Kerrville Bus Co., Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1981

257 N.L.R.B. 176 (N.L.R.B. 1981)

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kerrville Bus Co., Inc. and Amalgamated Transit
Union, AFL-CIO-CLC, Petitioner. Case 23-
RC-4941
July 24, 1981
DECISION AND DIRECTION
The Board has considered challenges to balJots
cast in a combined mail and manual balJot election 1
and the Hearing Officer's report recommending
disposition of same. The Board has reviewed the
Hearing Officer's report, the Employer's excep-
tions, and the entire record in this case, and hereby
adopts the Hearing Officer's findings and recom-
mendations2 for reasons stated below.
The stipulation agreement executed by the par-
ties on November 14, 1980,3 provided in relevant
part:
AJJ regular and regular part-time operators in
the unit will vote by mail ballot; the ballots to
be mailed on December 1, 1980. AlJ ballots
must be returned to the National Labor Rela-
tions Board Resident Office, Region 23, locat-
ed in San Antonio, Texas, by 4:30 p.m. on De-
cember 15, 1980.
The stipulation further provided that all other
unit employees were to vote in manual elections
held at three locations on December 17 and that all
ballots were to be counted at 11 a.m. on December
19.
In the course of the election, the mail bal1ots cast
by Robert Brady, Frank D. Roe, Wilfred Alfalla,
James Pruitt, D. L. Hortman, Van T. Smith, and
Robert W. Read, Jr., were challenged because they
were received by the Resident Office in San Anto-
nio, Texas, after the stipulated December 15 dead-
line for receipt of mail baUots. Evidence adduced
before the Hearing Officer indicates that Brady's
bal1ot was mailed on December 15 and received by
1 The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. On December 19, 1980, the ballots were
commingled and counted. The tally was 78 for, and 83 against, the Peti·
tioner; there were 27 challenged ballots, a sufficient number to affect the
results of the election.
• In the absence of exceptions, we adopt, pro forma, the Hearing Offi-
cer's recommendation that: challenges to the ballots cast by Sam Ham-
mack, Ray Atchley, Susan Gulick, Reymundo Rodriquez, Raul Pena, and
Garland Hillmer be sustained; challenges to the ballots cast by Stephen
Capozza and Robert Dawsey, Jr., be overruled, but that their ballots be
voided; and challenges to the ballots cast by Virgie Meredith, Patton
Blessing, Gus L Davis, Abel Arriaga, Tommy Harbin, Warren D. Ervin,
and Tom Green be overruled and that their ballots be opened and count·
ed.
In addition, we note that the Employer has excepted to the Hearing
Officer's failure to sustain challenges to the ballots cast by Guadalupe
Cerda, J. R. Kypuros, Homer Guitron, Jose Hernandez, and Jose Sepul-
veda on grounds that those mail ballots were untimely received. In the
absence of any exceptions to the Hearing Officer's recommendation that
challenges to those ballots be sustained on other grounds, we find it un-
necessary to consider the Employer's exceptions in this regard.
3 All dates are in 1980 unless otherwise stated.
257 NLRB No. 34
that office on December 19; Roe's ballot was
mailed on December 14 and received on December
16; Alfalla's ballot was mailed on December 10 and
received on December 16; Hortman's ballot was
mailed on December 13 and received on December
17; Smith's ballot was mailed on December 10 and
received on December 16; the ballots of Pruitt and
Read had no mailing date and both were received
on December 16. It is undisputed that all seven bal·
lots were in the Board's possession prior to the
time when all baBots, mail and manual, were
opened and counted on December 19.
The Hearing Officer recommended that the chal-
lenges to all seven mail ballots in dispute here be
overruled. In support of this recommendation, he
found, inter alia, that the Postal Service's handling
of these ballots was "poor at best," that the Christ-
mas season obviously impeded mail delivery, and
that the term "returned by" in the stipulation
agreement was ambiguous and could have meant to
some voters that a ballot mailed by December 15
would be timely. In sum, the Hearing Officer
agreed with the Petitioner's argument that to refuse
to count baJlots actually received prior to the time
for opening and counting an baJlots "would give
more weight to 'form' than to 'substance."'
