Monarch Federal Savings and Loan Association

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monarch Federal Savings and Loan Association and Local 1159, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case 22--RC-7168 June 13, 1978 DECISION, DIRECTION, AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered challenges in, and ob- jections to, an election held on June 22, 1977,1 and the Regional Director's report recommending dispo- sition of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Regional Director's findings and recommenda- tions 2 as modified herein. Subsequent to his investigation of the Employer's objections to the election and the challenged ballots, the Regional Director issued his report in which he recommended that the Employer's objections be overruled, Petitioner's challenge to the ballot cast by Alice Anderson be sustained, and the Employer's challenge to the ballot cast by Dolores Rodriguez be overruled and that her ballot be opened and counted. We agree with these findings and recommendations. The Regional Director also recommended that the Employer's challenge to the ballot cast by Louise McMillan be held in abeyance pending the resolu- tion of an unfair labor practice complaint which al- leged that McMillan had been discriminatorily dis- charged by the Employer prior to the election. The Regional Director observed that, if Rodriguez' ballot has been cast for representation, McMillan's ballot would no longer be determinative, and it would be unnecessary to resolve the challenge to her ballot. The Petitioner would then have secured a majority of the valid votes cast, and a certification of representa- tive could be issued. On the other hand, if Rodriguez' ballot was cast against representation, the vote would then be nine for, eight against, the Petitioner, and one challenged ballot, and McMillan's ballot would remain determinative. In such an event, the Regional Director recommended that McMillan's ballot be opened and, if she has cast a ballot for representa- tion, her ballot would no longer be determinative and /The election was held pursuant to a Stipulation for ( ertificatiln I pon Consent Election. The tally was: 9 for, and 7 against. the Petitioner; there were 3 challenged ballots, a number sufficient to affect the results 2 In the absence of exceptions thereto we adopt, pro forma, the Regional Director's recommendation overruling t mploy'er's Objection I a certification of representative could issue.3 If Mc- Millan's ballot was cast against representation, her ballot would remain determinative and her status as an eligible voter and the results of the election would have to await the final resolution of the unfair labor practice matter involving her discharge. We disagree with the Regional Director's recom- mendation concerning the opening of McMillan's ballot prior to the determination of her eligibility in the unfair labor practice proceeding. The Regional Director's reliance on ILGWU, supra, as authority for the opening of McMillan's determinative chal- lenged ballot prior to the resolution of the challenge to her ballot is misplaced. The unusual set of circum- stances involved in ILGWU are dissimilar to the facts of the instant case. In ILGWU there were two determinative challenged ballots cast by two individ- uals who were also alleged discriminatees in an un- fair labor practice matter pending against the em- ployer involved therein. The tally of ballots was such that, if either or both of the challenged voters voted for the petitioner, then, regardless of whether neither, either, or both of them were ultimately found to be eligible, the petitioner would have received a majori- ty of the ballots cast and would have been entitled to a certification of representative. The challenged vot- ers both submitted affidavits in which they volun- tarily waived their right to have their ballots kept secret and specifically requested the Board to open their ballots. In the peculiar circumstances of that case where the challenged voters waived their right to a secret ballot and requested that their ballots be opened, we found no reason to delay the final tally of ballots and the issuing of the appropriate certifica- tion. In the instant case, however, there is no record evidence that McMillan has waived her right to a secret ballot or has requested that we open her ballot in order to resolve the election case. The right to a secret ballot in a board-conducted election is a cen- tral underpinning to the administration of the Act and, absent an explicit waiver of the right to a secret ballot, we cannot and will not infer such a waiver. Accordingly, we find that in the instant case it is inappropriate to open McMillan's challenged ballot until her eligibility has been determined in the unfair labor practice proceeding. We shall therefore direct that the Regional Direc- tor open and count the ballot of Rodriguez and, in the event such ballot is not determinative of the re- sults of the election, that the resolution of the chal- lenge to the ballot of McMillan be held in abeyance pending disposition of the related unfair labor prac- tice proceeding. 