Northern Telecom Meridian Systems, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1989

297 N.L.R.B. 256 (N.L.R.B. 1989)

256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Northern Telecom Meridian Systems, Inc. and Paul
Splattstoesser, Petitioner and Communications
Workers of America, AFL-CIO. Case 19-RD-
2772
November 16, 1989
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held March 10, 1989, and the hearing offi-
cer's report recommending disposition of them
The election was conducted pursuant to a stipulat-
ed election agreement The tally of ballots shows
15 ballots for and 14 against representation by the
Union, with no challenges
The Board has reviewed the record in light of
the exceptions and briefs, has adopted the hearing
officer's findings and recommendations, and finds
that a certification of representative should be
issued
In adopting the hearing officer's recommenda-
tion to overrule the Employer's objection that the
stipulation was materially breached because the Pe-
titioner was not afforded an observer for the elec-
tion, we place particular reliance on the fact that
Petitioner Paul Splattstoesser—the party whose in-
terests were alleged to have been infringed—did
not file objections to the conduct of the election
nor otherwise at any time either assert nghts that
were denied or protest his treatment regarding any
aspect of the election process The Petitioner never
advised the Board agent at any time prior to the
election that he wanted to serve as his own observ-
er 1 When the Board agent gave the employer and
union observers their official observer buttons, the
Petitioner did not ask why he did not receive one
Following the preelection conferences and before
voting began, when the Board agent asked the Pe-
titioner to leave the polling area, he did not ask
why or tell the agent that he had intended to serve
as an observer, but rather simply acquiesced and
left the room 2
'Contrary to the Employer s assertion, there is no evidence in the
record that Splattstoesser told the Board agent that he intended to act as
an observer Splattstoesser testified that on the day before the election he
advised the Board agent only that he Intended to be present for the
election Further, in response to two specific questions concerning
whether on the day of the election Splattstoesser stated to the Board
agent that he wanted to be an observer, twice Splattstoesser unequivocal-
ly replied, "No"
2 In addition, after leaving the polling area, Splattstoesser did not at-
tempt to contact the Regional Office either to complain or to inquire
about why he was excluded and, at the conclusion of the election, he ap-
peared to accept the Board agent's explanation that the Petitioner's pres-
ence during the voting may have given rise to an unfair labor practice
These undisputed facts stand in marked contrast
to cases cited by the Employer in its exceptions In
Asplundh Tree Expert Co, 283 NLRB 1 (1987), a
second election was directed when the Board agent
rejected the petitioner's preelection protests over
the employer's being allowed a greater number of
observers and advised the petitioner that his re-
course was to file objections following the election
if he wished There, contrary to the instant case,
the petitioner registered his dissent at the first op-
portunity and, when rebuffed, followed through by
filing postelection objections In Sugar Food, Inc ,
293 NLRB 1008 (1989), the Board sustained the pe-
titioner's objection that the stipulation was materi-
ally breached because it was not afforded an ob-
server at certain voting sessions The underlying
facts of that case disclose that the petitioner-union,
unlike Splattstoesser, was not provided an opportu-
nity to protect its interest in ensuring the presence
of an observer for the duration of the polling
period and it did not discover that its observer was
not present for the entire period until after the
election was held The first opportunity the peti-
tioner had to raise the issue was at the objections
stage and it did so Moreover, in both of those
cases, it was the party directly affected who assert-
ed its rights and filed objections
Finally, while in Gerland's Food Fair, 272 NLRB
294 (1984), the Board upheld the employer's objec-
tion based on the RD petitioner's failure to receive
a timely Excelsior list, we note that the Board's Ex-
celsior policy serves a far different purpose and is
effectuated, enforced by, and within the control of
the Regional Offices, in contrast to the terms of a
stipulation agreement that the parties themselves
freely enter into and, therefore, share responsibility
for carrying out The potential prejudice suffered
by the petitioner in Gerland's Food Fair was direct-
ly attributable to a lapse in the Board's responsibil-
ity and may have affected all parties by bringing
into doubt the fairness of the Board's own process-
es By contrast, in the instant case, when the Peti-
tioner failed to make known to the Board agent
whether or how he intended to fulfill the terms of
the stipulation, concerning the use of observers, the
Employer cannot, after the fact, step into the Peti-
tioner's shoes and act in his behalf 3
charge Finally, as stated above, he did not thereafter protest the matter
through the objections procedure These actions indicate that not only
did Splattstoesser fall to assert any preelection Intention to act as observ-
er, but also failed to indicate any subsequent disagreement with his exclu-
sion In these and the above-descnbed circumstances, we find that the
Board agent's postelection comments concerning an RD petitioner's
acting as an observer Irrelevant to the Issues presented here for determi-
nation
3 In this connection, we note that the Employer acknowledges the
long-established Board principle that parties to an election are not re-
quired to have observers Jat Transportation Corp, 131 NLRB 122 (1961)
297 NLRB No 31
NORTHERN TELECOM SYSTEMS 257
CERTIFICATION OF
REPRESENTATIVE
It is certified that a majority of the valid ballots
have been cast for Communications Workers of
America, AFL-CIO, and that it is the exclusive
representative of the ,employees in the following
appropriate unit
All PBX cable pullers, installers, maintenance
. and repair technicians employed by the Em-
ployer in Seattle and Spokane, Washington,
Portland, Oregon and Las Vegas, Nevada, ex-
cluding all other employees including clerical,
technical support engineers, data technicians,
sales and marketing personnel, guards and su-
pervisors as defined in the Act