Lane Aviation Corp.

National Labor Relations Board - Board DecisionsNov 28, 1975

221 N.L.R.B. 898 (N.L.R.B. 1975)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lane Aviation Corporation and Teamster Union, Local No. 413, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers - of America, Petitioner. Case 9-RC-10185 November 28; 1975 SECOND SUPPLEMENTAL DECISION AND DIRECTION OF RUNOFF ELECTION Pursuant, to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer takes exception to the Regional Director's recommendation to use a current eligibili- ty payroll period, contending that the Board should not deviate from, the usual practice in runoff elections, as set out in Section 102.70 of the Board Rules and Regulations, Series 8, as amended, which states: BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 18, 1975, the Board issued a Supplemental Decision and Direction' in the above-entitled pro- ceeding in which it directed the Regional Director to open and count the challenged ballots of John Zaros and William Johnson, to prepare and serve on the parties a revised tally of ballots, and to conduct a hearing with respect to the issues raised by the challenge to Motice Smith's ballot, if the revised tally showed that his ballot was still determinative. A revised tally issued on June 27, 1975, showing that Motice Smith's ballot was still determinative. Thereafter, the parties entered into a stipulation for resolution of challenged ballot, approved by the Acting Regional Director on July 29, 1975, by which they agreed that Smith was eligible to vote, that his ballot be opened and counted, that a revised tally of ballots be issued, and that the hearing with respect thereto be waived. The revised tally, issued on August 1, 1975, showed that, of approximately 29 eligible voters, 24 ballots were cast, of which 12 were for the Petitioner and 12 were for the Intervenor, Idea and Development Council. On September 10, 1975, the Regional Director issued a Supplemental Report on Election and Recommendations to the Board, in which he recom- mended that, inasmuch as the ballots cast were divided equally between the Petitioner and the Intervenor, the Board direct a runoff election. He further recommended that, because of the long period of time which has passed since the original election of July 31, 1974, and the likelihood of substantial turnover in unit personnel, a current eligibility payroll period be used to determine those employees eligible to vote in the runoff election. Thereafter, the Employer filed timely exceptions to the Regional Director's report. 1 218 NLRB No. 31. Employees who were eligible to vote in the election and who are in an eligible category on the date of the runoff election shall be eligible to vote in the runoff election. We find merit in the Employer's exception. The Regional Director, in making his recommen- dation, cites the Board's decision in The Interlake Steamship Co., a Division of Pickands Mather & Co., 178 NLRB 128 (1969). In that case the original election had taken place on June 25, 1967, and a runoff election had been held on May 20, 1968, using the initial eligibility date. That, decision issued on August 15, 1969. There the Board reaffirmed a previous ruling that a new runoff `election should be held, based on the intervenor's objections, and also reaffirmed the ruling that a current eligibility date should be used. The Board reiterated that the long period of time since the original election (some 26 months), and the seasonality of the employer's shipping business, presented the likelihood of sub- stantial employee turnover, so that a current eligibili- ty period would provide a more representative vote for unit employees. We find that the 13 months that elapsed between the original election and the issuance of the Regional Director's supplemental report are insufficient to bring this case within the Interlake exception to the ordinary practice of using the prior eligibility period in runoff elections. Moreover although the Regional Director also finds a likelihood of substantial employee turnover, there is no evidence in the record before us to substantiate such a conclusion. As none of the choices on the ballots received a majority of the valid ballots cast, we shall direct a runoff election. [Direction of Runoff Election omitted from publi- cation.] 221 NLRB No. 154