05-RC-016033 (N.L.R.B. Nov. 30, 2006)

The American University

National Labor Relations Board - Administrative Judge OpinionsNov 30, 2006

05-RC-016033 (N.L.R.B. Nov. 30, 2006)

JDâ€“82â€“06 Washington, DC UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES THE AMERICAN UNIVERSITY Employer and Case 5-RC-16033 AUTOMOTIVE, PETROLEUM, CYLINDER AND, BOTTLED GAS, CHEMICAL DRIVERS HELPERS AND ALLIED WORKERS AND PUBLIC TRANSPORTATION EMPLOYEES LOCAL UNION 922 A/W THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS Petitioner Vonda Marshall, Esq., for the General Counsel. Steven R.Semler, Esq., for the Employer. Richard C. Welch, Esq., for the Petitioner. ADMINISTRATIVE LAW JUDGEâ€™S REPORT AND RECOMMENDATIONS ON OBJECTIONS BRUCE D. ROSENSTEIN, Administrative Law Judge. Pursuant to a petition filed on August 28, 20061 and a Stipulated Election Agreement entered into by the parties and approved on September 13, an election by secret ballot was conducted under the direction and supervision of the Regional Director, Region 5 of the National Labor Relations Board (the Board or NLRB) on October 6 and 7, in the following unit of employees. INCLUDED: All full time and regular part time shuttle bus drivers employed by the Employer in Washington, D.C. EXCLUDED: All other employees, on call operators, transportation director, transportation coordinators, shuttle coordinators, dispatchers, maintenance workers, office clerical employees, guards, and supervisors as defined in the Act. The tally of ballots, which was made available to the parties at the conclusion of the election showed the following results: 1 All dates are in 2006 unless otherwise indicated. JDâ€“82â€“06 5 10 15 20 25 30 35 40 45 50 2 Approximate number of eligible voters 19 Void ballots 0 Votes cast for Petitioner 9 Votes cast against participating labor organization 8 Valid votes counted 17 Challenged Ballots 0 Valid votes counted plus challenged ballots 17 A majority of the valid votes counted plus challenged ballots have been cast for the Petitioner. On October 16, the Employer filed timely objections to conduct affecting the results of the election. On October 31, the Regional Director issued a Report on Objections and Notice of Hearing. I conducted a hearing on the below noted objections in Washington D.C. on November 14.2 On the entire record, I make the following recommendations. THE OBJECTIONS3 The Employer filed Objections 1 through 6, 8, and 9 because a potentially election- dispositive voter appeared at the polls to vote at 4:45 pm on October 7, while the voting booth, ballot box, Board agent, Employer and Union Observers were in the voting room, and the Board agent in charge refused to allow the voter to cast a ballot. Additionally, the Employer asserts that the Board agent in charge failed to follow the Boardâ€™s own published rules for dealing with allegedly late voters, as set forth in the Boardâ€™s 1999 Case Handling Manual--Part Twoâ€” Representation Cases (CHM), Section 11324.1.4 In that regard, the Employerâ€™s objections contend that the Board agent failed to request the consent or refusal of consent of both partiesâ€™ election observers, who were present, as to whether the allegedly late arriving voter should be permitted to vote and by failing to allow the allegedly late arriving voter to cast a challenged ballot to be placed in an official NLRB challenged ballot envelope pending a post-election determination of voting eligibility. Finally, the Employer in Objection 9 challenges the Boardâ€™s test for determining voting eligibility of an allegedly late voter by allowing observers to consensually enfranchise an allegedly late voter while allowing either observer to disenfranchise an allegedly late-arriving voter. 2 Post hearing briefs filed by the Petitioner and the Respondent were duly considered. 3 The election was scheduled for 1:00 pm to 4:00 pm on October 6, and 4:00 pm to 4:45 pm on October 7, in Room 217 of the Kreeger Building on the Employerâ€™s premises. 4 Section 11324.1 states: An employee who arrives at the polling place after the designated polling period has ended is not entitled to have his or her ballot counted, absent extraordinary circumstances, unless the parties agree not to challenge the ballot. In order to permit an orderly investigation, if necessary, after the election as to whether there were extraordinary circumstances, the following procedure should be followed when a voter arrives after the designated polling period has ended: the Board agent should determine whether there is agreement of all the parties as to whether such voter should be allowed to cast a ballot; if no such agreement is reached, the Board agent should permit the voter to cast a ballot, which the Board agent should