Sadler Bros. Trucking & Leasing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1976

225 N.L.R.B. 194 (N.L.R.B. 1976)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sadler Bros. Trucking & Leasing Co ., Inc. and Team-
sters , Chauffeurs, Helpers & Taxicab Drivers Local
Union 327 , affiliated with International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, Petitioner . Case 26-RC-5176
June 25, 1976
DECISION AND DIRECTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Acting Regional Director for Region
26 of the National Labor Relations Board, on Janu-
ary 6, 1976, an election by secret mail ballot was con-
ducted among the employees in the stipulated unit.
At the conclusion of the election, the parties were
furnished a tally of ballots which showed that of ap-
proximately 56 eligible voters 50 cast ballots, of
which 3 were void, 19 were for the Petitioner, 19 were
against Petitioner, and 9 were challenged. The chal-
lenged ballots were sufficient in number to affect the
results of the election. Neither party filed objections
to the conduct of the election or to conduct affecting
the results of the election.
The Regional Director investigated the challenged
ballots and on March 19, 1976, issued his Report on
Challenged Ballots. He recommended that: (1) the
ballots of Carroll Layne and Arthur Griffin should
not be opened or counted because they were untime-
ly received; (2) two other ballots, because of their
markings, were void; (3) the challenges to the ballots
of Ronald Yates, Richard Poulton, and Billy Boldin
should be sustained; and (4) the challenges to the
ballots of William Winters and William Hamblin
should be overruled.
The Employer filed exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the Regional Director's Report on
Challenged Ballots and his recommendations to the
Board and the Employer's exceptions and brief, and
hereby adopts the Regional Director's findings, con-
clusions, and recommendations,' as modified below.
1 In the absence of exceptions thereto, the Board adopts, pro forma, the
Regional Director 's recommendations that the challenges to the ballots of
Ronald Yates, Richard Poulton , and Billy Boldin be sustained , and that one
other ballot , because of its marking , be voided
In its first exception, the Employer alleges that the
Regional Director erred in concluding that the bal-
lots of Carroll F. Layne and Arthur J. Griffin be
deemed invalid and void because "untimely re-
ceived."
The ballots were mailed to all the employees, in-
cluding Layne and Griffin, on Friday, January 23,
1976. Included with each mailed ballot was a set of
instructions, which specifically pointed out that to be
eligible the return envelopes containing the ballots
must be received at the Board's Resident Office no
later than 5 p.m. on Monday, February 9, 1976, the
deadline set by the stipulation of the parties. Layne
had moved from the address on the Excelsior list and
did not receive the first mailed ballot. Griffin had
failed to follow instructions and sign the return enve-
lope containing his first mailed ballot. Both were
mailed a second ballot which each received and re-
turned by mail on February 9. The second ballots of
both Layne and Griffin were received in the Resident
Office on the morning of February 10, prior to 10
a.m., the date and time fixed by the stipulation for
the opening and counting of the ballots.
Both the Employer and the Petitioner requested
that these ballots, even though received after the 5
p.m. deadline of the preceding day, be opened and
counted. However, the Board agent declared the bal-
lots to be invalid because they were received after the
deadline set by the terms of the stipulation. Both par-
ties challenged the Board agent's ruling. The Em-
ployer contends that under the circumstances, there
being no administrative inconvenience, the Regional
Director's upholding of the agent's ruling and recom-
mendation to invalidate these two ballots should be
overruled.
We agree. The Regional Director had concluded
that since Layne's and Griffin's failure to insure
timely delivery of their ballots was due to their own
lack of diligence, their ballots should be invalidated
because they were untimely received. However, both
the Employer and the Petitioner, in effect, agreed to
waive the deadline set by their stipulation for receipt
of the mail ballots, when they requested the Board
agent to open and count these two ballots, and then
challenged his ruling invalidating the ballots when he
refused to do so. Since the parties agreed to waive the
stipulated due date with respect to the ballots of
Layne and Griffin, we see no reason why the two
ballots should not be opened and counted.' Accord-
ingly, we overrule the Regional Director's invalida-
The relevant portions of the Regional Director's report, i e , those to
which exceptions were filed , are attached hereto as an appendix
2 Although she adheres to her dissenting opinion expressed in Howard
Johnson Company, 221 NLRB 542 (1975), Chairman Murphy concurs in the
results herein solely because the parties agreed to accept the untimely re-
ceived ballots
225 NLRB No. 10
SADLER BROS . TRUCKING & LEASING CO. 195
tion of the ballots of Layne and Griffin and shall
direct that they be opened and counted.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining among certain employees of Sa-
dler Bros. Trucking & Leasing Co., Inc., in the unit
set forth in section 12 of the Stipulation for Certifica-
tion Upon Consent Election, the Regional Director
for Region 26 shall, pursuant to the Board's Rules
and Regulations, within 10 days from the date of this
Decision and Direction, open and count the ballots
of Carroll Layne, Arthur Griffin, William Winters,
and William Hamblin and, thereafter, prepare and
cause to be served on the parties a revised tally of
ballots and issue an appropriate certification based
on the revised tally of ballots.
APPENDIX
THE CHALLENGED BALLOTS
Carroll F. Layne and Arthur J . Griffin
The ballots of Layne and Griffin were declared by
the Board agent conducting the ballot count to be
invalid because they were received after the deadline
set by the terms of the stipulation for receipt of mail
ballots in the election . Both the Employer and the
Petitioner challenged the Board Agent 's ruling that
the ballots were invalid.
On January 12, 1976, the election notices were
mailed to the Employer. Copies were posted on Janu-
ary 16, 1976. This notice specifically states that if any
employee has not received his ballot by January 29,
he should contact the Resident Office in Nashville or
the Regional Office in Memphis . The telephone
numbers of these offices were also included in this
notice . The ballots were mailed to all of the employ-
ees on Friday , January 23, 1976.
