T & L Leasing

National Labor Relations Board - Board Decisions

Aug 15, 1995

318 N.L.R.B. 324 (N.L.R.B. 1995)

324
318 NLRB No. 28
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Because we find that the election must be set aside based on Em-
ployer Objections 1 through 8, it is unnecessary to pass on Objec-
tions 9 through 11.
2 In view of our Direction of a Second Election, we reject as moot
the Employer’s request that any further investigation of its objections
be transferred to another region.
3 The Regional Director asserts in his Report on Objections that,
prior to approval of the Stipulated Election Agreement, the Employer
did not inform the Region that it lacked its own premises and that
the unit employees reported to the property of Sears, Roebuck & Co.
The Employer conversely contends that it informed the Region, prior
to approval of the Stipulation, that its facility was located on Sears’
property and that Sears’ approval would be required to conduct an
election there. The Employer further asserts that the fact that the
Stipulation gave the Regional Director authority to determine the
election site demonstrates the parties’ uncertainty as to where the
election would be held.
We need not resolve this issue of credibility. As noted, infra, the
parties interpreted the Stipulation as permitting an off-site election,
i.e., at Sears, and the election would have been held there if Sears
had been willing to have the election conducted on its property.
4 Although procedures specified in the Board’s Casehandling Man-
ual, Part II, Representation Proceedings, are not binding procedural
rules, Sec. 11032.2 of the Casehandling Manual provides guidance
in situations, like here, where the election site is left for Regional
Director determination, and on-site balloting is not possible. In these
circumstances, Sec. 11032.2 provides that the Regional Director is
to determine the polling site after considering the proposals of the
party seeking an off-site location for the election, the availability of
that location, and whether it is reasonably close to the worksite.
Here, the Regional Director does not find that the sites proposed
by the Employer were unreasonable. Rather, the Regional Director,
contrary to Sec. 11032.2, rejected consideration of any manual poll-
ing place, apparently because the Union opposed off-site balloting.
5 The reason for the Union’s opposition to an off-site election was
not specified by either the Regional Director in his report, or by the
Union in its brief opposing the Employer’s exceptions.
T & L Leasing and General Teamsters Local Union
174, International Brotherhood of Teamsters,
AFL–CIO, Petitioner. Case 19–RC–12926
August 15, 1995
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS COHEN, BROWNING, AND
TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered objections to a mail bal-
lot election held from November 28 through December
9, 1994, and the Regional Director’s report rec-
ommending disposition of them. The election was con-
ducted following the parties’ execution of, and the Re-
gional Director’s approval of, a Stipulated Election
Agreement (Agreement or Stipulation). The tally of
ballots shows 11 for and 2 against the Petitioner, with
2 challenged ballots, an insufficient number to affect
the results.
The Board has reviewed the record in light of the
exceptions and briefs, adopts the Regional Director’s
findings and recommendations only to the extent con-
sistent with this Decision and Direction,1 and finds that
the election must be set aside and a new election di-
rected.2
In its Objections 1 through 8, the Employer alleged
that the Regional Director interfered with the election
by scheduling and conducting a mail ballot election
contrary to the terms of an approved Stipulated Elec-
tion Agreement. The Regional Director recommended
overruling these objections, finding that the mail ballot
election was the only reasonable alternative under the
circumstances presented. The Employer excepts, argu-
ing that the Regional Director materially breached the
terms of the Stipulated Election Agreement. The Em-
ployer argues that the Agreement gave the Regional
Director the discretion to select a site for a manual
election, but the Agreement did not give him discretion
to hold a mail ballot election. For the following rea-
sons, we find merit to the Employer’s exceptions.
