Atlantic International Corp.

National Labor Relations Board - Board Decisions

Apr 8, 1977

228 N.L.R.B. 1308 (N.L.R.B. 1977)

1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlantic International Corporation and its Wholly-
Owned Subsidiaries , Atlantic Manufacturing Cor-
poration and Atlantic International Marketing
Corporation and Carpenters' District Council of
Baltimore and Vicinity and its Affiliates , Cabinet
Makers' Local No. 994, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO,
Petitioner. Case 5-RC-9667
April 8, 1977
DECISION AND DIRECTION
By MEMBERS FANNING, PENELLO, AND
WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered challenged ballots in
and objections to an election held on July 30, 1976,1
and the Regional Director's report recommending
disposition of same. The Board has reviewed the
record in light of the exceptions and brief, and
hereby adopts the Regional Director's findings and
recommendations,2 as modified herein.
The Employer excepts to the Regional Director's
finding that the challenges to the ballots of T.
Mathes and D. Ferrell be sustained. Mathes and
Ferrell were employees who took a temporary
assignment outside the bargaining unit but who
returned to the bargaining unit prior to the election
and were working in the unit on the date of the
election. Their temporary overseas assignment in-
volved work identical to that of the unit employees;
moreover, since they were only temporarily assigned
they retained a substantial interest in the terms and
conditions of employment to which they would
return. Finally, they did complete their assignments
and returned prior to the election.3 We find in these
circumstances that Mathes and Ferrell were eligible
voters, and overrule the challenges to their ballots.
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was 199 for, and 165 against, the
Petitioner, there were 39 challenged ballots The challenged ballots are
sufficient in number to affect the results of the election
2 The Employer excepts to the Regional Director's recommendation that
Objection I be overruled This objection alleges that during the period
immediately preceding the election the Petitioner distributed leaflets
containing materially false and misleading statements. Member Walther
agrees with the conclusion that Objection I should be overruled inasmuch as
the same result is reached under any view of the applicability of Hollywood
Ceramics Company, Inc, 140 NLRB 221 (1962)
3 We reject the Regional Director's comment that Mathes and Ferrell
may accept additional overseas assignments in the future as based on
unsubstantiated conjecture
4 Glauber Water Works, 112 NLRB 1462 (1955) Groendyke Transport,
Inc and Ann Myers Bell d/b/a Bell Transport Company, 204 NLRB 96
(1973)
5 The Regional Director's reliance on New England Oyster House of
228 NLRB No. 187
The Employer objected to the conduct of the
election on the ground that J. Pandya, an eligible
voter who arrived at the polls shortly after their close,
should have been allowed to vote. The election was
held between 9:30 and 11:30 a.m. At 11:30 a.m., the
Board agents conducting the election closed the polls
and taped the ballot box. Thereafter, at 11:32 a.m.,
Pandya arrived at the polls and requested a ballot.
The Board agents and the parties' observers agreed
that the polls were closed and that Pandya should
not be allowed to vote; he left the polling area
without raising any objection to this decision. No
request was made by anyone that Pandya be allowed
to cast a challenged ballot. The Regional Director
recommended that if, after the resolution of all
challenged ballots Pandya's potential vote would be
determinative of the outcome of the election, the
election should be set aside and a new election
ordered. We disagree.
It has long been the Board's standard practice in
late voter situations to rely upon the reasonable and
sound discretion of the Board agent conducting the
election as to whether a particular employee should
be permitted to cast a ballot .4 Here, by the time
Pandya arrived at the polling area, the Board agents
had dismantled the voting booth, taped the ballot
box, and were awaiting the start of the ballot count.
The placing of the tape on the slot in the box
signaled the close of the election, and this fact was
understood by all present; no one, including the
potential voter, objected to the decision to preclude
him from voting. We are unable to say in the
circumstances of this case, and particularly where the
box had been taped, that the Board agents abused
their discretion when they refused Pandya a ballot.
Moreover, it is noted that the observers agreed with
the Board agents that the election had ended.5
Accordingly, we will overrule Objection 3 filed by
the Employer.6
Cocoa Beach, Inc, 225 NLRB 682 (1976), as controlling precedent is
misplaced In Oyster House, there is no indication that the ballot box had
been taped, the Board agent decided that she would allow the employee to
cast a challenged ballot, and the observers did not object to the decision to
allow a challenged ballot All of these factors indicate that in Oyster House
both the Board agent and the observers believed that the election process
had not yet terminated, a belief clearly not present here
fi Member Walther agrees that the late amving voter was not entitled to
cast a ballot and that Objection 3, which contests the failure to allow the
employee to vote, be overruled, but so finds for the following reasons
Member Walther notes that the parties agreed that the election would be
held between the hours of 9:30 and 11:30 a.m, and neither of the parties
signified any intent to waive the agreement as to such hours. The employee
arrived after the time the parties had stipulated for the closing of the polls
In such circumstances, absent some legitimate reason for such late arrival
justifying deviation from the specified hours (and none is offered here),
Member Walther concludes the employee was not entitled to vote
ATLANTIC INTERNATIONAL CORPORATION 1309
DIRECTION
It is hereby directed that as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining with the Employer, the Region-
al Director for Region 5 shall, pursuant to the Rules
and Regulations of the Board and within 10 days
from the date of this Decision, open and count the
ballots of D. Diamond, F. Pokryzywa, B. R. Kline,
M. Gostomski, R. White, R. Browner, E. J. Mur-
dock, D. E. Felts, B. Hershey, R. Hiob, R. Hamm, R.
Longerbeam, J. Davenport, R. K. Taylor, R. J.
Miller, T. Mathes, and D. Ferrell, and thereafter
issue and serve on the parties a revised tally of
ballots. In the event the revised tally finally deter-
