New England Oyster House of Cocoa Beach, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1976

225 N.L.R.B. 682 (N.L.R.B. 1976)

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New England Oyster House of Cocoa Beach , Inc. and
Hotel, Motel, Restaurant Employees and Barten-
ders Union, AFL-CIO, Local 737, Petitioner. Case
12-RC-4907
July 19, 1976
DECISION AND DIRECTION TO OPEN AND
COUNT CHALLENGED BALLOTS
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Pursuant to authority granted it under Section 3(b)
of the National Labor Relations Act, as amended, a
three-member panel of the National Labor Relations
Board has considered challenges to ballots cast in an
election among certain employees of the employer on
October 15, 1975,1 and the Regional Director's report
recommending disposition of the challenges. In his
report the Regional Director recommended overrul-
ing the challenges to the ballots of Kevin Keeney,
Frank Paull, and Tom Dugan and sustaining the
challenges to the ballots of Debbie Giallanzo and Al
Cherry. The Employer filed exceptions to the Re-
gional Director's recommendations with respect to
the challenges to the ballots of Tom Dugan and Al
Cherry.' No other exceptions were filed. The Board
has reviewed the Regional Director's report, the
Employer's exceptions, and the entire record in the
case, and hereby adopts the Regional Director's find-
ings and recommendations 3 with the following am-
plification.
With regard to the challenged ballot of employee
Tom Dugan who arrived 2 or 3 minutes late at the
polls, it has been the Board's standard practice in
such situations to rely on the reasonable and sound
discretion of the Board agent and the Regional Di-
rector as to whether a particular employee or em-
ployees should be permitted to cast a ballot or bal-
lots. See, for example, Groendyke Transport, Inc. and
Ann Myers Bell d/b/a Bell Transport Company, 204
NLRB 96, 98 (1973), and Glauber Water Works, 112
NLRB 1462 (1955). Employees in these circum-
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was 4 for the Petitioner, 2 against, and
5 challenged ballots which were sufficient to affect the results of the elec-
tion
2 The portions of the Regional Director's report to which exceptions were
filed are attached hereto as an appendix
3 In the absence of any exceptions thereto, the Board adopts pro forma the
Regional Director's recommendations with respect to the challenges to the
ballots of Giallanzo, Keeney, and Paull As for the exceptions to the recom-
mendations concerning the challenge to the ballot of Cherry, the Board is of
the opinion that such exceptions raise no issue of fact or law requiring
reversal or modification of the Regional Director's findings, conclusions,
and recommendations
stances are usually permitted to vote if the polls are
not closed and/or the ballot box has not been
opened. This makes sense to us, since the election
procedures are not unduly interfered with or ham-
pered and it comports with a fundamental policy of
the Act to afford employees the broadest possible
participation in Board elections. Indeed a rule that
requires an employee to sacrifice his franchise under
Section 7 of the Act if he does not have reasonable
excuse for being late is too procrustean for the Board
to adopt in this time and at this date. Thus, we can
readily envision situations where an employee has lit-
tle or no excuse for arriving at the polls a few min-
utes late. But, we would frown on a Board agent or
Regional Director who did not allow such employee
to vote if the polls were not closed and/or the ballot
box had not been opened as the election process
would still be in progress. Hanford Sentinel, Inc.
d/b/a Hanford Sentinel, 163 NLRB 1004, 1005
(1967) 4
Since the latter alternative occurred in the instant
case, we agree with the Regional Director that the
challenge to Dugan's ballot be overruled and his vote
should be counted.
