Thompson Roofing, Inc

National Labor Relations Board - Board Decisions

Nov 16, 1988

291 N.L.R.B. 743 (N.L.R.B. 1988)

THOMPSON ROOFING
Thompson Roofing, Inc and United Union of Roof
ers, Waterproofers and Allied Workers, Local
No 22 , Petitioner Case 3-RC-9088
November 16 1988
DECISION AND DIRFCTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The National Labor Relations Board by a three
member panel has considered determinative chal
lenges in a secret mail ballot election held from
November 12 to 25 1987 and the Regional Direc
tor s report recommending disposition of them
The election was conducted pursuant to a Decision
and Direction of Election The tally of ballots
shows six for and three against the Petitioner with
seven challenged ballots
The Board has reviewed the record in light of
the exceptions and brief and has adopted the Re
gional Directors findings and recommendations i
DIRECTION
It is directed that the Regional Director for
Region 3 shall within 10 days of this Decision and
Direction open and count the ballots of Stephen
McEvoy Donald Forgone David W Chase James
Kingsley Scott Labor and George Robinson and
thereafter prepare and cause to be served on the
parties a revised tally of ballots on the basis of
which he shall issue an appropriate certification
CHAIRMAN STEPHENS dissenting in part
I agree with my colleagues in their adoption of
the Regional Directors report except with respect
to his disposition concerning the ballot of employee
James T Brayton
Brayton voted by mail ballot and the Board
agent responsible for opening and tallying the bal
lots proposed voiding his ballot because he had
printed his name rather than signed it on the offi
cial envelope in which the ballot was mailed The
Employer challenged the decision to void the
i We agree with the Regional Director for the reasons set forth in the
attached portion of his report that the ballot of James T Brayton is void
and should not be counted In so doing we further note that the Board
has adopted specific procedures for mail ballot elections to preserve the
integrity of the election process These procedures including the perti
nent instructions here that voters sign and not print their names on the
ballot envelope are necessary because mail ballot elections are more vul
nerable to the destruction of laboratory conditions than are manual elec
tions because of the absence of direct Board supervision over the employ
ees voting
In the absence of exceptions we adopt pro forma the Regional Direc
tor s recommendation that the challenges to the ballots of employees
David W Chase James Kingsley Scott Labor and George Robinson be
overruled We also adopt for the reasons set forth by the Regional Di
rector the Regional Directors recommendation that the challenges to
the ballots of employees Stephen McEvoy and Donald Fogone be over
ruled
743
ballot so Brayton s ballot was placed among those
in the challenged category The Regional Direc
tor recommended that Brayton s ballot not be
opened and counted
In making that recommendation the Regional
Director relied on Section 11336 4 of the Boards
Casehandling Manual (Part Two) Representation
Proceedings which provides that the Board agent
should also void ballots that are returned in enve
lopes with no signatures or with names printed
rather than signed He also relied on the direction
which is contained in the instruction form sent to
voters in mail ballot elections that each voter
should sign his name on the outside of the ballot
envelope and on evidence that Brayton was capa
ble of signing his name in script The Regional Di
rector acknowledged that there was no evidence of
fraud and he did not find that there was any doubt
that the ballot was in fact Brayton s
The Employer excepts arguing that in the ab
sence of any evidence of fraud or other irregular
ity Brayton should not be denied the opportunity
to have his vote counted I find the exception well
taken Where as here there is no contention that
Brayton did not in fact cast this ballot and there is
no suggestion of any fraud a refusal to count the
ballot elevates form over substance i I recognize
of course that the Regional Director was follow
mg the Casehandling Manual in reaching his deci
Sion As the introduction to that manual makes
clear however the manual does not consist of
Board rulings or directives and although staff
counsel are ordinarily expected to follow it in han
dling cases it is expected that there may be depar
tures through exercise of professional judgment in
varying circumstances In my view such a depar
ture is warranted here Therefore I would not
adopt the Regional Directors recommendation on
this matter and I would direct that Brayton s
ballot be opened and counted
i This case is distinguishable from Mission Industries 283 NLRB 1027
(1987) There the Board held that the absence of any identification stub
on a returned mail ballot envelope in itself raised a reasonable doubt con
cerning whether only eligible voters had participated in the election The
Board agent thus had voided the ballot because he was unable to identify
its source as an eligible voter As noted above there is no such uncertain
ty in the present case
APPENDIX
James T Brayton
The ballot of James T Brayton was challenged by the
Employer in response to the ruling by the Board agent
conducting the count of the ballots that Brayton s ballot
was void because his name was printed on the ballot en
velope rather than signed The Petitioner takes the post
tion that the Board agent s decision was correct and that
291 NLRB No 108
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the ballot should be voided because the name on it was
not signed but printed The Employer argues that at the
heart of the Act is an employees right to vote in a rep
resentation election and that absent evidence of fraud or
other types of ineligibility a voter should not be disen
franchised for the reason at issue
While the investigation revealed no evidence of fraud
or other types of ineligibility concerning Brayton s
ballot section 11336 4 of the National Labor Relations
Board Casehandling Manual (Part Two) Representation
Proceedings provides in pertinent part that The Board
agent should also void ballots that are returned in enve
lopes with no signatures or with names printed rather
than signed There is no dispute that the name on the
Brayton ballot envelope was James T Brayton and
that the name was printed and not signed on the enve
lope The Instructions to Eligible Employees Voting By
United States Mail form which is sent to all eligible
voters also specifically instructs that voters are to sign
and not print their names on the outside of the envelope
Evidence supplied by the Employer concerning Bray
ton s signature is instructive On the first document (W
4A form) appended as Exhibit 1 Brayton printed his
name in accordance with the instructions On an employ
ee general information form appended as Exhibit 2 he
printed his name where no instructions were provided
and on a third employee form appended as Exhibit 3 he
signed his name under the Employees Signature line
These documents demonstrate that Brayton signs rather
than prints his name when so instructed
The case relied on by the Employer does not address
the issue that is the basis of the Board agent s challenge
In Pacific Gas & Electric Co 89 NLRB 938 (1950) one
of the participating unions objected to the authenticity of
a signature but failed to submit evidence in support of its
contention Those facts are not present in the instant
case
Based on the foregoing the undersigned concludes
that the Board agent correctly voided Brayton s ballot
and therefore recommends that the challenge to his
ballot be overruled 3 Accordingly I conclude that Bray
ton s ballot is void and recommend that it not be count
ed
S Brayton s ballot was received by the Region after the November 25
cutoff date but before the November 30 count of ballots Both parties
stipulated that Brayton s ballot be opened and counted thereby waiv
mg the deadline Therefore it is recommended that in the event the
challenge is ultimately sustained the lateness of Brayton s ballot would
not be a bar to the opening and counting of his ballot See Sec 11336 4
of the NLRB s Casehandlmg Manual Representation Proceedings supra