then challenge. JDâ€“82â€“06 5 10 15 20 25 30 35 40 45 50 3 In Objection 7, the Employer asserts that the Petitioner, through its agents and supporters, urged an openly anti-representation voter who was on his way to the election site on October 6, to not vote and instead go home. The Employer also argues that the Petitioner may have intervened to cause the late arrival of the voter who is the subject of Objections 1 through 6, 8 and 9. Findings of Fact The Employer presented four witnesses: their election observer on October 7, Norman Porter, Director of Risk Management and Transportation Services Anthony Newman, Transportation Specialist Steven Price, and employee Lawrence Jones. The Petitioner called the Board agent that conducted the two day election5, their election observer Don Leslie Handunge, employees Manuel Umanzor and Earl Parker, and Union Organizer Jeanette Barnes. Porter testified that in a pre-election conference held on October 6, prior to the commencement of the voting, the Board agent informed all those present that his cell-phone watch would be the official timepiece used for the election. Porter served as the Employerâ€™s observer on October 7. He along with the Board agent and Union observer Handunge sat at a table in Room 217 of the Kreeger Building where the election was held.6 Porter confirmed that the Board agent announced in the observerâ€™s presence that the polls were open at 4 pm on October 7. Towards the conclusion of the voting that was scheduled to end at 4:45 pm, the Board agent informed both observers that the polls would be closing in five minutes. According to Porter, he immediately looked at his watch and noted that it was 4:37 pm instead of 4:40 pm but did not mention this to the Board agent or his fellow observer. The Board agent then announced at 4:45 pm that the polls were closed and approached the ballot box to begin taping it shut. While the Board agent was taping the ballot box, Porter heard Handunge state that someone was about to enter the outer doors of the Kreeger building. That individual turned out to be employee Umanzor. The employee walked into the entrance of the voting area just as the Board agent was completing the taping of the ballot box. Umanzor asked the Board agent whether he could vote and was told that the polls were closed and it was too late to vote. The Board agent did not ask either of the election observers whether they would permit Umanzor to vote nor did he permit Umanzor to cast a ballot subject to challenge. Porter testified that he did not object to the Board agent closing the polls early nor did he request that Umanzor be permitted to cast a vote. Likewise, Umanzor did not object or say anything to the Board agent. Rather, he turned around and exited the polling area. 5 The Petitioner sought and was granted limited permission from the Regional Director pursuant to Section 102.118 (a)(1) of the Boardâ€™s Rules and Regulations to elicit the testimony of the Board agent concerning the opening and closing of the polls on October 7. 6 The Kreeger building was vacant and was only utilized to conduct the election on October 6 and 7. While there was testimony that the shuttle bus drivers were unfamiliar with that part of the campus where the building was located, all 17 employees who voted were able to locate the polling place. JDâ€“82â€“06 5 10 15 20 25 30 35 40 45 50 4 Newman testified that he along with the Employerâ€™s Attorney sat in the Public Safety Building on October 7 waiting for the polls to close. They left the Public Safety Building around 4:45 pm to walk to the Kreeger Building for the ballot count.7 According to Newman, while he was approaching the Kreeger Building, he observed that Umanzor was talking to Price. Newman heard Price ask Umanzor whether he had voted and when he learned that he had not done so, told him to run and hurry to the polling area. Newman next observed that Umanzor was exiting the polling area talking on his cell phone and when he entered the polling area the Board agent informed him that one employee did not vote as he arrived too late. Price testified that he left his office around 4:07 pm on October 7, to assist some of the drivers in finding the Kreeger building as they were not familiar with that part of the campus. Around 4:43 pm while standing near the Public Safety Building parking area, Price asserts that he observed Umanzor getting out of his automobile. Price approached Umanzor and asked him whether he had voted. When Umanzor informed Price that he had not voted, Price told him he better hurry and get there. Price then observed Umanzor running at full speed to get to the election site. Price estimates that Umanzor was only about 30 seconds away from the Kreeger building entrance. Jones