Monte Vista Disposal Co

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 531 (N.L.R.B. 1992)

531
307 NLRB No. 93
MONTE VISTA DISPOSAL CO.
1 The name of the Petitioner has been changed to reflect the new
official name of the International Union.
2 The Regional Director also recommended that the Employer’s
objections be overruled. In light of our disposition of the challenged
ballots, we find it unnecessary to pass on the Employer’s objections.
Monte Vista Disposal Co. and Teamsters Auto-
motive, Industrial & Allied Workers, Local
495, International Brotherhood of Teamsters,
AFL–CIO,1 Petitioner. Case 31–RC–6719
May 15, 1992
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
The National Labor Relations Board has considered
objections to, and determinative challenges in, an elec-
tion held September 13, 1990, and the Regional Direc-
tor’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The tally of ballots shows 3 for and
4 against the Petitioner, with 2 determinative chal-
lenged ballots.
The Regional Director recommended that the chal-
lenges to the ballots and the Employer’s objections to
the election be overruled, and that the challenged bal-
lots be opened and counted. The Board has reviewed
the record in light of the Employer’s exceptions and
brief and has adopted the Regional Director’s factual
findings; but, contrary to the Regional Director’s rec-
ommendation, it has decided to sustain the challenges
and, as a consequence, to certify the results of the
election.
I.
The election was held in the Employer’s shop area
from 3 to 4 p.m. The polling area provided a clear
view of the street, which was 50 feet away. At about
3:58 p.m., a car containing employees Vasquez and
Romero parked at the curb about 50 feet from the en-
trance to the polling area. The Petitioner’s observer ran
out of the polling area toward the car, shouting in
Spanish and waving his arms. A car containing two
Petitioner representatives pulled up, and the four men
began walking to the polling area together. At this
point, the Employer’s observer asked the Board agent
the time. The Board agent replied that it was 4 p.m.
and that the polls were closed. The Employer’s counsel
witnessed the approach of the four men, who arrived
at the polling area at 4:02 p.m. The Board agent al-
lowed Vasquez and Romero to cast challenged ballots.
The Employer contended that the challenges to the
ballots of Vasquez and Romero should be sustained
because the polls were closed when they voted. The
Employer also filed objections to the election based on
the Petitioner’s observer’s shouting and waving at the
two employees and based on the conversation between
the two employees and the Petitioner representatives
while walking to the polling place.
The Regional Director, although recognizing that
Vasquez and Romero had no legitimate excuse for ap-
pearing late, also observed that they were only a few
minutes late and that the ballot box had not been
opened. Citing New England Oyster House, 225 NLRB
682 (1976), the Regional Director stressed that the
Board’s policy is to rely on the reasonable and sound
discretion of the Board agent and the Regional Direc-
tor in determining whether late voters should be al-
lowed to cast their ballots. Additionally, the Regional
Director noted that the Board’s policy is also to afford
employees the broadest possible participation in elec-
tions. Accordingly, the Regional Director rec-
ommended that the challenges be overruled and that
the ballots be opened and counted.2
In its exceptions, the Employer contends that the
Regional Director failed to follow cases according fi-
nality to the hours specified for Board elections. The
Employer argues that employees who arrive late at the
polls because of their own negligence should not be
permitted to vote.
We find merit in the Employer’s exceptions. For the
reasons discussed below, we have decided to overrule
New England Oyster House, supra, to sustain the chal-
lenges to the employees’ ballots, and to certify the re-
sults of the election. Before setting forth our new rule,
we shall first examine existing Board precedent in this
area.
II.
For many years, the case law appeared to center on
the issue of whether the late-arriving employee had a
reasonable excuse for his tardy appearance at the polls.
Thus, where the employee had a valid reason for arriv-
ing late, the Board generally counted the employee’s
ballot. For example, in Glauber Water Works, 112
NLRB 1462, 1463–1464 (1955), the Board upheld a
Board agent’s reopening of the polls to permit the cast-
ing of ballots by six employees, five of whom worked
part-time and were unable to leave their other jobs
while the polls were open. One Board Member dis-
sented, arguing that ‘‘departures from the scheduled
voting time [should] be rigidly limited and permitted
only under truly unusual circumstances.’’ Id. at 1465.
