Parrott, A. G., Company

National Labor Relations Board - Board Decisions

Mar 25, 1981

255 N.L.R.B. 259 (N.L.R.B. 1981)

A. G. PARROTT COMPANY 259
A. G. Parrott Company and Laborer's District
Council of Baltimore and Vicinity, Laborer's In-
ternational Union of North America, AFL-CIO.
Case 5-CA-9256
March 25, 1981
SUPPLEMENTAL DECISION AND
ORDER AND DIRECTION OF SECOND
ELECTION
On July 31, 1978, the National Labor Relations
Board issued a Decision and Order in the above-
captioned case,' finding that A. G. Parrott Compa-
ny, herein called the Respondent, violated Section
8(a)(5) and (1) of the National Labor Relations
Act, as amended, by refusing to bargain with La-
borer's District Council of Baltimore and Vicinity,
Laborer's International Union of North America,
AFL-CIO, herein called the Union, following a
consent election and the Union's certification as the
collective-bargaining representative of the Re-
spondent's employees. The Board overruled the
Respondent's objections to the representation elec-
tion and ordered the Respondent to bargain with
the Union. Thereafter, the Respondent filed a peti-
tion for review of the Board's Decision and Order
and the Board filed cross-application to enforce its
Order with the United States Court of Appeals for
the Fourth Circuit.
On August 4, 1980, a panel of the United States
Court of Appeals for the Fourth Circuit issued its
decision2 denying enforcement of the Board's
Order. The court of appeals held that the inadver-
tent disclosure by a Board agent of the nature of a
signed ballot coupled with the Board's refusal to
allow inspection of the ballot made it impossible to
determine whether the Union had achieved a ma-
jority in the representation election and that the
Respondent, therefore, had no duty to bargain with
the Union. The court of appeals found that these
circumstances warranted the holding of a second
election. The Board has considered the matter and
the decision of the Court of Appeals for the Fourth
Circuit and accepts the court of appeals' findings
and conclusions as the law of the case.
On August 12, 1977, a consent election was con-
ducted by the National Labor Relations Board
among Respondent's employees which resulted in
16 ballots cast for representation by the Union, 15
ballots cast against representation, and 1 void
ballot. The void ballot was declared such by the
Board agent who conducted the election because
he noted that it had been signed.3 However, the
237 NLRB 191.
2 N.L.R.B. v. A. G. Parrot Company, 630 F.2d 212 (9th Cir. 1980).
3 To protect the right of an employee to a free and uncoerced choice
in representation elections, the Board and the courts have long and con-
255 NLRB No. 37
Board agent noted the voter's signature only after
he had alreacy started to place the ballot in the
"no" pile. The Respondent's attorney acknowl-
edged that he saw through the paper ballot and
that it was a "no" vote and that there was writing
on the ballot. The Board agent refused to show the
ballot to the Respondent's observers and attorney
at their request, since the voter's choice had been
revealed, and declared the ballot to be void. The
Regional Director affirmed the Board agent's
action and thus determined that the Union received
16 votes for representation, while there were 15
valid votes against representation and I void ballot.
The Respondent filed timely objections to the
conduct of the election, alleging that the Board
agent improperly accepted as a valid "yes" vote a
ballot marked with what appeared to be a "C" in
the "yes" box, and improperly refused to show the
signed "no" ballot to Respondent's observers at
their request or, alternatively, improperly refused
to count the signed "no" ballot since the voter's
identity had not been revealed.
The Board examined the two questioned ballots
in camera and agreed with the Regional Director
that while the ballot marked "C" in the "yes" box
should be considered valid, the signed "no" ballot
should not be counted. The Board thus found that
the Union had secured a majority of the valid bal-
lots cast in the representation election and issued a
Decision and Certification of Representative. 4
The Respondent, however, continued to contest
the certification of the Union and refused to bar-
gain. On February 27, 1978, the Union filed a
charge with the Regional Director alleging that the
Respondent had engaged in and was engaging in
unfair labor practices in violation of Section 8(a)(5)
