Consumers Energy Co.

National Labor Relations Board - Board Decisions

Jul 5, 2002

337 N.L.R.B. 752 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
Consumers Energy Company and Utility Workers
Union of America, AFL–CIO, Petitioner. Case
7–RC–22022
July 5, 2002
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The National Labor Relations Board, by a three-
member panel, has considered an objection to an election
held on August 15, 2001, and the hearing officer’s report
recommending disposition of it. The election was con­
ducted pursuant to a Decision and Direction of Election.
The second revised tally of ballots shows 137 votes for
and 136 against the Petitioner.
The Board has reviewed the record in light of the ex­
ceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations, and finds that a certifi­
cation of representative should be issued.
Contrary to our dissenting colleague, we agree with the
hearing officer that the Board Agent properly denied
Brian K. Vandenberg an opportunity to vote because he
arrived after the scheduled 3 p.m. closing of the polls.
See Laidlaw Transit, Inc., 327 NLRB 315 (1999); Monte
Vista Disposal Co., 307 NLRB 531 (1992).
As fully set forth [as an appendix] is the attached por­
tion of the hearing officer’s report, the Board agent, the
Employer’s observer, and the Petitioner’s observer all
testified that the Board agent closed the polls at 3 p.m.,
according to his watch, and that Vandenberg arrived in
the polling area shortly after this closing time. No one
protested the Board agent’s open reliance on his time-
piece throughout the election, his closing of the polls at
the announced time of 3 p.m., or his subsequent denial of
a ballot to Vandenberg.
For the reasons set forth by the hearing officer, we
agree that the Board agent’s watch was the recognized
official timepiece, even if he failed formally to designate
it as such. In any event, Vandenberg’s testimony that he
“scanned in” at 2:59 p.m. at a clock located 30 feet from
the closed door to the polling area does not prove that the
Board Agent’s watch was inaccurate. Nor does it prove
that Vandenberg, who had two young children with him,
must have gone from the clock’s location to the polling
area before that clock struck 3 p.m. Notably, Vanden­
berg did not protest to the Board agent that he had ar­
rived before the proper closing time.
1 We do not rely on the hearing officer’s discussion of issues beyond
the scope of our remand Order on February 20, 2002, which directed “a
hearing solely to determine if Brian K. Vandenberg arrived at the poll­
ing place before the polls closed.”
Further, even if we agreed with our dissenting col­
league that the evidence is insufficient to show whether
Vandenberg actually arrived late, we would adopt the
hearing officer’s recommendation to overrule the Em­
ployer’s objection. It is the Employer’s burden, as the
objecting party, to prove that there has been misconduct
that warrants setting aside the election. E.g., Sahuaro
Petroleum, 306 NLRB 586, 586–587 (1992). If the evi­
dence is insufficient, then the Employer has failed to
meet its burden.2 For the foregoing reasons, we agree
with the hearing officer that the Employer has failed to
prove that Vandenberg arrived at the polling place before
the polls closed.3
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Utility Workers Union of America, AFL–
CIO, and that it is the exclusive bargaining representative
of the employees in the following appropriate unit:
All full-time and regular part-time customer service
employees, including senior customer service
representatives (CSRs), CSRs I, CSRs II, CSRs III, and
home CSR agents, employed by the Employer at or out
of its “virtual call center” facilities in Alma, Saginaw,
Grand Rapids, Royal Oak, and Lansing, Michigan; but
excluding all other nonexempt employees, all exempt
employees, all operating, maintenance and construction
employees, and guards and supervisors as defined in
the Act.
MEMBER COWEN, dissenting.
Upon further review of this case, including the record
on remand, I am convinced that the Regional Director
correctly set aside the first election in this matter. Ac­
cordingly, I would grant the Employer’s request for re-
view, set aside the election, and remand this case to the
Regional Director to conduct a second election.
This is a very close election in a relatively large unit.