In Hanford Sentinel, 163 NLRB 1004 (1967), the
Board held that a Board agent should not have refused
to accept the ballots of two employees who appeared
to vote immediately after the polls closed. The two
employees, whom the Board agent had not permitted
to vote just before the polling period began, worked
during the brief 15-minute election and returned to the
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
polls shortly after the polls were declared closed. In
Westchester Plastics of Ohio, 165 NLRB 219 (1967),
enfd. 401 F.2d 903, 908–909 (6th Cir. 1968), the
Board upheld a Board agent’s acceptance of the ballot
of a part-time employee who arrived to vote 1 minute
after the polling period ended. The employee arrived
late because he was working at his other job during the
election, needed to provide a replacement for himself
while he was out voting, and needed to obtain trans-
portation to and from the polling place.
In other cases, where the Board determined that an
employee lacked a sufficient reason for appearing late,
the Board generally sustained the challenge to the em-
ployee’s ballot. Thus, in Dornback Furnace & Found-
ry Co., 115 NLRB 350, 352–353 (1956), the Board
upheld a Board agent’s refusal to allow the casting of
a late ballot where the employee’s excuse was merely
that he mistakenly believed he would be called to vote.
In Bell Transport Co., 204 NLRB 96, 98 (1973), enfd.
sub nom. Groendyke Transport, 493 F.2d 17 (5th Cir.
1974), the Board refused to count the challenged ballot
of the union’s election observer who simply forgot to
vote during the polling period and did not attempt to
vote until the tallying of the ballots was completed. In
Bancroft Mfg. Co., 210 NLRB 1007, 1012 (1974),
enfd. 516 F.2d 436 (5th Cir. 1975), the Board upheld
a Board agent’s refusal to allow several employees,
who were approaching the polling area as he an-
nounced the polls were closed, to vote. The case re-
veals no legitimate excuse for their late arrival. In
Wanzer Dairy, 232 NLRB 631 (1977), the Board
upheld a Board agent’s refusal to accept a ballot from
an employee who was 1 hour and 20 minutes late to
vote, finding that the bad weather which delayed the
employee’s arrival was ‘‘not at all unusual.’’ Id. at
632.
This line of case law was summarized by an admin-
istrative law judge, with Board approval, in Bell
Transport, supra. The judge stated that ‘‘[w]hether a
voter may be permitted to cast a ballot after the polls
have closed is left to the reasonable discretion of the
Board and its agent conducting the election.’’ 204
NLRB at 98. The judge explained that the Board ex-
amines four factors, and the first one the judge listed
was ‘‘[t]he reason the employee was late.’’ The other
three were: (a) ‘‘how late the employee was’’; (b)
‘‘how long the voting period was’’; and (c) ‘‘whether
the ballot box was opened or the tally commenced at
the arrival of the employee.’’ Id.
Shortly after Bell Transport was decided, however,
a new line of case law began to develop. In Howard
Johnson Co., 221 NLRB 542 (1975), a panel majority
adopted a Regional Director’s report recommending
the counting of a ballot cast by an employee who was
5 minutes late arriving at the polls ‘‘due to his own
negligence.’’ Chairman Murphy dissented, arguing that
the majority had departed from precedent requiring the
late voter to have some reasonable excuse if his ballot
is to be counted.
The rationale underlying Howard Johnson was ex-
plicated the following year in New England Oyster
House, 225 NLRB 682 (1976). In that case, an em-
ployee arrived 2 or 3 minutes late at the polls because
he ‘‘lost track of the time.’’ The panel majority adopt-
ed the Regional Director’s recommendation that the
employee’s ballot be counted. Citing Bell Transport,
supra, and Glauber Water Works, supra, the Board ex-
plained that its practice is ‘‘to rely on the reasonable
and sound discretion of the Board agent and the Re-
gional Director as to whether a particular employee
. . . should be permitted to cast a ballot . . . .’’ The
Board continued as follows:
Employees in these circumstances are usually per-
mitted to vote if the polls are not closed and/or
the ballot box has not been opened. This . . . .
comports with a fundamental policy of the Act to
afford employees the broadest possible participa-
tion in Board elections. Indeed a rule that requires
an employee to sacrifice his franchise under Sec-
tion 7 of the Act if he does not have reasonable
excuse for being late is too procrustean for the
Board to adopt in this time and at this date. 225
NLRB 682.