On November 8, 1994, the Regional Director ap-
proved a Stipulated Election Agreement negotiated by
the parties. The Agreement specified that an election
would be held on December 2, 1994, from 8 to 9:30
a.m. and from 7 to 8 p.m., at a ‘‘[p]lace to be deter-
mined by the Regional Director.’’ The Agreement
clearly contemplated that the election would be manu-
ally conducted on the agreed-upon date at a site to be
determined by the Regional Director.3
After approving the Agreement, the Regional Direc-
tor ordered that the election be conducted in a trailer
on the property of Sears, Roebuck & Co., where the
Employer’s unit employees reported for work. A notice
informing employees of this polling place was mailed
to the Employer. Subsequently, however, the Employer
learned that Sears would not permit the election on its
premises. The Employer informed the Region of Sears’
refusal, and proposed alternative sites for the manual
election. One suggested alternative was a motel con-
ference room within walking distance from the Sears
facility.
There is no evidence or claim that the alternative
sites proposed by the Employer were inappropriate, or
that other suitable sites were unavailable.4 When the
Union objected to an off-site election,5 the Regional
Director however modified the terms of the Stipulation
by ordering a mail ballot election. The Regional Direc-
tor notified the parties of this modification on Novem-
ber 18, 1994, and announced that a mail ballot election
would commence on November 28—rather than De-
cember 2 as set forth in the Agreement—and would
run until December 9, 1994.
The Employer immediately objected to the Regional
Director’s modification. It argued that the mail ballot
election was contrary to the express terms of the Stipu-
lation which specified the agreed-upon unit, date, and
time of the election, with only the site to be deter-
325T & L LEASING
6 The dissent argues that this ‘‘contract’’ principle is inapplicable
to the Regional Director because he is not a party to the Stipulation.
Our colleague further maintains that because the Regional Director
has substantial discretion when determining election mechanics, he
was free to alter unilaterally the terms of the Stipulation. We dis-
agree. Regardless of whether the Regional Director is formally
termed a ‘‘party’’ to the Stipulation, once he approved it he was
clearly bound by its terms. Summa Corp. v. NLRB, 625 F.2d 623
(9th Cir. 1980). See also KCRA-TV, 271 NLRB 1288, 1289 (1984).
As stated by the First Circuit in NLRB v. Granite State Minerals,
674 F.2d 101, 102 (1982):
While no one denies that, as a general matter, the Board has
broad discretion to determine the conditions for conducting rep-
resentation elections, NLRB v. A.J. Tower Co., 329 U.S. 324,
330, 67 S.Ct. 324, 327, 91 L.Ed 332 (1946); NLRB v. Morgan
Health Care Center, Inc., 618 F.2d 127, 128 (1st. Cir. 1980),
we here deal with an election held under a consented-to stipula-
tion. This fact narrows the Board’s discretion significantly for
it would be manifestly unfair to allow the Board to obtain all
the procedural advantages that flow from gaining the other par-
ties’ consent yet to excuse it from living up to its part of the
bargain. Thus, a party ‘‘is entitled to insist that the Board and
all parties adhere to provisions of the election stipulation that are
designed to ensure a fair election.’’ Summa Corp. v. NLRB, 625
F.2d 293, 296 (9th Cir. 1980).
See also Windham Community Memorial Hospital, 312 NLRB 54
(1993).
Applying this rationale, the Board has set aside elections where
the Board or its agents materially breach an election agreement.
KCRA-TV, supra.
The dissent’s attempt to distinguish the above cases—arguing that
most involved Stipulated Election Agreements breached by ‘‘par-
ties’’ rather than regional directors or their agents —is both inac-
curate and unpersuasive. In KCRA-TV, it was the Board agent’s
mailing of ballots to two employees ineligible to receive them that
materially breached the stipulation. Similarly, in Summa Corp. v.
NLRB, supra, the court found that the stipulation was materially
breached when the Board agent permitted the union to use more
election observers that the employer. Finally, in NLRB v. Granite
State Minerals, the stipulation was breached not because the union
sought early voting for an employee, but because the Regional Di-
rector, contrary to the terms of the stipulation, and without the par-
ties’ consent, permitted the breach. See also Sugar Food, Inc., 293
NLRB 1008 (1989). In any event, we do not agree with our col-
league that the Regional Director, who is bound to the Stipulation,
can breach it but that a private person who is party to the Stipulation
may not do so.