mines the results of the election, regardless of the
remaining challenged ballots, a hearing shall be held
before a Heanng Officer, to be designated by the
Regional Director for Region 5, to resolve the issue
raised by Objection 2.
IT IS FURTHER DIRECTED that, in the event that after
the revised tally is issued the ballots cast by W.
Lingelback, F. K. O'Neil, L. Witzel, H. Woodward,
0. Lehner, R. Mackereth, D. Parks, J. Beam, H.
Boling, R. Georgieff, K. Childers, J. Childers, W.
Henderson, F. Poughkeepsie, J. Ziolkowski, S.
Maranto,7 A. Prince, D. Waybright, and W. Gowl
are sufficient in number to affect the results of the
election, the challenges to these ballots shall be set
for hearing with Objection 2.
IT IS FURTHER DIRECTED that the Hearing Officer
designated for the purpose of conducting such
hearing shall prepare and cause to be served on the
parties a report containing resolutions of the credibil-
ity of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of said
objection and, if necessary, said challenges. Within
10 days from the date of issuance of such report, any
party may file with the Board in Washington, D.C.,
eight copies of exceptions thereto. Immediately upon
the filing of such exceptions, the party filing the same
shall serve a copy thereof on the other parties and
shall file a copy with the Regional Director. If no
exceptions are filed thereto, the Board will adopt the
recommendations of the Heanng Officer.
IT IS FURTHER DIRECTED that the proceeding herein
be, and it hereby is, remanded to the Regional
Director for Region 5 for further proceedings
consistent herewith, including the arranging of such
hearing, and that the Regional Director be, and he
hereby is, authorized to issue notice thereof.
7 The Employer excepts to the Regional Director's finding that
Maranto's ballot was challenged by the Employer . We hereby correct this
inadvertent error, as the record shows all challenges were made either by the
Petitioner or the Board agents
s In adopting the Regional Director 's recommendation that Objection I
be overruled , I agree with the Regional Director that the alleged
MEMBER PENELLO, concurring in party and dissent-
ing in part:
Contrary to my colleagues, I agree with the
Regional Director that New England Oyster House of
Cocoa Beach, supra, is, or should be, dispositive of the
issues raised in Objection 3 as to Pandya's ballot. As
I interpret the majority opinion in that case, Member
Fanning and I set forth the limits of Board practice
in late arriving voter situations to be to permit
voting, so long as the ballot box has not been
opened. We emphasized that, while we relied upon
the reasonable and sound discretion of the Board
agent and Regional Director in such situations, we
would frown on a Board agent or Regional Director
who did not allow an employee to vote in these
circumstances as the election process would still be in
progress, citing the Hanford Sentinel case .9 In
Hanford, the Board found that the Board agent, in
the proper exercise of his discretion, should have
permitted two employees, who sought to vote only
minutes after the polls were declared closed, to cast
their ballots regardless of whether they had a valid
excuse, since the ballot box had not been opened.
In sum , I view the New England Oyster House case
as delineating the practice with respect to the ballot
casting of late arriving voters; i.e., they should be
permitted, absent, of course, extraordinary circum-
stances, to cast their ballots so long as the ballot box
has not been opened. No such extraordinary circum-
stances are present herein.
Factually, the New England Oyster House case and
the instant one are substantially identical. Such
differences as are alluded to by my colleagues are
either insignificant or irrelevant. Thus, the ballot box
had not been opened, but a piece of tape was placed
over the slot in the ballot box. According to the
Regional Director, with whom I agree, the Board
agents thereby closed the polls. According to my
colleagues, the placing of the tape "signaled the close
of the election" and "the observers agreed with the
Board agents that the election had ended." To the
extent the Regional Director and I describe what
happened as a poll closing rather than an election
closing, this could be a semantical difference be-
tween us and my colleagues without a real distinc-
tion. Thus, regardless of the choice of words, the
election process was still in progress. However, when
my colleagues speak in terms of agreement or belief
of the Board agent and the observers that the
election had ended, they are introducing two new
elements . They are making term nation of the
misrepresentations do not warrant setting aside the election , but so find for
the reasons set forth in my dissenting opinions in Ereno Lewis, 217 NLRB
239 (1975), and Medical Ancillary Services, Inc, 212 NLRB 582 (1974)
9 Hanford Sentinel, Inc d /b/a Hanford Sentinel, 163 NLRB 1004, 1005
(1967)
1310 DECISIONS OF NATIONAL
election process turn upon taping of the ballot box
and the understanding of the Board agents and the
observers. This not only cuts off the process at the
time the ballot box is taped instead of after the ballot
box is opened, but also implies that the Board agents
and observers can stipulate when the process has
been concluded. In my view, there are no valid
reasons for initiating such changes, nor have my
colleagues sought to give any.
The basic objective in Board elections is to
ascertain the desires of the employees with regard to
a bargaining representative as guaranteed by Section
7 of the Act and this can best be achieved by
providing for the greatest possible voter participa-
tion. Obviously, the new changes run counter to this
objective because they potentially reduce the number
of employees who will be permitted to vote. This
LABOR RELATIONS BOARD
applies with equal or greater force to Member
Walther's additional views stated in footnote 6,
supra. Surely, affording an employee an opportunity
to exercise his franchise is paramount to requiring
strict adherence to the polling hours or justification
for deviation from the specified hours. Indeed, in
New England Oyster House, the majority rejected a
similar contention of Chairman Murphy that a voter
have some legitimate reason for arriving late in order
to be permitted to vote rather than relying on the
discretion of the Board agent and the Regional
Director regardless of the reason.
In conclusion, I agree with the Regional Director
that, if after the resolution of all challenged ballots
Pandya's potential vote would be determinative of
the outcome of the election, the election should be
set aside and a new election ordered.10
10 See fn 9, supra