Chairman Murphy again dissented, reasserting her
view that under Board precedent an employee’s ballot
should not be counted if the employee lacks a valid
reason for arriving late at the polls.
Just 1 year later, a split Board held that an employee
had indeed ‘‘sacrifice[d] his franchise’’ by arriving at
the polls minutes after they had closed. Atlantic Inter-
national Corp., 228 NLRB 1308 (1977). In that case,
an employee sought to vote 2 minutes after the Board
agents had closed the polls and taped the ballot box.
The panel majority upheld the agents’ refusal to permit
the employee to vote. There was no majority rationale.
Member Fanning found that there was no abuse of dis-
cretion on the part of the Board agents because the
taping of the ballot box ‘‘signaled the close of the
election, and this fact was understood by all present
. . . .’’ Ibid. No reference was made to the discretion
of the Regional Director whose decision the Board re-
versed. New England Oyster House, in which Member
Fanning participated and on which the Regional Direc-
tor relied, was distinguished on the ground that in that
case the Board agent and the observers believed that
the election process had not terminated when the late-
arriving employee sought to vote.
Member Walther agreed with the result reached by
Member Fanning. In a personal footnote reminiscent of
the earlier dissents filed by Chairman Murphy, Mem-
533MONTE VISTA DISPOSAL CO.
3 In this case, the employees walked to the polling area with two
Petitioner representatives.
4 Board’s Rules and Regulations Sec. 103.20.
5 Late-arriving employees should be permitted to cast challenged
ballots to preserve their votes in the event they fall within one of
the narrow exceptions to this rule.
Therefore we do not disagree with our dissenting colleague about
the appropriateness of the agent’s following Sec. 11324 of the
Casehandling Manual, discussed above, which directs Board agents
to challenge the ballot of a late-arriving voter, in the absence of
agreement by the parties. If the challenged ballot is determinative,
the Regional Director will readily be able to dispose of it under the
clear rule we announce today.
6 See, e.g., Pruner Health Services, 307 NLRB 529, issued today.
Extraordinary circumstances shall include a showing that one of the
parties was responsible for the tardiness of the late-arriving voter or
Continued
ber Walther relied on the fact that the employee lacked
a legitimate reason for his late arrival.
Member Penello dissented at length. He found New
England Oyster House, in which he had joined Mem-
ber Fanning in forming the majority, to be ‘‘substan-
tially identical’’ and ‘‘dispositive of the issues raised’’
in Atlantic International. Id. at 1309. In Member
Penello’s view, New England Oyster House stood for
the proposition that absent extraordinary circumstances,
late-arriving voters should be permitted to cast their
ballots so long as the ballot box has not been opened.
III.
As the survey of precedent reveals, the current state
of Board law governing the treatment of prospective
voters who arrive after the polls have closed is at best
confusing. The main factor on which the Board had fo-
cused for many years, i.e., whether the late-arriving
voter had a reasonable excuse, was seemingly aban-
doned in Howard Johnson and New England Oyster
House only to be revived by one of the two Board
Members who comprised the majority in Atlantic
International. The two Board Members who comprised
the majority in New England Oyster House (Members
Fanning and Penello) disagreed as to its meaning when
a similar case arose just 1 year later. Although the
cases frequently speak of the Board’s reliance on the
discretion of regional personnel, at the present time the
Board agent conducting the election has no discretion
to exercise. The current NLRB Casehandling Manual
(Part Two), Representation Proceedings Section 11324,
directs that if a voter arrives after the polls have closed
and there is no agreement by the parties on whether
the voter should be allowed to cast a ballot, ‘‘the
Board agent should permit the voter to cast a ballot,
which the Board agent will then challenge.’’ This in-
struction strips the Board election agent of any discre-
tion in the matter.
In sum, the time has come to reexamine and clarify
this area of the law. We shall begin by setting forth
what we believe to be the controlling considerations.
‘‘Congress has entrusted the Board with a wide de-
gree of discretion in establishing the procedure and
safeguards necessary to insure the fair and free choice
of bargaining representatives by employees.’’ NLRB v.