7 Conversely, where election agreements are ambiguous, the Board
is authorized to interpret them to determine the parties’ intent. NLRB
v. Barker Steel, 800 F.2d 384 (1st Cir. 1986).
8 Id.; Wells Fargo Alarm Services, 289 NLRB 562 (1988).
9 Windham Community Memorial Hospital, 312 NLRB 54 (1993).
10 Id., quoting Summa Corp. v. NLRB, 625 F.2d at 295. Accord:
NLRB v. Granite State Minerals, 674 F.2d at 102.
mined by the Regional Director. The Employer also re-
iterated that it had located a suitable off-site polling
place in the Valu-U Inn, located within walking dis-
tance from the T & L Leasing Terminal.
On November 28, the Employer wrote the Regional
Director, again requesting reconsideration of the deci-
sion. The Employer argued that it had never been in-
formed as to whether or why its proposed voting site
was inappropriate. The Employer asserted that even if
the Regional Director found its suggested site unsatis-
factory, he was authorized under the Stipulation to se-
lect another. Finally, the Employer argued that the
terms of the Stipulation remained binding on all par-
ties, including the Regional Director, and stressed that
it would never have entered into the Stipulation if it
allowed the possibility of a mail ballot election.
The Region conducted the mail ballot election from
November 28 through December 9. Following the elec-
tion, the Employer filed timely objections, claiming,
among other things, that by conducting the mail ballot
election, the Regional Director materially breached the
terms of the Stipulated Election Agreement as to both
the time and method of the election. For the following
reasons, we agree.
The Board has long held that election agreements
are ‘‘contracts,’’ binding on the parties that executed
them.6 Barceloneta Shoe Corp., 171 NLRB 1333, 1343
(1968); M.W. Breman Steel Co., 115 NLRB 247
(1956). Because they are considered contracts, election
agreements may be set aside only in limited cir-
cumstances. Regional Directors may revoke their ap-
proval of stipulations for ‘‘cause.’’ Super Valu Stores,
179 NLRB 469 (1969). Additionally, parties may with-
draw from approved agreements, but only on an af-
firmative showing of unusual circumstances, or on
agreement of all parties. Sunnyvale Medical Clinic,
241 NLRB 1156 (1979).
In the absence of these special circumstances, the
Board will enforce Stipulated Election Agreements,
provided their terms are clear, unambiguous, and do
not contravene express statutory exclusions or estab-
lished Board policy. See, e.g., Business Records Corp.,
300 NLRB 708 (1990); Granite & Marble World
Trade, 297 NLRB 1020 (1990).7 Thus, the Board has
enforced unambiguous agreement provisions on such
subjects as the unit for voting,8 minimum hours of
work required for eligibility,9 and the polling places
for specific groups of employees. Dunham’s Athleisure
Corp., 311 NLRB 175 (1993).
Because election agreements are regarded as con-
tracts, the Board will set aside the election where a
‘‘material term’’ of the agreement has been breached.
Barceloneta Shoe Corp., supra. For example, in
KCRA-TV, 271 NLRB 1288 (1984), the Board ordered
a new election where the Region sent mail ballots to
two employees even though, under the agreement, both
were to vote in the manual portion of the mixed-
manual/mail ballot election. In directing a second elec-
tion, the Board held:
A party to an agreement authorizing a consent
election ‘‘is entitled to expect that other parties
and agents of the Board will diligently uphold
provisions of the agreement that are consistent
with Board policy and are calculated to promote
fairness in the election.’’10
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 In directing the mail ballot election, the Regional Director short-
ened the campaign period by 5 days. The dissent argues that this re-
duction in the agreed-upon campaign period was not a material
breach of the Stipulation since it applied equally to the Union and
the Employer. We disagree. First, because unions necessarily com-
mence their organizing drives prior to filing election petitions, while
employers may not learn of the organizing efforts until served with
the petition, we cannot agree that a reduction in the campaign period
equally affects the parties. Further, when parties agree to an election
date in a Stipulated Election Agreement, they thereby establish the
period for election campaigning. A party should be able to rely on
this date when planning campaign strategy and a Regional Director
should not change this date unilaterally. This is particularly true
where, as here, no reason was given for accelerating the election.