Following the systematic review and resolution of a
number of challenged ballots, there is a one-vote margin
of victory for the union, and one employee who was not
allowed to vote because the Board agent had closed the
polls before the employee had arrived to vote.
In the original request for review the Board considered
the question of whether the election should be set aside
based upon the possible disenfranchisement of this em-
2 The closeness of the election does not alter this burden of proof.
3 We do not rely on the hearing officer’s discussion of issues beyond
the scope of our remand directions in a February 20, 2002 Order grant­
ing the Union’s request for review. We also find no need to address
issues decided by that Order, which the Employer and the dissent have
raised again here.
337 NLRB No. 120
753 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee because the Board agent conducting the election
did not follow the appropriate procedure for handling
Late-Arriving Employees. See NLRB Case Handling
Manual, Part Two—Representation Proceedings, Sec.
11324.1. Because the record did not indicate whether the
employee was, in fact, late in arriving at the polling place,
the Board majority remanded this case to the Regional
Director to conduct a hearing regarding this single issue.
Having conducted a hearing on the question of timeli­
ness, we now know no more than we did before. Al­
though the record clearly shows that the employee ar­
rived at the polling place within seconds of the time that
the Board agent closed the polls, the record does not es­
tablish whether the Board agent closed the polls at the
scheduled time. In this regard, the election was sched­
uled to end at 3 p.m., and the record shows that the
Board agent closed the polls when his personal watch
indicated that it was 3 p.m. However, the record also
shows that the employee in question “scanned-in” at 2:59
p.m. and walked 30 feet to the polling place only to be
told that the election was over and that he could not cast
a vote.
There is insufficient evidence in the record to establish
that the Board agent’s personal watch reflected the cor­
rect time. This is due, at least in part, to another signifi­
cant deviation from appropriate case handling proce­
dures—the Board agent did not designate an official
timepiece prior to the balloting. See NLRB Case Han­
dling Manual, Part Two—Representation Proceedings,
Sec. 11320. As a result, there was no synchronization of
timepieces amo ng the various parties, and there was no
way to determine at the hearing whether the Board
agent’s personal watch actually reflected the correct
time.
Under all the circumstances in this case I can not agree
with my colleagues that this close election should be
certified when there is a significant possibility that a po­
tentially determinative voter has been disenfranchised by
the actions of the Board agent. Because of the lack of a
designated official timepiece, we do not know whether
the polls were closed early or whether the employee ar­
rived late. Because the Board agent did not follow the
proper challenged ballot procedure for handling a late-
arriving employee, we do not know if the parties would
have reached an agreement regarding this voter’s eligibil­
ity, thus resolving this matter prior to the opening and
counting of the ballots.
Given the closeness of this election1 and the very real
potential that a determinative voter has been improperly
1 The Board and the courts have consistently noted that election ob­
jections should be more carefully scrutinized in close elections. See,
e.g., Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995); Copps Food
disenfranchised, I believe the better course is the one
originally laid out by the Regional Director—conduct a
new election immediately. As I see this case, we can
either conduct a new election now, or risk being directed
to do so by the U.S. Court of Appeals for the Sixth Cir­
cuit following a subsequent unfair labor practice
proceeding. Simply stated, an early election is preferable
to one directed several years from today.
APPENDIX
HEARING OFFICER’S REPORT
. . . .
THE OBJECTION
It is the Employer’s position that Brian K. Vandenberg, Senior
Customer Service Representative, Grand Rapids Call Center
employee whose name appears on the Excelsior list and who
was precluded from casting a ballot even though he claims that
he arrived prior to the vote closing time in the voting area,
should be allowed to vote. According to Mr. Vandenberg, he
arrived as the Board agent was closing the ballot box and when
he asked if he could vote, the Board agent said no. Even if the
Board agent had declared the poll to be closed, the ballot box
had not been opened for counting. Under the Board’s manual,
he should have been allowed to vote and, absent agreement
between the Union and Employer, the Board agent should have
challenged his ballot. Instead of following its own manual, the
Board agent told Mr. Vandenberg that he could not vote.
