Classic Valet Parking, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 2015

363 NLRB No. 23 (N.L.R.B. 2015)

363 NLRB No. 23
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Classic Valet Parking, Inc. and Local 1102, Retail,
Wholesale & Department Store Union, United
Food and Commercial Workers, Petitioner.
Case 29–RC–148399
October 23, 2015
ORDER DENYING REVIEW
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Employer’s Request for Review of the Regional
Director’s Supplemental Decision on Objections, Order
consolidating cases, and notice of hearing is denied as it
raises no substantial issues warranting review.1
In this mail-ballot election case, the Regional Director
excluded from the tally of ballots 10 ballots not received
by the Region until after the tally was completed. The
Regional Director’s decision to exclude those ballots was
consistent with established Board precedent and policy.
See, e.g., Kerrville Bus Co., 257 NLRB 176, 177 (1981).
For that reason, we find no basis upon which to grant the
Employer’s request for review of the Regional Director’s
further decision to overrule the Employer’s objection
contending that the late-received ballots should be count-
ed.
Our dissenting colleague argues that we should make
an exception in this case, and count the late-received
ballots, under all the circumstances. Although we share
our colleague’s view that the Board has a strong interest
in effectuating employee choice, we believe that adher-
ing to our established practice—which balances that in-
terest with the interest in finality of election results—is
the better approach here.
The Board’s rule already permits acceptance of mail
ballots arriving after the date they are due, whatever the
reason for the delay, as long as they are received before
the scheduled ballot count. Thus, the rule provides a
grace period for receipt of late ballots. At the same time,
by excluding mail ballots received after the grace period
expires, the Board’s rule effectuates the substantial poli-
cy considerations favoring finality of election results.
Absent that limitation, election results could well be de-
layed for significant periods of time as mail ballots trick-
le into the regional office. See generally Versail Mfg.,

1 Pertinent portions of the Regional Director’s Supplemental Deci-
sion on Objections, Order consolidating cases, and notice of hearing are
attached as an appendix.
Inc., 212 NLRB 592, 593 (1974) (discussing importance
of promptly completing representation proceedings).
We acknowledge that this approach creates the possi-
bility, however remote, that determinative ballots could
be excluded from a ballot count, but this alone is not a
reason to set aside an election. See J. Ray McDermott &
Co. v. NLRB, 571 F.2d 850, 855 (5th Cir. 1978), cert.
denied 439 U.S. 893 (1978) (“It cannot be said that an
election by mail is per se invalid whenever a potentially
decisive number of votes . . . is lost through the vagaries
of mail delivery.”), enforcing the Board’s Order at 227
NLRB 1347 (1977), including the determination to reject
three mail ballots that were potentially determinative but
never received.2
Dated, Washington, D.C. October 23, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I join my colleagues in denying review of the Regional
Director’s decision to direct a mail ballot election. How-
ever, I would grant review on the basis that the Employer
has raised a substantial issue regarding the failure to
count 10 ballots that were mailed by eligible voters prior
to the June 2, 2015 deadline established by the Regional
Director (with votes to be counted on June 4) but were
received by the Region after the June 4 count. Of the
counted ballots, 10 were cast for the Petitioner, and 6
were cast against representation. Therefore, although
they arrived after the count, the 10 unopened ballots were
equal to the larger of the votes cast for or against repre-
sentation, they were potentially timely when mailed, and
6 of the unopened ballots, a determinative number, were
postmarked 5 days or more before the count. In these
circumstances, although the Board’s normal practice is to
exclude ballots received after the count is conducted, I
would grant review because such a large number of mail