Included with each ballot mailed to the employees
was a set of instructions containing the following lan-
guage:
To insure that your ballot is counted , it must be
received by the date shown . Mail your ballot im-
mediately or sufficiently before this date to in-
sure timely receipt.
These instructions also specifically point out that to
be eligible the envelopes containing the ballots must
be received no later than 5 p.m. on Monday, Febru-
ary 9, 1976.
The ballots of both Layne and Griffin were re-
ceived in the Resident Office on the morning of Feb-
ruary 10. Both Layne and Griffin had been mailed
their ballots on January 23. Layne did not receive his
ballot because he had moved from his address on the
Excelsior list. Although he was admittedly aware of
instructions to contact the NLRB if he had not re-
ceived a ballot by January 29, he neglected to do so
until February 5, at which time he was mailed a sec-
ond ballot. Layne testified that he did not receive his
ballot until the morning of February 9. As he lives
100 miles from Nashville and was not scheduled to
work that day, he made arrangements with the Em-
ployer to meet him half-way and he instructed the
party picking up his ballot to mail it to the Resident
Office. Thus, it could not have been reasonably an-
ticipated that the ballot would be received by the
February 9 deadline. Griffin had neglected to sign
the envelope containing his ballot despite specific in-
struction to do so, and it was necessary to send him a
second ballot. This second ballot was mailed to him
on February 6. He received it on the 9th and mailed
it on that same date. Griffin concedes that he did not
read the instructions sent with the first ballot and,
therefore, did not realize he had to sign the envelope.
Since both Layne and Griffin were fully aware
that their ballots, to be counted, were to be received
in the Resident Office no later than February 9, and
since their failure to insure timely delivery was due to
their own lack of diligence, their ballots are deemed
to be invalid because they were untimely received.
Accordingly, it is recommended that the voiding of
their ballots be upheld and that their ballots not be
opened and counted.
William F. Winters
The ballot of William F. Winters was challenged
by the Employer on the grounds that he terminated
his employment with the Company prior to February
10, 1976, the date that the ballots were counted.
According to Mr. Sadler, Winters failed to show
up for work after February 5, 1976, and he was there-
fore considered to have voluntarily terminated his
employment on that date. Although Winters could
not recall the exact date that he terminated his em-
ployment with the Company, he did conform that it
was sometime in February after he had already
mailed in his ballot in the election. The ballot was
received in the Resident Office on January 30, 1976.
Since there is no dispute that Winters was an em-
ployee of the Company on the cutoff date and on the
date he mailed his ballot in the election, he is deemed
to be an eligible voter.3
Eck Miller Transportation Corporation, 211 NLRB 251
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it is recommended that the challenge
to the ballot of William F. Winters be overruled.
William P. Hamblin
The ballot of William P. Hamblin was challenged
by the Employer on the grounds that he had volun-
tarily terminated his employment with the Company
prior to the date that the ballots were counted.
According to Mr. Sadler, Hamblin made his last
run for the Company on January 27, 1976. Sadler
stated that shortly prior thereto Hamblin had re-
quested a 30-day leave of absence indicating at that
time he had taken a position elsewhere. Sadler states
that he told Hamblin that he would have to confer
with Mr. Glynn Sadler, president of the Company,
and that Hamblin should contact him the following
morning to ascertain whether he would be granted a
leave of absence. Sadler explained that Hamblin
failed to call him and that he has not heard from him
since. He says that Hamblin failed to make a sched-
uled run on January 28 and is, therefore, no longer
considered an employee of the Company.
Hamblin denies that he was instructed to call back
following his conversation with Mr. Sadler to ascer-
tain whether he had been granted a leave of absence,
and he says he left with the understanding that he
had been granted a month's leave of absence. Ham-
blin stated that he was instructed to call back the
following day to check whether the Company had
found a replacement for him, and he concedes he
failed to do so.
Regardless of whether Hamblin was on a leave of
absence or terminated after January 27, 1976, the ev-
idence established that he was employed by the
Company on the cutoff date and on the date he
mailed his ballot to the Resident Office. Although
Hamblin was unable to recall the exact date that he
mailed his ballot to the Resident Office, he did recall 5 Mercy College, 212 NLRB 925
that it was prior to the time that he requested a leave
of absence. This is verified by the postmark on the
envelope which indicates that the ballot was mailed
on January 26, 1976.
Since Hamblin was employed by the Company on
the cutoff date and on the date he mailed his ballot
to the Resident Office he was eligible to vote in the
election.4
Accordingly, it is recommended that the challenge
to the ballot of William P. Hamblin be overruled.
Additional Challenged Ballots
The parties challenged the Board agent's determi-
nation that two ballots were invalid because they had
been improperly marked.
One ballot, which was challenged by the Employ-
er, had the "yes" square blacked in and an "X" in the
"no" square . . . The Employer asserts that this is a
valid ballot because the intention of the voter was to
vote "no." It is the Employer's contention that after
the voter had inadvertently placed an "X" in the
"yes" square he attempted to erase it by blocking out
the entire square. The Employer argues that because
it was a mail ballot election and a Board agent was
not readily available to provide assistance, the fact
that the ballot was not marked in the conventional
way should not affect its validity.
The Employer concedes that Board precedent sup-
ports the position that the manner in which the ballot
was marked warrants a conclusion that the ballot
was invalid. In similar circumstances, the Board has
ruled that the intention of the voter was not free from
doubt and that the ballot was, therefore, void.'
Accordingly, it is concluded that the ballot was
correctly determined to be void.
Eck Miller Transportation Corporation, cited supra