Europa Auto Imports, Inc., d/b/a Mercedes-Benz of San Diego

National Labor Relations Board - Board Decisions

Aug 25, 2011

357 N.L.R.B. 650 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 67
650
Europa Auto Imports, Inc. d/b/a Mercedes-Benz of
San Diego and International Association of Ma-
chinists and Aerospace Workers, AFL–CIO,
District Lodge 190, Petitioner. Case 21–RC–
021210
August 25, 2011
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The National Labor Relations Board, by a three-
member panel, has considered an objection and determi-
native challenges to ballots cast in an election held on
August 31, 2010, and the administrative law judge’s re-
port recommending disposition of them. The election
was conducted pursuant to a Decision and Direction of
Election. The tally of ballots shows 24 votes cast for and
19 against the Petitioner, with 5 challenged ballots,
which are sufficient in number to affect the results of the
election.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the judge’s findings1 and
recommendations,2 and finds that a certification of repre-
sentative should be issued for the reasons explained be-
low.
The election was held in a unit of the Employer’s auto
technicians. The Employer’s objection alleges that the
Board agent engaged in misconduct by refusing to allow
employees Mauricio Zaragoza and Lee Maher to vote.
The judge recommended overruling the objection, find-
ing that Zaragoza and Maher were not eligible to vote
because the Employer had improperly transferred them to
the technician classification only days before the end of
the eligibility period in order to affect their voting eligi-
bility. Although we affirm the judge’s recommendation
to overrule the Employer’s objection, we do not rely on

1 The judge was sitting as a hearing officer in this representation
proceeding. The Employer has implicitly excepted to some of the
hearing officer’s credibility findings. The Board’s established policy is
not to overrule a hearing officer’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We
have carefully examined the record and find no basis for reversing the
findings.
2 In the absence of exceptions, we adopt, pro forma, the judge’s rec-
ommendation to overrule the challenges to the ballots of Peter Faber,
Brian Palmiter, Jose Casanova, and Chris Switzer.
In adopting the judge’s recommendation to sustain the challenge to
the ballot of Remo Bersinger, we agree with the judge that Bersinger is
a supervisor within the meaning of Sec. 2(11) of the Act as a result of
his authority to promote bargaining unit employees using independent
judgment. We do not rely on the judge’s finding that Bersinger assigns
work to employees.
his rationale. As explained below, the Employer’s asser-
tion that Zaragoza and Maher were eligible to vote is
untimely, as eligibility is not properly litigated through
the postelection objections process. The only question
before the Board at this stage of the proceeding is wheth-
er the Board agent acted improperly, based on the infor-
mation available to him, in refusing to allow Zaragoza
and Maher to vote. We find that he did not.
In his Decision and Direction of Election, the Acting
Regional Director found that Zaragoza and Maher were
not eligible to vote, based on evidence presented by the
Employer at the preelection hearing. After the preelec-
tion hearing, but before the end of the eligibility period,
the Employer made operational changes that could have
affected Zaragoza’s and Maher’s eligibility. Most im-
portant, the Employer placed them into a technician clas-
sification that was included in the unit. In seeking re-
view of the Decision and Direction of Election, however,
the Employer failed to bring these changes to the atten-
tion of the Board. The Board denied the request for re-
view in relevant part and adopted the Acting Regional
Director’s decision finding that Zaragoza and Maher
were not eligible to vote.
At the preelection conference, the Board agent, in ac-
cordance with the Board’s order denying review, struck
the names of Zaragoza and Maher from the eligibility
list. The Employer did not raise the issue of changed
circumstances at that time. Similarly, no one apprised
the Board agent of any changed circumstances when he
denied Zaragoza’s and Maher’s attempts to vote during
the election, or at any other time before the polls closed.
Instead, after the election, the Employer filed an objec-
tion alleging that the Board agent’s failure to allow Zara-
goza and Maher to vote “chilled the laboratory condi-
tions of the election atmosphere and created a condition
where voters were disenfranchised from the election pro-
cess.”
Following the election, the Acting Regional Director
issued a supplemental decision ordering a hearing on the
challenged ballots of several employees. In that supple-
mental decision, the Acting Regional Director also ad-
dressed the Employer’s objection, finding that the Board
agent acted properly in refusing to allow Zaragoza and
Maher to vote. Nevertheless, the supplemental decision
expressly permitted the parties to present evidence at the
hearing concerning “possible changed circumstances in
terms and conditions of employment for Maher and Za-
ragoza” and “the election-day events related to their
franchise.” At the postelection hearing, the Employer
presented, for the first time, evidence that Zaragoza and
Maher had been transferred into the technician classifica-
tion.
MERCEDES-BENZ OF SAN DIEGO 651
We depart from the judge’s analysis insofar as he ex-
amined the Employer’s objection in terms of Zaragoza’s
and Maher’s eligibility. It is well established that the
Board will not permit a party to raise eligibility issues
under the guise of a postelection objection. As the Board
has long held, and as the Supreme Court has recognized,
“challenges to the eligibility of voters [must] be made
prior to the actual casting of ballots, so that all uncon-
tested votes are given absolute finality.” NLRB v. A. J.
Tower Co., 329 U.S. 324, 331 (1946); accord: Solvent
Services, 313 NLRB 645, 646 (1994) (“[I]n the interest
of promoting election finality, postelection challenges
will not be permitted”). The same holds true for chal-
lenges to preelection rulings that employees are not eli-
gible to vote. Here, the Employer had multiple preelec-
tion opportunities to present evidence of Zaragoza’s and
Maher’s reclassification, including to the Board in its
request for review and to the Board agent at the preelec-
tion conference or, at the very latest, at any time before
the polls closed. Having failed to do so, the Employer
cannot now use a postelection objection to argue that
Zaragoza and Maher were eligible voters. Accordingly,
we find that the Employer’s argument that changes to
Zaragoza’s and Maher’s job duties made them eligible
was not timely made.3
The only question properly before the Board, there-
fore, is whether, as alleged in the Employer’s objection,
the Board agent’s actions require setting aside the elec-
tion. To prevail on that question, the Employer, as the
objecting party, must establish facts raising a “reasonable
doubt as to the fairness and validity of the election,”
Rheem Mfg. Co., 309 NLRB 459, 460 (1992), quoting
Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d
999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970).
The Employer contends that the fairness of the election
was compromised because the Board agent struck the
names of Zaragoza and Maher from the eligibility list
and did not allow them to vote. We disagree.
The Board agent clearly adhered to established elec-
tion procedures. Section 11338.7 of the Board’s
Casehandling Manual (Part Two), Representation Proce-
dures provides, in relevant part:

