Solvent Services

National Labor Relations Board - Board Decisions

Feb 14, 1994

313 N.L.R.B. 645 (N.L.R.B. 1994)

645
313 NLRB No. 110
SOLVENT SERVICES
1 Homalon stated that prior to the tally the Board agent addition-
ally instructed the observers in the challenge procedure. Almony
conversely claims that the Board agent did not fully apprise the ob-
servers of the challenge procedure. Because the Regional Director
relied on other evidence when resolving the objections, he did not
resolve this credibility dispute.
2 In a statement subsequently provided to the Region, Almony con-
tends that he: (1) knew Ford had been laid off (indeed, he rec-
ommended the layoff); (2) saw the annotation after Ford’s name; (3)
wondered why Ford’s name had not been removed from the eligi-
bility list; and (4) assumed that the Board had determined that Ford
was eligible to vote. Almony said that he thought the Board had pre-
pared the annotated Excelsior list and that, had the notation been
missing, he would have questioned Ford’s eligibility.
3 He relied on Corral Sportswear Co., 156 NLRB 436 (1965),
enfd. 383 F.2d 961 (10th Cir. 1967), cert. denied 390 U.S. 995
(1968); De Vilbiss Co., 115 NLRB 1164 (1956); Balfre Gear & Mfg.
Co., 115 NLRB 19, 23 (1956); Sears, Roebuck & Co., 114 NLRB
762, 763 (1955); Calcor Corp., 106 NLRB 539 (1953); and Galli
Produce Co., 269 NLRB 478 fn. 1 (1984).
4 Specifically, Form NLRB-4910, which was provided the parties
states, in part, that:
CHALLENGE OF VOTERS: An agent of the Board or an authorized
observer may question the eligibility of a voter. Such challenge
MUST be made at the time the ballots are counted before the
name stub has been detached from the ballot envelope.
Solvent Services, Inc. and Laborers’ International
Union of North America, Local 368, AFL–CIO,
Petitioner. Case 37–RC–3613
February 14, 1994
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The National Labor Relations Board has considered
objections to a mail-ballot election held between Feb-
ruary 18 and March 4, 1993, 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 four for
and three against the Petitioner, with no challenged
ballots.
The Board has reviewed the record in light of the
exceptions and briefs, adopts the Regional Director’s
findings and recommendations, and finds that a Certifi-
cation of Representative should be issued.
On March 5, 1993, Subregion 37 conducted a tally
of ballots in a mail-ballot election involving a unit of
the Employer’s Oahu employees. Both the Employer
and the Petitioner designated observers for the tally.
The Employer selected its vice president, Joseph
Almony, while the Petitioner chose organizer David
Homalon as its observer.
Prior to the count, the Board agent instructed
Almony and Homalon to check voters’ names off the
Excelsior list as he showed them the corresponding
mail-ballot envelopes.1 Also prior to the count, the
Board agent informed the observers that a voter in the
Oahu unit had hand delivered his ballot to the Sub-
region after the March 4 deadline. The Board agent
asked the observers if either wished to challenge the
late ballot; both declined.
As the Board agent showed the observers each ballot
envelope, they checked the name off the list. When the
Board agent reached the envelope of Damien Ford, the
observers checked his name, without comment, not-
withstanding a typed notation on the list after his name
stating, ‘‘[p]ermanent layoff as of February 12,
1993.’’2 This notation had been inserted by the Em-
ployer’s attorney.
After all the names on the ballot envelopes had been
checked against the Excelsior list, the Board agent
opened the envelopes, and commingled and counted
the ballots.
Following the election, the Employer filed objec-
tions, alleging that: (1) Ford was ineligible to vote be-
cause he had been permanently laid off; and (2) the
Board agent failed to follow proper procedure by not
challenging Ford’s eligibility even though Ford’s lay-
off was noted on the Excelsior list.
The Regional Director recommended overruling the
Employer’s objections. The Regional Director found
that parties have the primary duty to challenge, and
that Board agents have no obligation to challenge
merely because of eligibility disputes.3 The Regional
Director additionally found that the Employer’s objec-
tions were in the nature of a postelection challenge
which the Board will not accept unless, as discussed
in NLRB v. A. J. Tower Co., 329 U.S. 324, 333
(1946), the ‘‘Board’s agents or the parties benefiting
from the Board’s refusal to entertain the issue [knew]
of the voter’s ineligibility and suppress[ed] the facts.’’
The Regional Director concluded that the A. J. Tower
exception was inapplicable because an 8(a)(3) charge
alleging that Ford had been unlawfully laid off was
still in the investigatory stage and the Employer had
not yet submitted its evidence. In these circumstances,
the Regional Director concluded that neither the Board
nor its agent knew the critical facts concerning Ford’s
eligibility.
Finally, the Regional Director rejected the Employ-
er’s claim that Almony was unaware of the challenge
procedure. The Regional Director noted that: (1) the
customary election notices, detailing the challenge pro-
cedure, had been sent to all parties;4 (2) the Board
agent had asked Almony if he wished to challenge a
late ballot; and (3) Almony admitted that, but for his
erroneous conclusion that the Board had determined
Ford to be eligible, he would have questioned Ford’s
eligibility. On these facts, the Regional Director deter-
mined that Almony knew the challenge procedure and
either inadvertently or negligently failed to challenge
Ford. Citing Fern Laboratories, 232 NLRB 379
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Board’s Casehandling Manual (Part Two), Representation
Proceedings Sec. 11338, provides, in relevant part, that:
Any observer has the right to challenge a voter for cause. The
Board agent must challenge anyone whose name is not on the
eligibility list or who has been permitted by the Board to vote
subject to challenge. Also, the agent must challenge a voter if
he/she knows or has reason to believe that the voter is ineligible