testified that although he had been a member of the union for 20 years he was disposed not to vote in the election. He completed work on October 6, and as he was walking towards his automobile, he ran into Handunge and started a conversation. Jones testified that Handunge told him that since he intended to vote no he did not need to vote and could go home. Immediately after this conversation, Jones received a cell phone call from his supervisor who inquired whether he was going to vote. Jones thought about it and decided to return to the polling area and vote in the election. Jones acknowledged in his testimony that Handunge does not hold any position in the Union and is a fellow shuttle bus driver. The Board agent testified that during the pre-election conference held on October 6, prior to the opening of the polls, he informed both the Employer and Union observers that his cell phone would be the official timepiece to open and close the polls. On October 7, the Board agent used his official timepiece to open the polls at the scheduled time of 4:00 pm. Precisely at 4:40 pm, the Board agent apprised the observers that the polls would close in five minutes. The Board agent, before officially closing the polls at 4:45 pm, looked out the front doors to discern if there were any perspective voters coming toward the voting area. Since no individuals were approaching the polling area, the Board agent after checking his official timepiece closed the polls and then began taping the ballot box. He then instructed the observers to sign across the taped ballot box. According to the Board agent, just after the observers finished signing the taped ballot box, an individual appeared at the outer doors of the polling area who turned out to be Umanzor. The Board agent testified that this occurred two minutes after he had closed the polls. He told Umanzor that the polls had closed and therefore, he could not vote. Neither of the observers asked that Umanzor be permitted to vote subject to challenge nor did Umanzor ask to vote. Umanzor testified that he knew that the election was scheduled on October 7 and he intended to vote on that day because he was working at another job on October 6 during the scheduled hours for the election. On October 7, Umanzor attended a party in Virginia and 7 Newmanâ€™s pre-hearing affidavit states that he arrived at the Kreeger Building around 4:45 or 4:46 pm while in his hearing testimony he asserts that he left the Public Safety Building around 4:42 pm and it takes about a minute to walk to the Kreeger Building JDâ€“82â€“06 5 10 15 20 25 30 35 40 45 50 5 testified that he departed at 4:10 pm to drive to the campus. He asserts that he arrived at the campus at 4:40 pm and parked by the Public Safety Building but was unsure of the building location where the election was being held. Umanzor testified that he checked his watch at 4:45 pm and after talking with a fellow employee he learned the exact location of the election site. He estimated that he was around 40 seconds away from the Kreeger building when he started walking toward its entrance. While he was walking up the stairs to the Kreeger building he saw Union Organizer Barnes. When Umanzor arrived at the outer doors of the polling area he was informed by the Board agent that the polls had closed and he could not vote. Umanzor did not officially identify himself to the Board agent and he never asked the Board agent whether he could vote in the election. Umanzor testified that he thought the polls were open until 5:00 pm and that he would be permitted to vote. He acknowledged that no one ever told him not to vote in the election. He also denied that he talked to Price outside the Public Safety Building or that he ran to the polling area in an attempt to vote in the election. Handunge testified that he has been employed as a shuttle bus driver for a period of four years and does not hold a position with the Union nor is he authorized to speak on their behalf. Handunge admits that on October 6 he had a conversation with fellow employee Jones about the election. He told Jones that if you are independent you should not vote in the election. However, no one in the Union told him to talk to employees about the election or ask employees not to vote. On October 7, Handunge served as the Union observer at the election. He testified that the Board agent opened the polls at exactly 4 pm based on his official timepiece and closed them at 4:45 pm. Handunge saw Umanzor approaching the outer doors of the Kreeger building and asked the Board agent whether he could vote. The Board Agent told Handunge that the polls had closed and it was too late to cast a ballot. Handunge testified that this occurred at 4:47 pm. Barnes testified that