Northeast Iowa Telephone Co.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 670 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
Northeast Iowa Telephone Company and Teamsters
Local 421, affiliated with the International
Brotherhood of Teamsters, Petitioner. Case 18–
RC–17190
April 30, 2004
ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
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 request for review
of the Regional Director’s Decision and Direction of
Election. The request for review is denied as it raises no
substantial issues warranting review.
The Employer provides telephone service in rural Iowa
from its two facilities in Monona and Decorah. The
Monona facility provides traditional wire-line telephone
service, wireless internet service, cell phone service, and
the telephone services generally associated with a local
exchange carrier. The Monona facility employs four
technicians who perform in-ground installation to pro-
vide telephone services to the Employer’s rural custom-
ers, manage the local exchange switch, install cable tele-
vision equipment, and perform site surveys for and in-
stall wireless internet service. The Monona facility also
employs a plant manager and a wireless manager.
The Decorah facility operates largely as a retail store
located in an area where the Employer is not a local ex-
change carrier. The Decorah facility employs two tech-
nicians who install telecom equipment, telephone sys-
tems, jacks, and wiring for its customers in the area. One
of the two Decorah technicians is dubbed the lead techni-
cian.
The Petitioner petitioned for an employerwide unit
covering the Employer’s technicians, office clerical em-
ployees, the plant manager, and the wireless manager. In
his Decision and Direction of Election, the Regional Di-
rector (1) found the petitioned-for employerwide multi-
facility unit appropriate, (2) found the lead technician not
to be a statutory supervisor, and (3) found the record
inconclusive with respect to the plant and wireless man-
agers’ status and allowed them to vote under challenge.
In its request for review, the Employer renews its argu-
ments that the petitioned-for multifacility unit is inap-
propriate and that the lead technician is a statutory su-
pervisor. With respect to the two managers, the Em-
ployer argues that (1) “the abundance of record evi-
dence” shows that they are both statutory supervisors,
and (2) if the Board agrees that the evidence is inconclu-
sive it should reopen the record to permit the testimony
of General Manager Arlan Quandahl.1
Although we find that the Employer’s request for re-
view fails to raise issues warranting review, we write
separately on the supervisory issue to respond to our dis-
senting colleague. We find, contrary to our dissenting
colleague, that the Regional Director did not err in allow-
ing the two managers to vote under challenge. The chal-
lenge procedure is a well-established method through
which the Board ensures the speedy running of represen-
tation elections. See, e.g., Medical Center at Bowling
Green v. NLRB, 712 F.2d 1091, 1093 (6th Cir. 1983)
(finding no error in Board’s decision to allow alleged
supervisors to vote under challenge and noting “[s]uch a
practice enables the Board to conduct an immediate elec-
tion”).
Our dissenting colleague contends that because the su-
pervisory status of the two managers remained unre-
solved at the time of the election, the employees could
not cast an informed ballot because they did not appreci-
ate the contours of the unit. We find no merit in this con-
tention.
First, the Employer in its request for review does not
raise this contention. Thus, the Employer provides no
evidence that any employees were confused about the
contours of the unit or that their votes could be affected
by the uncertainty of whether the two managers were
included or excluded from the unit.
Further, the Employer failed to file a special appeal
with the Board of the Regional Director’s decision to
schedule the hearing on October 27 and failed to request
a postponement of the hearing to allow the general man-
ager to testify. Nor did the Employer file an appeal with
the Regional Director or the Board of the hearing offi-
cer’s closure of the record without the general manager’s
testimony. Under these circumstances, we find the Em-
ployer’s request to reopen the record to allow the general
manager’s testimony, first raised in its request for re-
view, untimely.
Finally, we do not agree with our dissenting colleague
that the Regional Director’s decision to allow the two
managers to vote under challenge somehow compro-
mised employee free choice in the election. Our dissent-
ing colleague mistakenly relies on NLRB v. Parsons
School of Design, 793 F.2d 503 (2d Cir. 1986). Parsons
School of Design represents a line of decisions holding
that where an election has been held in a certain unit and
the Board significantly alters the scope and character of

1 The Regional Director scheduled the hearing on October 27, a date
on which Quandahl was unavailable to testify due to his recuperation
from surgery.

341 NLRB No. 97
NORTHEAST IOWA TELEPHONE CO. 671
that unit after the election, the employees’ voting rights
have been hampered such that a new election is required.
See Pratt & Whitney, 327 NLRB 1213, 1218 (1999).
These cases have consistently been limited to situations
where the unit described in the election notice differs
from the unit eventually certified in some significant
way. See Parsons School of Design, 793 F.2d at 508
(postelection unit excluded all full-time faculty leaving
only part-time faculty in the unit); Hamilton Test Systems
v. NLRB, 743 F.2d 136 (2d Cir. 1984) (postelection unit
reduced by 50 percent); NLRB v. Lorimar Productions,
Inc., 771 F.2d 1294 (9th Cir. 1985) (postelection unit
reduced by nearly 40 percent). The issue of unit scope is
simply not raised where the Board makes supervisory
findings in postelection proceedings. See Morgan
Manor Nursing & Rehabilitation Center, 319 NLRB
552, 553 (1995) (finding postelection 20-percent reduc-
tion in unit size due to exclusion of statutory supervisors
not a “sufficient change in unit size to warrant setting
aside the election”).
We see no reason to stretch, sua sponte, the court’s
holding in Parsons School of Design and to limit the
Board’s use of the tried-and-true “vote under challenge
procedure” to essentially remedy the Employer’s failure
to file a timely request for special permission to appeal.
The Board has resisted past attempts to read Hamilton
Test Systems and its progeny beyond the courts’ narrow
concern about the impact of a postelection change in unit
scope and character. See Pratt & Whitney, 327 NLRB at
1218–1219 (rejecting argument that Hamilton Test Sys-
tems required a change in the Board’s Sonotone2 voting
procedures). We see no reason to alter that course.
Rather than setting aside the election, reopening the hear-
ing, and rerunning the election—as our dissenting col-
league suggests—we find, given the case’s present pos-
ture, that resolving the supervisory issues through the
challenge and objection procedure is the best use of the
Board’s limited resources. While we recognize that al-
lowing 25 percent of the electorate to vote subject to
challenge is not optimal, the Employer’s opportunity to
raise its supervisory issues remains preserved through
appropriate challenges and objections to the election or
through a subsequent unit clarification petition.

