Transportation Unlimited

National Labor Relations Board - Board Decisions

Nov 10, 1993

312 N.L.R.B. 1162 (N.L.R.B. 1993)

1162
312 NLRB No. 190
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer requested review, among other things, of the Re-
gional Director’s determination that an error in the ‘‘sample ballot’’
on the Notice of Election, which was corrected prior to the election,
did not constitute objectionable conduct. Only the portion of the Re-
gional Director’s Supplemental Decision relating to that objection is
attached.
2 A copy of the initial notice center panel is attached as Exh. B.
3 A copy of the corrected notice center panel is attached as Exh.
C.
Transportation Unlimited, Inc. and Teamsters Local
327, International Brotherhood of Teamsters,
AFL–CIO, Petitioner. Case 26–RC–7562
November 10, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
the Employer’s request for review of the Regional Di-
rector’s Supplemental Decision and Certification of
Representative (pertinent portions are attached), as well
as the Petitioner’s opposition brief. The request for re-
view is denied as it raises no substantial issues war-
ranting review.1
APPENDIX
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
Objection 1
By this objection, the Employer contends that the notice
of Election initially provided by the Board for posting at the
Employer’s place of business contained an error, to wit, that
the name of QAT, Inc. was included on the sample ballot
contained in the notice along with the name of the Employer,
and that this error is sufficient to overturn the results of the
election, despite the fact that a corrected notice was provided
and posted for approximately 40 hours prior to the start of
the election.
The Petition herein as filed named the Employer and
QAT, Inc. as joint employers, and the issue of the joint em-
ployer relationship was litigated at the representation hearing.
The Decision and Direction of Election found no joint em-
ployer relationship and that the Employer employed the unit
employees. Thus the Employer’s contention that the relation-
ship between it and QAT, Inc., was an important issue dur-
ing the campaign is not in dispute. However, the Employer’s
emphasis on its contention that the Petitioner engaged in
‘‘misrepresentation’’ by maintaining its position on the joint
employer issue in its communications with employees after
the Decision and Direction of Election issues is misplaced.
The Petitioner filed a Request for Review of the Decision
and Direction of Election on the joint employer issue, which
Request was not denied until September 10, 1993. Petitioner
cannot be said to have engaged in ‘‘misrepresentation’’ sim-
ply because it maintained its legal position on the joint em-
ployer issue pending a final decision by the Board.
The Board’s Rule 102.30 provides that notices of Election
be posted for 72 hours prior to the election. The notices not
only announce the time and place of the election and de-
scribe the group of employees who will participate in the
election, but also set forth information about employees’
rights and the parties’ conduct in an election situation. In ad-
dition, a sample ballot is shown on the notice. In the instant
situation, the only error on the initial, erroneous notice was
the inclusion of QAT, Inc., along with the Employer herein
on the sample ballot.2 The description of the employees who
would be voting in the election was correctly described at the
center top of the notice as being the employees of the Em-
ployer.
Upon discovery of the error on the notices, the Board pro-
vided corrected notices at approximately 2:30 p.m. on Friday,
September 10, 1993.3 The election was scheduled to take
place, and did take place, during the hours of 6 a.m. to 6
p.m. on Sunday, September 12, 1993. The correct notices
were thus posted for nearly 40 hours in advance of the start
of the election.
The Employer’s operation is a 24-hour-a-day, 7-day-a-
week operation. Its employees drive trucks to various parts
of the United States, returning to the Employer’s facility at
various hours of the day or night. The Employer had at-
tempted to schedule its employees’ runs so that they would
all return to its facility in time to have the opportunity to cast
ballots on September 12, 1993. There is no evidence as to
how many employees were on the road and how many had
returned to the Employer’s facility during the 3 days preced-
ing the election.
The Board has held in numerous cases that it requires
more than mere speculative harm to overturn an election.
Nightingale Oil Co., 295 NLRB 1005 (1989), enfd. 905 F.2d
528, 531 (1990); Jowa Security Services, 269 NLRB 297
(1984). Errors in election notices have been evaluated in the
past by the Board. In Bokum Resources Corp., 245 NLRB
681 (1979), enfd. 655 F.2d 1021 (10th Cir. 1981), the initial
notices of Election made no mention of the time and place
of the election, nor of the labor organizations involved. A
corrected notice was posted for only 12 hours prior to the
election, but the Board did not set the election aside. The
error in the instant case was far less significant, and far less
likely to affect the outcome of the election. The group of
employees eligible to vote was correctly described; the time,
place, and labor organizations involved were all correctly set
forth; and employees’ rights and parties’ permissible conduct
were included. The inclusion of one incorrect, but extraneous
item, the name of QAT, Inc. was not nearly so serious as
the errors in Bokum. As the unit of employees was correctly
described at the top center of the notice as consisting of
‘‘employees of Transportation Unlimited, Inc.,’’ it is unlikely
that the error on the sample ballot would cause much, if any,
confusion among the voters, contrary to the Employer’s con-
tention. In addition, the corrected notices were posted for a
longer period of time in the instant case than were the cor-
rected notices in Bokum.
Similarly, in Jumbo Produce, 294 NLRB 998, 1009
(1989), the Board declined to set an election aside where the
English-language versions of the notice were not posted at all
until the day of the election. One factor relied upon by the
Board in that case to support its conclusion that the late post-
1163TRANSPORTATION UNLIMITED
ing of the notice did not have an appreciable effect was the
high turnout of employees at the election, several more than
the number of employees on the eligibility list. In the instant
case, where 83 of 85 eligible employees voted in the elec-
tion, it would be impossible to conclude that the error on the
initial notices had any perceptible effect on the election.
Likewise, in Affiliated Midwest Hospital, 266 NLRB 1199
(1983), enfd. 789 F.2d 524 (7th Cir. 1986), the Board, with
circuit court approval, declined to set aside an election be-
cause, inter alia, the notices of Election contained errors in
the unit description. These errors were never corrected in ad-
vance of the election.
The cases relied upon by the Employer in support of its
objection are inapposite. In Thermalloy Corp., 223 NLRB
428 (1977), Spanish-speaking employees were read a copy of
the notice, and were unable to read it at all until the day of
the election. In Kilgore Corp., 203 NLRB 108 (1973), the
entire notice was posted only the day before the election. In
both decisions, the Board stressed the importance of the em-
ployees’ opportunity to review the notice information con-
cerning their protected rights and the permissible conduct of
the parties. Here, all the information contained on the cor-
rected notice of Election was posted for the entire 72-hour
period prior to the election. The only change made from the
initial notice to the corrected notice was the deletion of
‘‘QAT, Inc.’’ The rest of the information was available to
employees for the entire notice-posting period and remained
the same from one version of the notice to the next. There-
fore, the notice’s important purposes of informing employees
of their rights and warning unions and management against
conduct which would impede the election was accomplished
even by the initial notice. In addition, the correct notices
were posted in the instant situation for greater periods of
time than was true in Thermalloy and Kilgore. Also distin-
guished are Certain-Teed, 49 NLRB 360 (1943), and Doug-
las Aircraft, 51 NLRB 161 (1943), as each deals with
misidentification of a labor organization.
For all the foregoing reasons, I find Objection 1 to be
without merit. Accordingly, Employer’s Objection 1 is over-
ruled.