Handunge holds no position with the Union and is not authorized to speak on the Unionâ€™s behalf. Barnes further testified that she attended the pre-election conference on October 6 and synchronized her Nextel cell phone with the Board agentâ€™s official timepiece. On October 7, Barnes arrived in the Public Safety parking lot at 4:45 pm and waited in her car until 4:46 pm to make sure the polls were closed. She then commenced walking toward the Kreeger building and saw Umanzor walking up the stairs toward the voting area. Upon arriving in the voting area after 4:46 pm, she was informed by the Board agent that Umanzor had arrived after the polls were closed and was not able to cast a ballot in the election. Barnes confronted Umanzor and asked him if under these circumstances he wanted to remain in the voting area to observe the ballot count. Discussion and Analysis In principal, the Employer argues that the Board agentâ€™s failure to consult with the observers as to whether the voter should have been permitted to cast a ballot and then not voting the employee subject to challenge is a breach of the Boardâ€™s CHM provisions and accordingly destroyed the laboratory conditions requiring that the subject election be set aside and rerun. JDâ€“82â€“06 5 10 15 20 25 30 35 40 45 50 6 The Petitioner asserts that while the Board agent may have failed to follow technical requirements set forth in the CHM, in the absence of extraordinary circumstances contributing to the voterâ€™s lateness, the Board agent was correct in not permitting the employee to vote due to his arrival at the polls after they had closed. The Board applies an objective test in evaluating party conduct during an elections critical period, i.e. whether the conduct has the â€œtendency to interfere with the employeesâ€™ freedom of choiceâ€ and â€œcould well have affected the outcome of the election.â€ Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995). The Board in Laidlaw Transit, Inc., 327 NLRB 315 (1998) held that it is the Board agentâ€™s responsibility to challenge the ballot of a late arriving voter in the absence of agreement of the parties that the individual can vote. In that case, the Board agent allowed an employee who arrived after the polls had closed, to cast a ballot that was subsequently opened and counted along with the other ballots cast and which because of the closeness of the election, could have affected the result. The Board sustained the hearing officerâ€™s finding that the Board agent accepted the ballot outside polling hours, and in the absence of an agreement by the parties or extraordinary circumstances, it directed that the election be set aside. The CHM has three sections that are applicable to the circumstances of the instant case. Section 11320 states in pertinent part: The Board agent will select the official timepiece and so inform the observers. Also, Section 11324 states: The polls should be declared closed exactly at the scheduled time determined by the Board agent as indicated by the timepiece selected prior to the opening of the polls. Finally, Section 11324.1 regarding late-arriving employees is set forth in footnote 3. In addressing the issue of failing to follow the CHM, it is well settled that its provisions are not binding procedural rules rather they are merely intended to provide operational guidance. See Avante at Boca Raton, Inc., 323 NLRB 555 (1997). Further, in order to set aside an election on the basis of a Board agentâ€™s conduct, the facts must raise a reasonable doubt as to the fairness and validity of the election and the Board agentâ€™s failure to follow the CHM will not warrant setting aside an election absent showing that the deviations from these guidelines raised reasonable doubt as to the fairness and validity of the election. Rheem Mfg. Co., 309 NLRB 459 (1992). In Lemco Construction, Inc. 283 NLRB 459 (1987), the Board held that employeeâ€™s who arrived to vote and found the polls to be closed, had failed to vote because â€œthe timepiece on which they relied differed from the official timepiece used in the election.