'In support of this recommendation. the Regional Director cited Interna. tinal I adies' Garment hWorkers' Union, 137 NLRB 1681 (1962) 236 NLRB No. 86 874 MONARCH FEDERAL SAVINGS AND LOAN ASSOCIATION DIRECTION It is hereby directed that the Regional Director of Region 22 shall, within 10 days from the date of this Decision, open and count the ballot of Dolores Rodriguez and, if such ballot has been cast for the Petitioner, the Regional Director shall issue a certification to the Petitioner as the exclusive collective-bargaining representative of the employees in the appropriate unit. IT IS FURTHER DIRECTED that, in the event the afore- mentioned challenged ballot has been cast against the Petitioner, the Regional Director shall hold the disposition of the challenged ballot of Louise Mc- Millan in abeyance pending the outcome of the un- fair labor practice proceeding involving the status of McMillan, whereupon he may take such action as he may deem appropriate. ORDER It is ordered that the above-entitled matter be, and it hereby is, referred to the Regional Director for Re- gion 22 for further processing consistent with this Decision. MEMBER MURPHY, dissenting: Contrary to my colleagues in the majority, I would adopt the Regional Director's recommendation to open the ballot of McMillan in the event Rodriquez voted against representation by the Petitioner. One of the major policies of the Act, which the Board is bound to effectuate, is the expeditious reso- lution of questions concerning representation.4 In furtherance of this policy, the Board has determined that in certain circumstances the challenged ballots of voters who are the subject of unfair labor practice proceedings may be opened prior to the disposition of such proceedings. Thus, in ILGWU, supra, the Board was presented with a situation where two chal- lenged voters were alleged discriminatees in unfair labor practice proceedings. The circumstances were such that, if either or both of these voters voted for the petitioner, the petitioner would have received a majority of votes, regardless of whether neither, either, or both of the challenged voters were ulti- mately found to be eligible. On the other hand, the petitioner would have lost the election only in the event that both of the challenged voters were found to be eligible and both voted against the petitioner. The Board noted that the two voters had signed affi- davits requesting that their ballots be opened. It fur- ther noted that both voters had been active in the petitioner's organizational campaign thus making it improbable that they would vote against the peti- tioner. In these circumstances, the Board directed the opening of the challenged ballots, reasoning that to do so would almost certainly determine with finality the results of the election. The instant case presents essentially the same cir- cumstances as ILGWU, if McMillan's ballot is deter- minative. For if she voted for the Petitioner then the Petitioner would receive a majority of votes irrespec- tive of her eligibility. There is every reason to believe that McMillan voted for the Petitioner because she was active in the Petitioner's organizational cam- paign and was selected by the Petitioner to act as an observer at the election. Further, the Petitioner filed an unfair labor practice on McMillan's behalf, charg- ing that her preelection discharge was unlawful. Thus, there is a high probability that the opening of McMillan's ballot will determine the results of the election. My colleagues in the majority contend that ILGWU is inapposite because there is no evidence that McMillan waived her right to a secret ballot as did the challenged voters in ILGWU. Asserting that the right to a secret ballot is "a central underpinning to the administration of the Act," they conclude that it is inappropriate to open McMillan's ballot in the absence of an explicit waiver. At the same time. how- ever, in accord with Board practice with which I agree-where a single challenged ballot is involved. they direct that the ballot of Rodriquez be opened and counted inasmuch as she has been held to be eligible. The Board has long held that in such cir- cumstances secrecy of the ballot of such an eligible voter must give way to the need to determine the results of the election even in the absence of a waiver of the right to a secret ballot. There are no grounds for making such a distinc- tion between McMillan and Rodriquez. In fact, as between McMillan and Rodriquez. it is less likely that opening McMillan's ballot will improperly in- trude into her right to secrecy. McMillan did not hide her sympathies for the Petitioner. She was an active campaigner for the Petitioner up to the time of the election. She was selected to act as an observer for the Petitioner and would presumably have done so had the employer not objected. Maintaining the secrecy of McMillan's ballot, therefore, is largely a formality which will result in considerable delay in determining the results of the election in the event Rodriquez voted against the Petitioner. I see no rea- son to create the potential for such a delay which could deprive employees of their bargaining rights for an indeterminate period. Nevertheless, the major- 4 Inernational Ladies' Garment W4orkers' Union. 137 NLRB 1681 119621 875 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ity is willing to sacrifice the interest of all unit em- ployees in determining whether or not they will be represented by the Petitioner to the fiction and procedural formality of protecting the secrecy of Mc- Millan's ballot. This approach is internally inconsistent and un- necessarily frustrates the Act's policy to expeditious- ly decide questions concerning representation. De- lays in the Board's representation proceedings such as this are a subject of widespread public debate. Such delays have resulted in a proposed amendment to the Act which would require the Board to direct representation elections within a specific time period. See 123 Cong. Rec. 10702-10714, October 6, 1977, and S. Rept. 95-628, 95th Cong., 2d sess. (1978). Accordingly, I would follow the procedure estab- lished by ILGWU and adopt the Regional Director's recommendation to open the ballot of McMillan in the event Rodriquez voted against representation by the Petitioner. 876