12 Contrary to the dissent, we find that this ‘‘impossibility of per-
formance’’ standard is implicit from Board and court cases holding
that where there is an approved stipulation, neither the parties nor
the Board may breach its material terms. See, e.g., KCRA-TV, supra;
NLRB v. Granite State Minerals, supra. Obviously, however, where
material agreed-upon terms are impossible to perform, regional di-
rectors may set aside the stipulation. Absent a new stipulation, they
must proceed to a hearing.
13 Because this election was to be conducted pursuant to a Stipu-
lated Election Agreement, and not pursuant to a Regional Director’s
Decision and Direction of Election (D&DE), the following cases re-
lied on by the dissent are inapposite: Daylight Grocery Co. v. NLRB,
678 F.2d 905 (11th Cir. 1982); Beck’s Riverside Hotel v. NLRB, 590
F.2d 290 (9th Cir. 1978); NLRB v. Sauk Valley Mfg. Co., 486 F.2d
1127 (9th Cir. 1973). Those cases involved elections scheduled by
Regional Directors in D&DEs. Admittedly, Regional Directors have
broad discretion in setting election terms, such as election dates, in
D&DEs. It is equally well settled, however, that their discretion is
significantly circumscribed where elections have been negotiated by
the parties and approved by Regional Directors in Stipulated Elec-
tion Agreements. NLRB v. Granite State Minerals, supra. In the lat-
ter case, the ‘‘stipulation is binding on the Board and the parties.’’
See generally NLRB v. O’Daniel Trucking Co., 23 F.3d 1144, 1148–
1149 (7th Cir. 1994).
Not every breach of an election agreement is a basis
for a new election. Where, however, the breach is
‘‘material or prejudicial’’ the Board will set aside the
election. Id.
Finally, apart from ‘‘contract’’ concerns, the Board’s
rationale for holding parties to the material terms of
their election agreements is attributable, at least in part,
to a recognition that the vast majority of election peti-
tions result in Stipulated Election Agreements. As stat-
ed by former Board Chairman Edward Miller, ‘‘chaos
and delay would be created if parties lost the incentive
to resolve by agreement the myriad of details attending
an election.’’ Quoted with approval, Community Care
Systems, 284 NLRB 1147 (1987).
Applying the foregoing principles to this case, we
find that the election must be set aside. First, there is
no evidence or claim that the Regional Director re-
voked his approval of the Stipulated Election Agree-
ment, or that any party received approval to withdraw.
Similarly, there is no claim that the Stipulation was
unclear, ambiguous, or contrary to settled law or Board
policy. Further, the provisions of the Stipulation relat-
ing to the election time and place were at all times ca-
pable of performance. Thus, even when the original
polling place proved unavailable, the Regional Director
was authorized under the plain language of the Stipula-
tion to designate another location for balloting. Indeed,
the Employer attempted to assist the Regional Director
in this designation by proposing polling places near
where employees reported for work. The Regional Di-
rector does not contend that these sites were unsuitable
or that other appropriate sites were unavailable. Instead
of choosing a site suggested by the Employer or des-
ignating an alternative site however, the Regional Di-
rector ordered a mail ballot election, over the Employ-
er’s objection. In addition, the Regional Director
changed the date of the election from December 2 to
November 28–December 9.11
We believe that the date of an election and the type
of election (manual or mail) are both very important
elements of the election process. It is not unusual for
parties to negotiate long and hard for their respective
positions on these issues. Where, as here, they have
reached agreement on these issues, that agreement can-
not be cast aside, absent unusual circumstances which
make the agreement impossible to perform.12 In the in-
stant case, there is no showing of such impossibility.
That is, there is no showing that the location possibili-
ties for a manual election had been exhausted. Further,
even if there were a showing of impossibility, the ap-
propriate procedure would be for the Regional Director
to notify the parties of his intention to revoke the Stip-
ulation because of that impossibility. At that point, the
Regional Director could seek a new stipulation or,
after hearing, issue a Decision and Direction of Elec-
tion.