â€ In the subject case, there is no dispute that the Board agent apprised all the parties at the pre-election conference held on October 6 that his cell phone watch would be the official timepiece used to open and close the polls for the election scheduled to he held on that day and October 7. Indeed, Union Organizer Barnes synchronized her Nextel cell phone watch to correspond to the Board agentâ€™s official timepiece. Barnes testimony that she arrived in the parking lot at 4:45 pm and waited in her car until 4:46 pm before starting to walk toward the Kreeger building when she observed Umanzor walking up the steps convinces me that Umanzor arrived at the polling area after the polls had closed. Barnes testimony is consistent with that of Handunge and the Board agent who credibly testified that he apprised the observers on October 7 at 4:40 pm that the polls would close in five minutes and closed the polls precisely JDâ€“82â€“06 5 10 15 20 25 30 35 40 45 50 7 at 4:45 pm after observing his official timepiece. Likewise, the Board agentâ€™s testimony along with that of Handunge and Barnes confirms that Umanzor arrived in the polling area after the polls had officially closed at approximately 4:47 pm. The relevant case law regarding late arriving employees discussed in Laidlaw Transit, established a bright-line test for situations of this nature. Applying the facts of this case to that test, I find that Umanzor arrived at the voting area after the polls had closed and even if the Board agent did not consult with the observers as to whether Umanzor could vote or permit him to cast a challenged ballot there were no â€œextraordinary circumstancesâ€ present.8 Here, it is impossible to speculate whether the observers would have consented to permit Umanzor to cast a ballot and the issue of voting subject to a challenged ballot is only significant if there are extraordinary circumstances to show that one of the parties was responsible for the tardiness of the late-arriving voter. In this regard, the evidence firmly establishes that it was Umanzorâ€™s own personal conduct that contributed to his arriving late after the polls had closed. Moreover, the Board agent and both observers testified that prior to the election it was established that the Board agents watch would be the official timepiece that would control the opening and closing of the polls. Significantly, no one protested the Board agentâ€™s open reliance on his timepiece throughout the election, his closing of the polls at the announced time of 4:45 pm, or of his subsequent denial of a ballot to Umanzor. With regard to the conflicting testimony of Umanzor, Price and Newman regarding whether there was a conversation with Umanzor prior to the closing of the polls on October 7, and if Umanzor walked or ran toward the polling place, it is not determinative as I have concluded that the official timepiece that must be relied upon in this case is that of the Board agent. Thus, testimony of other witnesses that they may have talked with Umanzor at 4:43 pm is not conclusive and does not warrant an adverse credibility resolution. Consumers Energy Company, 337 NLRB 752 (2002). Since the Board agentâ€™s determination is supported by the testimony and evidence in the record before me, I recommend that Objections 1 through 6, 8 and 9 be overruled.9 As it concerns Objection 7, the evidence adduced at the hearing does not support the Employerâ€™s contention. In this regard, Jones independently decided to cast a vote in the election and while Handunge admitted that he told Jones that he should go home and not vote, such a statement was not couched as a threat but rather was the opinion of a fellow co-worker. Indeed, the evidence establishes that Handunge was not a representative or agent of the Union or authorized to speak on its behalf. Moreover, there was no evidence presented that either the Employer or the Union interfered with the right of any voter to freely cast a ballot in the election held on October 6 and 7. For all of these reasons, I recommend that Objection 7 be overruled. 8 Extraordinary circumstances shall include a showing that one of the parties was responsible for the tardiness of a late-arriving voter or voters. See Pruner Health Services, 307 NLRB 529 (1992). 9 The employer in Objection 9 challenges the Boardâ€™s test for determining voting eligibility of an allegedly late voter asserting that the present test is inherently irrational and is inconsistent with laboratory standards. This allegation must be denied as it is solely within the province of the Board to make such a finding. JDâ€“82â€“06 5 10 15 20 25 30 35 40 45 50 8 Conclusions and Recommendations to the Board Based on my findings and conclusions above, I recommend that the Board overrule the Employerâ€™s objections in their entirety and issue a Certification of Representative to the Petitioner.10 Dated, Washington, D.C. November 30, 2006 ____________________ Bruce D. Rosenstein Administrative Law Judge 10 Pursuant to the provisions of Section 102.69 of the Boardâ€™s Rules and Regulations, Series 8, as amended, within 14 days from the date of issuance of this Recommended Decision, either party may file with the Board in Washington D.C. an original and eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing same shall serve a copy upon the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board may adopt this Recommended Decision.