Although the Employer’s objection covers a number of is-
sues, the Board’s Order is explicit in its direction that the hear­
ing be held solely to determine if Brian K. Vandenberg arrived
at the polling place before the polls closed.
The Employer presented three witnesses: the Board agent,
their election observer Patricia Iciek, and Brian Vandenberg to
testify directly to the issue at hand. The Petitioner called only
their election observer, Marcella Koewers.
The Board agent testified that while he was giving the elec­
tion observers their instructions, he did not recall informing
them which watch or clock was going to be used for the pur­
pose of determining the starting or stopping time for the elec­
tion. He also testified to his actions at the close of the polls. “I
remember walking out to the door and standing there and look­
ing at my watch. It went immediately to 3:00 and my typical
practice is to wait another 15 to 30 seconds to make sure no-
body comes bolting in, is what I did in this situation. At that
point, I told the observers, the polls are closed, which is my
normal practice, as well, to make sure that everybody under-
stands, including the observers that the polls are closed.” The
Board agent also testified that he looked down the hall and did
not see anyone coming and that he was using his watch as the
official time. Further, he testified that he recalled it was two to
Center, 296 NLRB 395 (1989); NLRB v. VSA, Inc., 24 F.3d 588 (4th
Cir. 1994); St. Margaret Memorial Hospital v. NLRB, 991 F.2d 1146
(3d Cir. 1993); United Steel Workers of America v. NLRB, 496 F.2d
1342 (5th Cir. 1974); accord: NLRB v. Savair Mfg. Co., 414 U.S. 270
(1973).
CONSUMERS ENERGY CO. 754
four minutes after the close of the polls that Mr. Vandenberg
arrived and that he told him that the polls were closed. Finally,
the Board agent testified that it was his decision to close the
polls and that neither Mr. Vandenberg nor the election observ­
ers protested or stated, at that time, that Mr. Vandenberg was
present prior to the closing of the polls.
Ms. Iciek’s testimony corroborates the Board agent with re­
gard to the time the polls closed. She testified that during the
last 10 minutes of the voting, there were no voters and that the
Board agent was occasionally looking at his watch. She testi­
fied as follows: “He said it was 3:00; the voting process was
done. I remember glancing down at my watch and it appeared
to be 3:00 and, at that time, he asked—said it was completed, I
could down the signs.” Further, she testified that about 10 sec­
onds after the polls closed Mr. Vandenberg arrived and the
Board agent told him it was too late and that he [Mr. Vanden­
berg] walked away. Finally, she admitted that she did not ask
the Board agent if Mr. Vandenberg could vote and she did not
testify that she ever contested the Board agent’s determination
that it was 3:00 or that the polls were closed.
Mr. Vandenberg testified that it was his opinion that he was
on time to vote and that he knew he was cutting it close. He
also testified regarding his actions when he arrived at the poll­
ing place: “When I opened the auditorium door, she [the Em­
ployer’s observer] was, maybe, a foot away. She was coming
towards the door but she was right there. I mean, we kind of
surprised each other when I opened it. She was standing right
there. I asked something like, you know, am I too late to vote or
I am here to vote. You know, is it too late and she just kind of
looked at me like she did not know. We turned and proceeded
to the table where the ballot box was (and the Board agent) was
standing. He overheard me asking Patty if I could still vote and
he responded, as I was approaching him that, no, it was past
3:00 and it was too late to vote.” Further, Mr. Vandenberg testi­
fied that after he arrived at the polling place, he observed the
Board agent’s watch it and it appeared to be “slightly past
3:00.” Finally, Mr. Vandenberg did not testify that he ever de­
manded to vote, or protested to the Board agent about not being
allowed to vote, or that the Board agent’s determination that it
was 3:00 and that the polls were closed was in error.
Ms. Koewers testified on behalf of the Petitioner. Her testi­
mony also corroborates the Board agent with regard to the time
the polls closed. Her testimony regarding the closing of the
polls is as follows: “Well, he looked at his watch. He had been
looking at it for a few minutes, anyway, and it became three
o’clock. He walked over by the door and he said, well, it is
three o’clock. He said, I am going to give it another 30 seconds.
