New England Oyster House of Cocoa Beach, Inc.

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New England Oyster House of Cocoa Beach , Inc. and Hotel, Motel, Restaurant Employees and Barten- ders Union, AFL-CIO, Local 737, Petitioner. Case 12-RC-4907 July 19, 1976 DECISION AND DIRECTION TO OPEN AND COUNT CHALLENGED BALLOTS BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel of the National Labor Relations Board has considered challenges to ballots cast in an election among certain employees of the employer on October 15, 1975,1 and the Regional Director's report recommending disposition of the challenges. In his report the Regional Director recommended overrul- ing the challenges to the ballots of Kevin Keeney, Frank Paull, and Tom Dugan and sustaining the challenges to the ballots of Debbie Giallanzo and Al Cherry. The Employer filed exceptions to the Re- gional Director's recommendations with respect to the challenges to the ballots of Tom Dugan and Al Cherry.' No other exceptions were filed. The Board has reviewed the Regional Director's report, the Employer's exceptions, and the entire record in the case, and hereby adopts the Regional Director's find- ings and recommendations 3 with the following am- plification. With regard to the challenged ballot of employee Tom Dugan who arrived 2 or 3 minutes late at the polls, it has been the Board's standard practice in such situations to rely on the reasonable and sound discretion of the Board agent and the Regional Di- rector as to whether a particular employee or em- ployees should be permitted to cast a ballot or bal- lots. See, for example, Groendyke Transport, Inc. and Ann Myers Bell d/b/a Bell Transport Company, 204 NLRB 96, 98 (1973), and Glauber Water Works, 112 NLRB 1462 (1955). Employees in these circum- i The election was conducted pursuant to a Stipulation for Certification Upon Consent Election The tally was 4 for the Petitioner, 2 against, and 5 challenged ballots which were sufficient to affect the results of the elec- tion 2 The portions of the Regional Director's report to which exceptions were filed are attached hereto as an appendix 3 In the absence of any exceptions thereto, the Board adopts pro forma the Regional Director's recommendations with respect to the challenges to the ballots of Giallanzo, Keeney, and Paull As for the exceptions to the recom- mendations concerning the challenge to the ballot of Cherry, the Board is of the opinion that such exceptions raise no issue of fact or law requiring reversal or modification of the Regional Director's findings, conclusions, and recommendations stances are usually permitted to vote if the polls are not closed and/or the ballot box has not been opened. This makes sense to us, since the election procedures are not unduly interfered with or ham- pered and it comports with a fundamental policy of the Act to afford employees the broadest possible participation in Board elections. Indeed a rule that requires an employee to sacrifice his franchise under Section 7 of the Act if he does not have reasonable excuse for being late is too procrustean for the Board to adopt in this time and at this date. Thus, we can readily envision situations where an employee has lit- tle or no excuse for arriving at the polls a few min- utes late. But, we would frown on a Board agent or Regional Director who did not allow such employee to vote if the polls were not closed and/or the ballot box had not been opened as the election process would still be in progress. Hanford Sentinel, Inc. d/b/a Hanford Sentinel, 163 NLRB 1004, 1005 (1967) 4 Since the latter alternative occurred in the instant case, we agree with the Regional Director that the challenge to Dugan's ballot be overruled and his vote should be counted. DIRECTION It is hereby directed that the Regional Director for Region 12 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this di- rection, open and count the ballots cast by Kevin Contrary to our dissenting colleague, in none of these cases did the Board assign legitimacy of an excuse by employees for being late to the polls as the indispensable prerequisite for holding them to be eligible voters (In her partial dissent in Howard Johnson Company, 221 NLRB 542 (1975), the Chairman said "that this factor [that the late voter have some valid and reasonable excuse for being late] should be a sine qua non to counting a late voter's ballot ") Time and again, the Board has relied on the exercise of reasonable and sound discretion by the Board agent and Regional Director in the circumstances and the then existing status of the election process For example, in Hanford Sentinel, supra, the Board found that the Board agent, in the proper exercise of his discretion, should have permitted two employ- ees, who sought to vote only minutes after the polls were declared closed, to cast their ballots regardless of whether they had a valid excuse, since the ballot box had not been opened nor the tally of ballots started at that time In Glauber Water Works, supra, the Board noted that it is established Board practice, absent unusual