Lakewood Engineering & Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 699 (N.L.R.B. 2004)

LAKEWOOD ENGINEERING & MANUFACTURING CO. 699
Lakewood Engineering and Manufacturing Company
and United Electrical, Radio & Machine Work-
ers of America (UE), Petitioner and Interna-
tional Brotherhood of Teamsters, Local 743,
AFL–CIO. Case 13–RC–20869
April 30, 2004
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer’s “exceptions”1 to
the Regional Director’s Second Supplemental Decision
on Objections. The Employer’s request for review is
granted as it raises substantial issues warranting review.
Having carefully considered the matter in light of the
undisputed facts,2 the Employer’s request for review and
brief in support and the Petitioner’s opposition, we find,
contrary to the Regional Director, that Petitioner’s Ob-
jections 1 and 2 are without merit and must be overruled.
Accordingly, we remand this case to the Regional Direc-
tor to resolve the outstanding challenges and Petitioner’s
Objection 3.
Facts
On October 15, 2002, the Petitioner filed a petition to
represent production, maintenance, and warehouse work-
ers at the Employer’s Chicago, Illinois facility. The Re-
gional Director issued a Decision and Direction of Elec-
tion on December 23, 2002, directing an election for
January 22, 2003, with an eligibility cutoff date of De-
cember 22, 2002. The January 22 election was blocked
by an unfair labor practice charge filed by the Intervenor.
At the close of its investigation, the Regional Director
dismissed the Intervenor’s charge and rescheduled the
election for February 24 and 25, 2003. Over the Em-
ployer’s objection, the Regional Director decided to use
the same December 22 eligibility cutoff date for the Feb-
ruary election.
In response to the Region’s request, the Employer pro-
vided an updated Excelsior list on February 14, 2003.
Among the 320 names on the list, the Employer added
eight employees who were hired between December 22,
2002, and February 2, 2003, who the Employer con-
tended should be eligible to vote.3 The Employer also
included a separate list along with the Excelsior list,

