Fern Laboratories

National Labor Relations Board - Board Decisions

Sep 26, 1977

232 N.L.R.B. 379 (N.L.R.B. 1977)

FERN LABORATORIES
Fern Laboratories, Inc. and Oil, Chemical & Atomic
Workers International Union, Local 8-149. Cases
29-CA-5156 and 29-RC-3536
September 26, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered an objection and
challenges to an election held on September 22,
1976,1 and the Regional Director's Report on
Objections and Challenged Ballots, Order Consoli-
dating Cases, and Notice of Hearing. The Board has
reviewed the record in light of the Employer's
exceptions and hereby adopts the Regional Direc-
tor's findings and recommendations.
The Employer has excepted to the Regional
Director's recommendation to overrule its objection
alleging that "a ballot challenged by the company
was not properly segregated in a separate envelope,
but was instead permitted to be cast and counted in
the tally of ballots."
At a preelection conference held in the Board's
Regional Office, the Employer, who was represented
by counsel, and the Petitioner executed and fur-
nished the Board agent an election eligibility agree-
ment providing that the ballots of Rose Presti and
Julia Seargent would be "subject to challenge."
Immediately prior to the election, Abe Abramow-
itz, the Employer's observer, was instructed by the
two Board agents as to the challenge procedure.2
Seargent, who served as the Union's observer, and
Abramowitz were the first to vote. Abramowitz did
not orally challenge the ballot of Seargent before it
was cast. Later, when Seargent voiced a challenge to
the ballot of Presti and the Board agent segregated
Presti's ballot, Abramowitz asked the agent why
Seargent's ballot had not been similarly segregated.
The Board agent replied that there had not been a
proper challenge to Seargent's ballot and that it was
now too late to make one since the ballot had already
been cast. Abramowitz claims he protested that he
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: six for, and five against, the
Petitioner; there were two challenged ballots.
2 While there is some dispute between Abramowitz on the one hand and
the two Board agents and Seargent on the other as to whether Abramowitz
was properly instructed to orally notify the Board agent of any challenges to
a ballot before it was cast, it is uncontroverted that the Employer was
supplied with the Board's Official Election Notice and the Instructions to
Observers (Form NLRB-722) a few days prior to the election.
3 The Regional Director's report indicates that Abramowitz claims to
232 NLRB No. 84
had challenged the ballot in accordance with the
Board agent's preelection instructions.3
The Employer alleges and our dissenting colleague
would hold that the Board agent had an obligation to
"state" the Employer's challenge to Seargent's ballot
pursuant to the provisions of the parties' preelection
agreement. The Chairman proposes that we expand
the obligation of the Board agents by requiring them
to state challenges noted in a preelection agreement
even where a party's observer either inadvertently or
negligently fails to state that party's challenge. We
are of the view that such a result would be
inconsistent with the principle that parties must state
their own challenges unless there is an "unexpected
occurrence." N. LR.B. v. Schwartz Brothers, Inc., et
al., 475 F.2d 926 (C.A.D.C., 1973). An observer's
mistake is not such an occurence against which a
Board agent should be required to guard.
To support his position, our colleague cites the
Board's decision in Laubenstein & Portz, Inc., 226
NLRB 804 (1976), in which it set aside an election
because a Board agent failed to state a challenge
pursuant to the parties' "verbal understanding"
which was a "quintessential condition" of an
agreement settling an unfair labor practice charge.
That case, however, is distinguishable from this one.
Deviation from an agreement resulting from a
preelection conference, which occurred in this case,
is hardly the same thing as deviation from an
agreement settling rights and liabilities arising out of
an unfair labor practice charge, which was the
situation in Laubenstein. In contrast to the Employer
in this case, the union in Laubenstein did not
designate an observer at all. Moreover, the Board
agent in Laubenstein appeared to agree to "state" the
challenge when notified by the union's business
representative that, despite the fact that it could not
provide an observer, the union desired to challenge a
particular ballot. No such representation responsibil-
ity on the part of the Board agent is present here.
Finally, the Board agent in Laubenstein refused to
"state" the union's challenge when the employer's
observer directed the agent's attention to the agree-
ment. In the present case, although she was aware of
it, there is no evidence that anyone raised the
preelection agreement with the Board agent prior to
Abramowitz' later protest. 4 Accordingly, we hold
have written a "c" next to the name of Seargent on the eligibility list prior to
the balloting. However. Seargent, corroborated by one of the Board's
agents, stated to the Regional Director that Abramowitz wrote the "c"
during the discussion occurring after the challenge to Presti's ballot.
4 In our opinion the Employer's contention that prior to the casting of
any ballots Abramowitz marked a "c" next to the name of Seargent does not
raise substantial and material issues warranting a heanng beyond the scope
of the hearing ordered by the Regional Director. Assuming the truth of
Abramowitz claim, his noting a potential challenge on an eligibility list
would not constitute the making of a challenge. See Casehandling Manual
(Continued)
379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board's agent did not have a duty to state
the Employer's challenge.
We also agree with the Regional Director that it is
unnecessary to remand for a hearing to determine
whether the Board agent gave clear instructions as to
proper challenge procedures or whether Seargent was
a supervisor. First, it is uncontroverted that the
Employer received the Board's Instructions to
Observers a few days prior to the election. Second,
the Employer's admission that Seargent was not a
supervisor disposes of its challenge to her eligibility
on that basis. A finding that she was or should have
been challenged would not change the fact that she
was nevertheless entitled to vote by the Employer's
own admission that its ground for challenging her
was invalid.5
Accordingly, we hereby adopt the Regional Direc-
tor's findings and recommendations.
ORDER
It is hereby ordered that this case be remanded to
the Regional Director for Region 29 for further
processing in accordance with his recommendations.
CHAIRMAN FANNING, concurring in part and dissent-
ing in part:
I agree with my colleagues' adoption of the
Regional Director's recommendation that a hearing
for Representation Proceedings, Sec. 11338.2. A proper challenge must be
"voiced... before the ballot is dropped into the ballot box." Casehandling
Manual, Sec. 11338.3. In any case, our conclusion that Seargent was not a
supervisor and hence that the Employer's challenge was invalid on its ments
renders this issue at best academic.
be held concerning the issues raised by the challenges
to the ballots of Rose Presti and Francine Citera.
However, for reasons given below, I am of the
opinion that the scope of the hearing should be
extended to Julia Seargent.
The parties executed and furnished to the Board
agent a written election agreement which provided
that Seargent "will be voting subject to challenge."
The parties are now in dispute as to (1) whether the
Board agent, who was or should have been aware of
that agreement, gave the observers clear instructions
as to the proper challenge procedure and (2) whether
the Employer's observer placed a "c" next to
Seargent's name.
In view of the existence of substantial questions of
fact and law and the Board's decision in Laubenstein
& Portz, 226 NLRB 804 (1976), wherein it was found
that the Board agent had a duty to "state" a
challenge pursuant to the parties' agreement, I would
find that the hearing should extend to the issues
respecting Seargent's ballot. As the Employer further
contends that the duties of Seargent are similar to
those of Presti, Seargent's supervisory status should
also be dealt with at the hearing. Accordingly, I
conclude, contrary to the Regional Director, that the
hearing should include both aspects of the challenge
to Seargent's ballot.
s The Employer admitted that Seargent was not a supervisor in the
proceeding before the Regional Director. It now contends that she is a
supervisor. We agree with the Regional Director ,hat Seargent is not a
supervisor.
380