Our dissenting colleague seeks to focus on whether
the mail ballot election was fairly conducted in a man-
ner designed to reflect employee choice. The real issue
however is the fundamental one of whether the elec-
tion was conducted in conformity with the Act. Section
9(c) of the Act provides that an election can be con-
ducted only after a hearing, or pursuant to a stipulation
of the parties.13 In the instant case, there was no hear-
ing. Although there was a stipulation, the election was
conducted contrary to its terms. As noted above, the
Stipulation provided for a manual election, and the Re-
gional Director materially breached the Stipulation by
ordering a mail ballot election. Thus, assuming arguen-
do that the mail ballot election was fair, the fundamen-
tal point is that it was directed without statutory au-
thority. Accordingly, we have no choice but to regard
it as a nullity and to set it aside.
In sum, the Regional Director should have (1) hon-
ored the terms of the Stipulation or (2) if the Stipula-
tion could not be performed, set the Stipulation aside
and proceeded anew. What the Regional Director could
not do was to hold a mail-ballot election under the
327T & L LEASING
14 We do not pass on whether the Regional Director could have
directed a mail ballot election. We hold only that he could not hold
a mail ballot election under the aegis of the Stipulation.
1 My colleagues in the majority have found it unnecessary under
the circumstances to pass on the issues encompassed in the Employ-
er’s Objections 9 through 11. I would affirm the Regional Director’s
recommendation to overrule those objections.
2 All dates are 1994, unless otherwise stated.
3 The Stipulation does not state whether S. 228th is a street, road,
etc.
aegis of the Stipulation, for the Stipulation con-
templated a manual election.14
Accordingly, we find that the election must be set
aside and a new election held.
[Direction of Second Election omitted from publica-
tion.]
MEMBER BROWNING, dissenting.
Contrary to my colleagues, I would affirm the Re-
gional Director’s recommendations to overrule the Em-
ployer’s objections in their entirety and to issue a Cer-
tification of Representative.1
More specifically, in regard to the particular issue
over which my colleagues and I disagree, I would af-
firm the Regional Director’s recommendation to over-
rule the Employer’s objection to the Regional Direc-
tor’s direction of a mail ballot election during the pe-
riod November 28 through December 9, 1994,2 rather
than continuing to attempt to go through with the
originally stipulated manual ballot election scheduled
for December 2.
The essential facts are relatively straightforward.
The Employer and the Union entered into a Stipulated
Election Agreement (Stipulation), approved by the Re-
gional Director, calling for an election to be conducted
in two sessions (8–9:30 a.m., and 7–8 p.m.) on De-
cember 2, in a unit of all employees (excluding certain
specified classifications) employed at the Employer’s
facility located at 7650 S. 228th,3 Kent, Washington.
The place of the election, however, was left ‘‘to be de-
termined by the Regional Director.’’
The Employer did not own any premises at 7650 S.
228th. Rather, the 18 unit employees reported for work
at the Employer’s designated facility, a trailer located
on the premises. The premises at that address were
owned by another company, Sears, Roebuck & Co.,
that is not a party to this proceeding.
After approving the Stipulation, the Regional Direc-
tor issued Notices of Election, designating the place of
the election as the Employer’s facility located at 7650
S. 228th. Thereafter, however, the Employer informed
the Regional Director that Sears, Roebuck & Co.
would not permit the election to be conducted on its
property. The Employer proposed certain alternative
sites for the election. The Union, however, would not
agree to have the election conducted at any location
other than the Employer’s facility.
With the Regional Director’s initially determined
and announced location for the election now unavail-
able, and with the parties unable to agree on another
location for the election, the Regional Director directed
that the election be conducted by mail ballot, which
was, in his judgment, ‘‘the only reasonable alternative
in these unusual circumstances.’’