1 We have treated the Employer’s exceptions as a request for review.
See NLRB Rules and Regulations § 102.69(g)(3)(ii).
2 The Employer and the Petitioner attached relevant documents and
affidavits to their submissions.
3 February 2, 2003, was the payroll period ending prior to the Feb-
ruary 7, 2003 date of the new direction of election.
breaking out the names of the eight new hires for ease of
reference. At the preelection conference, the Petitioner
noticed the inclusion of these eight new hires on the Ex-
celsior list and requested their removal. A Board agent
stated that she could not remove the names in question
without the agreement of the parties. Because the Em-
ployer refused to strike the names, the Board agent al-
lowed them to vote in the election.4 The February 24
and 25 election resulted in no party receiving a majority
of the votes cast. The Region scheduled a runoff election
for April 24, 2003.5
The Regional Director decided to continue to use both
the December 22, 2002 eligibility cutoff date and the
February Excelsior list for the April 24 runoff election.
Once again, the issue of the eligibility of the eight new
hires came up at the preelection conference. Once again,
the Board agent stated that she could not strike the names
without the agreement of the parties. And, once again,
the Employer refused to so agree. The Board agent then
informed the parties that absent such agreement, the
party challenging the employees’ eligibility must lodge
proper ballot challenges and that they should instruct
their observers to make such challenges. The tally of
votes for the April 24 election shows 140 votes for the
Petitioner, 143 votes against the Petitioner, and 8 chal-
lenged ballots. Of the disputed new hires, four voted
without challenge; three voted under challenge; and one
presumably did not vote.
On May 1, 2003, the Petitioner filed three timely Ob-
jections to Conduct Affecting the Results of the Election.
Objection 1 alleges “the Board Agent failed to challenge
four voters, despite having objective evidence, and thus
actual knowledge, of their ineligibility to vote.” Objec-
tion 2 alleges, “the day of the April 24 election, [Em-
ployer’s] counsel . . . suppressed the facts regarding four
voters’ ineligibility to vote.” Objection 3 alleges “the
day of the April 24 election, [Employer’s] Plant Manager
. . . told at least two employees known to have been hired
after the cutoff date to vote in the election.” After inves-
tigating the Petitioner’s objections, the Regional Director
sustained Objections 1 and 2 without a hearing and set
aside the results of the election.6 The Regional Director
determined that because the Board agent knew the eight
new hires were hired after the eligibility cutoff date, her
4 There is no indication whether the Petitioner challenged these bal-
lots during the February 24 and 25 election.
5 The April 24 runoff election was scheduled after Intervenor’s ob-
jections to the February election were investigated and dismissed. The
ballot question before the employees at the April 24 runoff election was
between representation by the Petitioner and no representation.
6 Because the Regional Director set aside the election based on her
resolution of Objections 1 and 2, she did not address Objection 3 or the
eight outstanding ballot challenges.
341 NLRB No. 101
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
failure to challenge their ballots required that the election
be set aside. We disagree.
Analysis
Petitioner’s Objections 1 and 2 raise two separate but
interrelated issues. Objection 1 essentially alleges that
the Board agent’s failure to challenge the ballots of the
four new hires who voted without challenge amounts to
Board agent misconduct requiring that the election be set
aside. This objection requires the Board to determine
whether the Board agent was required to challenge these
ballots. Objection 2 makes a different allegation. Re-
gardless of the Board agent’s duties, Objection 2 at-
tempts to raise a postelection challenge to the eligibility
of the four new hires who voted without challenge. This
objection requires the Board to determine whether the
Employer knew of the new hires’ ineligibility and sup-
pressed the facts such that the Petitioner was unaware of
a reason to challenge their ballots. We address these
separate questions in turn.
It is well settled that parties to an election bear the
primary responsibility for challenging voter eligibility.
See Balfre Gear & Mfg. Co., 115 NLRB 19, 22 (1956);
Solvent Services, 313 NLRB 645, 646 (1994). Accord-
ingly, the circumstances under which a Board agent must
challenge a ballot are exceedingly narrow, lest the par-
ties’ responsibility to lodge eligibility challenges be
transferred to the Board and its agents.
As a general proposition, a Board agent must challenge
a ballot only when he or she “has actual knowledge of
the voter’s ineligibility” and not merely where an em-
ployee’s eligibility is “in dispute.” Solvent Services, 313
NLRB at 646. This actual knowledge requirement is
satisfied in two limited circumstances: (1) where the em-
ployee’s name does not appear on the Excelsior list or (2)
where the Board has made an affirmative ruling that a
given employee or employee classification is ineligible
to vote or is to vote under challenge. See Wayne Hale,
62 NLRB 1393 (1945) (election set aside where Board
agent failed to challenge foreman specifically excluded
by the Board’s Direction of Elections); Laubenstein &
Portz, Inc., 226 NLRB 804, 805 (1976) (election set
aside where Board agent failed to challenge voter pursu-
ant to a “quintessential condition of the settlement
agreement which had been worked out by the parties and
approved by the Board”). Absent such clear-cut facts, it
cannot be said that the Board agent has actual knowledge
of ineligibility. While other situations, like the current
one, might create strong suspicions that a given em-
ployee might eventually be found ineligible to vote, such
suspicions, however strong, are not sufficient.7 Circum-
scribing the situations in which a Board agent must chal-
lenge a ballot serves the Board’s longstanding policy that
the parties have the burden to raise eligibility issues and,
importantly, protects the Board’s position as an unbiased
neutral in the resolution of the question concerning rep-
resentation raised by the petition.
Based on our review of the undisputed facts, this case
does not present the rare circumstances in which a Board
agent’s failure to challenge a particular ballot will result
in the election being set aside. The eligibility of the eight
new hires was in dispute for at least 2 months before the
April 24 runoff election, and the Petitioner was well
aware of the presence of the new hires’ names on the
Excelsior list. At no point during this time did the Board
rule in any way on the appropriateness of the cutoff date
or the eligibility of the new employees to vote. Absent
such a ruling, we will not impute actual knowledge of
ineligibility to the Board agent, requiring the Board agent
to challenge the disputed ballot. Rather, we continue to
leave the decision to raise such eligibility issues solely in
the hands of the parties to the election.8
Our resolution of Objection 2 further supports our
conclusion that the Board agent did not err in refusing to
challenge the disputed ballots. Objection 2 is in effect a
postelection challenge to the new hires’ eligibility to
vote. The Board, with consistent approval of the courts,
has long required that “challenges to the eligibility of
voters be made prior to the actual casting of ballots, so
that all uncontested votes are given absolute finality.”
NLRB v. A. J. Tower Co., 329 U.S. 324, 331 (1946); Sol-
vent Services, 313 NLRB at 646 (“[I]n the interest of
promoting election finality, post-election challenges will
not be permitted.”). An exception to this prohibition is
where the party benefiting from the Board’s refusal to
entertain the issue (1) knew of the voter’s ineligibility
and (2) suppressed the facts masking the need for a chal-
lenge. See A. J. Tower Co., 329 U.S. at 333. Based on
our review of the undisputed facts, the circumstances
surrounding the eight new hires establish that the Em-
ployer did not suppress the facts concerning the eligibil-
ity issue. Indeed, the Petitioner was aware of the Em-
ployer’s inclusion of the new hires on the updated Excel-
sior list for two full months before the April runoff elec-
tion.

