Howard Johnson Co.

National Labor Relations Board - Board Decisions

Nov 20, 1975

221 N.L.R.B. 542 (N.L.R.B. 1975)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Johnson Company and Minneapolis Local Joint Executive Board of Hotel, Restaurant Employees and Bartenders Union, Locals 152, 458 and 665, AFL-CIO, Petitioner . Case=, 18-RC- 10410 November 20, 1975 DECISION AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered determinative challenges in an election held on May 16, 1975,1 and the Regional Director's Report recommending dispo- sition of the same. The Board has reviewed the record in the light of exceptions and supporting brief and hereby adopts the Regional Director's findings and recommendations. DIRECTION It is hereby directed that, as part of his investiga- tion to ascertain the representative for the purposes of collective bargaining with the Employer, the Regional Director for Region 18 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots cast by Rozelma Graves, Dorothy Benham, and Jon Pope and thereafter cause to be served on the parties a revised tally of ballots, including therein the count of said ballots. Thereafter, the Regional Director shall proceed in accordance with the Board's Rules and Regulations. CHAIRMAN MURPHY, dissenting: I respectfully dissent from my colleagues' adoption of the Regional Director's recommendation to count the ballot of Jon Pope, whose ballot was challenged because he appeared to vote approximately 5 minutes after the closing of the polls. With respect to Pope's voting late, the Regional Director's investigation turned up the following facts. There were two voting periods set up for the May 16 i The election was conducted pursuant to a stipulation for certification upon consent election The tally was 8 for and 10 against the Petitioner. There were three challenged ballots, a sufficient number to affect the results of the election . As no exceptions were filed thereto, the Regional Director's recommendations overruling the challenges to Rozehna Graves and Dorothy Benham are adopted pro forma. The ballot of Jon Pope was challenged by the Petitioner on the ground that he was a casual employee and by the Board agent because he appeared to vote after the polls had closed The Regional Director rejected both grounds for the challenge in overruling it The Employer excepts only to the Regional Director 's finding that the challenge be overruled because Pope appeared to vote after the polls closed . In the absence of exceptions , the Regional Director's finding that Pope was not a casual employee is adoptedpro forma. 221 NLRB No. 110 election-the first between 10 and 11 a.m., and the second between 5 and 6 p.m. Pope, who was employed part time while attending school, admit- tedly knew of the scheduled voting' times. However, he stated that, he could not attend the first session because he was in school, and that after school he became preoccupied with his theatre group and did not think of the election until 5:45 p.m. At that time, he called the restaurant to request a ride. By the time his ride arrived to pick him up from school and delivered him to the restaurant, it was already 6 p.m. The Regional Director further found that it was approximately 6:05 before Pope actually appeared in the voting area to vote. By that time, the Board agent had already closed the polls and the parties were preparing for the counting of the ballots, although the ballot box had not yet been opened. The Board agent attempted to get the parties to agree to permit Pope to vote after the official closing of the polls, but the Union objected and the Employer suggested that he vote under challenge. Consequently, the Board agent permitted Pope to vote a challenged ballot. After setting forth the Board's standards for determining eligibility of late voters to vote,2 the Regional Director reasoned that "while it is clear that Pope was late due to his own negligence and that ample time was allowed for all voters to cast their ballots, the important considerations herein are that Pope arrived only a few minutes late, the ballot box had not been opened, and, without question, his ballot could significantly affect the results of the election." I disagree with the Regional Director's application of these standards to the facts here. Although recognizing that the Board's first criteri- on in making a determination on a late voter's challenged ballot is the reason the employee has for appearing late for the polls, and specifically noting that Pope was late due to his own negligence, the Regional Director nonetheless considered this factor to be outweighed by the presence of the other considerations described above. However, it appears from a review of the Board's cases in this area that in those cases in which the Board has ruled a late voter eligible, the late voter had some valid and reasonable excuse for being late.3 2 Including : (I) The reason the employee was late; (2) how late the employee was; (3) how long the voting penod was ; and (4) whether the ballot box was opened and the tally commenced at the arrival of the employee. 3 See, e.g., Hanford Sentinel, Inc. d/b/a Hanford Sentinel, 163 NLRB 1004 (1967) (where two employees sought to votejust prior to the opening of the brief 15-minute polling penod, were turned away by the Board agent as being too early , went on to a nearby darkroom to develop some film as part of their regular work duties , then returned to vote at which time they were told by the Board agent that they were too late); Westchester Plastics of Ohio, Inc, 165 NLRB 219 (1967), enfd 401 F 2d 903 (C.A 6, 1968) (where a regular part-time employee appeared 1 minute late at the polls because in his full-time job as a city fireman, he had to get permission and a HOWARD JOHNSON CO. 543 I think that is the way it should be and that this factor should be a sine qua non to counting a late voter's ballot. For under the standards applied by the Regional Director here, every employee who appears to vote before the ballot box is opened would be entitled to have his vote counted if it subsequently were found to be determinative 4 In addition to being administratively difficult to apply, such a rule would effectively extend the voting period to the chance moment when the ballot box is opened. That in turn would predictably generate incentives for the parties to attempt to delay the Board agent's opening of the ballot box and generally create a circus atmosphere at this critical time in the election process. Besides, absent circumstances showing that the voter had good reason to be late or that the voting period was too short, I believe that strict adherence should be given to the time limit set for the voting to take place. For all the above reasons, I would not count the challenged ballot of late voters where they have no reasonable excuse for their tardiness , and since it is clear that Pope had no reasonable excuse for being late here, I must dissent from my colleagues' adoption of the Regional Director's recommendation to count Pope's ballot. replacement before he could leave to vote, the voting period was only 15 minutes, and the individual needed transportation to the polls) Inversely , the Board has consistently ruled late voters ineligible where they had no reasonable excuse for appearing late. See, e.g, Bancroft Manufacturing Company, Inc., et al, 210 NLRB 1007 (1974); Groendyke Transport, Inc and Ann Myers Bell d/b/a Bell Transport Company, 204 NLRB 96 (1973), Dornback Furnace & Foundry Company, 115 NLRB 350 (1956). 4 1 also agree with the Employer that the determination of the validity of the ballot should not be affected by the closeness of the vote or whether the challenged ballot could have been determinative . Either the circumstances are such that the ballot should be counted, or they are not. Either way, the determination should be made on the merits, not on considerations such as the closeness of the vote or whether the ballot would be determinative, both of which I deem to be irrelevant to this issue Hence, to the extent that prior Board decisions in this area may have turned on those considerations, I would not follow them.