A. J. Tower Co., 329 U.S. 324, 330 (1946). In exer-
cising that discretion, the Board must take into account
a number of policies, such as preserving ‘‘the secrecy
of the ballot,’’ ensuring ‘‘the finality of the election re-
sult,’’ and minimizing ‘‘unwarranted and dilatory
claims.’’ Id. at 331.
Specifically with regard to late-arriving voters, the
Board is presented with conflicting policy consider-
ations. On the one hand, the Board seeks ‘‘to afford
employees the broadest possible participation in Board
elections.’’ New England Oyster House, 225 NLRB at
682. On the other hand, the Board ‘‘favor[s] prompt
completion of representation proceedings.’’ Lemco
Construction, 283 NLRB 459, 460 (1987), quoting
Versail Mfg., 212 NLRB 592, 593 (1974).
We do not find reliance on the exercise of an essen-
tially standardless discretion by Regional Office per-
sonnel to be a satisfactory procedure for determining
whether late-arriving employees should be allowed to
vote in a Board election. Often the voting preference
of the late-arriving voter arguably can be surmised
from the attendant circumstances.3 Although the Board
agent or Regional Director will not in fact be influ-
enced by this factor, we believe a rule that protects
Board personnel from even the appearance of partiality
is preferable.
We also reject the Board’s past practice of inquiring
into the reasonableness of the late-appearing voter’s
explanation for his or her tardiness. The Board’s rules
provide that employees have ample notice of the date
and time period of the election.4 An approach which
allows for a broad inquiry into the good faith or ac-
ceptability of each individual employee’s excuse sim-
ply encourages litigation and results in unwarranted
delays in the completion of representation proceedings.
After duly considering the Board’s prior approaches
in this area and the relevant policy considerations, we
have decided that something closer to a bright-line rule
terminating the balloting at the conclusion of the vot-
ing period will best serve the Board’s mandate ‘‘to in-
sure the fair and free choice of bargaining representa-
tives.’’ A. J. Tower, 329 U.S. at 330. A clear rule that
can be readily understood and easily applied will re-
duce litigation and advance the interest in promptly
concluding representation proceedings. The interest in
maximizing employee participation in NLRB elections
is adequately protected by Board procedures affording
all employees notice of the election and the oppor-
tunity to vote during the scheduled election period.
Therefore, we hold that an employee who arrives at
the polling place after the designated polling period
ends shall not be entitled to have his or her vote count-
ed,5 in the absence of extraordinary circumstances,6
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
voters. Situations involving the responsibility of a party will thus
continue to be governed by existing precedent. See, e.g., Glenn
McClendon Trucking Co., 255 NLRB 1304 (1981).
1 Kerrville Bus Co., 257 NLRB 176, 177 (1981), quoting New
England Oyster House, 225 NLRB 682 (1976).
2 112 NLRB 1462 (1955).
3 232 NLRB 631 (1977).
4 257 NLRB 176 (1981); see also American Driver Service, 300
NLRB 754 (1990). Although Kerrville Bus Co. and American Driver
Service involved mail ballot elections, the Board in analyzing these
cases used the principles applied to late-arriving voters in manual
elections.
5 See Kerrville Bus Co. (mail ballots arriving late but before bal-
lots were tallied); New England Oyster House, 225 NLRB 682
(1976) (voter arrived 2–3 minutes late and before ballot box was
opened); Howard Johnson Co., 221 NLRB 542 (1975) (voter arrived
5 minutes late and before ballot box was opened); Westchester Plas-
tics of Ohio, 165 NLRB 219 (1967), enfd. 401 F.2d 903, 908–909
(6th Cir. 1968) (voter arrived 1 minute late and before ballot box
was opened); Hanford Sentinel, 163 NLRB 1004 (1967) (2 voters ar-
rived ‘‘only minutes’’ late and before ballot box was opened); cf.
Glauber Water Works (during voting, Board agent announced a sec-
ond voting session to be held 2-1/2 hours later; employees who
voted during second session voted at a time when the polls were
open; Board upheld discretion of agent in reopening the polls).
6 Wanzer Dairy (employee arrived 80 minutes after polls closed;
ballots had been tallied); Bell Transport Co., 204 NLRB 96, 98
(1973), enfd. sub nom. Groendyke Transport, 493 F.2d 17 (5th Cir.
1974) (election observer did not try to vote until tally of ballots was
completed).