Persons in job classifications specifically excluded by
the Decision and Direction of Election should be re-
fused a ballot, even under challenge, unless there have
been changed circumstances. The Board agent must
exercise discretion in deciding whether to allow a vote

3 The fact that the Acting Regional Director permitted the Employer
to introduce evidence of “changed circumstances” does not require the
Board to find that such circumstances existed or to engage in a belated
re-examination of eligibility.
under challenge when the person presents plausible
reasons for being permitted to vote despite the exclu-
sion or when there is some question as to whether the
person is actually within the excluded group.
. . . .
In all situations where reasonable doubt exists concern-
ing whether the prospective voter falls within an in-
cluded or excluded category or whether changed cir-
cumstances have altered the voter’s eligibility status,
the challenged ballot procedure should be used.4

Here, the Board agent acted in accordance with the Board’s
denial of review of the Decision and Direction of Election,
which specifically excluded Zaragoza and Maher from the
unit. As described, moreover, neither the Employer nor
Zaragoza or Maher provided the Board agent any reasons,
much less “plausible reasons,” why they should have been
permitted to vote or why, because of changed circumstanc-
es, there was at least a “reasonable doubt” concerning their
eligibility. Thus, given the evidence available to the Board
agent at the time, his decision not to allow Zaragoza and
Maher to vote was fully consistent with the Board’s stand-
ard procedures. In those circumstances, we find that his
actions do not raise a “reasonable doubt as to the fairness
and validity of the election.” We therefore overrule the
Employer’s objection.
In view of the foregoing, and inasmuch as the four
challenged ballots the judge concluded should be count-
ed are insufficient to affect the results of the election, we
shall certify the Petitioner.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Association of Machinists and
Aerospace Workers, AFL–CIO, District Lodge 190, and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate bar-
gaining unit:

All flat-rate technicians, PDI Technicians, Roadside
Assistant Technicians, and hourly Smart technicians
employed by the Employer at its facility located at
4750 Kearny Mesa Road, San Diego, CA; excluding all
other employees, Service Advisors, all other hourly
technicians, Parts Department employees, Loaner De

4 Although the Casehandling Manual is not binding on the Board, it
provides “operational guidance” that is “intended to safeguard a free
and fair election.” Queen Kapiolani Hotel, 316 NLRB 655, 655 fn. 5
(1995); Kirsch Drapery Hardware, 299 NLRB 363, 364 (1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
partment employees, Rental Car Department employ-
ees, Warranty Administration employees, Cashiers,
Greeters, Car Washers, office clerical employees,
guards and supervisors as defined in the Act.