He stood there. I kept track of my watch and I looked at the
second hand, actually, and it was 30 seconds after and he said,
the poll is closed.” She also testified that 45 seconds to a min­
ute later after the polls had closed Mr. Vandenberg arrived and
was told by the Board agent that the polls were closed. She did
not testify that she ever contested the Board agent’s determina­
tion that it was 3:00 or that the polls were closed.
Also, both observers testified that when the polls opened, the
Board agent said it was 2:00 and that the polls were open. Fur­
ther, the observers each indicated that they looked at their own
watches when the polls were declared open and they testified
that it either “appeared” to be 2:00 or it was 2:00.
Discussion
It is clear from the record before me that Mr. Vandenberg
did not arrive at the polling place before the polls closed. All of
the witnesses testified that Mr. Vandenberg arrived after the
Board agent announced it was 3:00 and the polls had closed.
Even Mr. Vandenberg testified that lie observed the Board
agent’s watch and that it was “slightly past 3:00.” Additionally,
I find it telling that no one, including; Mr. Vandenberg. pro-
tested the fact that lie was denied a ballot when the denial took
place. Only now does Mr. Vandenberg assert through his tes­
timony that he holds the “opinion” that he was on time to vote.
Neither his opinion nor the Employer’s objection are supported
by the evidence.
In its brief, the Employer raises a number of arguments in­
cluding the failure to follow the Casehandling Manual, conflict­
ing testimony of the witnesses and the testimony of Mr. Van­
denberg concerning the time he arrived at the Employer’s facil­
ity. As I will se forth below, the Employer’s arguments are
equally without merit.
The Board’s Casehandling Manual, Part Two, Representa­
tion Proceedings (1999), has three sections that are applicable
to the circumstances of the instant case. Section 11320, regard­
ing the opening of the polls states in part, “The Board agent
will select the official timepiece and so inform the observers.”
Also, Section 11324, regarding the closing of the polls states in
part, “The polls should be declared closed exactly at the sched­
uled time determined by the Board agent as indicated by the
timepiece selected prior to the opening of the polls.” Finally,
Section 11324.1, regarding late-arriving employees states:
An employee who arrives at the polling place after the desig­
nated polling period has ended is not entitled to have his or
her ballot counted, absent extraordinary circumstances, unless
the parties agree not to challence the ballot. Laidlaw Transit,
Inc., 327 NLRB 315 (1999); Monte Vista Disposal Co., 307
NLRB 531 (1992). In order to permit an orderly investigation
if necessary after the election as to whether there were ex­
traordinary circumstances, the following procedures should be
followed when a voter arrives after the designated polling pe­
riod has ended: the Board agent should determine whether
there is agreement of all the parties as to whether such voter
should be allowed to cast a ballot; if no such agreement is
reached, the Board agent should permit the voter to cast a bal­
lot, which the Board agent should then challenge.
In addressing the issue of failing to follow the Board’s Case-
handling Manual (CHM), it is well settled that the provisions of
the CHM are not binding procedural rules rather they are
merely intended to provide operational guidance. See Avante at
Boca Raton, Inc., 323 NLRB 555 (1997); Queen Kopiolani
Hotel, 316 NLRB 655 (1995). Further, in order to set aside an
election on the basis of a Board agent’s conduct, the facts must
raise a reasonable doubt as to the fairness and validity of the
election and the Board agent’s failure to follow the CHM will
not warrant setting aside an election absent showing that the
deviations from these guidelines raised reasonable doubt as to
755 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the fairness and validity of the election. Rheem Mfg. Co., 309
NLRB 459 (1992).