7 228 NLRB 1308 (1977).
8 Bancroft Mfg. Co., 210 NLRB 1007, 1012 (1974), enfd. 516 F.2d
436 (5th Cir. 1975), and Dornback Furnace & Foundry Co., 115
NLRB 350, 352–353 (1956), cited by my colleagues as cases in
which late-arriving voters were held not entitled to vote because they
lacked a sufficient reason for appearing late, are inapposite. These
are not challenged ballot cases. Rather, they are cases in which
Board agents’ refusal to allow late-arriving employees to vote was
alleged to be objectionable conduct, and the votes of the late arrivals
would not have been sufficient in number to affect the election re-
sult. In these circumstances, the Board declined to set aside the elec-
tions.
unless the parties agree not to challenge the ballot. Ac-
cordingly, we overrule New England Oyster House,
Howard Johnson, Westchester Plastics, Hanford Sen-
tinel, Glauber Water Works, and similar cases to the
extent they are inconsistent with the new rule we an-
nounce today.
In this case, the uncontested factual findings estab-
lish that Vasquez and Romero arrived at the polling
place after the end of the polling period. There is no
contention that extraordinary circumstances accounted
for their tardiness. Nor was there an agreement to per-
mit their votes. Finally, there is no suggestion that ei-
ther party was responsible for their late arrival. Ac-
cordingly, we sustain the challenges to their ballots,
and we shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Teamsters Automotive, Indus-
trial & Allied Workers, Local 495, International Broth-
erhood of Teamsters, AFL–CIO and that it is not the
exclusive representative of these bargaining unit em-
ployees.
MEMBER DEVANEY, dissenting.
As a matter of fundamental statutory policy, the Na-
tional Labor Relations Board is tasked with affording
employees the broadest possible participation in Board
elections.1 Rejecting 37 years of precedent, my col-
leagues abandon this principle today. For the sake of
what amounts to no more than administrative conven-
ience, they adopt instead a rigid rule preventing late-
arriving voters from having their votes counted, except
in ‘‘extraordinary circumstances.’’ They apply the rule
mechanistically, even in circumstances as here, where
the voters arrive only 2 or 3 minutes after the polls
close and the ballot box has not been opened or the
tally of ballots begun. I decline to join this ill-consid-
ered abandonment of carefully thought out Board
precedent.
My colleagues advance several justifications for
their decision, none of which, in my view, withstands
scrutiny.
My colleagues argue that Board precedent con-
cerning late-arriving voters is ‘‘at best confusing.’’
Contrary to their characterization, cases dating from
the Board’s 1955 decision in Glauber Water Works2 to
its 1977 decision in Wanzer Dairy3 and through its
1981 decision in Kerrville Bus Co.,4 reveal a con-
tinuing evolution of reasonably consistent decisions
concerning late-arriving voters.
In these cases, the Board has found that employees
arriving to vote within a few minutes after the polls
closed and before the ballot box was opened should
have their votes counted.5 Conversely, these decisions
have upheld the refusal to allow would-be voters to
vote later, and at a point when the ballots had been tal-
lied.6 The only exception to this line of cases is Atlan-
tic International Corp.,7 an aberrant case in which
each member of the divided panel expressed a separate
rationale.8
Further, contrary to my colleagues, the question
whether a late-arriving voter has a reasonable excuse
for his tardiness has never been the determinative cri-
terion under Board precedent, but merely one of four
factors, first articulated in Bell Transport. Another, and
perhaps more important, factor was whether the ballot
box was opened or the tally had commenced at the
time of the employee’s arrival. As the case law
evolved, the Board indicated in Howard Johnson that
the question whether the late-arriving voter had a rea-
sonable excuse was not necessarily determinative of
whether his vote would be counted. The Board further
explicated this point in New England Oyster House.
Any doubt about the continuing vitality of Howard
535MONTE VISTA DISPOSAL CO.
9 221 NLRB at 543 (emphasis added).
10 NLRB Casehandling Manual (Part Two), Representation Pro-
ceedings, Sec. 11324.
11 See, e.g., Kerrville Bus Co.; Bell Transport Co., 204 NLRB at
98.