and (1) of the National Labor Relations Act, as
amended. On April 7, 1978, the General Counsel
filed a Motion for Summary Judgment directly
with the Board. The Board granted the General
Counsel's Motion for Summary Judgment and, as
noted above, determined that the Respondent's re-
fusal to recognize and bargain with the Union con-
sistently applied the rule that a ballot which reveals the identity of the
voter is void. The Ebco Manufacturing Company, 88 NLRB 983 (1950);
George K. Garrett Ca. Inc.. 120 NLRB 484, 485-486 (1958); J. Brenner &
Sons Inc., 154 NLRB 656 (1965); General Photo Products Division of
Anken Industries, 242 NLRB 1371 (1979); Semi-Steel Casting Company of
St. Louis v. N.L.R.B., 160 F.2d 388, 392 (8th Cir. 1947), cert. denied 332
U.S. 758; N.L.R.B. v. National Truck Rental Ca, Inc., 239 F.2d 422, 426
(2d Cir. 1956), cert, denied 352 U.S. 1016 (1957); N.LR.B. v. Ideal Laun-
dry and Dry Cleaning Company, 330 F.2d 712, 718 (10th Cir. 1964). But
see N.LR.B. v. Wrape Forest Industries, Inc.. 596 F.2d 817, 818 (10th Cir.
1979) (en banc) (rule invalidating signed ballot of "dubious validity" since
name of voter need not be disclosed to either party) (dictum).
4 Case 5-RC-10111 (February 3, 1978) (not printed in volumes of
Board Decisions).
A. G. ARROTr COMPANY
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stituted violations of Section 8(a)(5) and (1) of the
Act.5
The Court of Appeals for the Fourth Circuit
denied enforcement. The court of appeals held that
the Board had correctly counted the "C" ballot as
a valid "yes" vote for the Union, but disagreed
with the Board on the proper treatment of the
signed "no" ballot. The court reasoned that the Re-
spondent should not bear the onus of the Board
agent's inadvertent disclosure of the nature of the
signed ballot nor be required to accept the Board's
statement that the ballot was in fact signed without
being accorded a right to inspect for itself the chal-
lenged ballot.6 The ballot, the court held, should
not merely be declared void, since this would have
the effect of giving a majority to the Union. The
court of appeals also held that the signed "no"
ballot should not be counted against representation,
since this result would deprive the Union of a ma-
jority and would constitute an injustice to the
Union, which also had no opportunity to verify the
signature. The challenged and potentially decisive
ballot was thus placed in limbo and it became im-
possible to determine the outcome of the represen-
tation election. The court of appeals concluded
that "the circumstances imperatively warrant the
holding of another election, to permit a determina-
tion free of error, in which all ballots can properly
be determined to be valid or invalid, and a proper
decision be made as to outcome." 7
Accordingly, the Board orders a second election
in the following unit, already found appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
s 237 NLRB 191 (1978).
6 Burlington Mills Corporation, 56 NLRB 365, 367-368 (1944).
7 N.L.R.B. v. A. G. Parrott Company, supra, 630 F.2d at 215.
All employees of A. G. Parrott Company,
including laborers, form setters, grade check-
ers, equipment operators, finishers, and lead-
men, but excluding office clerical employees,
mechanics, truckdrivers, guards and supervi-
sors as defined in the Act.
Based upon all of the foregoing, the Board issues
the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
against the Respondent, A. G. Parrott Company,
Elkridge, Maryland, be, and it hereby is, dismissed
in its entirety.
IT IS FURTHER ORDERED that the Decisions of
the National Labor Relations Board in Case 5-RC-
10111 (February 3, 1978) and Case 5-CA-9256
(July 31, 1978) should be, and they hereby are, va-
cated.
IT IS FURTHER ORDERED that the election held
on August 12, 1977, in Case 5-RC-10111 be, and it
hereby is, set aside, and that said case is hereby re-
manded to the Regional Director for Region 5 for
the purpose of scheduling and conducting another
election at such a time that he deems circumstances
will permit the free choice of a bargaining repre-
sentative. 8
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The election will not be conducted should the Union, within 10 days
of the issuance of this Supplemental Decision and Order and Direction of
Second Election, notify the Regional Director for Region 5 that it wishes
to formally withdraw its petition for a representation election.