Taylor Cadillac

National Labor Relations Board - Board Decisions

Mar 11, 1993

310 N.L.R.B. 639 (N.L.R.B. 1993)

639
310 NLRB No. 111
TAYLOR CADILLAC, INC.
1 In the absence of exceptions, we adopt, pro forma, the Regional
Director’s recommendation to overrule the Employer’s Objection 3.
In adopting the Regional Director’s recommendation to overrule
Objection 2, we note that assuming arguendo that certain of the Em-
ployer’s evidence supports a finding that the union representatives
went upstairs towards the polling area prior to the 4 p.m. close of
polls, there is no evidence showing that they entered into the polling
area (the upstairs lunchroom) when they arrived at the top of the
stairs. In this regard, the evidence establishes that there was also a
changing room and a hallway outside the voting room at the top of
the stairs; and that arrival at the top of the stairs did not therefore
constitute simultaneous entry into the polling area.
2 274 NLRB 556 (1985).
3 See Baptist Home for Senior Citizens, 290 NLRB 1059 (1988).
4 See Rosewood Mfg. Co., 278 NLRB 722 (1986).
5 307 NLRB 531 (1992).
6 Id. at 533.
7 Id.
8 The evidence presented by the Employer that Mahoney went to
the polling place shortly before the 4 p.m. closing time does not af-
Continued
Taylor Cadillac, Inc./Uptown Auto Prep, a Joint
Employer and Teamsters, Chauffeurs, Ware-
housemen and Helpers Union Local 20, IBT,
Petitioner. Case 8–RC–14686
March 11, 1993
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues in this case include: (1) whether a de-
faced notice of election constitutes grounds for setting
aside an election; and (2) whether an eligible employee
was properly prevented from voting because he alleg-
edly arrived after the polls had closed.
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held April 1, 1992, and the Regional Director’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 12 for and 10 against
the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the Regional Direc-
tor’s findings and recommendations,1 and finds that a
certification of representative should be issued.
We agree, for the following reasons, with the Re-
gional Director’s recommendation to overrule the Em-
ployer’s Objection 1, which alleged that the election
should be set aside because the Board’s notices of
election had been repeatedly altered by a bold marking
in the ‘‘yes’’ box on the sample ballot. The appro-
priate standard for evaluating altered Board documents
was announced in SDC Investments,2 where the Board
held that the central issue is whether the altered docu-
ment is likely to have given voters the misleading im-
pression that the Board favored one of the parties to
the election. To resolve this issue, the Board held that
the initial inquiry is whether the source of the deface-
ment is clearly identified on the face of the material.
If so, then the Board will find that the document is not
misleading, because employees would know it ema-
nated from a party and would not be led to view it as
a Board endorsement of that party. If the identity is
not evident, then the Board will examine the nature
and contents of the material to determine whether the
document has a tendency to mislead employees into
believing that the Board favors a particular party.3
Here, the party responsible for defacing the sample
ballots was not identified on the face of the notices of
election. Accordingly, the inquiry is whether the par-
ticular defacements could have tended to mislead em-
ployees into believing that the Board favored a party
to the election. The Employer presented testimony that
the defaced sample ballots had ‘‘large, bold’’ markings
in the ‘‘yes’’ box. The defaced sample ballots are not,
however, in the record, and the Employer does not
contend that it provided them to the Regional Director.
In the absence of the defaced sample ballots them-
selves, and relying therefore solely on the Employer’s
description of them, we find that any such ‘‘large,
bold’’ markings would be sufficiently distinct from the
Board’s standard preprinted sample ballots so as to
preclude a reasonable impression that the markings
emanated from the Board.4 We, therefore, agree with
the Regional Director that the defacements on the no-
tices of election did not create the impression that the
Board favored the Petitioner in the election.
In Objection 5, the Employer argued that an eligible
voter, Mahoney, was improperly denied the oppor-
tunity to vote when he arrived at or prior to the close
of the election. It is undisputed that the Petitioner’s
agents told Mahoney that he was too late and turned
him away. In a recent decision, Monte Vista Disposal
Co.,5 the Board held that a bright-line test was appro-