Johnson and New England Oyster House possibly en-
gendered by the Board’s subsequent splintered decision
in Atlantic International was dispelled by Kerrville
Bus Co., and later, American Driver Service. In the lat-
ter two cases, the Board reaffirmed that the absence of
a reasonable excuse did not necessarily preclude count-
ing a late ballot. Indeed, the dissent in Howard John-
son argued that reasonable excuse ‘‘should be a sine
qua non to counting a late voter’s ballot,’’9 but this
position was never adopted by the Board. Thus, while
the law has not remained static, it is hardly, in such
disarray as to warrant discarding it wholesale.
My colleagues erroneously maintain that the NLRB
Casehandling Manual presently provides the Board
agent conducting the election no discretion, and that to
the extent such discretion exists, it is ‘‘standardless.’’
The Manual currently states that, if a voter arrives
after the polls have closed but before the ballot box
has been opened and the parties do not agree on
whether the voter should be allowed to cast a ballot,
the Board agent should permit the voter to cast a chal-
lenged ballot.10 This provision does not determine
whether the vote will be counted. Rather, if the chal-
lenged ballot is determinative, it preserves the issue for
ruling by the Regional Director. In deciding whether
the ballot should be counted, the Regional Director (or,
in some instances, a hearing officer or administrative
law judge) then applies the four-factor test set out in
Bell Transport. As interpreted by the Board’s deci-
sions, the test supplies the standard for measuring the
decisionmaker’s exercise of discretion.11
My colleagues cite to no case other than the instant
one to support their contention that the voting pref-
erence of late-arriving voters often can be anticipated
from the attendant circumstances and that reliance on
the Board agent’s discretion in allowing them to vote
may give an appearance of partiality to the agent’s de-
cision. Even if such cases were abundant, a Board
agent’s permitting late-arriving voters to cast chal-
lenged ballots prior to the opening of the ballot box,
as provided in the Casehandling Manual, does not rea-
sonably give rise to an appearance of partiality.
There is similarly little support for my colleagues’
argument that an inquiry into the reasonableness of a
late-appearing voter’s tardiness results in an unwar-
ranted delay in representation proceedings. First, under
Board precedent, the importance of the employee’s ex-
planation for his tardiness has diminished. Depending
on other factors, he may be entitled to have his vote
counted regardless of the reason for his late arrival; the
Board is not likely to require extensive inquiry into the
reasonableness of a late voter’s tardiness. Second, per-
mitting voters who arrive minutes late to cast chal-
lenged ballots usually results in no substantial delay in
tallying the ballots. Third, ballot challenges are rou-
tinely made in Board elections for numerous reasons,
of which late-arriving voters are a very small propor-
tion. Even totally eliminating all ballot challenges con-
cerning late-arriving voters would negligibly affect the
overall length of time representation cases take. Fi-
nally, since my colleagues permit counting of late vot-
ers’ ballots only under ‘‘extraordinary circumstances,’’
such as when a party is responsible for a voter’s tardi-
ness, their rule requires a more extensive factual in-
quiry and is thereore likely to cause much greater
delay than that necessitated by the precedent they are
reversing. For example, in Pruner Health Services, 307
NLRB 529, issued today, they reject a Regional Direc-
tor’s recommendation to count the ballot of an argu-
ably late voter who arrived at the polling area before
the ballot box was opened. Instead, my colleagues are
remanding the case for an evidentiary hearing to re-
solve conflicting accounts of the reasons for the voter’s
tardy arrival at the polling area—an issue that was un-
necessary to resolve to decide the case under prior
precedent.
In adopting ‘‘something closer to a bright-line rule
terminating the balloting at the conclusion of the vot-
ing period,’’ my colleagues purport to strike a balance
between two conflicting policy goals: prompt comple-
tion of representation proceedings; and affording em-
ployees the broadest possible participation in Board
elections. However, my colleagues’ new rule will not
have a significant impact on the duration of representa-
tion proceedings. It will accomplish little other than
depriving slightly late voters—those who arrive after
the time set for the polls to close but before the ballot
box has been opened—the opportunity to have their
votes counted. This result clearly impedes the goal of
affording employees the broadest possible participation
in Board elections.
My colleagues’ inflexible new rule promotes me-
chanical adherence to form without sufficient consider-
ation of the underlying substance. Accordingly, I dis-
sent and would adopt the Regional Director’s rec-
ommendation to count the challenged ballots.