Bally's Atlantic City

National Labor Relations Board - Board Decisions

Oct 21, 2002

338 N.L.R.B. 443 (N.L.R.B. 2002)

BALLY’S ATLANTIC CITY 443
Bally’s Park Place, Inc., d/b/a Bally’s Atlantic City
and Karen W. Pringle, Petitioner and Teamsters
Union Local 331 a/w International Brotherhood
of Teamsters, AFL–CIO. Case 4–RD–1942.
October 21, 2002
DECISION ON REVIEW
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
Pursuant to a Stipulated Election Agreement, an elec-
tion by secret ballot was conducted in this matter on
January 25, 2002. All of the ballots were impounded
pending resolution of the unfair labor practice charge
filed by the Union in Case 4–CA–31009. By letter dated
May 21, 2002, the Regional Director denied the Em-
ployer’s request that the impounded ballots be opened
and counted based upon the Board’s policy of holding in
abeyance the processing of any representation case where
an unfair labor practice charge is filed alleging as unlaw-
ful conduct which, if proven, would have a tendency to
interfere with the free choice of employees in an election.
See U.S. Coal Co., 3 NLRB 398 (1937); Big Three In-
dustries, 201 NLRB 197 (1973); NLRB Casehandling
Manual (CHM), Section 11731.5.
The Employer filed a request for review of the Re-
gional Director’s determination not to open and count the
impounded ballots and the Union filed a statement in
opposition.
The Board has considered the Employer’s request for
review and the Union’s opposition thereto and has de-
cided to deny the Employer’s request for review.
Our dissenting colleague does not contend that the Re-
gional Director misapplied the Board’s well-established
“blocking charge” procedures in this case. Instead, he
advocates a revision of those procedures as they apply to
unfair labor practice charges based on conduct which
could interfere with employee free choice in an election.
We decline our colleague’s invitation to reconsider those
procedures in this case.1

MEMBER COWEN, dissenting.
Contrary to the Regional Director, I would open and
count the impounded ballots and issue a tally of ballots
with respect to this decertification election.

1 Member Bartlett agrees with his dissenting colleague that the
Board should reconsider its “blocking charge” policy in circumstances
where the unfair labor practice charge alleges conduct that could prop-
erly be alleged in a postelection objection. However, in the absence of
a three-member Board majority to do so, he finds that the Regional
Director properly applied that policy by impounding the election ballots
pending resolution of the Union’s unfair labor practice charge.
This case demonstrates that the Board’s current proce-
dures allow a party to dictate whether or not election
ballots will be impounded simply by choosing between
two different procedural mechanisms for raising allega-
tions of election misconduct. There are two procedural
devices a party can use to bring before the Board alleged
misconduct occurring during the critical period of an
election campaign. One option is for the party to file an
unfair labor practice charge alleging that a party has en-
gaged in activities that both violate the Act and render a
fair election impossible. The filing of such a charge can
not only block the holding of the election, it can also
cause the election ballots to be impounded should the
petitioning union choose to proceed to an election.1 Al-
ternatively, the party can file a postelection objection that
alleges election interference, in which case the ballots are
counted and a tally of ballots issued.
In this proceeding, the Union filed an unfair labor
practice charge during the critical period alleging that the
Employer had violated Section 8(a)(5) of the Act by uni-
laterally changing its health insurance plan. Although
the Union chose to proceed to an election, the charge
served to block the ballot count. By contrast, if the Un-
ion had raised its refusal to bargain allegations as an
election objection, the Region would have counted the
ballots and prepared the election tally. Thus, whether a
tally of ballots issued depended on the whim of the Un-
ion in filing unfair labor practice charges instead of elec-
tion objections.
I find no justification for allowing a party to dictate
whether a tally of ballots will issue simply by choosing
to file an unfair labor practice charge instead of an elec-
tion objection. To do so permits a party to manipulate
and compromise the election process. In order to prevent
this result and to promote consistency in the Board’s
election procedures, the Regions should open and count
election ballots regardless of whether unfair labor prac-
tice charges or election objections have been filed. Ac-
cordingly, in the present case I would direct the Regional
Director to open and count the ballots and issue a tally of
ballots.
1 This involves application of the Board’s “blocking charge” rule.
The preamble to Sec. 11730 of the Board’s Casehandling Manual (Part
Two - Representation Proceedings) states, inter alia, that: “The Agency
has a general policy of holding in abeyance the processing of a petition
where a concurrent unfair labor practice charge is filed by a party to the
petition and the charge alleges conduct that, if proven, would interfere
with employee free choice in an election, were one to be conducted.”

338 NLRB No. 43