J.C.L. Zigor Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1477 (N.L.R.B. 1985)

J C L ZIGOR CORP
J.C.L. Zigor Corporation and General Teamsters
and Allied Workers, Local No. 992, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America , Petitioner . Case 5-RC-12323
29 March 1985
DECISION AND ORDER
BY CHAIRMAN WATSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered determinative challenges in an election held
on 2 November 19841 and the Regional Director's
report recommending disposition of them. The
election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 13
for and 4 against the Petitioner, with 10 challenged
ballots.2
The Board has reviewed the record in light of
the Employer's exceptions and brief. For reasons
given below, we do not adopt the Regional Direc-
tor's recommendation.
On 4 December, the Regional Director for
Region 5 issued his Report on Challenges wherein
he recommended that the challenged ballots be
opened, commingled, and counted; that a Certifica-
tion of Representative be issued if 2 or more of
these ballots are for the Petitioner; or, in the alter-
native, if 9 or more of the ballots are cast against
the Petitioner, that the instant representation pro-
ceeding (Case 5-RC-12323) be consolidated with
the unfair labor practice proceeding involving the
parties herein (Case 5-CA-16676) for the purpose
of determining the eligibility of the 10 individuals
whose ballots were challenged.
The Employer contends that the challenged bal-
lots of the 10 individuals in question should not be
counted because they were terminated on 14 Sep-
tember. The Petitioner contends that they were un-
lawfully terminated by the Employer because of
their union activity and are therefore eligible to
vote.3
During the Regional Director's investigation of
the challenges, the 10 challenged individuals sub-
mitted signed and sworn statements waiving their
right to a secret ballot and requesting that their
ballots be opened and counted in order to resolve
the election, if possible, without waiting for the
outcome of the unfair labor practice proceeding.
' All dates below refer to 1984
z These ballots were challenged by the Board agent because the names
of the individuals casting them did not appear on the eligibility list
3 On 22 October, prior to the election herein, a complaint was issued
in Case 5-CA-16676, alleging that the 10 employees were discharged in
violation of Sec 8(a)(1) and (3) of the Act
1477
As indicated above, the Regional Director rec-
ommended that the challenged ballots be opened,
commingled, and counted. He then set forth the
following possible outcomes. The Petitioner can
lose the election only if one of two situations
occur- (1) If all 10 challenged voters are found eli-
gible and they all vote against the Petitioner; (2) if
I of the 10 challenged voters is found to be,ineligi-
ble and the remaining 9 are found to be eligible and
vote against the Petitioner. However, if two or
more of the challenged voters are found to be ineli-
gible, it would be impossible for the votes against
the Petitioner to outnumber or tie the "yes" votes
and the Petitioner would win. In this connection,
the Regional Director held that it is not necessary
to delay the opening of the challenged ballots until
the eligibility of the individuals casting them is de-
termined. His basis for that holding is his finding
that none of the results described above would re-
quire knowledge as to which voter cast which
ballot, thus preserving the secrecy of all the ballots
in question. In so finding, he relied on Garrity Oil
Co., 272 NLRB 158 (1984), wherein the Board di-
rected that the ballots be commingled and opened
because in the circumstances of that case it was un-
necessary to ascertain which voter cast which
ballot.
The Employer contends, and we agree, that the
Regional Director's reliance on Garrity Oil is mis-
placed. Unlike the situation in that case, there is
one possible outcome herein that could make it
necessary to ascertain which voter cast which
ballot. That occasion could arise if a vote of 14 for
and 13 against the Petitioner comes about as a
result of 1 individual casting a challenged ballot for
the Petitioner and the remaining 9 opposing it In
that event, the identity of these voters could be
crucial in deciding whether the Petitioner won or
lost the election. If the individual who cast his
ballot for the Petitioner is an eligible voter, the Pe-
titioner would win the election-14 to 13-even if
the other 9 voters are also eligible. Further the Pe-
titioner would also win-13 to 12-if the individual
favoring the Petitioner and at least one of the 9
voting against it are ineligible. But the Petitioner
would lose-13 to 13-if the individual favoring
the Petitioner is ineligible and the other 9 are eligi-
ble voters. Thus, adoption of the Regional Direc-
tor's recommendation that the challenged ballots be
commingled would make it impossible to ascertain
the identity and the eligibility of those individuals
whose votes are crucial and would therefore pre-
clude a determination as to whether or not they
should be counted.
In view of the foregoing, we shall not adopt the
Regional Director's recommendation that the chal-
274 NLRB No 213
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lenged ballots be opened, commingled, and counted ORDER
before the employee status of the voters is decided .
It is ordered that Case 5-RC-12323 is remanded
Accordingly , we shall remand the instant proceed -
ing to the Regional Director for such action as he
to the Regional Director for Region 5 for such
action as he deems appropriate
deems appropriate .