2 There is no suggestion here that the Region was in any way re-
sponsible for the untimeliness of the ballots, or that the Board’s mail-
ballot procedure was otherwise deficient.
In addition, we note that MCS Consultants, Inc., 29–RC–11339
(Sept. 25, 2006), cited by our colleague, is neither precedential nor
consistent with the Board’s established rule on late-arriving mail bal-
lots.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ballots sent prior to the applicable deadline were not re-
ceived by the Region, and because the Board has, at least
on one occasion, counted such ballots when mailed rea-
sonably in advance of the deadline. See MCS Consult-
ants, Inc., 29–RC–11339 (Sept. 25, 2006). In my view, a
departure from the Board’s normal practice may be war-
ranted “in an extremely unusual case . . . when our regu-
lar procedures have been deficient,” based on the need to
“satisfy our overriding statutory responsibility to ‘assure
to employees the fullest freedom in exercising the rights
guaranteed by [the] Act.’” Tekweld Solutions, Inc., 361
NLRB No. 18, slip op. at 3 (2014) (Member Miscimarra,
dissenting) (quoting NLRA Sec. 9(b)).
Dated, Washington, D.C. October 23, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
SUPPLEMENTAL DECISION ON OBJECTIONS,
ORDER CONSOLIDATING CASES, AND NOTICE
OF HEARING
On March 18, 2015,1 Local 1102, Retail, Wholesale & De-
partment Store Union, United Food and Commercial Workers,
herein called the Petitioner or Union, filed a petition in this
matter seeking to represent certain employees employed by
Classic Valet Parking, Inc., herein called the Employer.
Pursuant to a Decision and Direction of Election, issued by
the undersigned on April 23, an election by secret mail ballot
was conducted from May 19 until June 2, with the count on
June 4, among the employees in the following unit:
All full-time and regular part-time runners (also known as
drivers), greeters and cashiers who are regularly employed
by the Employer at its Stony Brook University Hospital
site, located at Stony Brook, New York, but excluding all
employees employed at other sites, administrative employees,
clerical employees, professional employees, confidential em-
ployees, casual per diem employees, managerial personnel,
guards and supervisors as defined by the Act.
The tally of ballots made available to the parties pursuant to
the Board's Rules and Regulations, showed the following re-
sults:
Approximate number of eligible voters 29
Number of void ballots 1
Number of ballots cast for the Petitioner 10
Number of votes cast against participating
labor organization 6

