Sitka Sound Seafoods

National Labor Relations Board - Board Decisions

Apr 29, 1998

325 N.L.R.B. 685 (N.L.R.B. 1998)

685
325 NLRB No. 125
SITKA SOUND SEAFOODS
1 The Employer contends that the Regional Director’s decision to
send mail ballots to employees on ‘‘layoff status’’ without first ob-
taining the agreement of the parties fails to comply with Sec.
11336.1 of the Casehandling Manual. Even were we to consider the
cyclical employees as ‘‘laid-off,’’ we would find that the Regional
Director did not abuse his discretion in light of the fact that many
of the employees in question were widely scattered at the time of
the election and would otherwise have been unable to vote.
1 The manual portion of the election was conducted in Sitka, Alas-
ka, on November 4, 1997, and the mail-ballot portion was conducted
between November 5 and December 3, 1997.
Sitka Sound Seafoods, Inc., a Division of North Pa-
cific Processors, Inc. and International Long-
shoremen’s and Warehousemen’s Union, Local
200, AFL–CIO, Petitioner. Case 19–RC–13479
April 29, 1998
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX
AND LIEBMAN
The National Labor Relations Board, by a three-
member panel, has considered the Employer’s request
for review of the Regional Director’s Supplemental
Decision and Certification of Representative (pertinent
parts of which are attached as an appendix). The re-
quest for review is denied as it raises no substantial
issues warranting review.1 The Employer’s Motion for
Reconsideration is denied as untimely, and as lacking
in merit.
APPENDIX
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
Pursuant to a petition filed on August 26, 1997, and a De-
cision and Direction of Election issued by the Regional Di-
rector on October 6, 1997, an election was conducted by se-
cret ballot1 among the employees in the following unit:
All full-time, regular part-time, and seasonal production
and maintenance employees employed by the Employer
at its Sitka, Alaska, facility; but excluding all office
clerical employees and guards and supervisors as de-
fined by the Act.
The official tally of ballots served upon the parties on De-
cember 4, 1997, sets forth the following results:
Approximate number of eligible voters 92
Void ballots 0
Votes cast for Petitioner 36
Votes case against participating labor
organization
28
Valid votes counted 64
Challenged ballots 2
Valid votes counted plus challenged
ballots
66
The challenged ballots are not sufficient in number to af-
fect the outcome of the election.
On December 11, 1997, the Employer filed timely objec-
tions to the election, a copy of which was duly served upon
the Petitioner. A copy is attached hereto.
Acting pursuant to Section 102.69(c) of the Board’s Rules
and Regulations, Series 8, as amended, the undersigned has
caused an investigation to be undertaken and makes the fol-
lowing findings:
The Objections
The Employer’s numerous objections, attached hereto, are
somewhat unfocussed and repetitive, but can be summarized
as follows: (a) the use of an eligibility formula in an election
among the employees of this employer, an assertedly ‘‘sea-
sonal’’ and not ‘‘cyclical’’ operation; (b) conducting the
election at other than the summer employment peak; (c) use
of mail ballots for some voters was improper; (d) insufficient
voter turnout. The result of these four factors, argues the Em-
ployer, was the disenfranchisement of many voters and a re-
sulting lack of a representative complement of voters partici-
pating in the election.
Preliminary Observations
While this facility processes salmon, the record is clear
that it is not solely a salmon cannery. While the facility has
a peak employment in the summer, it employs a crew year
round, i.e., the crew on the ‘‘seniority list,’’ albeit not full
time. The exact frequency of that employment is not spelled
out in detail in the record, although the Employer had ample
opportunity to make its record. (Certain additional material
was appended to its request for review, which material is
neither part of the record nor ‘‘newly discovered.’’ The same
can be said for much of the material offered in support of
the objections, i.e., it is a belated attempt to make the un-
made record.)
Work is performed throughout the year by a significant
group of employees (about 50–60 on the seniority list, who
must work at least 1200 hours per year to be on the list. A
daily average of 24 persons worked in November 1997 ac-
cording to the Employer’s Objections submissions). When
work is performed cyclically throughout the year, but with
a core group of ‘‘permanent’’ employees, the Board will not
hold up the election until the employment peak, but will con-
duct it as soon as possible.
When an employer employs a category of ‘‘regular’’ or
‘‘full-time’’ or ‘‘seniority’’ employees, and a category of
‘‘sporadic’’ or ‘‘on-call’’ or ‘‘periodic’’ employees, the
Board will utilize a formula to distinguish those employees
with a concrete, continuing interest in the employer from
those who just happen to have worked there briefly or who
do so extremely intermittently.
In the instant case, the Regional Director established two
categories, ‘‘full-time, regular part-time’’ (i.e., the ‘‘seniority
list’’) and ‘‘seasonal’’ (i.e., employees with more sporadic
employment). He then devised a formula for the latter group,
the Employer offering no suggested formula of its own.
The formula states that ‘‘seasonals’’ who meet particular
work history criteria are eligible to vote. The Employer attor-
ney asserts that the Employer agent who prepared the Excel-
sior list wrongly interpreted the eligibility criteria and failed
to include on the list, seasonals who did not meet the prior
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686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Of the 92 on the Excelsior list, 64 voted, and of the 64 a major-
ity voted in favor of the Petitioner.
work history criteria but who were in fact then working for