On November 18 and again on November 28, the
Employer objected in writing to the Regional Direc-
tor’s direction of a mail ballot election. The Employer
asserted to the Regional Director that the parties had
stipulated to a manual ballot election, that they had not
agreed to a mail ballot election, that the Employer had
located a convenient, suitable alternative site for a
manual election, in a private conference room in a
motel within walking distance from the Employer’s fa-
cility, and that it was therefore inappropriate for the
Regional Director to ‘‘force’’ a mail ballot election.
The Regional Director denied the Employer’s requests
that he rescind his direction of a mail ballot election.
The mail ballot election was conducted during the
period November 28 through December 9. Of the ap-
proximately 16 eligible voters, 15 (or 94 percent) cast
ballots, with 11 voting for the Union and 2 against it,
and with 2 other voters casting ultimately nondeter-
minative challenged ballots.
My colleagues would set this election aside. They
assert that the Regional Director was required to con-
duct a manual ballot election at some alternative loca-
tion on December 2—either a location proposed by the
Employer, or a different one selected by the Regional
Director himself—unless, under the circumstances, it
was impossible for the Regional Director to do so.
And my colleagues assert that there is no showing of
such impossibility in this case.
My colleagues do not cite any authority for their
proposed ‘‘impossibility of performance’’ standard for
determining when a Regional Director may direct and
conduct an election that is different from the election
to which the parties originally stipulated; rather, they
find such a standard to be implied from cases (dis-
cussed below) finding that stipulations were improp-
erly breached. Nor do they assert that the Regional Di-
rector acted arbitrarily under the circumstances de-
scribed above in directing a mail ballot election instead
of the manual ballot election that was originally con-
templated. Finally, my colleagues do not assert that the
mail ballot election was procedurally deficient in itself.
Setting aside the mail ballot election because it
would have been possible to conduct a manual ballot
election would, in my view, fail to focus on the more
important underlying question of whether the mail bal-
lot election, which was conducted reliably, reflects the
unfettered will of the unit employees on the fundamen-
tal question in this case—whether a majority of the
employees want to be represented by the Union.
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 My colleagues claim, however, that even if the Regional Director
is not a party to the Stipulation, he was nevertheless bound by its
terms once he approved it. But the cases principally relied on by my
colleagues in support of their claim involve a fundamental predi-
cate—party responsibility for breaching of stipulations—that is not
at issue in this case. Thus, those cases ultimately fail to support a
claim that the Regional Director himself was bound to the terms of
the Stipulation in this case simply because he approved it.
In Summa Corp. v. NLRB, 625 F.2d 623 (9th Cir. 1980), the
union—not the Board agent involved—caused the stipulation to be
breached by using more election observers than the employer. Like-
wise, in KCRA-TV, 271 NLRB 1288 (1984), the employer—not the
Regional Director—caused the stipulation to be breached by inten-
tionally having the Regional office staff send mail ballots to two em-
ployees whom the employer knew full well were expressly ineligible
under the stipulation to vote by mail in the combined manual and
mail ballot election. Indeed, it was the Regional Director himself
who ultimately refused to count the two mail ballots that his staff
had been improperly induced to send out by the employer. Finally
(albeit less obviously), in NLRB v. Granite State Minerals, 674 F.2d
101 (1st Cir. 1982), the union basically caused the stipulation to be
breached by (1) prevailing on the Regional Director to give permis-
sion for an employee to cast what was in effect an escrowed ballot
a week before the date of the election, and then (2) transporting the
employee from Portsmouth, New Hampshire, to the Board’s office
in Boston to actually cast the early ballot.
Thus, unlike the case at hand, none of the above cases involved
the regional director’s independent exercise of his or her broad dis-
cretion to determine the conditions for conducting representation
elections. In each case, the action of the Regional Director or the
regional office staff was predicated on an improper act or request
by a party, and was thus subject to reversal on those grounds.
In the other case relied on by my colleagues in this context,
Windham Community Memorial Hospital, 312 NLRB 54 (1993), the
Regional Director was found simply to have misinterpreted the term
‘‘scheduled to work’’ in the stipulation as meaning ‘‘actually
worked’’—a circumstance fundamentally different in kind from that
presented in the case at hand.