DIRECTION
It is hereby directed that the Regional Director for
Region 12 shall, pursuant to the Board's Rules and
Regulations, within 10 days from the date of this di-
rection, open and count the ballots cast by Kevin
Contrary to our dissenting colleague, in none of these cases did the
Board assign legitimacy of an excuse by employees for being late to the
polls as the indispensable prerequisite for holding them to be eligible voters
(In her partial dissent in Howard Johnson Company, 221 NLRB 542 (1975),
the Chairman said "that this factor [that the late voter have some valid and
reasonable excuse for being late] should be a sine qua non to counting a late
voter's ballot ") Time and again, the Board has relied on the exercise of
reasonable and sound discretion by the Board agent and Regional Director
in the circumstances and the then existing status of the election process For
example, in Hanford Sentinel, supra, the Board found that the Board agent,
in the proper exercise of his discretion, should have permitted two employ-
ees, who sought to vote only minutes after the polls were declared closed, to
cast their ballots regardless of whether they had a valid excuse, since the
ballot box had not been opened nor the tally of ballots started at that time
In Glauber Water Works, supra, the Board noted that it is established Board
practice, absent unusual circumstances, not to extend voting periods beyond
the time specified in the notice of election However, the Board held that
where the Board agent in charge of the election, in the exercise of his discre-
tion, reopened the polls to take the challenged ballots of six employees, five
of whom could not get away from their jobs during the voting period to
vote, the ballots should be counted But, the Board stated, "[w]e believe it
would have been better practice if the Board agent had followed the rule in
this case " In Bell Transport, supra, where the polling place had been dis-
mantled to some extent and the ballot box had been opened, the ballots
counted, and the tally completed at the time an employee indicated that he
wanted to cast his ballot, the Board held that the challenge to his ballot be
sustained The Board noted that whether a voter may be permitted to cast a
ballot after the polls have closed is left to the reasonable discretion of the
Board and its agent conducting the election But, there must be a limitation
within which the Board's reasonable rules should be followed and "when
the ballot box has been opened and the tally concluded, any employee
should thereafter be precluded from the right to cast his ballot"
225 NLRB No. 89
NEW ENGLAND OYSTER HOUSE 683
Keeney, Frank Paull, and Tom Dugan, and thereaf-
ter cause to be served on the parties a revised tally of
ballots including therein the count of the above-men-
tioned ballots. Thereafter the Regional Director shall
issue the appropriate certification in accordance with
the Board's Rules and Regulations.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
I agree with my colleagues' result here except that
I would not adopt the Regional Director's recom-
mendation that the challenge to Dugan's ballot be
overruled. Dugan arrived 2 or 3 mintues late at the
polls but was permitted by the Board agent to cast a
challenged ballot. His only reason for being late was
that he lost track of the time. This in my view is not
a reasonable excuse for tardiness in voting. Thus, I
would sustain the challenge to Dugan's ballot for the
reasons set forth in my dissent in Howard Johnson
Company, 221 NLRB 542 (1975). In that dissent I
pointed out inter alia that, contrary to the claims
made by the majority here, the Board has as its es-
tablished policy required that late employees must
have legitimate excuses for being late to the polls be-
fore it will hold them to be eligible voters. And it is in
that context that the Board has found that the Board
agent did not abuse his discretion by letting late vot-
ers vote under challenge. Indeed, the cases cited by
the majority in their decision support these conclu-
sions, not the conclusion they urge to the effect that
the Board has not required a valid and reasonable
excuse if a late employee is to be found an eligible
voter.'
5 For example, in Hanford Sentinel, supra, the late employees had earlier
attempted to vote but were turned away by the Board agent conducting the
election , and their subsequent lateness was due to a job assignment rather
than of their own working Inability to get away from jobs during the voting
period also was the reason for the lateness of all but one of the challenged
voters in Glauber Water Works, supra In Bell Transport Company , supra, the
challenge to the late voter 's ballot was sustained because he could not pre-
sent an excuse for his failure to vote during the scheduled time of the elec-
tion Although the Board in Hanford Sentinel and Glauber Water Works did
not expressly state that the legitimacy of an excuse for employees being late
to the polls was an "indispensable prerequisite for holding them to be eligi-
ble voters ," it is clear to me that the Board would not have permitted the
late voters ' ballots to be counted therein had that element been absent, any
more than it would have done so had any of the other factors enumerated
and relied upon in those cases not been present See Westchester Plastics of
Ohio, Inc, 165 NLRB 219 (1967), enfd 401 F 2d 903 (C.A 6, 1968)
APPENDIX
TOM DUGAN:
Dugan 's name appeared on the eligibility list, and
there is no dispute that he was an eligible voter at the
time of the election . The only dispute is whether or
not his ballot should be counted , since he voted after
official closing of the polls.
The Petitioner takes the position that his ballot
should be counted since the ballot box had not yet
been opened; he was only two or three minutes late;
and the company and union officials had not yet ar-
rived at the polling place when Dugan appeared to
vote.
The Employer takes the position that Dugan's vote
should not be counted since he voted outside the
time period agreed to by the employer in which the
employees could vote. Employer further contends
that another employee, also eligible to vote, was hos-
pitalized the morning of the election and called up
seeking to vote by telephone, which was not possible.
Employer submits that it would be especially unfair
to count Dugan's vote when another employee with a
far better reason for not voting was not able to cast a
ballot.
Testimony revealed that Dugan was not scheduled
to work on the day of the election , since he was
working only on weekends as a bus boy at that time.
The election was held on a Wednesday from 2:30
p.m. to 3:00 p.m.
