Case Egg & Poultry Co, Inc.

National Labor Relations Board - Board Decisions

May 8, 1989

293 N.L.R.B. 941 (N.L.R.B. 1989)

CASE EGG & POULTRY CO
Case Egg & Poultry Co , Inc and Russell H Lute
and United Food and Commercial Workers
International Union, AFL-CIO-CLC, Local
Union 880 Case 8-RD-1451
May 8, 1989
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The National Labor Relations Board, by a three-
member panel, has considered an objection to and
determinative challenges in an election held August
17, 1988, and the attached Regional Director's
report and supplemental report recommending dis-
position of them The election was conducted pur
suant to a Stipulated Election Agreement The
tally of ballots shows 28 for and 23 against the
Union, with 14 challenged ballots, a number suffi
dent to affect the results of the election
The Board has reviewed the record in light of
the exceptions' and brief and adopts the Regional
Director's findings2 and recommendations, except
that it finds the Employer's Objection 1 raises sub
stantial and material issues of fact3 that may best
be resolved by a hearing
DIRECTION
It is directed that a hearing be held before a des-
ignated hearing officer to receive evidence to re
solve the issues raised by the Employer's Objection
' The Union excepted to the Regional Directors report sustaining the
challenge to Mceuen s ballot It is undisputed that Mceuen was dis
charged 2 days before the election The Union s only objection to the Re
gional Directors report was that the Regional Director erred in stating
that no unfair labor practice charge had been filed respecting the dis
charge In a supplemental report issued December 6 1988 the Regional
Director noted that such a charge had been filed but that it was with
drawn by the Union on October 31 1988 The Union has not excepted to
this supplemental report or otherwise contended that the charge has not
been withdrawn
2 Absent exceptions we adopt pro forma the Regional Directors rec
ommendation that the challenges to the ballots of Gravis Mceuen and
Strittmatter be sustained and that a heanng be held to resolve the chal
lenges to the ballots of Ash Burson Habick Lucas McGhee Millirons
Parson Sapsford Smith Taylor and Waske
9 The Employer objected to the conduct of the election because the
Board agent failed to supply a voting booth as promised resulting in a
compromise of the secrecy of the ballot The Regional Director found
merit in the objection and recommended setting aside the election and or
dering a second election be held The Union s exceptions to the Regional
Director s findings raise substantial issues of fact including whether the
Region interviewed the Union s election observer and whether other em
ployees were permitted in the polling area while each employee was
voting We note among other things that the Union quotes the sentence
from the Regional Directors report stating that several voters were in
the voting room at the same time and saw how other voters voted and
that the Union states it will present evidence which refutes this evi
dence The affidavit of the Union s business representative who was at
the Employer s facility on the day of the election states that it was re
ported to him that employees remained outside the room until each em
ployee who was voting had marked his ballot Under these circum
stances we believe the better course is to hold a heanng before ruling on
the merits of the objection
941
1 and the challenged ballots of Ash, Burson,
Habick, Lucas, McGhee, Millirons, Parson, Saps-
ford, Smith, Taylor, and Waske
IT IS FURTHER DIRECTED that the hearing officer
designated to conduct the hearing shall prepare and
serve on the parties a report containing credibility
resolutions, findings of fact, and recommendations
to the Board as to the disposition of the objection
and challenges Within 14 days from the date the
report issues, any party may file with the Board in
Washington, D C, eight copies of exceptions Im
mediately upon the filing of such exceptions, the
filing party shall serve a copy on the other parties
and file a copy with the Regional Director If no
exceptions are filed, the Board will adopt the rec
ommendations of the hearing officer
IT IS FURTHER DIRECTED that this proceeding is
remanded to the Regional Director for Region 8 to
issue notice of the hearing
MEMBER JOHANSEN, dissenting
Unlike my colleagues, I would find merit in the
Employer's Objection 1, alleging a breach of voter
secrecy because of the manner in which the elec-
tion was supervised, and find that the Union has
raised in its exceptions no substantial and material
issue of fact warranting a hearing First, I note that
the Union's exceptions do not contradict the Re-
gional Director's finding that employees were per-
mitted in the polling area as other employees
voted, but state only that the parties had reached
an agreement on a procedure designed to prevent
such irregularities Second, there is no showing
here of any abuse of discretion by the Regional Di-
rector in his investigation into the objection' Ac
cordingly, for reasons stated by the Regional Di
rector, I would direct that the election be set aside
based on the Employer's Objection 1 and a second
election ordered
' Had the Region neglected to request to interview the union observer
and had the testimony that individual would give contradicted the testi
mony of other employee witnesses on which the Regional Director relies
