Shepard Convention Services

National Labor Relations Board - Board Decisions

Aug 3, 1994

314 N.L.R.B. 689 (N.L.R.B. 1994)

689
314 NLRB No. 115
SHEPARD CONVENTION SERVICES
1 Because the Board did not have enough time to act on Peti-
tioner’s request, on April 18, 1994, the Board stayed the election
scheduled for May 21, 1994.
2 The Southern Joint Board of ILGPNWU, AFL–CIO and its affili-
ated Brotherhood of Trade-Show and Display Workers Union, Local
349.
Shepard Convention Services, Inc. and Inter-
national Alliance of Theatrical Stage Employ-
ees, AFL–CIO. Case 10–RC–14179
August 3, 1994
ORDER GRANTING REQUEST
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On March 23, 1994, the National Labor Relations
Board issued a Decision on Review and Order in
which the Board modified the Regional Director’s De-
cision and Direction of Election by utilizing the voting
eligibility formula as set forth in Davison-Paxon Co.,
185 NLRB 21, 23–24 (1970). The Board’s modifica-
tion resulted in a substantial increase in the number of
eligible voters in the election scheduled for May 21,
1994. After receipt of the Board’s Order, the Regional
Office contacted the parties to establish election ar-
rangements. On April 11, 1994, the Petitioner re-
quested that the election be conducted by mail ballot,
arguing that ‘‘there will be a large number of eligible
voters that will be on-call workers [and] [t]herefore,
mail ballot would be the most appropriate election to
hold under the circumstances.’’ By letter dated April
13, 1994, the Regional Director denied the Petitioner’s
request observing that:
Mail ballot elections are generally conducted
where long distances are involved or where eligi-
ble voters are scattered because of their duties.
Neither situation is present herein. Moreover, be-
cause of the absence of direct Board supervision
of voting procedures, mail ballots are more likely
to result in objections that cannot be as readily re-
solved as when the voting procedures are carried
out in the presence of a Board agent.
On April 15, 1994, the Petitioner filed with the
Board in Washington, D.C., a Special Request for
Leave to Appeal the Regional Director’s Decision.1
The Petitioner argues that: (1) the place of work ‘‘is
not centralized and productions take place all over the
city in various venues’’; (2) ‘‘most exhibition workers
are often forced to supplement their income with other
jobs making an on-site election difficult and costly due
to the fact that many workers would lose wages at
other jobs’’; (3) ‘‘[m]ail ballot elections are likely to
reduce 8(a)(1) objections as any intimidating or coer-
cive behavior is effectively eliminated’’; (4) ‘‘[t]he
Board saves time and money by not having one or
more of its agents supervise an on-site election’’; and
(5) ‘‘the Board reduces objections based on confusion
of voter identity as the Excelsior list only provided an
initial rather than a full first name’’ and asserts that the
Excelsior list is deficient.
On April 20, 1994, the Employer filed an Opposi-
tion to Petitioner’s Special Request for Leave to Ap-
peal the Regional Director’s Decision, contending that
the manual election arrangements established by the
Region provide each eligible voter ‘‘plenary oppor-
tunity to cast a vote if he or she so desires’’ because
the manual election arrangements provide for two
‘‘strategically placed’’ voting centers ‘‘at opposite
ends of town’’ and that given ‘‘the geographical scope
of the City of Atlanta, it is unlikely that any voter will
be requested to travel more than twenty or thirty min-
utes to reach a voting poll’’ and ‘‘the polls will be
open during the typical lunch time hours of 12:00 p.m.
to 2:30 p.m.’’ In regard to the Petitioner’s argument
that the on-call employees have other employment, the
Employer argues that the ‘‘Petitioner has presented no
evidence to justify this claim, and, as such, this argu-
ment must be dismissed as mere conjecture and specu-
lation.’’ The Employer further argues that a manual
election under these circumstances is consistent with
Agency policy as contained in the Representation
Casehandling Manual and that Board policy is to defer
to the Regional Director’s discretion in regard to elec-
tion arrangements. Finally, with regard to the Excelsior
list, the Employer argues that use of only the employ-
ee’s surname, accompanied by a first initial, is appro-
priate, citing St. Francis Hospital, 249 NLRB 180
(1980).
By motion dated June 21, 1994, the Incumbent
Union2 also opposed the Petitioner’s request, arguing
that the Regional Director’s decision was consistent
with established Board practice.
On May 2, 1994, the Regional Director denied the
Employer’s request for a showing-of-interest check
and, on May 12, 1994, the Employer filed with the
Board in Washington, D.C., a request for review of the
Regional Director’s refusal to require a new showing
of interest, citing the long passage of time since the
original decision issued and the recent expansion in the
breadth of the voting unit determined appropriate by
the Board.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Having duly considered the matter, the Board has
decided to grant the Petitioner’s request for a mail bal-
lot election for the ‘‘on-call’’ employees. The
Casehandling Manual lends some support to the Re-
gional Director’s decision to deny the Petitioner’s re-
quest for a mail ballot election. Under the facts herein,
however, and noting that a number of the employees
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The Petitioner’s request to modify the Excelsior list by requiring
that the list contain the complete names of eligible voters is denied
as premature without prejudice to renewal in the objections process.
The Employer’s request for a further check of the Petitioner’s show-
ing of interest is denied as lacking in merit.
may have other employment which may restrict their
ability to reach the polls, the Board finds that the Re-
gional Director abused his discretion by denying the
Petitioner’s request for a mail ballot for the ‘‘on-call’’
employees.3 Accordingly,
IT IS ORDERED that the case is remanded to the Re-
gional Director for Region 10 for further appropriate
action consistent with this Order.
MEMBER STEPHENS, dissenting.
I would not grant the Petitioner’s appeal for a mail
ballot election.
The Regional Director denied the Petitioner’s re-
quest, in accord with the directive set forth in Section
11336 of the Casehandling Manual. Thus, there was no
mutual agreement among the parties to utilize mail
ballots nor any finding that manual balloting here
would not be feasible. Moreover, the Regional Director
was not satisfied that either the employees were widely
scattered or that long distances were involved. To the
extent that eligible employees may be working at sites
away from the Employer, the Regional Director made
manual balloting more readily accessible by desig-
nating a second polling place, situated across town
from the Employer’s facilities.
As the Intervening Union correctly insists, a Re-
gional Director has broad discretion in determining
whether to hold an election in whole or in part by mail
ballot. Whatever decision a Regional Director does
make should not be overturned unless a clear abuse of
discretion is shown. National Van Lines, 120 NLRB
1343, 1346 (1958). Under such a deferential standard,
our scope of review therefore is a relatively narrow
one.
In my view, the record before us does not establish
that the Regional Director abused his discretion. Hold-
ing to the contrary, my colleagues rely principally on
the Petitioner’s contention that many eligible employ-
ees may be engaged in other employment so as to re-
strict their ability to go to the polls. However, no evi-
dence has been offered in support of this assertion.
Likewise, the Petitioner has offered no evidence to es-
tablish the inadequacy of the accommodation which
the Regional Director did provide through the second
polling site.
Under the circumstances, there is no warrant for the
Board to second-guess the Regional Director’s decision
not to order balloting by mail.