Pruner Health Services

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 529 (N.L.R.B. 1992)

529
307 NLRB No. 92
PRUNER HEALTH SERVICES
1 The Employer excepted only to the Regional Director’s over-
ruling the challenge to employee John Agee’s ballot. In the absence
of exceptions, we adopt, pro forma, the Regional Director’s rec-
ommendations to overrule the challenge to Richard Kimbell’s ballot
and to sustain the challenge to Tim Crawford’s ballot.
2 Agee claimed that, based on his experience at this facility, the
door locks automatically unless an object has been inserted to keep
it open.
3 Fisher observed a sign on the door stating: ‘‘Must be open during
business hours.’’ Fisher also stated that, during the few months that
the Employer had been leasing the school property, he had visited
the facility at least 10 to 12 times and had never known this door
to be locked.
The Employer also submitted a letter from the assistant super-
intendent for the Las Virgenes Unified School District stating, inter
alia, that: (1) the building was open for normal operation on the day
of the election; (2) the exterior doors were kept unlocked during the
business day; (3) school records show no difficulties with respect to
public access to the building; and (4) major conferences were held
in the building on that day, with numerous people ‘‘coming and
going . . . beginning at 9:00 a.m.’’
Pruner Health Services, Inc. and Hospital & Service
Employees Union, Local 399, Service Employ-
ees International Union, AFL–CIO, Petitioner.
Case 31–RC–6760
May 15, 1992
DECISION AND ORDER DIRECTING
HEARING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
The National Labor Relations Board has considered
determinative challenges in an election held January
18, 1991, and the Regional Director’s report recom-
mending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement.
The tally of the ballots shows 28 for and 29 against
the Petitioner, with 3 challenged ballots, a sufficient
number to affect the results of the election.
The Board has reviewed the record in light of the
exceptions and brief and adopts the Regional Direc-
tor’s findings and recommendations only to the extent
consistent with this Decision and Order. The Regional
Director recommended that challenges to two ballots
be overruled and the challenge to a third ballot be sus-
tained.1 Contrary to the Regional Director, we find, for
the reasons that follow, that the challenge to Agee’s
ballot raises substantial and material issues warranting
a hearing.
Region 31 conducted an election simultaneously at
three separate facilities between the hours of 6:30 a.m.
and 10:30 a.m. Agee, who did not work on election
day, was scheduled to vote at the Calabasas, California
facility, on the second floor of the Employer’s crew
quarters in space leased from the Las Virgenes Unified
School District.
Agee averred that he arrived at the Calabasas facility
about 10:28 a.m., parked his motorcycle in the outside
parking lot, and attempted to open the ground floor
door which provided access by means of stairs to the
second-floor polling area. He found the door locked,2
and, after banging on the door several times and get-
ting no response, he went to another door where he
was unable to gain access to the building. Agee then
returned to the first door, again knocked loudly, and
again was unable to enter. He decided to wait. Two or
three minutes later, an employee (elsewhere identified
as the Employer’s observer, Jonas Escalera) opened the
downstairs door and informed Agee that he was late.
Agee then encountered the Board agent and the Em-
ployer’s director of field services, Barry Fisher. The
Board agent permitted Agee to cast a challenged bal-
lot.
In his affidavit, Fisher averred that he waited outside
the facility until about 10:32 or 10:33 a.m., after the
polls had closed. He then opened the unlocked ground-
floor door3 and proceeded to the polling room. There
he observed the Board agent seal the ballot box and
Escalera sign the taped box. The Board agent then dis-
mantled the voting booth and obtained Escalera’s as-
sistance in taking it downstairs. Fisher, who was then
standing at the window of the polling room overlook-
ing the parking lot, saw Agee drive up on a motor-
cycle and park it next to Fisher’s car. After the Board
agent left the polling room, Fisher locked the polling
room door. As Fisher and the Board agent descended
the stairs, they met Agee walking up the stairs. Agee
asked whether he could still vote. The Board agent
asked Fisher what time it was, and Fisher replied that
it was 10:37. The Board agent told Agee that he could
vote a challenged ballot, which Agee proceeded to do.
The Board agent stated that when Agee first met
Fisher and the agent on the stairs, Agee told her that
he had been at the premises for approximately 15 min-
utes, but could not get in because the downstairs en-
trance was locked. The Board agent stated that neither
she nor Escalera heard any knocking at the door. Ac-
cording to the Board agent, Agee voted at approxi-
mately 10:42 a.m.
The Regional Director, relying principally on New
England Oyster House, 225 NLRB 682 (1976), rec-
ommended overruling the challenge to Agee’s ballot
because Agee was only a few minutes late and the bal-
lot box had not been opened yet. In Monte Vista Dis-
posal Co., 307 NLRB 531, issued today, we overruled
New England Oyster House, holding instead that the
ballots of late-arriving voters shall not be counted, in
the absence of extraordinary circumstances, unless the
parties agree to allow the votes.
We find that there are disputed factual issues that
must be resolved in order to determine whether ex-
traordinary circumstances warrant counting the ballot
of the late-arriving employee. Here, the late voter al-
leged that he arrived at the facility in a timely manner
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and would have presented himself at the polling room
on time if the outside doors had been unlocked. If
Agee’s allegations are true, we would find that the
challenge to Agee’s ballot should be overruled under
the extraordinary circumstance exception to the Monte
Vista rule. The Employer, however, has submitted an
affidavit and other evidence indicating that Agee ar-
rived late at the facility and that the outside door was
not locked. Thus, there are credibility issues to be re-
solved on the key factual issue regarding Agee’s tardy
ballot, i.e., whether he arrived at the building before
10:30, and, if so, whether the doors to the facility were
locked. Accordingly, we shall order that a hearing be
held to resolve these issues.
ORDER
It is ordered that a hearing be held before a des-
ignated hearing officer for the purpose of receiving
evidence to resolve the issues raised by the challenge
to the ballot of John Agee.
IT IS FURTHER ORDERED that the designated hearing
officer shall prepare and serve on the parties a report
containing credibility resolutions, findings of fact, and
recommendations to the Board as to the disposition of
the challenge. Within 14 days from the date the report
issues, any party may file with the Board in Wash-
ington, D.C., eight copies of exceptions. Immediately
on the filing of exceptions, the party filing them shall
serve a copy on the other parties and shall file a copy
with the Regional Director. If no exceptions are filed,
the Board will adopt the recommendations of the hear-
ing officer.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 31 to ar-
range this hearing.
MEMBER DEVANEY, dissenting.
It is contended that employee Agee arrived at the
polls a few minutes after they were scheduled to close.
Nonetheless, he cast his ballot before the ballot box
had been opened. In my view, the Regional Director
properly found under established Board precedent that
Agee’s ballot should be counted. Accordingly, and for
the reasons set forth in my dissenting opinion in Monte
Vista Disposal Co., 307 NLRB 531, issued today, I
would adopt the Regional Director’s recommendation
to overrule the challenge to Agee’s ballot. I therefore
dissent from my colleagues’ reversal of the Regional
Director’s decision.