Dugan testified that he did not have a watch, but
that he did know in advance of the exact hours of the
election; that around 1:00 p.m. he left the area near
the restaurant to check at the homes of 2 or 3 voters
who were also not scheduled to work that day; be-
cause he did not think they had transportation to the
polls and wanted them to be sure and vote. He did
not find any of the prospective voters at home and
stopped at the home of a friend and asked him what
time it was. Upon being told that it was 1:30, he
stayed a few minutes longer and then inquired again
if the time was correct, as he believed, it must have
been later than 1:30 by that time. At that time he
learned that it was five or ten minutes until 3:00, and
he and his friend realized that it actually was 2:30
when he had said it was 1:30, having read his watch
wrong. Dugan immediately left to go to the polling
place, but was 3 or 4 miles away and had to use a
heavily-traveled highway, which caused him to be
late.
He testified that when he arrived at the polling
place, only the Board agent and the observers were
present; the ballot box had not been opened, and
there were no company or union officials present. He
inquired if he was in time to vote, and was permitted
to vote under challenge. The parties returned for the
count before Dugan actually cast his ballot, and the
Board agent advised the parties that he had come in
after the polls were closed, but that she was going to
permit him to vote a challenged ballot. The officials
left, Dugan cast his challenged ballot and placed the
envelope in the ballot box, and the officials returned
for the count.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned has considered the facts as out-
lined above, and has weighed those factors that Du-
gan knew of the scheduled voting times, that he had
transportation, and that he placed reliance on some-
one else to keep up with the time, against those fac-
tors that Dugan was not scheduled to work that day,
the relatively brief polling time, his being two min-
utes late and appearing before the officials had re-
turned for the count and before the ballot box had
been opened, or the tally of ballots had started, and
his reason for being late not being without some evi-
dence of validity and/or diligence on his part in
trying to get to the polling place on time.
Accordingly, after due consideration, the under-
signed concludes that Dugan's vote should be count-
ed and will recommend that the challenge to his bal-
lot be overruled.'
AL CHERRY:
The Petitioner takes the position that Cherry's vote
should not be counted; that he works as a roving
maintenance man and works infrequently at Em-
ployer's Cocoa Beach facility, except during a pe-
riod shortly before the election when extensive work
was being done; that he is an employee of the central
office; that he may also be a supervisor; and that he
has no community of interest with other bargaining
unit employees. Further, Petitioner points out that
Cherry's name was not included on the Excelsior list.
The Employer takes the position that Cherry's
name was left off the eligibility list in error and that
he is an eligible voter. Employer contends that Cher-
ry was employed as a maintenance man for three of
employer's restaurants, including the Cocoa Beach
restaurant, and that he began work in the Cocoa
Beach restaurant in July 1975; that he has worked at
least one day in every work week at that location up
to and past the election date, usually ranging be-
tween 2 and 4 days. Employer contends that Cherry
is unquestionably eligible to vote, despite the fact
that he is also employed elsewhere by the Employer.
Additionally, Employer contends that Cherry is
not a supervisor and has never been given any super-
visory authority as defined in the Act.
The investigation shows that Cherry 6 was hired by
and worked as a repair and maintenance man under
the supervision of the District Manager. Cherry re-
sides in Vero Beach where one of the three restau-
rants he services is located.7 While the main part of
his work is servicing the air-conditioning and refrig-
5 Howard Johnson Company, 221 NLRB 542, Westchester Plastics of Ohio,
Inc, 165 NLRB 219, enfd 401 F 2d 903 (C A 6, 1968) Hanford Sentinel,
Inc d/b/a Hanford Sentinel, 163 NLRB 1004
6 Although no longer working as a contractor, Cherry continues to hold
valid State, county, and city (Vero Beach) contractor licenses
7 The Vero Beach and F Pierce restaurants are some 55 to 65 miles from
the Cocoa Beach restaurant with which we are concerned herein
eration equipment, he also does other general repair
and maintenance work such as carpentry and paint-
ing. Cherry uses his own truck and tools in connec-
tion with his work and receives compensation for
mileage and travel time. He does not have any regu-
lar schedule and normally is the only one performing
such work at the Cocoa Beach restaurant, to which
he reports, when called, on an average of one day
each week when the restaurant manager needs his
services.' He is paid by each store for his time
worked including travel time.
As mentioned, Cherry is supervised by and respon-
sible to the District Manager who at the crucial time
herein was Andrew Shaffer. When working at a par-
ticular store, the store manager further instructs
Cherry as to the job he wants done and sees that it is
done. When purchases of materials and repair parts
are necessarily made, time permitting, Cherry nor-
mally calls the District Manager for a purchase order
number which he utilizes in making the purchases at
designated suppliers where the employer has estab-
lished credit. In emergencies or absence of the Dis-
trict Manager, Cherry testified that he may and does
make purchases without prior clearance, either at es-
tablished suppliers sources, or at other suppliers
where he pays for the items and is later reimbursed.'
