before the
election and could have chosen to vote in the 4 to 7 a.m.
session. Both drivers had at least 10 hours’ notice that they
were assigned runs which would keep them away from the
polling place during the afternoon session. Even assuming
that the drivers were accustomed to easily trading runs to ac-
commodate their personal schedules, neither had the foresight
to eliminate any risk of missing the election and come to the
morning polling period Instead, each chose to risk not being
able to switch runs and consequently were unable to vote.
Since only employees Wright and Walinski were away
from the polling place in At, the course of their employment
for both the morning and afternoon sessions, through no fault
of their own, and their two votes could not make a difference
in the outcome of this election, I shall recommend that the
Petitioner’s and Employer’s objections be overruled.
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986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Exception must be received by the Board in Washington, D.C.,
by October 22, 1997.
Conclusion and Recommendation
Based on the foregoing, I recommend that the Employer
and Intervenor’s objection regarding the disenfranchisement
of eligible voters be overruled and a certification of rep-
resentative issue.3
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