CHS, Inc.

National Labor Relations Board - Board Decisions

Aug 11, 2011

357 N.L.R.B. 514 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 54
514
CHS, Inc. and Daniel Peterson and Local 638 and
120, International Brotherhood of Teamsters.
Case 18–RD–002722
August 12, 2011
DECISION AND DIRECTION
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in a mail-ballot election held between December 6 and
20, 2010,1 and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 29 for and 27 against the Union, with 4 chal-
lenged ballots, a number sufficient to affect the results of
the election.2
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
findings and recommendations3 only to the extent con-
sistent with this Decision and Direction.
I.
The Employer is engaged in retail agricultural sales
from several U.S. facilities, including facilities in Grand
Forks and Minot, North Dakota. The Union represents a
bargaining unit of the Employer’s tank/truckdrivers and
mechanics employed at its North Dakota facilities. The
parties’ most recent collective-bargaining agreement
expired on November 10. On November 8, the Petitioner
filed this election petition.
Following the mail-ballot election, the tally was
scheduled for December 21. Prior to the opening of the
mail ballots, the Union timely challenged Wesley Sop-
er’s ballot on the basis that Soper was not on the payroll
at the time of the election. On December 21, the Re-
gional Director requested all parties to submit written

1 All dates are in 2010, unless otherwise indicated.
2 During the hearing, the Union withdrew its challenges to the bal-
lots of Craig Sager and Patrick Klein. Thus, the hearing officer di-
rected that their ballots should be opened and counted.
3 In adopting the hearing officer’s recommendation to overrule the
challenge to Craig Shalesky’s ballot, we find that the Union failed to
meet its burden of showing supervisory status as the record testimony
was too vague and general to establish that he exercised independent
judgment in assigning work. In addition, because Shalesky recently
had trained most of the mechanics to whom he assigned work, and
made assignments after being advised of the day’s priorities, his as-
signments were based on “common knowledge, present in any small
workplace, of which employees have certain skills,” and did not in-
volve independent judgment. See Armstrong Machine Co., 343 NLRB
1149, 1150 (2004). Member Hayes did not participate in Armstrong
Machine and expresses no view on the Board’s application of the law to
the facts there.
statements of their positions as to each challenged ballot
no later than December 28. On December 24, the Em-
ployer emailed a Board agent stating that it had changed
its position and now agreed with the Union that Soper
was not eligible to vote because he was not employed on
the date the ballots were to be returned to the Region.
Thereafter, by letter dated December 28, the Union with-
drew its challenge to Soper’s ballot.
On January 3, 2011, in his report on challenges, order
directing hearing, and notice of hearing, the Regional
Director approved the Union’s withdrawal request and
ordered that Soper’s ballot be opened and counted in the
event the ballot remained determinative following the
resolution of the remaining three challenged ballots.
After issuance of the Report on Challenges, the Employ-
er telephoned the Region on January 4, objected to the
Regional Director’s approval of the Union’s withdrawal
and raised its own challenge to Soper’s eligibility. In
view of this, the Regional Director issued a Supplement
to Report on Challenges directing that the hearing officer
first resolve whether the Employer had challenged and
could challenge Soper’s eligibility to vote after the elec-
tion and, if so, determine whether Soper was an eligible
voter.
The hearing officer found that the Employer filed an
untimely postelection challenge to Soper’s eligibility
because it was raised after the ballot count and that, giv-
en the Union’s withdrawal of its timely challenge, Sop-
er’s ballot should be opened and counted.4 The Employ-
er, in its exceptions, contends that the hearing officer
erred by concluding that its challenge to Soper’s vote
was untimely. The Employer asserts that, in response to
the Regional Director’s request for its statement of posi-
tion, it timely submitted written support for the Union’s
challenge to Soper’s eligibility, and it did so prior to the
opening of the challenged mail ballots.
II.
We find, contrary to the hearing officer, that the Em-
ployer’s challenge to Soper’s ballot raises no postelec-
tion challenge issue at odds with the Board’s timeliness
rules.
In order to promote election finality, the Board has
long required that challenges to voter eligibility be made
before the ballots are cast and commingled with other
uncontested ballots. Lakewood Engineering & Mfg. Co.,
341 NLRB 699, 700 (2004). The Board generally will
not entertain a postelection challenge unless the party
that would benefit from the Board’s refusal to consider

4 Although the hearing officer heard evidence on Soper’s eligibility
to vote, he did not resolve this issue because he concluded that the
Employer’s challenge was untimely.
CHS, INC. 515
such a challenge knows that a voter is ineligible and con-
ceals that ineligibility. See, e.g., NLRB v. A. J. Tower
Co., 329 U.S. 324, 333 (1946); Solvent Services, 313
NLRB 645 (1994).
However, the Board has held that a party may raise
and litigate at a hearing an alternative ground for a
properly challenged ballot, even if that alternative ground
was not raised in a timely challenge. In Coca-Cola Bot-
tling Co. of Miami, 237 NLRB 936 (1978), the Board
agent challenged the ballot of striker replacement D. W.
Davis on the ground that Davis was not included on the
Excelsior list. The union, which had challenged the bal-
lots of all other striker replacements on the ground that
the strike was an unfair labor practice strike, did not sim-
ilarly challenge Davis’ ballot, presumably because it
considered such a challenge superfluous in light of the
Board agent’s challenge. At the hearing, it was deter-
mined that the Board agent had mistakenly challenged
Davis’ ballot, as his name was on the Excelsior list. The
union then stated that it wanted to challenge Davis’ bal-
lot on the same basis as its challenge to the other striker
replacements. The Board adopted the judge’s findings
that the union’s challenge to Davis’ eligibility properly
could be considered because no postelection challenge
issue was presented “so long as Davis’ ballot remains
sealed” and because “the Board is free to sustain the
challenge to his ballot on any valid litigated ground.” Id.
at 952.
This case is unlike those cases where ballots have al-
ready been commingled and a party then files a late chal-
lenge. Here, as in Coca-Cola, supra, timely initial chal-
lenge was filed, and Soper’s ballot has been segregated.
Notwithstanding that the Union and the Employer
changed their positions on Soper’s eligibility after the
initial tally of ballots, his ballot remained sealed, and the
issue of his eligibility (contested at different times by
both these parties on the same basis) was litigated at the
hearing pursuant to the Regional Director’s instructions
in his Supplement to Report on Challenges. Under these
circumstances, we see no impediment to resolving the
challenge to Soper’s ballot on the merits.
Because the hearing officer found that Soper’s ballot
should be opened and counted based solely on the un-
timeliness of the Employer’s postelection challenge, we
will remand this proceeding with instructions to address
the merits of Soper’s eligibility if his ballot remains de-
terminative.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
18 shall, within 14 days from the date of this Decision
and Direction, open and count the ballots of Craig Sager,
Patrick Klein, and Craig Shalesky.
IT IS FURTHER ORDERED that the Regional Director
shall hold in abeyance the ballot of Wesley Soper until
the ballots of the voters listed above are opened and
counted. If the ballot of Soper becomes determinative to
the outcome of the election, then the Regional Director
shall take further action consistent with this Decision and
Direction. If his ballot is not determinative, it shall re-
main sealed, and the Regional Director shall prepare and
serve on the parties a revised tally of ballots and issue the
appropriate certification.