Pea Ridge Iron Ore Co.

National Labor Relations Board - Board Decisions

Aug 24, 2001

335 N.L.R.B. 161 (N.L.R.B. 2001)

PEA RIDGE IRON ORE CO. 161
Pea Ridge Iron Ore Company, Inc. and Unification
Organizing Committee, United Auto Workers
(UAW), International Association of Machinists
(IAM), United Steel Workers of America
(USWA), AFL–CIO–CLC, Petitioner. Case 14–
RC–12165
August 24, 2001
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
in the above-captioned case conducted on June 7 and 8,
2000, and the Regional Director’s supplemental report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows that of approximately 70 eligi-
ble employees, there were 33 votes cast for and 32 votes
cast against the Petitioner, with no challenged or void
ballots.
The Board has reviewed the record in light of the Em-
ployer’s exceptions and brief, and has adopted the Re-
gional Director’s findings and recommendations only to
the extent consistent with this Decision.
Under the Stipulated Election Agreement, the election
was scheduled to be held from 5:30 to 6:30 p.m. on June
7, 2000, and from 6 to 8 a.m. and 3:30 to 6:30 p.m. on
June 8, 2000. The Regional Director found, and it is
undisputed, that the polls did not open until 5:37 p.m. on
June 7, 2000. The Employer contends that the election
should be set aside because the late opening of the polls
possibly impaired the right of a determinative number of
eligible voters to vote and thereby affected the outcome
of the election.
In the course of his investigation into the Employer’s
objections, the Regional Director obtained statements
from the five eligible voters who did not vote. Three of
the eligible voters stated that they were out of town on
vacation on June 7, a fourth stated he was unavailable
because of a medical emergency on that date, and a fifth
appeared at the polls on June 7 when they were open, but
decided not to vote.
On the basis of these statements, the Regional Director
concluded that no eligible voter was possibly disenfran-
chised by the late opening of the polls. We disagree.
When election polls are not opened at their scheduled
times, the proper standard for determining whether a new
election should be held is whether the number of em-
ployees possibly disenfranchised thereby is sufficient to
affect the election outcome, not whether those voters, or
any voters at all, were actually disenfranchised. Wolver-
ine Dispatch, Inc., 321 NLRB 796 (1996). The Board
has made it clear that this objective standard not only
safeguards the choice of the majority of employees vot-
ing in the election, but also is necessary to protect the
integrity of the election process itself. Id., Midwest Can-
vas Corp., 326 NLRB 58, 59 (1998). Thus, the Board
has consistently adhered to an objective standard that
does not rely on after-the-fact statements obtained from
eligible voters as to the reasons why they did not vote in
an election. See, e.g., G.H.R. Foundry Div., Dayton
Malleable Iron Co., 123 NLRB 1707, 1709 (1959);
Whatcom Security Agency, 258 NLRB 985 (1981); and
Nyack Hospital, 238 NLRB 257, 259 (1978).
Here, the Regional Director erred by relying on such a
statement. Thus, the statement from one employee that
he appeared at the polls on June 7 but “decided not to
vote” is clearly his subjective explanation for not voting.
This is precisely the type of statement that the Board has
said it will not accept as a means of determining subjec-
tive voter intent. Thus, it does not constitute evidence
sufficient to establish that the employee could not possi-
bly have been prevented from voting by the late opening
of the polls.
Under these circumstances, where the election was de-
cided by one vote, we find that the late opening of the
polls potentially affected the results of the election. We
therefore sustain the Employer’s objection and order that
the election be set aside and a new one held.1
[Direction of Second Election omitted from publica-
tion.]

CHAIRMAN HURTGEN, dissenting.
I would uphold the election and certify the Union. I
agree that the Board does not accept postelection state-
ments regarding the subjective reasons for an employee’s
failure to vote.1 However, the instant case does not in-
volve such statements. Rather, it involves contempora-
neous objective facts which clearly indicate that the five
employees’ failure to vote was not caused by the 7-
minute delay in opening the polls. That is, three employ-
ees were vacationing out of town on the date of the elec-
tion. A fourth had a medical emergency on that date. A
fifth employee appeared at the polls when they were
open, and nonetheless declined to vote.

1 The Regional Director’s reliance on the statements from the other
four employees who did not vote raises a closer issue. However, since
the fifth employee’s situation was determinative, we need not reach this
issue.
1 See G.H.R. Foundry Div., Dayton Malleable Iron Co., 123 NLRB
1707, 1708 (1959); Whatcom Security Agency, 258 NLRB 985 (1978).
335 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
With respect to this fifth employee, the significant
point is not that he “decided not to vote.” Rather, the
significant point is the objective fact that he arrived at the
polls when they were open. Clearly and objectively, the
late opening of the polls had nothing whatever to do with
his nonvoting.
Wolverine Dispatch, Inc., 321 NLRB 796 (1996), does
not support the position of my colleagues. The Board
there held that it would set aside an election if “the num-
ber of employees possibly disenfranchised due to polls
being closed when scheduled to be open is sufficient to
affect the election outcome.” As discussed above, the
objective evidence in the instant case affirmatively
shows that no employees were possibly disenfranchised
because of the 7-minute delay in opening the polls.
Their failure to vote was attributable to other factors.
In short, this case does not involve the vice of G.H.R.
and Whatcom, viz. probing into subjective intentions
revealed by postelection statements.
I recognize that, in Whatcom, the Board also set forth a
secondary rationale for overturning the election. The
Board said:
Moreover, where the irregularity concerns an essential
condition of an election, and calls into question a de-
terminative number of ballots to affect the outcome, to
maintain the Board’s high standards the election must
be set aside.
It is difficult to ascertain whether this secondary rationale,
by itself, would have prompted the result in Whatcom.
However, even if it would have done so, it has no applica-
tion here. As discussed above, the objective evidence
makes it clear that the “irregularity” in this case had no ef-
fect on the outcome of the election. Accordingly, I would
certify the Union.