Magic Beans, LLC

National Labor Relations Board - Board Decisions

Jul 18, 2008

352 N.L.R.B. 872 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 107
872
Magic Beans, LLC and International Brotherhood of
Teamsters, Local Union No. 25, Petitioner. Case
1–RC–22148
July 18, 2008
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The National Labor Relations Board has considered an
objection to an election held on November 20, 2007, and
the hearing officer’s report recommending disposition of
it.1 The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 4 for and
3 against the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has decided to adopt the hearing
officer’s findings, conclusions, and recommendations
only to the extent consistent with this Decision and Certi-
fication of Representative.
On the day of the election, prior to the beginning of his
shift, employee Robert Collum went to his worksite, but
did not punch in as employees customarily did. Instead,
he voted in the election, left a note of resignation for his
supervisor, and then left the premises. Collum admit-
tedly did not intend to work that day, nor did he actually
perform any work. He also admitted that he timed his
resignation to ensure that he voted in the election first.
Collum had worked his last full shift on November 15;
he was either not scheduled to work or excused from
work between November 15 and 20.
A few days before the election, Collum told his co-
worker, Chris Gonsalves, that “[his] plan was to go and
do what [he] had the right to do, which is vote, and then
[he] was going to resign.” Gonsalves was later appointed
the Petitioner’s election observer. There is no evidence
that Gonsalves knew, before Collum had voted, that
Collum had not performed any work before voting, that
he did not intend to perform any work afterwards, or that
he intended to resign that same day. Neither party chal-
lenged Collum’s ballot on November 20.
After the election, the Employer filed a timely objec-
tion alleging that the timing and manner by which
Collum voted and resigned prevented the Employer from
making a timely challenge to his ballot. In effect, this

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
objection was a postelection challenge to Collum’s eligi-
bility to vote in the election.
In order to promote election finality, the Board has
long required that challenges to voter eligibility be made
prior to the actual casting of ballots. Lakewood Engineer-
ing & Mfg. Co., 341 NLRB 699, 700 (2004). An excep-
tion to this prohibition exists 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 challenge.” Id. See also NLRB v.
A.J. Tower Co., 329 U.S. 324, 333 (1946) (same).
The hearing officer found that the Employer’s objec-
tion fell within this exception. According to the hearing
officer, the Petitioner’s observer, Gonsalves, knew
Collum had worked for the last time prior to the election,
but the Employer’s observer did not, and therefore did
not know to challenge Collum’s eligibility. The hearing
officer apparently concluded on that basis that the Peti-
tioner suppressed the facts concerning Collum’s eligibil-
ity, thereby preventing the Employer from challenging
his ballot. We disagree.
Contrary to the hearing officer, we find that the Peti-
tioner was not on notice, prior to the election, that
Collum may have been ineligible to vote.2 An em-
ployee’s eligibility to vote is determined by whether he
was employed and working in the bargaining unit on the
eligibility date and date of the election. Roy Lotspeich
Publishing Co., 204 NLRB 517, 517–518 (1973).3 Here,
Collum was employed and working on the payroll eligi-
bility date. He was also employed and working when he
made the statement to Gonsalves. 4 Although Gonsalves
was aware that Collum intended to resign after the elec-
tion, the fact that an employee intends to quit after an
election, and does in fact quit, does not affect his eligibil-
ity to vote. Personal Products Corp., 114 NLRB 959,
961 (1955) (overruling a challenge to a ballot where the
employee gave notice to the employer that she would
terminate her employment 2 days after the election). See
also Saint-Gobain Industrial Ceramics v. NLRB, 310
F.3d 778 (D.C. Cir. 2003) (employee’s plan to leave his
job after election and use of vacation time to allow him
to start a new job and still vote in the election did not
affect his eligibility).

2 The hearing officer found that Collum was ineligible to vote. The
Petitioner excepts to this finding; however, we find it unnecessary to
reach that issue in light of our determination that the Petitioner did not
suppress any information regarding Collum’s eligibility.
3 The Board defines “working” as the actual performance of bargain-
ing-unit work. Sweetener Supply Corp., 349 NLRB 1122 (2007).
4 The parties dispute Gonsalves’ agency status. The hearing officer
did not make a finding as to whether Gonsalves was the Petitioner’s
agent. It is unnecessary to resolve the issue because we would reach
the same result regardless of Gonsalves’ agency status.
MAGIC BEANS, LLC 873
Moreover, there is no evidence that the Petitioner
knew, before Collum cast his ballot, what he had done at
work that day before he voted or what he intended to do
afterwards. A fortiori, there is no basis for finding that
the Petitioner suppressed any information relevant to
Collum’s eligibility. The Employer’s postelection chal-
lenge must therefore be rejected. NLRB v. A.J. Tower
Co., supra; Saint-Gobain Industrial Ceramics v. NLRB,
supra at 781–782 (postelection challenge to eligibility
rejected where the evidence failed to show that, prior to
the election, the union knew of and suppressed informa-
tion of the employee’s possible ineligibility).
Accordingly, we shall overrule the Employer’s objec-
tion to Collum’s eligibility and issue the appropriate cer-
tification of representative.5

5 Chairman Schaumber would permit a postelection objection in rare
cases, such as this, where neither party could have known of an em-
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Brotherhood of Teamsters,
Local Union No. 25, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full time and regular part time warehouse-
men/drivers employed by the Employer at its 155
North Beacon Street, Brighton, Massachusetts facility,
but excluding all other employees, guards, and supervi-
sors as defined in the Act.

ployee’s ineligibility prior to the employee’s casting of a ballot. He
recognizes, however, that overruling the objection here is consistent
with extant Board law, which he applies for institutional reasons for the
purpose of deciding this case.