We note, preliminarily, our disagreement with
the Hearing Officer's finding that the parties' stipu-
lated return receipt date was ambiguous. The stipu-
lated language quoted above clearly indicates that
mail ballots had to be in the Resident Office by
4:30 p.m. on December 15. Although we have
found, contrary to the Hearing Officer, that the
stipulation agreement was unambiguous on this
point, it does not necessarily follow that the Board
is thereby bound to sustain challenges to the mail
baJlots received after December 15.4
We agree with the Hearing Officer that the chal-
lenges to the ballots of Alfalla, Pruitt, Hortman,
Smith, and Read should be overruled. All of these
ballots were mailed at least 3 days in advance of
the return receipt deadline and from within the city
of receipt (San Antonio) or another city less than
100 miles away (Austin). 5 Under the circum-
stances, we find that the aforementioned five em-
ployees mailed their ballots at a time when they
could reasonably anticipate timely receipt by the
Board through the normal course of the mails. s
In contrast to the foregoing, however, we cannot
find that the ballots of Brady and Roe were mailed
4 See, e.g., Grant's Home Furnishings. Inc, 229 NLRB 1305 (1977).
• Based on proof of the Board's simultaneous receipt of all five ballots
on December 16, we find that the ballots of Pruitt and Read, which bore
no origin date stamps, were mailed no later than December 13, as were
the other three ballots.
6 See Queen City Paving Company, 243 NLRB 71 (1979).
KERRVILLE BUS CO., INC. 177
at a time when they could reasonably anticipate
timely receipt. Roe mailed his ballot on Sunday,
December 14. Brady mailed his ballot on Decem·
her 15, the date it was due. Even though Brady
and Roe mailed their ballots in San Antonio, we
find they could not have reasonably foreseen the
receipt of those ballots at the Board's office in that
city by December 15. Nevertheless, we agree with
the Hearing Officer's recommendation that the
challenges to these two ballots also should be over·
ruled.
Whether a late ballot may be cast is a matter left
to the reasonable discretion of the Board and its
agent conducting the election. 7 In each case the
Board has traditionally considered, inter alia, the
following factors: (1) the reason the employee was
late; (2) how late the employee was; (3) how long
the voting period was; and (4) whether the ballot
box was opened or the tally commenced at the ar-
rival of the employee. 8 As a matter of fundamental
statutory policy, it behooves the Board "to afford
employees the broadest possible participation in the
Board elections" as long as "the election proce-
dures are not unduly interfered with or ham-
1 See Glauber Water Works, 112 NLRB 1462 (1955).
• Westchester Plastic of Ohio, Inc., 165 NLRB 219 (1967); Groendyke
Transport, Inc. and Ann Myers Bell d/b/a Beff Transport Compony, 204
NLRB 96 (1973); New England Oyster House of Cocoa Beach. Inc., 225
NLRB 682 (1976); Glauber Water Works. supra. Although these factors
have been applied in manual election cases, they are nonetheless equally
applicable in mail ballot elections.
9 New England Oyster House, supra.
Although the record here does not disclose any
reason for Brady and Roe's late mailing of their
ballots, the Board has not regarded the absence of
an excuse as a factor invariably requiring that a
late ballot not be counted. In the instant case, we
find most significant the fact that the ballots of
both Brady and Roe were received by the Board
prior to the counting of ballots. We also note that
the manual election did not occur until December
17, or at least 2 days after these two employees
mailed in their ballots. Accordingly, we find that
the lengthy mail and manual ballot election process
was still in progress and that permitting Brady and
Roe to exercise their franchise would not unduly
interfere with that process.
DIRECTION
It is hereby directed that the Regional Director
for Region 23 shall, pursuant to the Rules and Reg-
ulations of the Board, within 10 days from the date
of this Decision and Direction, open and count the
ballots of Wilfred Alfalla, James Pruitt, D. L.
Hortman, Van T. Smith, Robert W. Read, Jr.,
Frank D. Roe, Robert Brady, Virgie Meredith,
Patton Blessing, Gus L. Davis, Abel Arriaga,
Tommy Harbin, Warren D. Ervin, and Tom
Green, and shall thereafter cause to be served on
the parties a revised tally of ballots and, based on
the count therein, issue an appropriate certification.