Sadler Bros. Trucking & Leasing Co., Inc.

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sadler Bros. Trucking & Leasing Co., Inc. and Team- sters, Chauffeurs, Helpers & Taxicab Drivers Local Union 327, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 26-RC-5176 June 25, 1976 DECISION AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Acting Regional Director for Region 26 of the National Labor Relations Board, on Janu- ary 6, 1976, an election by secret mail ballot was con- ducted among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of ap- proximately 56 eligible voters 50 cast ballots, of which 3 were void, 19 were for the Petitioner, 19 were against Petitioner, and 9 were challenged. The chal- lenged ballots were sufficient in number to affect the results of the election. Neither party filed objections to the conduct of the election or to conduct affecting the results of the election. The Regional Director investigated the challenged ballots and on March 19, 1976, issued his Report on Challenged Ballots. He recommended that: (1) the ballots of Carroll Layne and Arthur Griffin should not be opened or counted because they were untime- ly received; (2) two other ballots, because of their markings, were void; (3) the challenges to the ballots of Ronald Yates, Richard Poulton, and Billy Boldin should be sustained; and (4) the challenges to the ballots of William Winters and William Hamblin should be overruled. The Employer filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the Regional Director's Report on Challenged Ballots and his recommendations to the Board and the Employer's exceptions and brief, and hereby adopts the Regional Director's findings, con- clusions, and recommendations,' as modified below. 1 In the absence of exceptions thereto, the Board adopts, pro forma, the Regional Director's recommendations that the challenges to the ballots of Ronald Yates, Richard Poulton , and Billy Boldin be sustained , and that one other ballot, because of its marking, be voided In its first exception, the Employer alleges that the Regional Director erred in concluding that the bal- lots of Carroll F. Layne and Arthur J. Griffin be deemed invalid and void because "untimely re- ceived." The ballots were mailed to all the employees, in- cluding Layne and Griffin, on Friday, January 23, 1976. Included with each mailed ballot was a set of instructions, which specifically pointed out that to be eligible the return envelopes containing the ballots must be received at the Board's Resident Office no later than 5 p.m. on Monday, February 9, 1976, the deadline set by the stipulation of the parties. Layne had moved from the address on the Excelsior list and did not receive the first mailed ballot. Griffin had failed to follow instructions and sign the return enve- lope containing his first mailed ballot. Both were mailed a second ballot which each received and re- turned by mail on February 9. The second ballots of both Layne and Griffin were received in the Resident Office on the morning of February 10, prior to 10 a.m., the date and time fixed by the stipulation for the opening and counting of the ballots. Both the Employer and the Petitioner requested that these ballots, even though received after the 5 p.m. deadline of the preceding day, be opened and counted. However, the Board agent declared the bal- lots to be invalid because they were received after the deadline set by the terms of the stipulation. Both par- ties challenged the Board agent's ruling. The Em- ployer contends that under the circumstances, there being no administrative inconvenience, the Regional Director's upholding of the agent's ruling and recom- mendation to invalidate these two ballots should be overruled. We agree. The Regional Director had concluded that since Layne's and Griffin's failure to insure timely delivery of their ballots was due to their own lack of diligence, their ballots should be invalidated because they were untimely received. However, both the Employer and the Petitioner, in effect, agreed to waive the deadline set by their stipulation for receipt of the mail ballots, when they requested the Board agent to open and count these two ballots, and then challenged his ruling invalidating the ballots when he refused to do so. Since the parties agreed to waive the stipulated due date with respect to the ballots of Layne and Griffin, we see no reason why the two ballots should not be opened and counted.' Accord- ingly, we overrule the Regional Director's invalida- The relevant portions of the Regional Director's report, i e , those to which exceptions were filed , are attached hereto as an appendix 2 Although she adheres to her dissenting opinion expressed in Howard Johnson Company, 221 NLRB 542 (1975), Chairman Murphy concurs in the results herein solely because the parties agreed to accept the untimely re- ceived ballots 225 NLRB No. 10 SADLER BROS . TRUCKING & LEASING CO. 195 tion of the ballots of Layne and Griffin and shall direct that they be opened and counted. DIRECTION It is hereby directed that, as part of the investiga- tion to ascertain a representative for the purpose of collective bargaining among certain employees of Sa- dler Bros. Trucking & Leasing Co., Inc., in the unit set forth in section 12 of the Stipulation for Certifica- tion Upon Consent Election, the Regional Director for Region 26 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Decision and Direction, open and count the ballots of Carroll Layne, Arthur Griffin, William Winters, and William Hamblin and, thereafter, prepare and cause to be served on the parties a revised tally of ballots and issue an appropriate certification based on the revised tally of ballots. APPENDIX THE CHALLENGED BALLOTS Carroll F. Layne and Arthur J. Griffin The ballots of Layne and Griffin were declared by the Board agent conducting the ballot count to be invalid because they were received after the deadline set by the terms of the stipulation for receipt of mail ballots in the election . Both the Employer and the Petitioner challenged the Board Agent 's ruling that the ballots were invalid. On January 12, 1976, the election notices were mailed to the Employer. Copies were posted on Janu- ary 16, 1976. This notice specifically states that if any employee has not received his ballot by January 29, he should contact the Resident Office in Nashville or the Regional Office in Memphis . The telephone numbers of these offices were also included in this notice . The ballots were mailed to all of the employ- ees on Friday , January 23, 1976. Included with