7 Similarly, a Board agent is not required to challenge voters where
one of the parties does not have an election observer. See Balfre Gear
& Mfg. Co., 115 NLRB 19, 22 (1956) (“The Union’s failure to provide
an observer did not shift the responsibility of challenging to the Board
agent.”).
8 Of course, the Board agent may within his or her discretion chal-
lenge such a ballot or at the preelection conference strike certain names
from the Excelsior list.

LAKEWOOD ENGINEERING & MFG. CO. 701
This case is distinguishable from Beggs & Cobb, Inc.,
62 NLRB 193 (1945), relied on by the Regional Director,
where the Board sustained an objection amounting to a
postelection challenge. In Beggs, eight employees who
were originally included on the Excelsior list were no
longer in the employ of the employer at the time of the
election. The employer, the Board agent, and one of the
two petitioning unions were all aware of the employees’
ineligibility, but the second union on the ballot was not.
Because only three of the four parties were aware of the
employees’ ineligibility, the Board determined the Board
agent should have challenged the ballot. Here, there is
no such prejudice to the Petitioner. The Petitioner was
fully informed that the Employer had included the new
hires on the Excelsior list and had an election observer
capable of lodging objections throughout the balloting.9
The Employer even went as far as to include an addi-
tional list highlighting these new employees for ease of
reference.
The Petitioner contends that the Employer suppressed
the information by not explicitly stating that the new
hires were both on the main Excelsior list and on the
second new hire list.10 Two facts belie the Petitioner’s

9 In fact, the Petitioner challenged three of the eight new hires’ bal-
lots at the election. No party provides an explanation for why the Peti-
tioner challenged these three ballots, but did not challenge the ballots of
the other four new hires who voted.
10 The relevant portion of the cover letter accompanying the Excel-
sior list states: “It is the Company’s current position that these employ-
argument. First, a simple comparison of the Excelsior
list and the new hire list would have easily shown that
the new hires were indeed included on the Excelsior list.
Second, even if we were to accept the Petitioner’s ar-
gument that the Employer’s letter implies that the new
hires were included on only the separate list and not on
the main Excelsior list, the simple fact remains that the
Petitioner discovered the presence of the new hires on
the Excelsior list before the first election in February. In
fact, anticipating a similar problem at the runoff election,
the Petitioner requested extra time at the preelection con-
ference to deal with potentially ineligible voters being
included on the Excelsior list.
Under these circumstances, it is clear that the Em-
ployer did not attempt to suppress the facts surrounding
the eight new hires. Accordingly, we find no merit in
Petitioner’s Objection 2.
For the reasons discussed above, we therefore overrule
Petitioner’s Objections 1 and 2. We remand this case to
the Regional Director to resolve the outstanding chal-
lenges and the Petitioner’s Objection 3.

ees should be entitled to vote and should not be disenfranchised. We
are, therefore, sending you a separate list of those employees hired in
the apparently disputed time frame. We are submitting the list as a
separate list so that it can be supplied to both Petitioners in this case to
avoid arguments over the identity of these individuals in the future.