Cherry normally works alone. However, at times
when assistance is necessary, someone is hired to
help, or employees at the particular restaurant are
assigned by the Restaurant Manager to assist , either
on a full- time or part-time basis. Such a period oc-
curred at the Cocoa Beach restaurant during the cru-
cial times involved herein between the eligibility and
election dates, when in connection with the redoing
of the kitchen, substantial cleaning and other work
was necessary. This work entailed the utilization of
Cherry more steadily than usual , as well as two of the
restaurant employees on a regular full-time basis, to-
gether with one newly hired employee who, upon
conclusion of the kitchen work, was to work as a bus
boy.
Cherry's wages of $4.75 per hour are substantially
greater than the $2.00 to $2.25 per hour paid to the
others who assisted him in redoing the kitchen. Al-
though claimed by the Union to be a supervisor, and
the existence of evidence that he directed the work of
the others, during such periods of time , there is no
evidence to show that he hired the persons who
helped him or had any authority to discipline or dis-
charge them. Cherry states that during the kitchen
project at the Cocoa Beach restaurant, one of the
employees working with him, Tom Dugan, was not
8 Although complete time records of Cherry's work at the Cocoa Beach
restaurant were requested , they were never submitted
e
Cherry states that he has made purchases amounting to as much as $75
for which he was subsequently reimbursed upon presentation of the bills
NEW ENGLAND OYSTER HOUSE 685
performing his work satisfactorily, and admittedly
told Cherry to do it himself when asked to perform a
specified task. Cherry states he told restaurant man-
ager Walters of the matter. According to Cherry and
Dugan, the next day Dugan was transferred back to
his regular restaurant job. Walters acknowledges that
Dugan was put back on his regular job, but says that
he had noticed Dugan goofing off and therefore took
him off the maintenance work, adding that he does
not recall Cherry reporting a refusal of Dugan to per-
form a task assigned to him by Cherry.
Cherry also testifies that on one occasion several
months ago Shaffer asked him to find someone to do
some painting at the Vero Beach store at a specified
wage rate. Thereafter, according to Cherry, Shaffer
asked him about the man's work and whether he
should be paid 25 cents more per hour. Cherry says
he told Shaffer that "Bill" was doing a good job and
was worth the extra quarter. As reflected above,
Cherry normally works alone and it is only occasion-
ally that he has others work with him whose work he
may direct. While the evidence does show some indi-
cia of supervision, it is not deemed sufficient to find
Cherry to be a supervisor.
As needed, Cherry primarily services the air-condi-
tioning and refrigeration equipment and usually
works alone in the performance of his work. His con-
tacts therefore appear to be largely with manage-
ment, rather than with the rank and file employees of
the restaurant. It is clear that his work is totally dif-
ferent from that performed by the regular restaurant
employees, for which he receives a substantially high-
er rate of pay. Cherry is also supervised by and di-
rectly responsible to the District Manager with
whom he has frequent contacts during the average
work week, whereas the regular restaurant employees
are totally supervised by the restaurant manager. The
facts also show that his attendance at the Cocoa
Beach store is only on a when -called basis with no
fixed schedule , which may average about one day per
week . On the basis of such facts , the undersigned
concludes that Cherry, who performs maintenance
work on a "when -called" basis, has no real commu-
nity of interest with the restaurant employees and is
not sufficiently concerned with the terms and condi-
tions of employment within the unit to warrant his
inclusion therein . Accordingly, and for that reason,
the undersigned concludes that Al Cherry was not an
eligible voter and will recommend that the challenge
to his ballot be sustained.
RECOMMENDATIONS 10
Having concluded, for the reasons set forth above,
that Debbie Giallanzo and Al Cherry were not eligible
voters, the undersigned recommends that the chal-
lenges to their ballots be sustained.
Having concluded, for the reasons set forth above,
that Kevin Keeney, Frank Paull, and Tom Dugan were
eligible to vote, the undersigned recommends that
the challenges to their ballots be overruled, and that
the undersigned be directed to open and count said
ballots and issue a revised tally of ballots.
10 Pursuant to the provisions of Sec 102 69 of the Board's Rules and
Regulations , eight copies of exceptions to this report may be filed with the
Board in Washington , D C, with a copy thereof simultaneously served on
the other parties and the Regional Director Exceptions must be received by
the Board in Washington by February 23, 1976