circumstances, not to extend voting periods beyond the time specified in the notice of election However, the Board held that where the Board agent in charge of the election, in the exercise of his discre- tion, reopened the polls to take the challenged ballots of six employees, five of whom could not get away from their jobs during the voting period to vote, the ballots should be counted But, the Board stated, "[w]e believe it would have been better practice if the Board agent had followed the rule in this case " In Bell Transport, supra, where the polling place had been dis- mantled to some extent and the ballot box had been opened, the ballots counted, and the tally completed at the time an employee indicated that he wanted to cast his ballot, the Board held that the challenge to his ballot be sustained The Board noted that whether a voter may be permitted to cast a ballot after the polls have closed is left to the reasonable discretion of the Board and its agent conducting the election But, there must be a limitation within which the Board's reasonable rules should be followed and "when the ballot box has been opened and the tally concluded, any employee should thereafter be precluded from the right to cast his ballot" 225 NLRB No. 89 NEW ENGLAND OYSTER HOUSE 683 Keeney, Frank Paull, and Tom Dugan, and thereaf- ter cause to be served on the parties a revised tally of ballots including therein the count of the above-men- tioned ballots. Thereafter the Regional Director shall issue the appropriate certification in accordance with the Board's Rules and Regulations. CHAIRMAN MURPHY, concurring in part and dissent- ing in part: I agree with my colleagues' result here except that I would not adopt the Regional Director's recom- mendation that the challenge to Dugan's ballot be overruled. Dugan arrived 2 or 3 mintues late at the polls but was permitted by the Board agent to cast a challenged ballot. His only reason for being late was that he lost track of the time. This in my view is not a reasonable excuse for tardiness in voting. Thus, I would sustain the challenge to Dugan's ballot for the reasons set forth in my dissent in Howard Johnson Company, 221 NLRB 542 (1975). In that dissent I pointed out inter alia that, contrary to the claims made by the majority here, the Board has as its es- tablished policy required that late employees must have legitimate excuses for being late to the polls be- fore it will hold them to be eligible voters. And it is in that context that the Board has found that the Board agent did not abuse his discretion by letting late vot- ers vote under challenge. Indeed, the cases cited by the majority in their decision support these conclu- sions, not the conclusion they urge to the effect that the Board has not required a valid and reasonable excuse if a late employee is to be found an eligible voter.' 5 For example, in Hanford Sentinel, supra, the late employees had earlier attempted to vote but were turned away by the Board agent conducting the election, and their subsequent lateness was due to a job assignment rather than of their own working Inability to get away from jobs during the voting period also was the reason for the lateness of all but one of the challenged voters in Glauber Water Works, supra In Bell Transport Company, supra, the challenge to the late voter's ballot was sustained because he could not pre- sent an excuse for his failure to vote during the scheduled time of the elec- tion Although the Board in Hanford Sentinel and Glauber Water Works did not expressly state that the legitimacy of an excuse for employees being late to the polls was an "indispensable prerequisite for holding them to be eligi- ble voters," it is clear to me that the Board would not have permitted the late voters' ballots to be counted therein had that element been absent, any more than it would have done so had any of the other factors enumerated and relied upon in those cases not been present See Westchester Plastics of Ohio, Inc, 165 NLRB 219 (1967), enfd 401 F 2d 903 (C.A 6, 1968) APPENDIX TOM DUGAN: Dugan's name appeared on the eligibility list, and there is no dispute that he was an eligible voter at the time of the election . The only dispute is whether or not his ballot should be counted , since he voted after official closing of the polls. The Petitioner takes the position that his ballot should be counted since the ballot box had not yet been opened; he was only two or three minutes late; and the company and union officials had not yet ar- rived at the polling place when Dugan appeared to vote. The Employer takes the position that Dugan's vote should not be counted since he voted outside the time period agreed to by the employer in which the employees could vote. Employer further contends that another employee, also eligible to vote, was hos- pitalized the morning of the election and called up seeking to vote by telephone, which was not possible. Employer submits that it would be especially unfair to count Dugan's vote when another employee with a far better reason for not voting was not able to