Atlas Roll-Off Corp.

National Labor Relations Board - Unpublished Board Decisions

Jan 20, 2015

29-RC-114120 (N.L.R.B. Jan. 20, 2015)

PMH
Jamaica, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLAS ROLL-OFF CORP.
Employer
and Case 29-RC-114120
LOCAL 175, UNITED PLANT &
PRODUCTION WORKERS, INTERNATIONAL
UNION OF JOURNEYMEN AND ALLIED TRADES
Petitioner
DECISION AND ORDER
The National Labor Relations Board, by a three-member panel, has
considered an objection to a rerun election held on September 3, 2014, and the
Regional Director’s Supplemental Report on Challenges and Objections and Notice
of Hearing recommending disposition of it.1 The election was conducted pursuant to
a Decision and Direction of Election.
The Tally of Ballots in the rerun election showed 4 votes for and 7 against the
Petitioner, with 19 challenged ballots. The Employer and the Petitioner both filed
objections to the election. The Employer challenged two ballots; the Petitioner
challenged four ballots; and the Board Agent challenged 13 ballots (cast by voters
not listed on the Excelsior list furnished by the Employer prior to the election).
Excelsior Underwear, Inc., 156 NLRB 1236 (1966). In his Report on Objections and

1 Upon a petition filed on September 25, 2013, the initial election in this case was
held on November 20, 2013. The Tally of Ballots showed 13 votes for the Petitioner
and 15 against, with 3 challenged ballots. On August 6, 2014, the Board adopted the
hearing officer’s recommendation to sustain one of the Petitioner’s objections and set
aside the election.
2
Challenges and Notice of Hearing, issued on October 31, 2014, the Regional Director
recommended sustaining one of the challenges made by the Board Agent and one
made by the Employer, but overruling two other challenges made by the Board
Agent. He also found that it was undisputed that two employees left off the Excelsior
list were in fact eligible to vote. The Regional Director directed that a hearing be held
concerning the Petitioner’s Objection Nos. 1 and 2 and recommended overruling its
Objection No. 3 and all of the Employer’s Objections. On November 25, 2014, in the
absence of exceptions, the Board adopted the Regional Director’s findings and
recommendation.
Between the issuance of the Regional Director’s Report and the Board’s
Order, the parties agreed that six additional voters not listed on the Excelsior list were
eligible. On November 17, 2014, the Regional Director ordered that nine undisputed
ballots (the six voters that the parties agreed were eligible, the two others whom the
parties did not dispute from his earlier Report, and an additional voter, challenged by
the Petitioner, whom the parties agreed was eligible) be opened and counted. In his
Supplemental Report issued the same day, the Regional Director found that the
omission of eight voters from the Excelsior list established that the voting was not in
substantial compliance with the Excelsior rule. In doing so, he relied upon the 32%
rate of omission from the list and the fact that the number of omitted voters was
determinative of the result. He recommended that the Board set aside the election
and order a third election should the Petitioner not have received a majority of the
ballots cast when the challenged ballots were opened and counted and the revised
tally issued. The revised tally of ballots shows 8 votes for and 12 against the
Petitioner, with 1 challenged ballot, a number insufficient to affect the results of the
election.
3
The Board has reviewed the record in light of the exceptions and brief, has
adopted the Regional Director’s findings and recommendations, and finds that the
election should be set aside and a third election held.2
ORDER
The proceeding is remanded to the Regional Director for further appropriate
action.
Dated, Washington, D.C., January 20, 2015.
_________________________________
Mark Gaston Pearce, Chairman
_________________________________
Philip A. Miscimarra, Member
_________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

2 Omission of a significant proportion of eligible voters from the Excelsior list
warrants a new election. See Automatic Fire Systems, 357 NLRB No. 190 (2012)
(36% omitted); Thrifty Auto Parts, Inc., 295 NLRB 1118 (1989) (9.5% omitted). An
election may also be rerun if the number of omitted voters is determinative or if the
omissions are intentional. See Woodman’s Food Markets, Inc., 332 NLRB 503, 504
(2000) (the 6.8% omitted names were potentially determinative and employer failed
adequately to explain omissions).
Since the revised tally of ballots shows that the Petitioner did not receive a
majority of ballots cast in the rerun, we agree with the Regional Director that a third
election should be directed.