5 Grant’s Home Furnishings, 229 NLRB 1305 fn. 3 (1977). In-
deed, that—i.e., revocation of the stipulation—is precisely what my
colleagues say that the Regional Director should have done under
these circumstances.
6 Summa Corp. v. NLRB, supra, 625 F.2d at 625 (emphasis added).
7 Grant’s Home Furnishings, supra, 229 NLRB at 1306. My col-
leagues have cited no authority for their contention that this election
was a ‘‘nullity’’ under Sec. 9(c) because it was not directed by the
Regional Director or conducted pursuant to the precise terms of the
parties’ Stipulation. In any event, this contention begs the ultimate
question in this case. In my view, the election was conducted pursu-
ant to a valid stipulation, because the Regional Director’s action here
was within his discretion and did not constitute a material breach of
the Stipulation’s terms. Accordingly, contrary to my colleagues’ as-
sertion, I do not suggest that the Regional Director is free to breach
a stipulation while the parties are not; I would simply conclude, in
disagreement with my colleagues, that the Regional Director’s action
in this case did not result in a material breach.
8 NLRB v. Duriron Co., 978 F.2d 254, 257 (6th Cir. 1992); accord
NLRB v. Best Products Co., 765 F.2d 903, 908 (9th Cir. 1985).
9 Beck Corp. v. NLRB, 590 F.2d 290, 293 (9th Cir. 1978).
10 Daylight Grocery Co. v. NLRB, 678 F.2d 905, 910 (11th Cir.
1982), citing NLRB v. Sauk Valley Mfg. Co., 486 F.2d 1127, 1132
(9th Cir. 1973). My colleagues seek to deflect the precedential effect
of the general principles contained in these cases and in Beck Corp.
v. NLRB, supra, on the procedural grounds that the elections in those
cases were scheduled pursuant to Decisions and Directions of Elec-
tion issued by Regional Directors, rather than stipulations entered
into by the parties themselves. But the fact that the dates of the elec-
tions at issue in those cases were determined by Regional Directors
in the exercise of their discretion is why the principles espoused in
those cases are also applicable here. In this case, as in those, the
propriety of the Regional Director’s selection of the date and method
of the election has been challenged as an abuse of his discretion.
Thus, to the extent that the cited cases provide guidance on that
issue—and they undeniably do—they are indeed apposite to the case
at hand.
In considering the events in this case, I note at the
outset that while the Regional Director approved the
Stipulated Election Agreement, he was not a party to
it.4 Accordingly, the contract principles set forth by the
majority do not bind the Agency and its Regional Di-
rectors, who have an independent public obligation to
ensure the fair and expeditious conduct of elections.
Thus, the Regional Director, unlike the Employer or
the Union, could have unilaterally nullified the Stipula-
tion simply by withdrawing his approval of it.5 This
alternative, however, would undoubtedly have added
delay and confusion to the election arrangements.
While such a course may be appropriate in some situa-
tions, in my view, the Regional Director is entitled to
exercise substantial discretion in determining the me-
chanics of an election, because the Regional Director
is responsible not only for balancing the parties’ inter-
ests and desires, but also (and uniquely) for protecting
the interests of the voters and the public. Accordingly,
the regional director can and should consider such mat-
ters as employee expectations, convenience for the vot-
ers, cost and convenience for the Agency, and so forth.
These discretionary decisions, of course, must be made
in a manner consistent with the Board’s established
standard for evaluating changes in election arrange-
ments when those changes are inconsistent with an
election agreement.
