Madera Enterprises

National Labor Relations Board - Board Decisions

Dec 10, 1992

309 N.L.R.B. 774 (N.L.R.B. 1992)

774
309 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We have been administratively advised that the Board agent con-
ducting the election failed to record the names of the challenged vot-
ers either on the eligibility list, as required by Sec. 11338.1 of the
Casehandling Manual, or on the outside of the large envelope in
which the ballots were sealed (customarily Form NLRB-5126, which
specifically provides spaces for such a listing).
2 As noted below, even though Paprikas Fono concerned only the
opening of a sealed envelope containing individually sealed chal-
lenged ballots, the Board set the election aside nonetheless, because
of the particular circumstances involved.
Madera Enterprises, Inc. and Wine & Allied Work-
ers Union, Local 45, Distillery, Wine & Allied
Workers International Union, AFL–CIO, Peti-
tioner. Case 32–RC–3411
December 10, 1992
DECISION ON REVIEW AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Supplemental Deci-
sion and Certification of Representative. The request
for review is granted as it raises substantial issues war-
ranting review. Based on the Regional Director’s fac-
tual findings, which are essentially undisputed, as well
as our own administrative investigation, we find, con-
trary to the Regional Director, that the integrity of the
Board’s election procedures was compromised when
two Board agents opened a sealed envelope containing
impounded ballots outside the presence of the parties.
An election was conducted among the Employer’s
production and maintenance employees on October 1,
1991. During the election, the Board agent challenged
the ballots of employees designated as seasonal, as
well as those whose names did not appear on the Ex-
celsior list. He did not, however, keep a separate list
of the names of the challenged voters.1 At the end of
the election, the Board agent placed all ballots, both
challenged and unchallenged, in a large envelope and
properly sealed the envelope with the parties’ rep-
resentatives’ signatures across the seal. The Board
agent impounded the ballots pending the Board’s rul-
ing on the Petitioner’s then-pending request for review
of the Decision and Direction of Election.
On March 4, 1992, the Petitioner made a formal re-
quest for the names of all challenged voters. On April
8, while preparing a response to the request, the Re-
gion discovered that the file contained no such list.
Thereafter, the Region’s election specialist and a re-
gional supervisor obtained the impounded ballot enve-
lope from the safe, opened it, removed the challenged
ballot envelopes, and prepared a list of the challenged
voters. The Board agents subsequently returned the
challenged ballots to the impounded ballot envelope
(which still contained the unchallenged ballots), and
returned the envelope to the safe.
The ballots were counted on June 23. The tally of
ballots showed 36 ballots cast for the Petitioner, 24
against, and 17 challenged ballots, a sufficient number
to affect the results of the election.
The Employer filed timely objections to the election,
contending, inter alia, that the Region’s unsealing of
the impounded ballot envelope outside the presence of
the parties compromised the integrity of the election.
Characterizing the Region’s purpose in opening the
impounded ballots envelope as administrative, i.e., to
prepare a list of the challenged voters, and relying on
N. Sumergrade & Sons, 123 NLRB 1951 (1959), the
Regional Director overruled the Employer’s objection.
Contrary to the Regional Director, we find merit in the
Employer’s objection and set aside the election.
The Board goes to great lengths to ensure that its
election procedures raise no reasonable doubt as to the
fairness and validity of the election. Jakel, Inc., 293
NLRB 615 (1989); Athbro Precision Engineering
Corp., 166 NLRB 902 (1967). To that end, the General
Counsel’s Casehandling Manual (CHM) serves as
‘‘procedural and operational guidance for the Agency’s
staff in the handling of representation cases.’’ Section
11344.2 provides that impounded ballots shall be
sealed in the presence of the parties and that the par-
ties sign across the seal. It also provides that the sealed
envelope shall be placed in the regional office safe,
and specifies that ‘‘[r]emoval of the ballots for count-
ing shall be done at the count in the presence of the
parties’ representatives.’’ (Emphasis added.)
Neither Paprikas Fono, 273 NLRB 1326 (1984), re-
lied on by the Employer, nor N. Sumergrade & Sons,
relied on by the Regional Director, is directly on point.
Those cases concern the opening of sealed envelopes
which contained only challenged ballots.2 In this case,
by contrast, the sealed envelope breached by the Board
agents contained all ballots, challenged and unchal-
lenged, which had been placed in the envelope and
sealed by the parties. Significantly, none of the unchal-
lenged but impounded ballots had been counted; there
was no list maintained of the challenged ballots, even
on the eligibility list itself; and, thus, there was no
independently verifiable way to determine even the
total number of ballots cast. We find, therefore, that
the Board agents’ conduct in breaking the signed seal
on the impounded ballot envelope, and opening that
envelope, out of the presence of the parties, com-
promised the integrity of the election process and con-
stituted conduct which reasonably would destroy con-
fidence in the election process. See Jakel, Inc., supra.
Our ruling in this case is consistent with our recent
decision in Rheem Mfg. Co., 309 NLRB No. 63 (Nov.
775MADERA ENTERPRISES
3 Member Oviatt, who dissented in Rheem and would have set that
election aside, agrees that the Board agents’ conduct in this case
went even farther in compromising the election process.
4 Further, we agree with the Regional Director that the Regional
Office’s handling of this matter was not ‘‘ideal’’ for additional rea-
sons. We note that the election was held on October 2, 1991, in a
unit of the Employer’s regular and seasonal employees. That date
was chosen because the Employer informed the Regional Office that
its work force would be at its fullest capacity by that point. The Em-
ployer’s election objections, filed with the Regional Office on June
29, 1992, were overruled on October 1, 1992. Thus, in view of the
Region’s delay in ruling on the objections, it appears that another
election timed to occur at the Employer’s peak employment level
will not be possible until mid or late 1993. We are dismayed by this
delay, and we regret that effectuation of the employees’ desires as
to union representation may be postponed another year, despite the
lack of any objectionable conduct by either party.
10, 1992) (not printed in Board volumes), in which we
overruled the employer’s objection and certified the
union notwithstanding that the agent permitted three
employees to vote during the break between voting
sessions and carelessly handled the ballots. In Rheem,
we found that the parties’ observers agreed to allow
the between-sessions voting and the votes that were ul-
timately challenged were not determinative of the re-
sults of the election, and were never counted. In so
finding, we distinguished Paprikas Fono, stating that
the conduct in that case was ‘‘considerably more com-
promising’’ than the conduct at issue in Rheem in that
the Region’s conduct in opening the envelope outside
the presence of the parties ‘‘to inspect the condition of
the ballots. . . ., [t]hus [deprived the parties] of the
opportunity to monitor the Region’s handling of the
determinative challenged ballots and to assure them-
selves that the challenge envelopes were secure.’’
Rheem, slip op. at 6–7.3 As noted above, that reason-
ing is even more compelling where, as here, the
breached envelope contained uncounted, unchallenged
ballots as well as challenged ballots.4
Accordingly, the Regional Director’s Supplemental
Decision and Certification of Representative is re-
versed, the Employer’s Objection 1 is sustained, and
the election is set aside. The case is remanded to the
Regional Director for proceedings consistent with this
Decision on Review and Order.