Waste Management of Northwest

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1389 (N.L.R.B. 1998)

WASTE MANAGEMENT OF NORTHWEST LOUISIANA, INC. 1389
Waste Management of Northwest Louisiana, Inc.,
Employer and International Union, United
Automobile, Aerospace and Agricultural Im-
plement Workers of America, Petitioner. Case
15–RC–8099
September 30, 1998

DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held February 26, 1998, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 18 for and 17 against the Peti-
tioner, with no challenged ballots.
The Board has reviewed the record in light of the Em-
ployer’s exceptions and brief, has adopted the hearing
officer’s findings1 and recommendations, and finds that a
certification of representative should be issued.
The hearing officer recommended overruling the Em-
ployer’s objections which allege, in composite, that em-
ployee David Lenard was deprived of the opportunity to
cast a determinative vote by conduct attributable to the
Employer. Lenard was on disability leave for approxi-
mately 4 months prior to the election. On February 23,
1998,2 he brought a medical release from his personal
doctor to the facility and presented it to Supervisor Shel-
ton Thigpen. Thigpen advised him that he would have to
pass a physical examination administered by a company
physician before he could return to work. On February
25, Lenard informed the Employer’s Regional Compli-
ance Coordinator Kelly Calmes that he had passed the
required physical. Calmes instructed him to return to
work the next day at 8 a.m. The election was scheduled
to take place on February 26, from 4 to 7:30 a.m. Lenard
arrived at the facility at approximately 7:40 a.m., after
the polls were closed, and he was not allowed to vote.
The hearing officer found no evidence that the Em-
ployer did anything to prevent Lenard from voting or that
it interfered with the Board’s election processes. The
hearing officer found that the Employer had complied
with its only obligation to inform voters of the election,
i.e., to post notices. The hearing officer further found
implausible Lenard’s testimony that he had no knowl-
edge of the election prior to his arrival at the facility on
February 26.

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
2 All dates hereafter are in 1998 unless otherwise specified
It is well established that when the conduct of a party
to the election causes an employee to miss his opportu-
nity to vote, the Board will set aside the results of the
election if the employee’s vote would have been deter-
minative of the outcome of the election.3 When an em-
ployee does not vote for reasons that are beyond the con-
trol of a party or the Board, however, the failure to vote
is not a basis for setting aside the election.4 The burden
is on the objecting party, in this case the Employer, to
come forward with evidence in support of its objection.5
Applying these principles here, we find, in agreement
with the hearing officer, that the Employer has failed to
meet its burden of showing that Lenard’s failure to vote
was due to conduct of any party to the election. Indeed,
there has been no showing that the Employer’s directive
to report to work at 8:00 a.m. on the day of the election
precluded Lenard from arriving earlier in order to vote.
In fact, the record shows that Lenard arrived at 7:40 a.m.,
20 minutes earlier than directed. Moreover, there is no
contention that the Union prevented Lenard from voting.
In view of the absence of evidence that Lenard was
prevented from voting by conduct attributable to any
party to the election, we find it unnecessary to rely on the
hearing officer’s analysis of Lenard’s testimony concern-
ing his knowledge of the election. Even assuming Le-
nard had no knowledge of the election, this fact would
not be sufficient to establish that his failure to vote was
due to conduct by the Employer.
Accordingly, having found that the evidence is insuffi-
cient to show that Lenard was prevented from voting in
the election, we shall overrule the Employer’s objections
and issue a certification of representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for the International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

3 Versail Mfg., 212 NLRB 592, 593 (1974); Sahuaro Petroleum, 306
NLRB 586, 586–587 (1992).
4 Versail Mfg., supra.
5 Sahuaro Petroleum, supra at 587.
Recognizing that the Board does not generally consider objections
based on the misconduct of the objecting party, the Employer contends
that the instant circumstances constitute an exception to this rule be-
cause the objecting party has caused an employee to miss the opportu-
nity to cast a determinative vote and there is no evidence of bad faith.
As explained below, we find that Lenard was not prevented from voting
by any conduct attributable to the Employer. Therefore, no issue is
presented here as to whether the election can be set aside based on the
objecting party’s own conduct.
326 NLRB No. 150
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1390
All full time drivers, mechanics, helpers and dispatch-
ers employed by the Employer at its Shreveport, Lou-
isiana facility; excluding all other employees, salesmen,
managers, office clerical employees, guards, profes-
sional employees, and supervisors as defined in the
Act.