to vote, but, in this instance only if none of the parties voices
a challenge on that ground. The Board agent will not make chal-
lenges on behalf of the parties whether or not such parties have
observers present. See Galli Produce Co., 269 NLRB 478
(1984). [Emphasis in original.]
6 Balfre Gear & Mfg. Co., supra; H & L Distributing Co., 206
NLRB 169 fn. 1 (1973).
7 For the reasons set forth by the Regional Director, we reject the
Employer’s contention that Almony did not understand the challenge
procedure and that, accordingly, the Board agent was obligated to
act in his stead.
8 We additionally note that Board agents are given broad discretion
in the conduct of elections. See, e.g., Inland Waters Pollution Con-
trol, 306 NLRB 342, 343 (1992). Although the Board agent, exercis-
(1977), he concluded that Almony’s mistake was not
one against which the Board agent was required to
guard.
The Employer excepts, arguing that Board agents
may challenge, for cause, the eligibility of any partici-
pant in an election. The Employer further contends that
under Section 11338 of the Board’s Casehandling
Manual,5 the Board agent was required to challenge
Ford’s ballot because he ‘‘knew or [had] reason to be-
lieve’’ he was ineligible. In this regard, the Employer
argues that the annotated Excelsior list, coupled with
the pending unfair labor practice charges challenging
Ford’s layoff, established ‘‘good cause’’ for the Board
agent to question Ford’s eligibility. Moreover, argues
the Employer, even if the parties were primarily re-
sponsible for challenging voters, the Board agent had
a secondary duty to challenge. Finally, the Employer
reiterates its argument that the Board agent was obli-
gated to challenge Ford’s ballot because Almony did
not understand the challenge procedure.
The Petitioner filed a brief opposing the exceptions,
arguing that the Employer’s own action of: (1) insert-
ing Ford’s name on the list; (2) failing to challenge his
ballot; and (3) not providing timely evidence in the un-
fair labor practice case caused Ford’s vote to be tal-
lied.
Having considered all the evidence and arguments,
we agree with the Regional Director that the Employ-
er’s objections lack merit.
Preliminarily, we note that Congress has entrusted
the Board with broad discretion in establishing proce-
dures and safeguards for ensuring fair and free rep-
resentation elections. NLRB v. A. J. Tower Co., supra.
In exercising this discretion, the Board has long held
that parties to an election bear the primary responsibil-
ity for challenging voter eligibility. Balfre Gear &
Mfg. Co., 115 NLRB 19, 22 (1956); Galli Produce
Co., 269 NLRB 478 (1984). The Board has further de-
termined that, in the interest of promoting election fi-
nality, postelection challenges will not be permitted.
NLRB v. A. J. Tower Co., supra; Sears, Roebuck &
Co., 114 NLRB 762, 763 (1955). One exception has
been created to the no ‘‘post-election challenge’’ rule.
If the Board agent or party benefiting from the rule
knew of the voter’s ineligibility and suppressed the
facts, a postelection challenge is permitted. NLRB v.
A. J. Tower Co., supra, 329 U.S. at 333.
The A. J. Tower exception, however, is narrowly
construed. The Board and courts have held that a
Board agent is not obligated to challenge a voter mere-
ly because the agent is aware of an eligibility dispute.
Instead, the primary duty to challenge lies with the
parties,6 and the Board agent need challenge only
where the agent has actual knowledge of the voter’s
ineligibility. NLRB v. Paper Art Co., 430 F.2d 82, 84
(7th Cir. 1970), and cases cited. Thus, consistent with
this narrow exception, the Board has refused to set an
election aside merely because the Board agent knew
that the parties had agreed to challenge an employee’s
eligibility. Fern Laboratories, supra.
Here, we agree with the Regional Director that the
A. J. Tower exception is inapplicable. The evidence
does not establish that the Board agent had actual
knowledge of Ford’s ineligibility at the time of the
tally of ballots. At most, the Board agent knew that
Ford’s eligibility was in dispute. Thus, the Excelsior
list prepared by the Employer included Ford among its
employees on February 15, 1993. Although there was
a notation on the list that Ford had been permanently
laid off on February 12, the Employer—which had re-
ceived the standard notice-of-challenge procedures—
never announced its intent to challenge Ford. Further,
Almony, a high-ranking official of the Employer who
participated in the layoff decision, gave no indication
at the tally of ballots that he disputed Ford’s eligi-
bility.7 Finally, the unfair labor practice charge alleg-
ing that Ford had been unlawfully laid off was still
under investigation at the time of the March 5 tally.
In these circumstances, we agree with the Regional Di-
rector that the exception to the rule against postelection
challenges is inapplicable.
We also reject the contention that the Board agent
was obligated to challenge Ford’s ballot under Section
11338 of the Board’s Casehandling Manual. It is well
settled that the provisions of the Casehandling Manual
are not binding procedural rules. Correctional Health
Care Solutions, 303 NLRB 835 (1991). These provi-
sions are merely intended to provide operational guid-
ance in the handling of representation cases. Kirsch
Drapery Hardware, 299 NLRB 363 (1990). Under
A. J. Tower and its progeny, the Board agent was not
obligated to challenge Ford’s ballot because the agent
lacked actual knowledge of Ford’s ineligibility.8
647SOLVENT SERVICES
ing this discretion, might validly have objected to Ford’s ballot
under the facts of this case, the agent’s failure to do so is not a basis
for setting aside the election.
Accordingly, under all these circumstances we agree
with the Regional Director that the Employer’s objec-
tions should be overruled and a Certification of Rep-
resentative issue.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Laborers’ International Union of
North America, Local 368, AFL–CIO, and that it is the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All employees employed by the Employer on the
Island of Oahu, excluding office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.