Laidlaw Transit, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1998

327 N.L.R.B. 315 (N.L.R.B. 1998)

LAIDLAW TRANSIT, INC. 293
Laidlaw Transit, Inc. and Self-Help, Arkansas, Local
2001, a/w Office and Professsional Employees
International Union, AFL–CIO, Petitioner. Case
26–RC–7948
December 23, 1998
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FOX, HURTGEN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered a challenge and objections
to an election held October 23, 1997, and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 97 votes for and
97 ballots against the Petitioner, with 1 challenged ballot,
a number sufficient to affect the results.
The Board has reviewed the record in light of the ex-
ception and brief, has adopted the hearing officer’s find-
ings1 and recommendations, and finds that the election
must be set aside and a new election held.
The Board agent allowed employee Connie Lewis,
who arrived after the polls had closed, to cast a ballot
which was subsequently opened and counted along with
the other ballots cast and which, because of the closeness
of the election, could have affected the result.2 The Peti-
tioner objected to the election on the basis that it was
improper for the Board agent to have allowed Lewis to
vote.3 The hearing officer recommended that the objec-
tion be sustained and directed that a new election be
held.
In sustaining the objection, the hearing officer rejected
the Employer’s contentions, first, that Lewis was delayed
by rain and by the conduct of the Employer in assigning
her duties that encroached on polling hours and, second,
that the parties agreed to allow Lewis to vote. The hear-
ing officer found no evidence to support the Employer’s
speculation that Lewis was prevented from timely reach-
ing the polls either by the weather or by the Employer’s
conduct. The hearing officer further determined, based
on his credibility resolutions, that the Board agent did not
seek the positions of the parties and did not obtain their
agreement before allowing the vote. As the Board agent
accepted the ballot outside polling hours and in the ab-
sence of an agreement by the parties or extraordinary
circumstances, the hearing officer concluded that the
election should be set aside.

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless a clear preponderance of
all the relevant evidence convinces us that they are incorrect. Stretch-
Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing
the findings.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s overruling of Objections 2 and 3 and sustaining the challenge.
2 Since the Board has adopted the hearing officer’s sustaining of the
challenge to another ballot, the vote is tied.
3 We note that the Petitioner did not register a challenge to Lewis’
eligibility to vote at the time she cast her ballot and that as a general
rule, the Board does not allow parties to use the objection procedure to
make postelection challenges. See, e.g., Laidlaw Transit, Inc., 322
NLRB 895 (1997). Here, however, because Lewis arrived after the poll
closing time and there was no agreement by the parties to allow her to
vote, it was the Board agent’s obligation to challenge her ballot. See
NLRB Casehandling Manual, Representation Proceedings (Part Two),
Sec. 11324 (noting that a challenge by the Board agent “will then per-
mit an orderly investigation of all the circumstances surrounding the
matter in postelection proceedings and be of assistance to the Region
and to the Board in determining whether the late ballots should be
counted”). See also Monte Vista Disposal Co., 307 NLRB 531, 533 fn.
5 (1992). It is undisputed that the Board agent failed to challenge
Lewis’ vote as required. Thus, we regard the Petitioner’s objection not
as a postelection challenge to Lewis’ eligibility but as a timely objec-
tion to the Board agent’s conduct of the election.
We agree. In Argus-Press Co., 311 NLRB 24 (1993),
in which the Board agent had allowed three employees to
vote after the scheduled time for closing of the polls, the
Board declined to set aside the election because the three
employees’ votes could not have affected the outcome of
the election. By contrast, here the vote cast by the late-
arriving employee could be determinative. Where a pro-
cedural impropriety may have affected the results of an
election, the Board will order a second election. See,
e.g., B & B Better Baked Foods, 208 NLRB 493 (1974)
(new election ordered where votes of those excluded
from voting because of Board agent’s late arrival could
have been determinative); Harry Lunstead Designs Inc.,
270 NLRB 1163 (1984) (election overturned where
Board agent’s erroneous instruction caused observer not
to challenge determinative ballot).
Our dissenting colleague would remand the case to se-
cure the Board agent’s testimony, arguing that the Board
agent is a critical and knowledgeable witness, and imply-
ing that the record is not “full” within in the meaning of
Section 102.64(a) of the Board’s Rules and Regulations
without his testimony. We disagree with these proposi-
tions.
Remanding the case would require disregarding a rea-
soned and well-grounded credibility resolution. It would
further require reversing a hearing officer’s ruling with-
out a showing of prejudicial error. The hearing officer
ruled that sufficient evidence had been presented to en-
able him to decide whether the Board agent secured the
parties’ consent for Lewis to vote. The hearing officer
heard six witnesses, including every Employer and Peti-
tioner representative who was present. He specifically
discredited the witnesses who testified that the Board
agent had sought the parties’ positions and secured
agreement. The dissent presents no basis for reversing
the hearing officer’s ruling that the record was “full”
other than the view that it would be more prudent to hear
the Board agent. Indeed, the Employer made no attempt
to have the Board agent testify.4
4 As our colleague acknowledges, it was the Petitioner who at-
tempted to call the Board agent as a witness and whose request for a
327 NLRB No. 63
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 294
Further, to avoid the appearance of partiality, the
Board has a strong and long-standing policy against
Board employees appearing as witnesses in Board pro-
ceedings. Special application must be made to the Gen-
eral Counsel in order for a Board agent to take the stand.
See Rules section 102.118(a)(1). Generally, unusual
circumstances must be present to justify overriding the
prohibition. Unusual circumstances are not present
where other witnesses are available and the issues can be
resolved through credibility resolutions. See generally
Sunol Valley Golf Co., 305 NLRB 493 (1991), supple-
mented by 310 NLRB 357 (1993), enfd. 48 F.3d 444 (9th
Cir. 1995); Palace Club, 229 NLRB 1128 fn. 3 (1997),
enfd. in part sub. nom. NLRB v. Silver Spur Casino, 623
F.2d 571 (9th Cir. 1980), cert. denied 451 U.S. 906
(1981).

