Barre-National, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1995

316 N.L.R.B. 877 (N.L.R.B. 1995)

877
316 NLRB No. 149
BARRE-NATIONAL, INC.
1 Members Stephens and Cohen would have stayed the election
and remanded the matter for a hearing and a determination of the
supervisory issues. Member Truesdale did not participate in ruling
on the Employer’s Request for Review.
2 The American Federation of Labor and Congress of Industrial
Organizations (AFL–CIO); the Chamber of Commerce of the United
States of America (Chamber of Commerce); the Labor Policy Asso-
ciation; the Council on Labor Law Equality; the Associated General
Contractors of America, Inc. (AGC); U.S. Home Care Company; and
American Health Care Association et al.
3 The AFL–CIO; AGC; Chamber of Commerce; U.S. Home Care
Corporation; and American Health Care Association et al.
Barre-National, Inc. and Freight Drivers and Help-
ers, Local Union No. 557, affiliated with the
International Brotherhood of Teamsters, AFL–
CIO, Petitioner. Case 5–RC–14013
March 27, 1995
DECISION ON REVIEW AND ORDER
REMANDING PROCEEDING TO REGIONAL
DIRECTOR
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
On April 11, 1994, the Regional Director for Region
5 of the National Labor Relations Board issued a Deci-
sion and Direction of Election in the above-captioned
proceeding in which he found appropriate a unit of the
Employer’s production, maintenance, and warehouse
employees, and directed that 24 line and group leaders,
who the Employer contended were statutory super-
visors, be permitted to vote subject to challenge.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional director’s de-
cision, contending that the Regional Director erred by
affirming the hearing officer’s refusal to permit the
Employer to introduce evidence at the preelection hear-
ing concerning the leaders’ supervisory status, and by
ordering that resolution of the supervisory issue be de-
ferred to the postelection challenge procedure, should
the ballots of the disputed individuals be determinative
of the election results. The Employer requested that the
Board direct the Regional Director to reopen the
preelection hearing for the purpose of fully litigating
the supervisory status of the line and group leaders.
Pursuant to the Board’s normal procedures when a re-
quest for review is pending, the election was held as
scheduled on May 6, 1994, and the ballots impounded.
By Order dated May 27, 1994, the Board granted
the employer’s Request for Review. Thereafter, the
Employer filed a brief on review.1
On June 28, 1994, the Board scheduled oral argu-
ment for July 28, 1994, because this case and another
case (Angelica Healthcare Services Group, 315 NLRB
1320 (1995)) presented important issues in the admin-
istration of the National Labor Relations Act. On the
scheduled date, the General Counsel, the Employer, the
Petitioner, the employer in Angelica, and various amici
curiae2 presented oral arguments. The General Coun-
sel, the petitioner, and several of the amici curiae filed
postargument briefs.3
On October 14, 1994, while this case was still under
consideration, the Employer advised the Board that on
October 3, the Employer had eliminated the line leader
position entirely and that only one of the three group
leader positions remained. The Employer argued that
these developments did not ‘‘resolve the issues pend-
ing before the Board,’’ i.e., ‘‘whether Barre was erro-
neously denied an opportunity to prove, at a pre-elec-
tion hearing, that its Line Leaders and Group Leaders
were supervisors under the Act.’’
The Board has carefully considered the Regional Di-
rector’s decision in light of the record, the request for
review, the brief on review, the oral arguments, the
postargument briefs, and the Employer’s October 14,
1994 letter concerning the elimination of the contested
positions. For the reasons set out below, we find that
the Regional Director erred in refusing to permit the
Employer to introduce the testimony of his witnesses
at the scheduled preelection hearing; but in the present
posture of this case, we have decided to direct the Re-
gional Director to open and count the ballots, issue a
tally of ballots, and thereafter entertain any objections
to the election that are timely and properly filed by
any party.
I. EVENTS PRECEDING THE ELECTION AND
IMPOUNDMENT OF BALLOTS
The Petitioner sought a unit of all production, main-
tenance, and warehouse and distribution employees
employed by the Employer, including all line leaders,
but excluding office clericals, guards, and supervisors.
The Employer and the Petitioner disagreed on the sta-
tus of the Employer’s 21 line leaders and 3 group lead-
ers. The Petitioner maintained that they were eligible
employees included in the unit; the Employer con-
tended that they were supervisors as defined by Sec-
tion 2(11) of the Act and should be excluded.
In accordance with normal procedures, the Regional
Director issued a notice of hearing. On March 29,
1994, in accordance with the notice of hearing, the
parties appeared before the hearing officer, accom-
panied by their intended witnesses. Before opening the
record, the hearing officer questioned the parties and
explored their positions on deferring resolution of the
disputed individuals’ supervisory status by using the
Board’s challenged ballot procedure. Upon the opening
of the record, the parties stipulated to jurisdiction,
labor organization status, appropriate unit, inclusion of
the other petitioned-for employees, and the absence of
a contract bar. The Petitioner accepted the use of the
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 There is no evidence or contention that the refusal of the Region
to allow the Employer to litigate the leaders’ supervisory status was
based on any propensity by the Employer or its attorney to make
frivolous claims to delay the election.
5 In its offer of proof, the Employer asserted that its personnel di-
rector and representative line and group leaders would testify that
line leaders and group leaders responsibly direct 6 to 10 employees
each; complete employee evaluations; make effective recommenda-
tions of disciplinary action; are paid significantly more than hourly
employees; and are involved in the hiring process and participate in
reassignments of employees. The Employer further asserted that if
the leaders were not found to be supervisors, there would be a 35
to 1 ratio of employees to supervisors.
6 The Employer provided documents dealing with supervisory
training received by leaders; hiring, firing, and promotional decisions
in which leaders were involved; leaders’ authority to transfer, assign,
discipline, and responsibly direct employees, and to adjust their
grievances; evaluations of employees and recommendations for merit
pay raises completed by leaders; and pay scales. In addition, the Em-
ployer noted that in 1992, in Case 5–RC–13713 involving the Em-
ployer and the Amalgamated Clothing and Textile Workers Union,
line leaders and group leaders were excluded as supervisors from the
bargaining unit by agreement of the parties.
7 Sec. 102.66(a) provides, inter alia:
Any party shall have the right to appear at any hearing in per-
son, by counsel, or by other representative, and any party and
the hearing officer shall have power to call, examine, and cross-
examine witnesses and to introduce into the record documentary
and other evidence.
Sec. 101.20(c) provides, inter alia:
The parties are afforded full opportunity to present their respec-
tive positions and to produce the significant facts in support of
their contentions.
8 Sec. 102.64(a) provides, inter alia:
It shall be the duty of the hearing officer to inquire fully into
all matters in issue and necessary to obtain a full and complete
record upon which the Board or the Regional Director may dis-
charge their duties under section 9(c) of the Act.
9 This conclusion is based on the facts of this case. We do not ex-
press a view as to whether a different result would be warranted if
one or more of those facts were different.
We also note that our ruling concerns only the entitlement to a
preelection hearing, which is a matter distinct from any claim of en-
titlement to a final agency decision on any issue raised in such a
hearing. We note that reviewing courts have held that there is no
general requirement that the Board decide all voter eligibility issues
prior to an election, although in some circumstances the size and
character of the group of individuals whose status is left unresolved
may be deemed a basis for invalidating the election. Compare, e.g.,
Bituma Corp. v. NLRB, 23 F.3d 1432, 1436–1437 (8th Cir. 1994)
(no abuse of discretion in deferring decision on voting eligibility of
laid-off employees); St. Elizabeth Community Hospital v. NLRB, 708
F.2d 1436, 1443 (9th Cir. 1983) (same respecting several alleged su-
pervisors), and NLRB v. Doctors’ Hospital of Modesto, 489 F.2d
772, 776 (9th Cir. 1973), with NLRB v. Parsons School of Design,
793 F.2d 503, 507–508 (2d Cir. 1986) (election critically impaired
where postelection modification of college instructor unit removed
all the fulltime instructors and thereby ‘‘significantly altered’’ its
‘‘character and scope’’); NLRB v. Lorimar Productions, 771 F.2d
1294, 1302 (9th Cir. 1985) (same result where vote was close and
Board’s postelection removal of one out of only two job classifica-
tions in the unit meant that the ‘‘ultimate unit certified . . . differed
substantially in size and nature from the unit voted upon’’).
challenged ballot procedures for the disputed employ-
ees, but the Employer opposed it. The Employer stated
that the number of persons involved, approximately 8
to 9 percent of the bargaining unit, was larger than the
Employer ‘‘would care to vote under challenge.’’ The
Employer also contended that the conduct of the lead-
ers could affect the results of the election, and the Em-
ployer wanted the issue settled.
Pursuant to the Regional Director’s instructions, the
hearing officer ruled that the supervisory status of the
24 line and group leaders would not be litigated at the
hearing. Rather, because there were no other disputed
issues and because he saw this as a means of avoiding
delay and expense, the hearing officer declared that a
Decision and Direction of Election would issue permit-
ting the line leaders and group leaders to vote subject
to challenge.4
The Employer objected to this procedure. The Em-
ployer argued that it was entitled to a determination on
the supervisory status of these individuals, and that the
Employer’s evidence would demonstrate that status.
Although the Employer was present with its witnesses
and prepared to put on evidence in support of its con-
tentions, the hearing officer limited the Employer to an
offer of proof on the record.5 Having obtained agree-
ment on all other issues, the hearing officer closed the
hearing without any testimony being received. The
Employer supplemented its offer of proof in its
posthearing brief to the Regional Director.6
The Employer has stated in its briefs and at oral ar-
gument before the Board that following the issuance of
the Decision and Direction of Election (which included
the provision for the line leaders and group leaders to
cast votes subject to challenge), the Employer in-
structed its line leaders and group leaders not to vote
in the election because it regarded them as supervisors.
No other party has disputed that statement, and agency
records disclose that none of the persons identified as
line leaders and group leaders voted.
II. DISCUSSION
Section 9(c)(1) of the Act provides for an appro-
priate preelection hearing when a petition is filed seek-
ing a representation election, if the Board upon inves-
tigation has reasonable cause to believe that a question
concerning representation affecting commerce exists.
Angelica Healthcare Services Group, supra. Section
102.66(a) of the Board’s Rules and Section 101.20(c)
of the Board’s Statements of Procedure7 entitle parties
at such hearings to present witnesses and documentary
evidence in support of their positions. See also Section
102.64(a) of the Board’s Rules.8
Under all the circumstances, the preelection hearing
held in this case did not meet the requirements of the
Act and the Board’s Rules and Statements of Proce-
dure. The Regional Director therefore committed error
in curtailing the hearing as he did.9 This conclusion
does not, however, necessarily resolve what is the best
course to follow now, given the Employer’s elimi-
nation of all but one of the earlier contested positions
879BARRE-NATIONAL, INC.
10 We recognize that such objections could lead to litigation of the
unresolved supervisory issue, but we also recognize the possibility
that, if no objections are filed, the case could be closed without such
a hearing. In any event, we fail to see how, as our dissenting col-
league contends, our decision will cause ‘‘more litigation and confu-
sion’’ than would his position to set aside the election, hold a
preelection hearing on the supervisory issue, and conduct a new
election.
11 Cf. Vitek Electronics, Inc. v. NLRB, 763 F.2d 561, 569 (3d Cir.
1985) (although Board erred in the procedures it used for deciding
remanded objection, it would disserve ‘‘the policy of the Act’’ and
contribute ‘‘little to the resolution of the controversy’’ to remand for
the type of hearing the court had originally mandated).
12 We are unaware whether any challenged ballots were cast, and,
of course, cannot know whether any of the ballots cast may subse-
quently be challenged as void. If there are any such ballots raising
issues for hearing and they are potentially determinative in number,
the Regional Director can issue a supplemental decision in which the
challenge issues can be consolidated for hearing with any appro-
priate objections that are filed.
1 See Employer’s Request for Review. Thus, we cannot know, if
it were to make such an argument, whether the Employer would also
contend that it was entitled to a determination of supervisory status
at some minimum number of days before an election.
2 We also know that because of the Employer’s postelection elimi-
nation of most of the line leader and group leader positions, any ex-
Continued
and given the nature of the Employer’s arguments
about the Regional Director’s error. In its October 14
letter to the Board, the Employer urges that the erro-
neous denial of an appropriate preelection hearing ‘‘se-
riously prejudiced the Company, tainted the preelection
period and invalidated the May 6 election.’’ In our
view, these arguments can be appropriately made in
the form of objections to the election, if the Regional
Director issues a tally of ballots or certification with
which the Employer wishes to take issue.10 We are not
hereby inviting Regional Directors to engage in erro-
neous denials of hearings and then relegate parties to
postelection processes. It is simply that in the present
posture of this case, and given the nature of the Em-
ployer’s arguments, it seems most likely to effectuate
the purposes of the Act to entertain those claims of
prejudice as election objections, should the Employer
wish to raise them after the election outcome is re-
vealed.11
Accordingly, the Regional Director’s affirmance of
the hearing officer’s refusal to permit the Employer to
introduce testimony at the preelection hearing is re-
versed, but the case is remanded to the Regional Di-
rector for the purpose of opening and counting the bal-
lots and taking appropriate action thereafter.12 The ar-
guments raised by the Employer concerning prejudice
resulting from the denial of the hearing may be consid-
ered upon the timely filing of appropriate objections.
ORDER
IT IS HEREBY ORDERED that the case is remanded to
the Regional Director for Region 5 to open and count
the ballots and take appropriate action thereafter.
MEMBER STEPHENS, concurring.
As my dissenting colleague correctly observes, I
voted with him to stay the election in this case. Had
that position prevailed, we undoubtedly would have re-
manded this case for a preelection hearing as we did
in Angelica Healthcare Services Group, 315 NLRB
1320 (1995). That position did not prevail, however;
the election was held and certain other events occurred
that place this case in a significantly different posture.
We are now faced with three options: (1) set the elec-
tion aside and remand for a hearing which, because of
intervening events, would involve the question whether
one individual is a supervisor; (2) determine whether
the Regional Director’s error in not permitting the Em-
ployer to put on the testimony of its witnesses turned
out to be in some way harmless; or (3) without setting
the election aside, remand so as to permit the Em-
ployer (assuming it desires to contest the election re-
sults) to present its arguments of prejudice in the form
of an election objection. After carefully considering all
these options, under the peculiar facts of this case, I
favor the third option and therefore join my colleagues
in the majority.
In so doing, I first note that the Employer is not at-
tacking the challenge procedure generally, i.e., it is not
putting in issue whether Section 9(c) requires not only
a preelection hearing in all appropriate cases but also
a determination on each and every issue prior to an
election.1 Rather, the Employer argues that, in fore-
closing it from putting on its witnesses at the sched-
uled hearing, the Regional Director erroneously relied
on cases in which, although the ballot challenge proce-
dure was employed because of unresolved voter eligi-
bility issues, the parties had in fact received a
preelection hearing on all those issues.
The Employer does also argue that an employer
may, in some cases, be prejudiced, and the election
process compromised, by a failure to determine wheth-
er individuals otherwise within the voting unit should
be excluded as supervisors within the meaning of Sec-
tion 2(11). Specifically, it argues that, if the individ-
uals are in fact found to be supervisors, then the em-
ployer will be able to demand their loyalty to its inter-
ests in the election campaign, prevent them from co-
ercing employees whom they supervise with respect to
the election, and prevent them from voting; and if the
individuals are found not to be supervisors, then the
employer will be on notice to allow them freedom to
participate on either side in the union campaign, like
all other unit employees. We know, from statements in
the Employer’s postargument brief, that it acted on the
premise that the group leaders and line leaders were
supervisors; and it accordingly instructed them to re-
frain from engaging in union activities and success-
fully prevented them from voting in the election.2
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
press preelection exclusion of these individuals from the unit on the
basis of supervisory status might have been misleading to employees
as to which individuals would end up within the bargaining unit if
the Union were certified as the representative.
1 We now know that the Employer chose the former course. As
explained below, the consequences of that choice are unresolved by
my colleagues.
2 The Union might argue that the Employer is estopped from mak-
ing this argument. However, it would be difficult to apply the equi-
table doctrine of estoppel against a party who sought to have the sta-
tus issue resolved and was improperly forbidden from doing so.
3 Because of postelection changes, it appears that only one dis-
puted position remains. However, I fail to see how this postelection
fact obviates the necessity for correcting the preelection error.
It may be that the parties can agree to a challenge of the one re-
maining position in dispute. If not, after an appropriate hearing, the
Regional Director and the Board could decline to pass on the status
of the one position in dispute, preferring to allow the matter to be
resolved by challenge. But, to repeat, that would be after a hearing,
and it would involve a challenge as to only one position.
Because the Employer does not identify—or argue
that it possesses—any statutory right to a determina-
tion on employee status before a Board election, the
arguments it is making are arguments about inter-
ference with the election process which are akin to su-
pervisory taint contentions that are commonly consid-
ered in the objections phase. I agree with my col-
leagues that events have moved us to a point at which
it makes the most sense to consider those arguments
as election objections, should the Employer wish to
contest the election outcome.
I wish to emphasize, however, that I would not nec-
essarily take the same position in the case of any fu-
ture denials of preelection hearings. At the time the
Regional Director took the action he did in this case,
however, he did not have the benefit of our decision
in Angelica. His action constituted error because, in
my view, the statute—even apart from our implement-
ing rules and regulations—entitles parties to
preelection testimonial hearings. But it was not an
error committed in the face of a clear direction from
the Board, and I agree with my colleagues that pro-
ceeding to a tally of ballots is the most practical step
in this case under the circumstances.
MEMBER COHEN, dissenting.
My colleagues concede, as they must, that the Re-
gional Director violated the procedures of the Act, as
well as the Rules of the Board, by not permitting the
Employer to adduce evidence on the issue of super-
visory status. However, my colleagues refuse to take
the obvious next step. They refuse to order the Re-
gional Director to return to the status quo ante the
error. Because my colleagues are unwilling to take this
simple but necessary step, I respectfully dissent.
As noted, the Regional Director deprived the Em-
ployer of an appropriate hearing. Faced with that clear
error, the Board should have ordered a hearing and va-
cated the Direction of Election. Member Stephens and
I voted to follow this course. Our colleagues took the
contrary view, and their votes carried the day.
The decision to proceed with the election, notwith-
standing the procedural error, left the wronged Em-
ployer on the horns of a difficult dilemma. The Em-
ployer could act on the premise that the persons were
supervisors, i.e., it could use these persons in its cam-
paign, instruct them not to engage in union activity,
and instruct them not to vote. However, if it were
wrong, the conduct would effectively trounce upon the
Section 7 rights of employees. Such conduct could be
found unlawful and objectionable. Alternatively, the
Employer could act on the premise that the persons
were employees, i.e., it could refrain from using those
persons in the campaign, and permit them to engage
in union activities and to vote. However, if these per-
sons turned out to be supervisors, any prounion activ-
ity by them might be unlawful and objectionable. In
addition, the Employer would be deprived of its right
to campaign through its agents.1
In light of the clear procedural error, and the dif-
ficulties that the error posed for the Employer, it was
simply wrong for the Board to proceed with the elec-
tion. The Board today compounds the wrong. My col-
leagues order that the votes be tallied, again in the face
of an uncorrected procedural error. It is clear that this
course will only cause more litigation and confusion.
If the Union loses the election, it can be expected to
file objections on the basis that the persons in dispute
were employees and that the Employer prevented them
from campaigning and voting. If the Union wins the
election, the Employer can be expected to object that
the persons may be employees who should have been
permitted to campaign and vote.2 Perhaps more impor-
tantly, either party can argue that, because of the
Board’s procedural errors, the electorate was confused
about the proper composition of the unit, thereby de-
stroying the laboratory conditions.
In my view, it is highly likely that these objections
would be meritorious. But quite apart from that, it is
at least clear that the objections will entail additional
litigation and confusion. All of this litigation and con-
fusion can and should be avoided. The simple fact is
that the Regional Director erred, and the even simpler
fact is that the Board should now correct the error. The
Board should go back to the point at which the error
occurred, and it should require the Regional Director
to proceed appropriately from that point.3
Finally, I wish to make clear my position on matters
discussed in footnote 9 of my colleagues’ decision. As
made plain in Section 9(c), the Board cannot direct an
election without an appropriate hearing. Concededly,
there may be cases where, after such a hearing, the
Regional Director or the Board can defer ruling on the
eligibility of a small number of employees, leaving the
881BARRE-NATIONAL, INC.
eligibility issue for the challenge process. However, I
do not think it permissible or prudent to defer ruling
on such basic matters as appropriateness of the unit. In
addition, it is at least imprudent to defer ruling on eli-
gibility issues involving a substantial number of per-
sons. In my view, employees should not be forced to
vote on the important issue of representation if they do
not know who will or will not be joined with them in
their unit. That is fundamentally unfair to the employ-
ees. In addition, if the eligibility issue is one of super-
visory status, a failure to rule on the issue is a refusal
to recognize the employer’s legitimate interest in
ascertaining, prior to the election, which persons are
part of management and which are not. That is fun-
damentally unfair to the employer.