Argus-Press Co.

National Labor Relations Board - Board Decisions

May 13, 1993

311 N.L.R.B. 24 (N.L.R.B. 1993)

24
311 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Had they been cast against the Petitioner, the margin of voting
support for the Petitioner would have been even greater.
2 As the Board agent’s conduct of the election solely implicates
whether ballots cast late should have been counted, we find no basis
for reversing the normal Monte Vista burden as to who has the re-
sponsibility for explaining why ballots were cast outside the normal
polling time.
The Argus-Press Company and Joint Council #43,
International Brotherhood of Teamsters, AFL–
CIO, Petitioner. Case 7–RC–19790
May 13, 1993
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held April 28, 1992, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows six for and three
against the Petitioner, with one challenged ballot, an
insufficient number to affect the results.
The Board has reviewed the record in light of the
Employer’s exceptions and brief, and has adopted the
hearing officer’s recommendation to overrule the Em-
ployer’s objections and to issue a certification of rep-
resentative. As explained below, we affirm the hearing
officer’s recommendation to overrule the Employer’s
objection that the election was not conducted in an ap-
propriate manner as a result of actions attributable to
the Board agent handling the election. Specifically, the
Employer contends that insufficient notice was pro-
vided unit employees of the location of the polling
place. The Employer, however, does not assert that
anyone failed to appear at the polls within the stipu-
lated voting period because of the Board agent’s han-
dling of the election.
The parties were afforded a full opportunity to
present evidence on this issue. It is undisputed that at
the scheduled time for closing the polls, the Board
agent announced to the observers that the polls were
to remain open owing to the late arrival of the initial
voters. Three persons, Brook Reica, Judy Schiakas,
and Jim Fivecoat, thereafter arrived to vote, and the
Board agent did not cause these ballots to be chal-
lenged on the basis of their untimeliness. The ballots
of Reica and Schiakas were cast and counted, and the
ballot of Fivecoat was challenged for reasons unrelated
to his late arrival, i.e., that he was a supervisor. The
evidence thus indicates that the Board agent may have
allowed two voters to cast unchallenged ballots after
the polls should have been closed. The tally of ballots,
however, indicates that six votes were cast for the Peti-
tioner, and three were cast against it. Even assuming,
arguendo, that these two ballots were cast for the Peti-
tioner and that they should not have been counted, the
Petitioner would still have retained a 4-to-3 majority of
the remaining valid ballots cast.1 In light of this evi-
dence, we find that the Employer failed to establish
that the purported Board agent misconduct affected the
results of the election. Accordingly, in adopting the
hearing officer’s conclusion that no objectionable con-
duct occurred, we find it unnecessary to resolve the
propriety of the Board agent’s handling of the election.
Contrary to our colleague, we find no basis for find-
ing that Fivecoat could have been late for reasons at-
tributable to the Board agent’s conduct at the same
time that Reica and Schiakas were late for some other
reason, and that Fivecoat’s ballot could therefore have
been determinative. First, after a full hearing on the ef-
fect of the Board agent’s conduct on the election, there
is no specific evidence why any individual voter was
late. Indeed, our dissenting colleague concedes this,
but nevertheless contends that we should speculate that
Fivecoat could have been late for reasons unrelated to
the reason for the other two voters’ lateness. There is
no basis in the record for treating these voters and
their ballots in such a disparate manner. Second, given
the ‘‘unusual circumstances’’ test enunciated in Monte
Vista Disposal Co., 307 NLRB 531 (1992), a party
who seeks to have a late-cast ballot counted has the
obligation to establish the affirmative basis for dis-
regarding the legitimate end of the voting period. As
noted above, our colleague concedes that this justifica-
tion has not been established, but contends that we
may substitute speculation for evidence.2 Con-
sequently, we find no basis for distinguishing between
the treatment of any of the three ballots cast after the
close of the stipulated voting period. Accordingly, we
find no merit in the Employer’s objection.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Joint Council #43, International
Brotherhood of Teamsters, AFL–CIO and that it is the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time press depart-
ment and composing room employees, including
pressmen, layout department employees and cam-
era department employees employed by the Em-
ployer at its facility in Owosso, Michigan; but ex-
cluding all circulation department employees,
news department employees, advertising depart-
ment employees, office clerical employees, man-
agement employees, guards, and supervisors as
defined in the Act.
25ARGUS-PRESS CO.
1 The three persons were Fivecoat, Reica, and Schiakas. Fivecoat
was challenged on the ground that he was a supervisor. Reica and
Schiakas were not challenged and they cast ballots. The election re-
sults showed six votes for Petitioner, three against Petitioner, and
one challenged ballot.
2 Peoples Drug Stores, 202 NLRB 1145 (1973); Polymer, 174
NLRB 282 (1969); F. N. Joslin Co., 79 NLRB 1048 (1948).
3 Because this case involves alleged misconduct by a Board agent,
the above principles, rather than those set forth in Monte Vista Dis-
posal Co., 307 NLRB 531 (1992), are applicable.
MEMBER RAUDBAUGH, dissenting.
The instant case involves alleged misconduct by a
Board agent in the handling of an election. The allega-
tions are that the Board agent: (1) failed to ensure that
employees were aware of the location of the election;
(2) failed to close the polls at the stipulated time; (3)
allowed three persons to vote after the stipulated time
for closing.1
My colleagues refuse to pass on whether the Board
agent engaged in misconduct and whether the election
should be set aside. In their view, even if all three per-
sons should have been excluded from voting, the Peti-
tioner would still have won the election.
I disagree. As noted above, there were three individ-
uals who arrived at the polls after the originally des-
ignated closing time. The record does not reflect the
reasons for their tardiness. It may be that some of
them arrived late because of the apparent confusion as
to the location of the polling place, while others ar-
rived late for unrelated reasons. The difference could
be critical. For example, if employees Reica and
Schiakas were late for unrelated reasons, and if they
voted for the Petitioner, the tally would be four to
three in favor of Petitioner. If Fivecoat were late be-
cause of the confusion, his challenged ballot would be
determinative.
Thus, in my view, the Board should resolve the
issue of whether there was misconduct by the Board
agent. My colleagues refuse to resolve that issue. They
argue that the evidence does not establish that the al-
leged misconduct had an impact on the election. I be-
lieve that they have applied an erroneous standard of
proof. If there was misconduct by the Board agent, the
election must be set aside, unless it can be shown that
it is highly improbable or virtually impossible that the
misconduct affected the election.2 Accordingly, I
would first determine whether misconduct occurred. If
it did, I would then determine whether it has been
shown that it is highly improbable or virtually impos-
sible that such misconduct affected the election.3
Accordingly, without passing on the issues raised by
this case, I do not agree that those issues can be avoid-
ed on arithmetic grounds.