one would have expected the substance of that testimony to be conveyed
in the Union s exceptions which it is not Thus the Union does not claim
that its observers testimony disputes the finding of objectionable con
duct Because it is the Union s position that voter secrecy was safeguard
ed by permitting no more than one voter in the polling area at a time its
observer is its only potential witness having sufficient knowledge of the
facts to refute conclusively the evidence in support of the objection as
there is no contention that anyone continuously monitored the entrance
to the polling area to establish that no two employees were admitted at
any one time Neither the union business agent s statement in his affidavit
that nothing was reported to [him] which would be inconsistent with
the pre election agreement [to safeguard voter secrecy] nor his further
assertion that he had received reports of employees found outside the
polling area while others were casting their ballots is a refutation of the
specific allegations supporting the objection that were relied on by the
Regional Director
293 NLRB No 120
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REPORT ON OBJECTIONS AND
CHALLENGED BALLOTS
Pursuant to a Stipulated Election Agreement approved
by me on August 4 1988, an election was conducted
August 17, 1988, among the employees in the following
described unit
All full time and regular part time employees em
ployed at the Employer's 1330 Austin Avenue,
Akron, Ohio facility, including production, ware
house , shipping, drivers , packing , and plant mainte
nance employees but excluding all managerial, exec
utive , office clerical , sales guards and supervisors as
defined in the Act
The Amended Tally of Ballots issued after the election
shows that of the approximately 66 eligible voters, 66
cast ballots, of which 28 were cast for and 23 against the
Union There was one void ballot There were 14 chal
lenged ballots, a number sufficient to affect the results of
the election
On August 24, 1988, the Employer filed timely objec
tions to the election, duly serving a copy thereof on the
Petitioner and Union A copy of the Employers Objec
tions is attached hereto and incorporated herein
Pursuant to the provisions of Section 102 69 of the
Board s Rules and Regulations , an investigation of the
Objections and Challenged Ballots has been made, and I
hereby make the following findings, conclusions, and
recommendations
THE OBJECTIONS
During the course of the investigation, the Employer
requested in writing to withdraw its Objections Nos 2
3, and 4 That request is hereby approved
OBJECTION NO 1
In this objection, the Employer contends that because
the Board Agent failed to provide a voting booth, it was
impossible to maintain the secrecy of the ballot or the
appearance of privacy for voting
The election was conducted on August 17, 1988, from
6am to7am andfrom2pm to3pm
The investigation disclosed that the Board Agent ar
rived at the election site at approximately 5 45 am on
the day of the election Based upon discussions during
telephone conferences to obtain the election agreement
the parties expected the Board Agent to provide a voting
booth However the Board Agent was unable to secure
a booth and consequently one was not used during the
election
The election took place in the lunchroom at the Em
ployer's facility This room, which is approximately 15
feet by 30 feet, contained four long tables positioned par
allel to each other from the front of the room to the
back The voters entered the room through a doorway
located at the front of the room and approached the ob
servers who were seated behind the second table facing
the door The Board Agent positioned herself at the end
of and in front of the observer table As noted, no booth
was provided Instead after a voter received a ballot, he
or she preceded to the rear of the room and marked the
ballot on the fourth table with his or her back to the ob
servers
In support of its Objection, the Employer presented
evidence that during the election there were times when
one or two employees were standing in line in front of
the observer's table waiting to vote while another em
ployee was marking his or her ballot on the back table
A number of employees testified that while awaiting
their turn to vote, they saw how the voter in front of
them marked his or her ballot Moreover, employees tes
tified that they had expected a booth to be present at the
election and felt that since there was none, the secrecy of
the voting process was compromised and they were un
comfortable with the arrangements Investigation re
vealed that, during the election campaign Employer
Representatives Larry Saywell and Mike Popowicz had
advised employees that a voting booth would be used at
the election
The investigation further disclosed that during both
the morning and afternoon preelection conferences the
Employers attorney had expressed concern to the Board
Agent that she had not provided a booth His objection
was noted by the Employers observer who wrote no
voting booth next to his name on the Certification on
Conduct of Elections form
The Board's Notice of Election states an agent of the
Board will hand a ballot to each eligible voter at the
voting place Mark your ballot in secret in the voting
booth provided (Emphasis Added) The National labor
Relations Board Case Handling Manual (Part II) Repre
sentation Proceedings at Section 11304 3, Voting
Booths," describes a voting booth as a compart
