Alabaster Lime Co.

National Labor Relations Board - Board Decisions

May 18, 1971

190 N.L.R.B. 396 (N.L.R.B. 1971)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alabaster Lime Company , Employer-Petitioner and
United Steelworkers of America , AFL-CIO. Case
10-RM-559
May 18, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted under the direction and supervision of the Re-
gional Director for Region 10 on January 20, 1971,
among the employees in the stipulated unit described
below. At the conclusion of the election, the parties
were furnished with a tally of ballots which showed
that of approximately 53 eligible voters, 51 cast ballots,
of which 13 were for, and 26 against, the Union, 11
were challenged, and 1 was void. Thereafter, the Union
filed timely objections to conduct affecting the results
of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on March 18, 1971,
issued and duly served upon the parties his Report on
Objections in which he recommended that the objec-
tions be overruled in their entirety and that the results
of the election be certified. Thereafter, the Union filed
exceptions to the Regional Director's report with sup-
porting brief, and the Employer filed a brief in support
of the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has delegated
its powers in connection with this case to a three-mem-
ber panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees, in-
cluding truck drivers employed at the Employer's
Scotrock Lime Plant and Verlie Quarry, Alabas-
ter, Alabama, but excluding all office clerical em-
ployees, guards and supervisors as defined in the
Act.
5. The Union's Objections 2 and 4' concern the
refusal of the Board agent to permit 10 employees listed
on the voter eligibility list to cast ballots, challenged or
otherwise, in the election.
The facts show that an economic strike against the
Employer, which had begun on June 6, 1970, was still
in progress at the time of the election. In a separate
section of the Excelsior list, the Employer had listed the
10 employees in question, among others, and noted that
each had been discharged between July 8 and August
3, 1970. At the preelection conference, the Employer's
counsel expressed his intent to challenge the ballots of
these employees and explained that the 10 employees
had been discharged for strike-connected misconduct
because, according to counsel, they had violated a state
court injunction concerning picketing. He stated that
each of these employees had been notified of his dis-
charge in writing. The union representative stated that
charges had been filed on behalf of the 10 employees,
but the Employer's counsel denied having any knowl-
edge of charges having been filed and served. The
Board agent telephoned the Regional Office and
confirmed that there were no pending unfair labor
practice charges against the Employer. At the request
of the union representative, the Board agent then tele-
phoned the Union's attorney who said he intended to
file charges and would do so at that time. The Board
agent advised him that charges could not be filed over
the telephone and that the polls were to open in about
5 minutes. The Board agent further explained to the
attorney that, under his interpretation of the Board's
procedures, he could not permit the 10 discharges in-
dividuals to vote even challenged ballots. He notified
the Union's counsel and its representative at the confer-
ence that it would be needless for the 10 employees to
appear at the polls because he would deny them permis-
sion to vote even challenged ballots. The names of these
10 employees were then stricken from the eligibility
list. The Board agent would not permit one of these
employees to serve as an observer for the Union. Dur-
ing the course of the election, only one of the dis-
charged employees appeared to vote and the Board
agent refused to give him a ballot.
A charge, alleging the unlawful discharge of the 10
employees, was filed at the Regional Office on January
25, 1971, and a complaint on behalf of 8 of the em-
ployees issued on March 17, 1971.
The Regional Director states that, according to dic-
tum in Pacific Tile and Porcelain Company.' a dis-
charged employee is not eligible to vote unless a charge
is actually pending before the Board at the time of the
election. He concluded that Pacific Tile is controlling
' We adopt the Regional Director's recommendation that Objections
1,3,5, and 6 be overruled
' 137 NLRB 1358
190 NLRB No. 113
ALABASTER LIME CO
especially where, as here, there has been ample time
(approximately 5 months) for the discharges to have
been contested by the filing of unfair labor practice
charges. We do not agree.
In Ace Letter Service Co., cited in the Regional
Director's report, the Board stated:
The Board's challenge procedure generally
guarantees the right to every individual who as-
serts other than a totally frivolous claim' to em-
ployee status to appear at the polls and cast a
ballot....
In the present case, we cannot say that the 10 em-
ployees' claims were merely frivolous. Although
charges were not pending on the day of the election, the
Board agent was told by the Union's counsel during the
preelection conference that charges would be filed.
Notwithstanding the fact that 5 months had passed
since the employees were discharged, the Act estab-
lishes a 6-month period in which charges may be filed.
As the charges were filed within the prescribed period,
the employees should not be penalized by not being
permitted to vote. Under these circumstances, we find
3 187 NLRB No 79 at p 3
397
that the 10 discharged employees should have been
permitted to cast challenged ballots. Accordingly, as
we sustain Objections 2 and 4, we shall set aside the
election and direct that a new election be held.
ORDER
It is hereby ordered that the election previously con-
ducted herein on January 20, 1971, be, and it hereby is,
set aside.
[Direction of Second Election4 omitted from publica-
tion.]
' In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Underwear
Inc, 156 NLRB 1236, NLRB v Wyman-Gordon Co, 394 U S 759
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 10 within 7 days after the
date of issuance of the Notice of Second Election by the Regional Director
The Regional Director shall make the list available to all parties to the
election No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed