Davis & Newcomer Elevator Co.

National Labor Relations Board - Board Decisions

Dec 12, 1994

315 N.L.R.B. 715 (N.L.R.B. 1994)

715
315 NLRB No. 104
DAVIS & NEWCOMER ELEVATOR CO.
1 We adopt the Regional Director’s recommendation that the Em-
ployer’s Objections 2 through 6 be overruled.
2 The Regional Director also noted that, at the time the identifica-
tion stub was received, it could not be determined that it had been
separated from the ballot, half received several days before. We find,
however, that this uncertainty does not justify the failure to furnish
Kurtz with a replacement election kit. Thus, although there may
have been some doubt about whether the stub and the ballot be-
longed together, there was no doubt about the stub, which was iden-
tified by case and key number. Since the stub was detached and un-
signed, whatever ballot it had once been associated with was void
and known to be void. At that point, the source of the separated bal-
lot in the Region’s possession was immaterial to a decision to send
a duplicate to Kurtz.
Davis & Newcomer Elevator Co. and International
Union of Elevator Constructors, AFL–CIO.
Case 8–RC–15018
December 12, 1994
DECISION AND ORDER REMANDING
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
conducted by mail from March 28, 1994, until April
15, 1994, and the Regional Director’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement.
The Board has reviewed the record in light of the
exceptions and briefs and has adopted the Regional Di-
rector’s findings and recommendations only to the ex-
tent consistent with this decision.1
A mail ballot election was conducted from March
28 until April 15, 1994. The tally of ballots issued on
April 18, 1994, indicates that of approximately eight
eligible voters, seven cast ballots, of which four were
cast for and three against the Petitioner. There was one
void ballot. The Employer alleged in its Objection 1,
inter alia, that sufficient time existed following receipt
of the void ballot in the Regional Office for the elec-
tion clerk to send a duplicate election kit to the voter
who cast the void ballot according to the procedure
outlined in the Board’s Casehandling Manual. The Re-
gional Director recommended overruling Objection 1,
and the Employer excepted to the recommendation.
For the reasons set forth below, we find merit in the
Employer’s exceptions.
On March 28, the Regional Office mailed an elec-
tion kit to each eligible voter on the election eligibility
list. On April 1, the Regional Office received only the
ballot portion of a mail ballot envelope. The identifica-
tion stub, containing the case number, the signature
line for the voter’s signature, and the ‘‘key’’ number
corresponding to the employee’s name on the eligi-
bility list was not attached. ‘‘Several days later,’’ the
Regional Office received an unsigned identification
stub containing the case number and key number.
Using the key number and the eligibility list, the elec-
tion clerk determined that the stub came from the bal-
lot of employee Daniel Kurtz. No duplicate election kit
was sent to Kurtz.
On April 18, the ballots were counted at the Re-
gional Office. As noted above, there were approxi-
mately eight eligible voters. Of the seven ballots
counted, four were cast for, and three against, the Peti-
tioner. The Board agents voided the remaining ballot
of Kurtz because the identification stub had been sepa-
rated, and the stub was unsigned. When the Employ-
er’s representatives arrived at the Regional Office after
the count, the Board agents informed them that the
Kurtz ballot was ‘‘in two pieces,’’ and that it had been
voided because the stub was unsigned. With Kurtz’
ballot voided, the Petitioner was certified based on the
four to three tally.
Standard procedure set forth in Casehandling Man-
ual Section 11336.4 requires the election clerk to send
duplicate election kits to employees failing to sign
their ballots ‘‘if sufficient time remains before the
deadline.’’ The Regional Director found that the failure
to send Kurtz a second election kit in these cir-
cumstances was no more than a ‘‘minor deviation’’
from this procedure. We disagree.
The Regional Director found that the unsigned iden-
tification stub was received by the Regional Office
‘‘several days’’ after the April 1 receipt of the void
ballot. The election clerk then determined, based on
the key number revealed on the stub, that the stub be-
longed to voter Kurtz. Although the Regional Director
also found that the precise date the stub was received
was uncertain, there is no basis to dispute the fact that
there was sufficient time left for the Regional Office
to have furnished Kurtz with a duplicate election kit,
as required by the Board’s casehandling procedures, in
time to meet the April 15 deadline for the return of the
ballots to the Regional Office.2 Failing to do so in the
circumstances of this case was not a ‘‘minor’’ error,
because it could be determinative of whether the Union
won the election.
Thus, if Kurtz was an eligible voter, this error would
require that the election be set aside. At the April 18
ballot count, however, the Petitioner was prevented
from challenging Kurtz’ ballot because the ballot was
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
declared void. Subsequent to the count, the Petitioner
submitted a written challenge to Kurtz’ ballot, in the
event that the Board should uphold the Employer’s ob-
jection and reverse the Regional Director’s decision to
void his ballot. The Petitioner has challenged Kurtz’
eligibility on the grounds that he is a spouse of a cor-
porate officer. In light of our decision herein, it is now
necessary to determine if Kurtz is an eligible voter in
order to determine if the Region’s failure to send him
a duplicate ballot warrants setting aside the election.
Accordingly, we remand the case to the Regional Di-
rector for resolution of this challenge.
ORDER
The case is remanded to the Regional Director for
determination of the Petitioner’s challenge to the ballot
cast by Daniel Kurtz.