priate in ‘‘late voter’’ cases. In Monte Vista, the Board
decided that ‘‘an employee who arrives at the polling
place after the designated polling period ends shall not
be entitled to have his or her vote counted [footnote
omitted], in the absence of extraordinary cir-
cumstances.’’6 ‘‘Extraordinary circumstances’’ include
tardiness caused by actions of one of the parties.7
In the instant case, it is undisputed that the Board
agent designated his watch as the official timepiece for
the election at the preelection conference. No party
dissented from this designation. The polls were sched-
uled to close at 4 p.m. The Board agent testified, with-
out contradiction, that he opened the ballot box when
his watch showed 4 p.m. Further, even the evidence
presented by the Employer indicates that the ballot box
had been opened before Mahoney arrived at the polling
place. Therefore, it must be concluded that Mahoney
arrived after 4 p.m.8 The rule of Monte Vista applies,
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fect this result, inasmuch as there is no contention that the witnesses
so testifying were observing the time according to the Board agent’s
watch, the official timepiece for the election.
9 Our conclusion that Mahoney was not improperly denied the op-
portunity to vote coupled with our pro forma adoption of the Re-
gional Director’s determination concerning David Turner’s eligibility
in Objection 3 results in the finding that Ennio Braida’s vote, which
is at issue in Objection 4, is not determinative in the 12 to 10 elec-
tion results for the Petitioner. Accordingly, we find it unnecessary
to pass on the Regional Director’s determination that the Employer
improperly raised Braida’s eligibility. Thus, assuming arguendo that
the Board’s policy of not considering postelection challenges in the
form of objections could be overcome and that the Employer’s inclu-
sion of Braida on the Norris Thermador list was not controlling, the
improper inclusion of Braida’s vote could not have affected the re-
sults of the election.
and Mahoney was properly denied the right to vote un-
less extraordinary circumstances prevented him from
arriving on time. Although the Employer presented tes-
timony that the Petitioner’s agents standing in the poll-
ing area turned Mahoney away, stating that the polls
had closed, such conduct occurred after Mahoney ar-
rived late and, therefore, could not have prevented him
from arriving on time. Accordingly, the Regional Di-
rector’s recommendation that Objection 5 be overruled
is affirmed.9
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Teamsters, Chauffeurs, Warehouse-
men and Helpers Union Local 20, IBT and that it is
the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All regular full-time and part-time service depart-
ment employees, body shop employees, parts de-
partment employees, service writers, dispatchers,
warranty clerks, cashiers, payroll clerks and por-
ters employed by Uptown Prep, a joint employer,
who regularly work at the Taylor Cadillac facility,
at 1415 Jefferson Ave., Toledo, OH, but exclud-
ing all office clerical employees, professional,
guards, and supervisors as defined in the Act.
MEMBER DEVANEY, concurring.
I agree with my colleagues in all respects except
their rationale for overruling Objection 5.
In regard to Objection 5, I agree with my colleagues
that Terry Mahoney was not improperly denied an op-
portunity to vote, as asserted by the Employer. In
doing so, however, I do not rely on Monte Vista Dis-
posal Co., 307 NLRB 531 (1992), in which I dis-
sented, but which, in any event, I find distinguishable
here.
According to the evidence submitted by the Em-
ployer in support of this objection, and unlike the cir-
cumstances involving the late-arriving voters in Monte
Vista, the Board agent here had already opened the
ballot box when Mahoney arrived at the polling place.
Also unlike the voters in Monte Vista, Mahoney mere-
ly ‘‘appeared at the door’’ of the voting room, and
‘‘stuck his head inside,’’ but made no attempt to make
his presence known to the Board agent. The Board
agent’s back was turned, and his attention diverted
from Mahoney throughout this brief sequence, and he
was apparently unaware even of Mahoney’s presence
in the polling area. Finally, unlike the voters in Monte
Vista, Mahoney made no attempt to vote, apparently
said nothing at all, and instead left the polling area al-
most as soon as he got there, immediately after being
told by a union official that he was ‘‘too late to vote.’’
Under these unusual circumstances, I find, in agree-
ment with my colleagues, but without regard to Monte
Vista, that Mahoney was not improperly denied an op-
portunity to vote.