MEMBER HURTGEN, dissenting.
I would remand this case to obtain Board agent testi-
mony on the critical issue of whether the parties agreed
to allow the employee to vote. The employee appeared
at the polls a few minutes after closing. The Board agent
permitted the employee to vote, and the result was a 97–
97 tie.
There was conflicting testimony as to whether the
Board agent secured the agreement of the parties to per-
mit the vote. The hearing officer credited those who
testified that no agreement was secured. He, therefore,
recommended that the election be re-run.
It seems to me that the case cries out for the testimony
of the Board agent. He would be the person through
whom any agreement would be reached. Further, he
would be a neutral, unbiased, and knowledgeable wit-
ness.

continuance in order to do so was denied by the hearing officer. The
Employer never sought the Board agent’s testimony, and thus cannot
claim to have been prejudiced by the absence of the Board agent’s
testimony. The Employer relied on the testimony of its own three
witnesses, all of whom were discredited on the point as to which the
Board agent would testify.
I recognize that the Board can simply take the testi-
mony of the agents of the two parties, and seek to resolve
credibility between them. In essence, this is what has
been done. But, it seems more prudent to receive the
critical testimony of the neutral Board agent, and to then
resolve credibility.
I also recognize that it was the Petitioner who sought
the testimony of the Board agent and sought a continu-
ance to permit such testimony. The hearing officer re-
jected the request. The Employer does not (and perhaps
could not) except to this ruling against the Petitioner.
However, my position is not based on any injury or
prejudice to the Employer. Rather, it is based on the
interests of the Board. Thus, for the reasons indicated
above, I would have the Board, sua sponte, call the
Board agent and have him testify. The case involves a
Board election, Board agent conduct, and Board re-
sources (if another election must be held). Accordingly,
I believe that the Board has a vital interest in ascertaining
the facts.1 The testimony of the Board agent can help us
to ascertain those facts.2
Finally, I note that this is not a case where one party
accuses the other of misconduct. In such a case, the
board may be reluctant to have a Board agent testify as to
the merits of such an accusation. By contrast, in the in-
stant case, neither party accuses the other of misconduct.
Rather, the case involves what the Board agent said and
did. I would take his testimony on that matter.
[Direction of Second Election omitted from publica-
tion.]
1 A hearing officer has the affirmative duty “to inquire fully into all
matters in issue necessary to obtain a full and complete record.” See
Rules 102.64(a) and 102.66(b).
2 Since the Board agent is under the supervision of the General
Counsel, the General Counsel’s consent to seek testimony must be
secured. See Sec. 102.118. In order to assist the Board to resolve this
representation case. I would urge the General Counsel to grant it.