It is well settled, as my colleagues concede, that an
election will not be set aside for every breach of an
election agreement. Rather, ‘‘election results should be
overturned only if the breach is material or prejudicial,
in the sense that the conduct causing the breach sig-
nificantly impairs the fairness of the election proc-
ess.’’6 Thus, noncompliance with the provisions of a
stipulation, like other alleged objectionable conduct, is
to be judged on the basis of whether the breach was
prejudicial or in the circumstances was sufficiently ma-
terial to warrant setting aside the election.7
It is equally well settled that the Board has broad
discretion to determine whether the circumstances of
an election have allowed the employees to exercise
free choice in deciding whether to be represented by
a union.8 Within this context, the Board has wide dis-
cretion in scheduling elections,9 and this discretion has
been delegated to the Regional Directors. The Board or
its delegate may be reversed in the exercise of this dis-
cretion only on a showing of abuse of discretion which
denies an employee the opportunity to vote.10 Thus, a
party challenging a Board-conducted election has the
329T & L LEASING
11 See NLRB v. O’Daniel Trucking Co., 23 F.3d 1144 (7th Cir.
1994).
12 My colleagues assert that unions normally campaign for longer
periods of time prior to elections than employers do. Assuming for
the moment the accuracy of that assertion, at least as applied to this
case, the fact nevertheless remains that the amount of time that the
Union and the Employer would both normally have spent campaign-
ing prior to the initially scheduled election was equally reduced for
both of them because of the rescheduling. Even if, as my colleagues
seem to imply, the Employer was, in the normal course of events,
behind the Union in terms of time spent campaigning, the Regional
Director’s rescheduling of the election certainly did not put the Em-
ployer any further behind.
burden of showing not only that alleged improper acts
occurred—here, for example, the Regional Director’s
allegedly improper direction of a mail ballot election—
but also that those allegedly improper acts interfered
with the employees’ exercise of free choice to such an
extent that they materially affected the results of the
election.11
Applying these principles, I find that the Employer
has not made a showing that the Regional Director’s
direction of a mail ballot election, under these cir-
cumstances, constituted a deviation from, or breach of,
the Stipulation, which deprived the employees of an
opportunity to exercise free choice in voting whether
to be represented by the Union, or which in any other
way significantly impaired the fairness of the election
itself, or affected its outcome. Fifteen out of the six-
teen eligible voters in the unit voted, so the fact that
the election was conducted by mail ballot obviously
had little or no effect on voter participation. The Em-
ployer asserts that conducting the election by mail
shortened the time it had to campaign. I would not
find that shortening the campaign period by 5 days
(i.e., ending on November 28 rather than on December
2) significantly impaired the fairness of the election.
And in any event, the campaign period was shortened
for the Union as well, so the Employer can hardly
argue that it was uniquely prejudiced by the change.12
Finally, the emphasis of the Employer and my col-
leagues on the time needed for campaigning ignores
the primary purpose of an election, whether it be con-
ducted by stipulation or by direction of the Regional
Director, which is to provide a forum for the employ-
ees to express their choice for or against union rep-
resentation, not a forum for parties to campaign. As
long as the Regional Director’s actions do not alter the
stipulated election arrangements in such a way that the
employees are no longer provided with a free and fair
opportunity to express this choice, the Stipulation has
not been materially breached. Accordingly, I would
conclude that the Employer has failed to meet its bur-
den of showing that the Regional Director’s actions
constituted a material and substantial breach of the par-
ties’ Stipulation that caused any prejudice either to the
Employer or to the employees’ free choice in the elec-
tion.
In the final analysis, the disagreement between me
and my colleagues comes down to what we respec-
tively perceive to be the ‘‘real issue’’ in this case. My
colleagues see it as whether the Regional Director
abused his discretion by imposing election mechanics
not contemplated by the parties when they entered
their election stipulation. I, on the other hand, view the
crucial issue here as whether the election that was held
was fairly conducted and reliably reflects the unfet-
tered will of the unit employees on the underlying cen-
tral question in this case—as in all representation elec-
tion cases—of whether a majority of the unit employ-
ees want to be represented by the Union. Here, the
election was conducted fairly to the most important
people in this case, the unit employees themselves.
Thus, notwithstanding the expectations of the Em-
ployer and Union that there would be a manual elec-
tion, there is no substantive reason here, in terms of
the fairness of the mail ballot election that was ulti-
mately conducted, for setting that election aside.
For the foregoing reasons, I would affirm the Re-
gional Director’s recommendation to overrule the Em-
ployer’s objections on this issue, and to issue a Certifi-
cation of Representative.