In the instant case, I find that the alleged failure to designate
an official timepiece does not meet the burden to set aside an
election based on the standards set forth in Rheem Mfg. Co.,
supra. Clearly, the ultimate responsibility for the procedures
used and the conduct of the election fall upon the Board agent
that is present at the election. Under the Employer’s theory, the
failure to designate an official timepiece would relieve the
Board agent[s] of their responsibilities to conduct the election
by allowing for any other person’s interpretation of what time it
is and whether or not to close the polls. This argument is com­
pletely without merit, particularly in light of the facts of this
case. Here, the Board agent opened the polls at 2:00 and closed
them when the Board agent looked at his watch and declared it
to be 3:00, both observers testified that they looked at their own
watches and it either appeared to be 3:00 or it was 3:00 and no
one objected to the closing of the polls. The failure of the Board
agent to inform the parties that his watch was the “official
timepiece” is irrelevant. The parties acquiesced to the Board
agent’s use of his watch and therefore, it became the de facto
“official timepiece.” I find the situation in the instant case to
[be] similar to the facts in Lemco Construction, Inc., 283 NLRB
459 (1987), where the Board held that employees who arrived
to vote and found the polls to be closed, had failed to vote be-
cause “timepiece on which they relied differed from the official
timepiece use in the election.”
In examining the issue regarding how to handle a late arriv­
ing employee such as Mr. Vandenberg, the Employer seems to
want to have it both ways. In its prior arguments, the Employer
urges the Board to find that Mr. Vandenberg arrived after the
polls closed. The relevant case law regarding late arriving em­
ployees set forth in Laidlaw Transit and Monte Vista Disposal,
supra, where the Board established a bright-line test for late
arriving employees. Applying the facts of the instant case to the
bright-line test, I find that Mr. Vandenberg arrived at the poll­
ing place after the polls had closed; there is no agreement of the
parties to allow him to vote; and their are no “extraordinary
circumstances” present.3 It is mere speculation to assume that
3 Extraordinary circumstances shall include a showing that one of
the parties was responsible for the tardiness of late-arriving voter or
voters. See Pruner Health Services, 307 NLRB 529 (1992). However,
the Board’s Order in this case specifically instructed that I need not
consider the reasons for Mr. Vandenberg’s delay.
the parties would have agreed to permit him to vote. The issue
of a challenged ballot would only apply if there was a need for
an investigation into any alleged extraordinary circumstances.
There are no extraordinary circumstances here. Therefore, hav­
ing found that Mr. Vandenberg arrived at the polling place after
the polls had closed and that there is no agreement between the
parties to allow him to vote, I can make no other recommenda­
tion except that Mr. Vandenberg was properly denied a ballot.
With regard to conflicting testimony by the witnesses, I find
that the only potential conflicting testimony is with regard to
what happened after the polls had closed and Mr. Vandenberg
arrived. I have already found that the witnesses credibly testi­
fied regarding the determination that it was the correct time to
close the polls. The differing testimony regarding the amount of
time after the polls closed that Mr. Vandenberg arrived is ir­
relevant and does not warrant an adverse credibility resolution.
Finally, the testimony of Mr. Vandenberg regarding his arri­
val at the Employer’s facility prior to 3:00 is equally irrelevant
as it continues to lead down the path that would relieve the
Board agent[s] of their responsibility to conduct the election by
allowing for someone else’s interpretation of time to be control-
ling, particularly in light of the fact in this case, when there are
no extraordinary circumstances present. The only thing that
matters is what time the Board agent determined it to be and in
this case, the Board agent’s determination is supported by the
testimony and evidence in the record before me.
CONCLUSIONS AND RECOMMENDATIONS TO TH E BOARD
Based on my findings and conclusions above, I recommend
that the Board overrule the Employer’s objection in its entirety
and that the appropriate certification of representative be is-
sued.4
4 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulation, Series 8, as amended, within 14 days from the issuance of
this report, either party may file with the Board in Washington, D.C.,
an original and seven copies of exceptions thereto. Immediately upon
filing of such exceptions the party filing same shall serve a copy thereof
on the other parties and on me. If no exceptions are filed, the Board
may adopt the recommendations of the Hearing Officer.