ment or a cubicle which not only provides privacy but
which also demonstrates the appearance of providing pn
vacy
The Board is responsible for assuring properly con
ducted elections and consequently its role in the conduct
of elections must not be open to question New York
Telephone Co 109 NLRB 788 790 (1954) In order to
maintain its high standards for election procedures the
Board has further adopted the policy of invalidating
elections on the basis of evidence which raises merely a
doubt as to the complete secrecy of the balloting proc
ess Royal Lumber Co, 118 NLRB 1015 (1957), see also
Sewell Plastics Inc 241 NLRB 887 fn 4 (1979)
While I am not unmindful of the fact that in many
elections Board Agents do not furnish booths because
the Employer has agreed in advance to provide one or
more boothlike structures, such was not the case in the
instant matter Here, the improvised voting arrange
ments, specifically the absence of a booth or boothlike
apparatus, were entirely too open and too subject to ob
servation to ensure the secrecy of the ballot Imperial
Reed & Rattan Furniture Co, 118 NLRB 911 (1957)
Accordingly, I conclude the Employers Objection
No 1 has merit and, consequently I recommend that it
be sustained and the election be set aside
THE CHALLENGES
As noted, there were 14 challenged ballots a number
sufficient to affect the results of the election At the elec
CASE EGG & POULTRY CO
tion , the Union challenged the ballot of G Gravis based
on its uncertainty as to the date he began his employ
ment The following ballots were challenged by the
Board Agent inasmuch as their names did not appear on
the list of eligible voters P Ash F Burson V Habick D
Mceuen Jr J Strittmatter R Waske M McGhee J
Sapsford R Taylor E Parson H Lucas C Millirons,
and D Smith
By letter dated August 25, 1988, 1 requested that each
of the parties to the election submit their respective posi
tions regarding the validity of the challenged ballots
The evidence submitted by the parties established that
G Gravis and J Strittmatter commenced their employ
ment with the Employer on July 18, 1988 Inasmuch as
the payroll period for eligibility date in this matter was
July 16, 1988, I conclude that the above named individ
uals weie ineligible to vote in this election , and in the
event that a second election is not ordered in this case, I
would recommend that the challenges to their ballots be
sustained D Mceuen Jr
The investigation disclosed that D Mceuen, Jr was
separated from his employment with the Employer effec
tive August 15, 1988 In order to be eligible to vote in a
Board election, an employee must be in the appropriate
unit during the payroll period of eligibility and in em
ployee status on the date of the election Plymouth
Towing Company Inc, 178 NLRB 651 (1969), Greenspan
Engraving Corp, 137 NLRB 1308, 1309 (1962) The em
ployee seeking to vote must be employed and working
ont he established eligibility date, unless he was absent
for one of the reasons specified in Stipulated Election
Agreement, i e, vacation, temporary layoff status, or
military service Roy N Lotspeich Publishing Co, 204
NLRB 517 (1973) None of these circumstances apply to
Mceuen
Inasmuch as Mceuen does not meet the eligibility re
quirements outlined above and there are no pending
unfair labor practice charges alleging that his discharge
was unlawful, I shall recommend that the challenge to
his ballot be sustained
P Ash F Burson V Habick, H Lucas,
M McGhee C Millirons, E Parson, J Sapsford,
D Smith
R Taylor and R Waske
943
The ballots of the above named individuals were chal
lenged by the Board Agent inasmuch as their names did
not appear on the list of eligible voters The investigation
disclosed that these persons were laid off shortly before
the conduct of the election
The Union, contrary to the Employer, takes the pose
tion that the layoff is temporary in nature and that these
persons have a reasonable expectancy of recall in the
near future
Inasmuch as the challenges to the ballots of Ash
Burson Habrick Lucas McGhee Millirons Parson Saps
ford Smith Taylor and Waske raise issues of fact amd
credibility which cannot be resolved in an ex parte pro
ceeding, I shall recommend that, in the event my recom
mendation concerning Objection No 1 is not adopted,
the challenges to the above ballots be resolved following
a heanng before a duly designed hearing officer Howev
er, if a second election is ordered, I recommend that
challenges remain uncounted without dispositive ruling
as to their ultimate eligibility to vote in the second elec
tion
CONCLUSIONS AND RECOMMENDATIONS
The Employer s request to withdraw Objections Nos
2, 3, and 4 is hereby approved
I conclude that the Employers Objection No 1 is
meritorious and consequently recommend that it be sus
tained, that the election be set aside and that a second
election be ordered
I further conclude that the G Graves D Mceuen Jr,
and J Strittmatter were ineligible to vote in this election
and in the event that a second election is not ordered in
this matter I would recommend that the challenges to
their ballots be sustained
Finally, I conclude that the challenges to the ballots of
P Ash F Burson V Habick H Lucas M McGhee C
Milltrons E Parson J Sapsford D Smith R Taylor and
R Waske raise issues of fact and credibility which
cannot be resolved ex parte and therefore recommend
that if a second election is not ordered in this matter,
these challenges be resolved following a hearing before a
duly designated hearing officer