1 All dates hereinafter are in 2015 unless otherwise indicated.
Number of valid votes counted 16
Number of challenged ballots 2
Number of valid votes counted plus
challenged ballots 18
Challenges are not sufficient in number to affect the results of the
election. A majority of the valid votes cast has been cast for the
Petitioner.
The Employer filed timely objections to conduct affecting
the results of the election. The Employer's objections are at-
tached hereto as Exhibit “A.”
Pursuant to Section 102.69 of the Board's Rules and Regula-
tions, the undersigned caused an investigation to be conducted
concerning the above-mentioned Employer's objections, during
which the parties were afforded full opportunity to submit evi-
dence bearing on the issues. The investigation revealed the
following:
Objection 1
In its first objection, the Employer objects to the Regional
Director's decision to conduct this election by mail ballot.
Specifically, the Employer alleges that the Region directed a
mail ballot election over the Employer's objection. The Em-
ployer further alleges that certain eligible voters did not receive
ballots. Finally, the Employer alleges that there were ten bal-
lots which were postmarked before the count, but received by
the Region after the count. The Employer asserts that these
late ballots should be opened and counted. The Petitioner as-
serts that this objection lacks merit.
In its offer of proof, the Employer states its attorney, Bernard
Burdzinski, will testify that the Employer objected to conduct-
ing the election by mail ballot and proposed alternatives for
conducting a manual election. Specifically, prior to the elec-
tion, the Employer stated that a mail ballot was not necessary
because all the employees could be scheduled to work and
available to vote from 6 to 8 a.m. or from 3 until 5 p.m. Addi-
tionally, the Employer stated that there were several locations
at Stony Brook University Medical Center at which an election
could be held. Further, Burdzinski will testify that two named
eligible employees reported to the Employer that they had not
received ballots and that, in turn, the Employer alerted the Re-
gion. Finally, the Employer states that Burdzinski will testify
that the Board Agent conducting the election confirmed that the
Region received ten ballots after the count, including one ballot
which appears to have been delivered initially to U.S. District
Court for the Eastern District of New York and forwarded to
the Region by the clerk of that court. The Employer states that
it will produce Postmaster Christopher Yanke to testify that
mail delivery has been slow in 2015.
The Petitioner asserts that the Regional Director properly ex-
ercised his discretion in deciding to conduct the election by
mail ballot. With regard to the voters who did not receive bal-
lots, the Petitioner states the Region alerted voters that they
could request a new ballot if they did not receive one. Further,
the Petitioner states that any potential mail slowdown is not
grounds for opening and counting ballots that were received by
the Region after the count on June 4.
The independent investigation revealed that prior to the elec-
tion, the parties took opposing positions regarding whether to
3 CLASSIC VALET PARKING
conduct the election by mail ballot. The Employer opposed a
mail ballot election. The Petitioner requested that the election
be conducted by mail ballot for a number of reasons, includ-
ing that unit employees are scattered temporally and geo-
graphically, that the Employer was engaging in unfair labor
practices, that a mail ballot election would be more efficient
for the Region, and that there was no location available at
Stony Brook University Medical Center at which to hold the
election. The investigation also revealed that the Region sent
duplicate ballots to the two employees identified by the Em-
ployer and that those employees returned their ballots. In addi-
tion, the Region sent duplicate ballots to other individuals.
Discussion
With regard to the Regional Director's decision to conduct a
mail ballot election, the Board has held that the mechanics of
an election, such as date, time, and place are left to the discre-
tion of the Regional Director. See Ceva Logistics U.S., Inc.,
357 NLRB No. 60 (2011) (in which the Board held that the
Regional Director acted within his discretion when he directed
an election on a day on which employees were scheduled to
attend a meeting at the Employer's facility, but were not
scheduled to work); San Diego Gas & Electric, 325 NLRB
1143 (1998) (in which the Board stated that a Regional
Director has broad discretion in determining the arrange-
ments for an election); Manchester Knitted Fashions, 108
NLRB 1366 (1954) (in which the Board stated that the Region-
al Director has the discretion to determine the time and place
for an election). The Board has specifically found that the Re-
gional Director has the discretion to determine whether an elec-
tion will be conducted manually or by mail ballot. See Nou-
veau Elevator Industries, 326 NLRB 470, 471 (1998) (in
which the Board found that the Regional Director has broad
discretion in determining the method by which an election is
conducted and that such a decision should not be overturned
unless clear abuse of discretion can be demonstrated).
In San Diego Gas & Electric, the Board specifically found
that mail ballot elections are particularly appropriate in cases
where employees are geographically or temporally scattered, or
where there is a strike, lockout, or picketing in progress. In
those cases, the Board found that a Regional Director should
also consider the positions of the parties, the ability of the unit
employees to read and understand a mail ballot, the availability
of addresses for employees, and the most efficient use of Board
resources. In such cases, the Board stated “we will normally
expect the Regional Director to exercise his or her discretion
within the guidelines set forth above.” San Diego Gas & Elec-
tric, 325 NLRB at 1145. Several of these considerations cited
by the Board are present in the instant case, including the tem-
poral and geographic scattering of employees, demonstrating
that the Regional Director properly exercised his discretion in
directing a mail ballot election. The Employer has not pre-
sented any evidence that that the Regional Director abused his
discretion by directing a mail ballot in this case. See Nouveau
Elevator Industries, supra.
With regard to the Employer's allegation that voters did not
receive ballots, the independent investigation showed that the
voters identified by the employer were provided with duplicate
ballots and returned them. Further, duplicate ballots were pro-
vided to other employees. There is no evidence that any voter
was disenfranchised. Compare Oneida County Community
Action Agency, 317 NLRB 852 (1995) (finding that an election
should be set aside if voters were disenfranchised during a mail
ballot).
The Employer alleges that the ten ballots received by the
Region after the count should be opened and counted. As the
Board has found, “[t]here must be some degree of finality to the
results of an election, and there are strong policy considerations
favoring prompt completion of representation proceedings.”
Versail Mfg., Inc., 212 NLRB 592, 593 (1974); see also J. Ray
McDermott & Co. v. NLRB, 571 F.2d 850, 855 (5th. Cir. 1978)
(finding that parties have a substantial interest in the finality of
representation proceedings). It would be unduly burdensome to
revise a Tally of Ballots in order to include ballots that were
received after the count. The Board has held that ballots re-
ceived after the due date but before the count should be opened
and counted as long as it does not interfere with the Board's
election procedures. In Kerrville Bus Co., 257 NLRB 176
(1981), seven mail ballots were received after the return date
for the ballots, but before the count. The Board ruled that all
seven ballots should be opened and counted. In so finding, the
Board emphasized the fact that these ballots were received
before the count was most significant, thus allowing employ-
ees the broadest possible participation “as long as ‘the elec-
tion procedures are not unduly interfered with or hampered.’”
Kerrville Bus Co., 257 NLRB at 177, quoting New England
Oyster House, 225 NLRB 682 (1976); see also Watkins Con-
struction Co., 332 NLRB 828, 828 (2000) (in which the Board
held that a late ballot should be counted if it is received before
the count begins); J. Ray McDermott & Co. v. NLRB, 571 F.2d
at 855 (finding the non-receipt of mail ballots does not render a
mail ballot election invalid). This case is akin to a case where
a voter appears at the polls after the count of ballots. See
Versail Mfg., Inc., 212 NLRB at 593 (in which the Board de-
clined to set aside an election because an over-the-road driver
was not able to return from a trip in time to vote in an election).
With regard to the Employer's allegation that delivery of the
mail ballots was slow, the Board has found that the failure of
the Postal Service to deliver mail ballots does not necessitate
setting aside an election. See J. Ray McDermott & Co. v.
NLRB, 571 F.2d at 855 (“It cannot be said that an election by
mail is per se invalid whenever a potentially decisive number of
votes, no matter how small, is lost through the vagaries of mail
delivery.”). For the reasons stated above, I overrule the Em-
ployer's first objection.