CHAIRMAN BATTISTA, dissenting in part.
I would grant review of the Regional Director’s deci-
sion to allow the plant manager and the wireless manager
to vote subject to challenge.
This is a case where undue haste led to an inadequate
record which, in turn, led to a situation where employees

2 90 NLRB 1236 (1950).
are asked to vote without knowing significant aspects of
the composition of the unit.
The petition in this case was filed on October 10,
2003. Before the hearing was scheduled, the Employer
advised the Regional Director that its general manager
was unavailable for a 2-week period due to surgery and
convalescence. The Employer reasonably anticipated
that the general manager’s testimony would be highly
relevant to the issues of supervisory status presented by
the case, and, therefore, requested that the hearing not be
set during that time. Nevertheless, the Regional Director
scheduled the hearing for October 27, during the period
when the general manager was unavailable.
In his November 7 Decision and Direction of Election,
the Regional Director concluded that the evidence re-
garding the status of the plant manager and the wireless
manager was inconclusive. This was not surprising in
view of the absence of the general manager’s testimony.
However, rather than reopening the hearing, he directed
that those two individuals be permitted to vote subject to
challenge. As there were only six other eligible voters in
the unit, the two managers comprised 25 percent of the
electorate. The election was conducted, as scheduled, on
December 3.
The Employer’s request that the hearing not be sched-
uled during the 2-week period of the general manager’s
unavailability was a reasonable one. The Regional Di-
rector should not have denied it. However, there was no
special appeal of the Regional Director’s decision, and,
thus, that error cannot itself be corrected. However,
there were errors subsequent to that one. The Regional
Director compounded his error by choosing to go for-
ward with the election rather than reopening the hearing.
On November 7, when the Regional Director issued his
decision, the petition was less than 1-month old. Surely
it would not have compromised the efficacy of the
Board’s representation process to reopen the hearing, and
to allow the general manager’s potentially dispositive
evidence to be presented. But the Regional Director
nevertheless forged ahead.
As noted, I recognize that the Employer did not re-
quest a special appeal on the failure to postpone the hear-
ing. But that is not the issue which concerns me. I am
concerned about the fact that, without the general man-
ager’s testimony, the Regional Director did not have
enough evidence to resolve the issues concerning the two
managers. The Regional Director’s solution to that prob-
lem was to vote the managers under challenge. That
decision is the subject of this Request for Review. For
the reasons stated herein, the Employer is correct.
The result of the Regional Director’s decision is that
the voters went to the polls not knowing whether the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
plant manager and the general manager were part of the
unit. Although the “vote-under-challenge” procedure can
be a reasonable accommodation of the conflicting de-
mands facing the Board, I believe that it is incorrect to
use it in a case like this one, where the individuals in
limbo constitute such a large percentage of the unit.
Employees have a right to know the contours of the vot-
ing unit before casting their ballots. Reviewing courts
have not hesitated to invalidate elections where use of
the “vote-under-challenge” procedure has trenched on
that right. See, e.g., NLRB v. Parsons School of Design,
793 F.2d 503 (2d Cir. 1986), and cases cited.
Although those court cases presented issues of unit
scope rather than unit placement, the same considerations
are applicable here, where the disputed individuals com-
prise such a large percentage of the overall unit. The
individuals here may well be supervisors or, at the very
least, they may reasonably be perceived as supervisors.1

1 The evidence shows that the two disputed individuals play a sig-
nificant role in hiring, the determination of wage rates, and assignment
of work. They have the authority to compel overtime. In addition,
Most of the undisputed unit employees work for one or
the other of the two disputed individuals. In these cir-
cumstances, in order for employees to intelligently de-
cide whether they wish to be represented by the Union,
they may reasonably want to know whether 25 percent of
the unit will be comprised of these individuals.
My colleagues assert that there was no evidence that
employees were in fact confused. However, the issue is
not the subjective reaction of employees; nor is it
whether the employees were in fact confused. The test is
whether, objectively speaking, an employee would rea-
sonably wish to consider, in casting his ballot, whether
the two managers would be in their unit or not.
Again, I do not quarrel with the principal underlying
the “vote-under-challenge” procedure.2 But where the
impact on the unit can be so substantial, I would not use
it. Accordingly, I dissent.

there was testimony that the two individuals have the same authority as
the office manager, who the parties stipulated was a supervisor.
2 Even my colleagues concede that the high figure of 25 percent is
“not optimal.”