Pine Shores, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1996

321 N.L.R.B. 1437 (N.L.R.B. 1996)

1437
321 NLRB No. 179
PINE SHORES, INC.
1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation to overrule the challenges to the ballots of
Carl Cadle, Patti Nybeck, Sandra Phillips, Ann Lechelt, Adam Gar-
cia, Connie Bingel-Bombenger, Nancy Michaud, Jeff Hoyt, and Tay-
lor Beaudoin and to sustain the challenge to the ballot of Nancy
Smith.
Also, in the absence of exceptions, we adopt pro forma the hearing
officer’s recommendation to sustain Employer Objections 4, 5, 7,
and 8 and to overrule Employer Objections 1–3, 9–11, and 13–16.
2 The Employer excepts to the hearing officer’s failure to find that
the Union was responsible for the conduct. We agree with the hear-
ing officer that the evidence does not establish union responsibility.
Pine Shores, Inc., Meadow Creek, Inc., and Cedar
Ridge, Inc. and Health Care Workers of the
United Brotherhood of Carpenters & Joiners
of America. Case 18–RC–15833
August 27, 1996
DECISION AND DIRECTION
BY MEMBERS BROWNING, COHEN, AND FOX
The National Labor Relations Board, by a three-
member panel, has considered objections to and deter-
minative challenges in an election held September 19,
1995, and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of
ballots shows 30 votes for and 25 against the Peti-
tioner, with 11 challenged ballots, a sufficient number
to affect the results.
The Board has reviewed the record in light of the
exceptions and brief and has adopted the hearing offi-
cer’s findings and recommendations,1 as modified
below.
The hearing officer recommended that Employer
Objections 4, 5, 7, and 8 be sustained. The hearing of-
ficer found merit in the Employer’s allegations that
this third-party misconduct made a free and fair elec-
tion impossible. There are no exceptions filed by the
Union.2
Further, the hearing officer, though overruling the
challenges to nine ballots, nonetheless recommended
that those determinative ballots not be opened and
counted. Rather, the hearing officer concluded that, re-
gardless of the outcome of the election, a second elec-
tion should be directed. The Employer excepts, arguing
that the overruled challenges should be counted and
that a second election should be directed only if the
Petitioner prevails in a revised tally. We agree with the
Employer.
Like the hearing officer, we are unable to determine
who was responsible for the serious and substantial
misconduct that occurred in this case. However, it is
clear that the acts complained of were all directed at
employees who opposed the Petitioner. In these cir-
cumstances, to direct a second election, regardless of
the outcome of the election tally, would in effect bene-
fit the wrongdoers who directed misconduct at
antiunion employees. Willis Shaw Frozen Express,
Inc., 209 NLRB 267, 268–269 (1974). Accordingly,
consistent with Board precedent, we shall direct that
the challenged ballots be opened and counted. Id. If
the Petitioner prevails in the revised tally, the Regional
Director shall conduct a second election.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 18 shall, within 14 days of this Decision and Di-
rection, open and count the ballots of Carl Cadle, Patti
Nybeck, Sandra Phillips, Ann Lechelt, Adam Garcia,
Connie Bingel-Bombenger, Nancy Michaud, Jeff Hoyt,
and Taylor Beaudoin and thereafter prepare and cause
to be served on the parties a revised tally of ballots.
In the event that the revised tally of ballots shows that
the Petitioner has not received a majority of the ballots
cast, the Employer’s objections will be moot and the
Regional Director shall issue a certification of results.
However, in the event that the revised tally of bal-
lots shows that the Petitioner has received a majority
of the valid ballots cast, the following shall be applica-
ble:
IT IS DIRECTED that the election conducted on Sep-
tember 29, 1995, be set aside.