the Employer. We need not discuss whose ‘‘fault’’ this was,
since in fact, the Employer agent made no error—he com-
plied with the eligibility criteria. It is obvious that employees
who were not on the seniority list, and who did not meet the
work history criteria, were not eligible. To do otherwise,
would be to permit new hires with very few hours who just
happen to be working on the eligibility/election dates, to
vote, while denying that right to laid-off employees who
worked a similar number of hours, but who happen not to
be working on the eligibility/election dates. That, of course,
would defeat the very purpose of the eligibility formula, i.e.,
to distinguish those individuals with substantial continuing
work ties to the Employer from those with only a minimal,
casual interest.
In summation, what the Employer is doing by its objec-
tions regarding the seasonal/cyclical issues and the formula
is simply relitigating the Direction of Election, as to which
review has already been denied. Thus, I will overrule all ob-
jections pertaining to those issues.
Use of Mail Ballots
The Employer also contends that utilization of mail ballot
arrangements was improper. Thus, while it argues that the
Excelsior addresses it provided were accurate, it asserts that
an undetermined number of seasonal employees leave the
Sitka area when not working and would be deprived of their
right to vote. The manual portion of the election was con-
ducted in Sitka on November 4 and the following day mail
ballots were sent to all those on the Excelsior list who did
not appear in person at the polls. Of the 41 ballots that were
mailed, only 4 were returned by the Postal Service as un-
deliverable. The Regional Office quickly obtained updated
addresses for all four and remailed the ballots in sufficient
time for their use by the employees. No other evidence was
presented to show that any other similarly situated voters did
not, in fact, receive their ballots, whether at their Sitka ad-
dresses or forwarded to other addresses not in the possession
of the Employer.
Thus, I will overrule the objections insofar as they pertain
to the use of mail ballots.
Representative Complement
A common theme running through all the Empioyer’s ob-
jections is the question of whether a representative com-
plement of voters has participated.2 The underlying rule to
which the Board adheres is that ‘‘where adequate opportunity
to participate in the balloting is provided all those eligible to
vote, the decision of the majority actually voting is binding
on all.’’ S.W. Evans & Son, 75 NLRB 811, 813 (1948).
Through the years various situations have arisen which have
caused the Board to explore the question of whether a rep-
resentative complement of voters has cast ballots. The guid-
ing standard is that enunciated by the Board in Lemco Con-
struction, Inc., 283 NLRB 459 (1987). In Lemco the Board
declared it will not depend upon a percentage test of eligibles
voting. Rather, it will find a representative complement to
have voted if (1) all employees have received adequate no-
tice of the election; (2) all employees have been given ade-
quate opportunity to vote; and (3) employees are not pre-
vented from voting by the conduct of one of the parties or
by unfairness in the scheduling or mechanics of the election.
The Board addressed this standard in a later case, The Glass
Depot, Inc., 318 NLRB 766 (1995), a case involving a deter-
minative number of voters who were unable to vote owing
to a snowstorm. While a similar act beyond the control of
the parties is not involved herein, Glass Depot offers guid-
ance. In Glass Depot the Board declared that when faced
with having to decide whether an act or unexpected event
constitutes ‘‘extraordinary circumstances’’ justifying a new
election, it would examine both the event itself and whether
it resulted in less than a representative complement of voters
casting ballots. It declined to give a precise percentage fig-
ure, stating that the representative complement test represents
a balance between the value of employee opportunity to vote
and the values of finality and economy. Nevertheless, it stat-
ed that if the participation rate dropped below 50 percent, a
‘‘substantial cause of concern’’ would exist, if there were an
‘‘event’’ that restricted voting. There is no such ‘‘event’’
here. In Glass Depot, since only 4 of the 19 voters had been
prevented from voting, the Board upheld the election results,
even though the 4 were determinative. In the instant case, 64
out of a unit of 92, or 70 percent, voted. Every employee
had an opportunity to vote, first in person, then by mail. That
30 percent chose not to vote is no grounds to set aside the
election.
Accordingly, I shall overrule the objections insofar as they
raise ‘‘turnout’’ issues.
Conclusions
Having found that the Board has already ruled on the
issues of seasonal/cyclical, and eligibility formulas, and hav-
ing rejected the objections pertaining to use of mail ballots
and insufficient turnout, I hereby overrule the Employer’s
objections in their entirety and shall issue a Certification of
Representative.
Certification of Representative
IT IS HEREBY CERTIFIED that a majority of valid ballots
have been cast for International Longshoremen’s and
Warehousemen’s Union, Local 200, AFL–CIO and that pur-
suant to Section 9(a) of the National Labor Relations Act, as
amended, the labor organization is the exclusive representa-
tive of all employees in the unit set forth below found to be
appropriate for purposes of collective bargaining with respect
to pay, wages, hours of employment, and other conditions of
employment:
All full-time, regular part-time, and seasonal production
and maintenance employees employed by the Employer
at its Sitka, Alaska, facility; but excluding all office
clerical employees and guards and supervisors as de-
fined by the Act.
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