each ballot mailed to the employees was a set of instructions containing the following lan- guage: To insure that your ballot is counted , it must be received by the date shown . Mail your ballot im- mediately or sufficiently before this date to in- sure timely receipt. These instructions also specifically point out that to be eligible the envelopes containing the ballots must be received no later than 5 p.m. on Monday, Febru- ary 9, 1976. The ballots of both Layne and Griffin were re- ceived in the Resident Office on the morning of Feb- ruary 10. Both Layne and Griffin had been mailed their ballots on January 23. Layne did not receive his ballot because he had moved from his address on the Excelsior list. Although he was admittedly aware of instructions to contact the NLRB if he had not re- ceived a ballot by January 29, he neglected to do so until February 5, at which time he was mailed a sec- ond ballot. Layne testified that he did not receive his ballot until the morning of February 9. As he lives 100 miles from Nashville and was not scheduled to work that day, he made arrangements with the Em- ployer to meet him half-way and he instructed the party picking up his ballot to mail it to the Resident Office. Thus, it could not have been reasonably an- ticipated that the ballot would be received by the February 9 deadline. Griffin had neglected to sign the envelope containing his ballot despite specific in- struction to do so, and it was necessary to send him a second ballot. This second ballot was mailed to him on February 6. He received it on the 9th and mailed it on that same date. Griffin concedes that he did not read the instructions sent with the first ballot and, therefore, did not realize he had to sign the envelope. Since both Layne and Griffin were fully aware that their ballots, to be counted, were to be received in the Resident Office no later than February 9, and since their failure to insure timely delivery was due to their own lack of diligence, their ballots are deemed to be invalid because they were untimely received. Accordingly, it is recommended that the voiding of their ballots be upheld and that their ballots not be opened and counted. William F. Winters The ballot of William F. Winters was challenged by the Employer on the grounds that he terminated his employment with the Company prior to February 10, 1976, the date that the ballots were counted. According to Mr. Sadler, Winters failed to show up for work after February 5, 1976, and he was there- fore considered to have voluntarily terminated his employment on that date. Although Winters could not recall the exact date that he terminated his em- ployment with the Company, he did conform that it was sometime in February after he had already mailed in his ballot in the election. The ballot was received in the Resident Office on January 30, 1976. Since there is no dispute that Winters was an em- ployee of the Company on the cutoff date and on the date he mailed his ballot in the election, he is deemed to be an eligible voter.3 Eck Miller Transportation Corporation, 211 NLRB 251 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, it is recommended that the challenge to the ballot of William F. Winters be overruled. William P. Hamblin The ballot of William P. Hamblin was challenged by the Employer on the grounds that he had volun- tarily terminated his employment with the Company prior to the date that the ballots were counted. According to Mr. Sadler, Hamblin made his last run for the Company on January 27, 1976. Sadler stated that shortly prior thereto Hamblin had re- quested a 30-day leave of absence indicating at that time he had taken a position elsewhere. Sadler states that he told Hamblin that he would have to confer with Mr. Glynn Sadler, president of the Company, and that Hamblin should contact him the following morning to ascertain whether he would be granted a leave of absence. Sadler explained that Hamblin failed to call him and that he has not heard from him since. He says that Hamblin failed to make a sched- uled run on January 28 and is, therefore, no longer considered an employee of the Company. Hamblin denies that he was instructed to call back following his conversation with Mr. Sadler to ascer- tain whether he had been granted a leave of absence, and he says he left with the understanding that he had been granted a month's leave of absence. Ham- blin stated that he was instructed to call back the following day to check whether the Company had found a replacement for him, and he concedes he failed to do so. Regardless of whether Hamblin was on a leave of absence or terminated after January 27, 1976, the ev- idence established that he was employed by the Company on the cutoff date and on the date he mailed his ballot to the Resident Office. Although Hamblin was unable to recall the exact date that he mailed his ballot to the Resident Office, he did recall 5 Mercy College, 212 NLRB 925 that it was prior to the time that he requested a leave of absence. This is verified by the postmark on the envelope which indicates that the ballot was mailed on January 26, 1976. Since Hamblin was employed by the Company on the cutoff date and on the date he mailed his ballot to the Resident Office he was eligible to vote in the election.4 Accordingly, it is recommended that the challenge to the ballot of William P. Hamblin be overruled. Additional Challenged Ballots The parties challenged the Board agent's determi- nation that two ballots were invalid because they had been improperly marked. One ballot, which was challenged by the Employ- er, had the "yes" square blacked in and an "X" in the "no" square . . . The Employer asserts that this is a valid ballot because the intention of the voter was to vote "no." It is the Employer's contention that after the voter had inadvertently placed an "X" in the "yes" square he attempted to erase it by blocking out the entire square. The Employer argues that because it was a mail ballot election and a Board agent was not readily available to provide assistance, the fact that the ballot was not marked in the conventional way should not affect its validity. The Employer concedes that Board precedent sup- ports the position that the manner in which the ballot was marked warrants a conclusion that the ballot was invalid. In similar circumstances, the Board has ruled that the intention of the voter was not free from doubt and that the ballot was, therefore, void.' Accordingly, it is concluded that the ballot was correctly determined to be void. Eck Miller Transportation Corporation, cited supra