cast a ballot. Testimony revealed that Dugan was not scheduled to work on the day of the election, since he was working only on weekends as a bus boy at that time. The election was held on a Wednesday from 2:30 p.m. to 3:00 p.m. Dugan testified that he did not have a watch, but that he did know in advance of the exact hours of the election; that around 1:00 p.m. he left the area near the restaurant to check at the homes of 2 or 3 voters who were also not scheduled to work that day; be- cause he did not think they had transportation to the polls and wanted them to be sure and vote. He did not find any of the prospective voters at home and stopped at the home of a friend and asked him what time it was. Upon being told that it was 1:30, he stayed a few minutes longer and then inquired again if the time was correct, as he believed, it must have been later than 1:30 by that time. At that time he learned that it was five or ten minutes until 3:00, and he and his friend realized that it actually was 2:30 when he had said it was 1:30, having read his watch wrong. Dugan immediately left to go to the polling place, but was 3 or 4 miles away and had to use a heavily-traveled highway, which caused him to be late. He testified that when he arrived at the polling place, only the Board agent and the observers were present; the ballot box had not been opened, and there were no company or union officials present. He inquired if he was in time to vote, and was permitted to vote under challenge. The parties returned for the count before Dugan actually cast his ballot, and the Board agent advised the parties that he had come in after the polls were closed, but that she was going to permit him to vote a challenged ballot. The officials left, Dugan cast his challenged ballot and placed the envelope in the ballot box, and the officials returned for the count. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned has considered the facts as out- lined above, and has weighed those factors that Du- gan knew of the scheduled voting times, that he had transportation, and that he placed reliance on some- one else to keep up with the time, against those fac- tors that Dugan was not scheduled to work that day, the relatively brief polling time, his being two min- utes late and appearing before the officials had re- turned for the count and before the ballot box had been opened, or the tally of ballots had started, and his reason for being late not being without some evi- dence of validity and/or diligence on his part in trying to get to the polling place on time. Accordingly, after due consideration, the under- signed concludes that Dugan's vote should be count- ed and will recommend that the challenge to his bal- lot be overruled.' AL CHERRY: The Petitioner takes the position that Cherry's vote should not be counted; that he works as a roving maintenance man and works infrequently at Em- ployer's Cocoa Beach facility, except during a pe- riod shortly before the election when extensive work was being done; that he is an employee of the central office; that he may also be a supervisor; and that he has no community of interest with other bargaining unit employees. Further, Petitioner points out that Cherry's name was not included on the Excelsior list. The Employer takes the position that Cherry's name was left off the eligibility list in error and that he is an eligible voter. Employer contends that Cher- ry was employed as a maintenance man for three of employer's restaurants, including the Cocoa Beach restaurant, and that he began work in the Cocoa Beach restaurant in July 1975; that he has worked at least one day in every work week at that location up to and past the election date, usually ranging be- tween 2 and 4 days. Employer contends that Cherry is unquestionably eligible to vote, despite the fact that he is also employed elsewhere by the Employer. Additionally, Employer contends that Cherry is not a supervisor and has never been given any super- visory authority as defined in the Act. The investigation shows that Cherry 6 was hired by and worked as a repair and maintenance man under the supervision of the District Manager. Cherry re- sides in Vero Beach where one of the three restau- rants he services is located.7 While the main part of his work is servicing the air-conditioning and refrig- 5 Howard Johnson Company, 221 NLRB 542, Westchester Plastics of Ohio, Inc, 165 NLRB 219, enfd 401 F 2d 903 (C A 6, 1968) Hanford Sentinel, Inc d/b/a Hanford Sentinel, 163 NLRB 1004 6 Although no longer working as a contractor, Cherry continues to hold valid State, county, and city (Vero Beach) contractor licenses 7 The Vero Beach and F Pierce restaurants are some 55 to 65 miles from the Cocoa Beach restaurant with which we are concerned herein eration equipment, he also does other general repair and maintenance work such as carpentry and paint- ing. Cherry uses his own truck and tools in connec- tion with his work and receives compensation for mileage and travel time. He does not have any regu- lar schedule and normally is the only one performing such work at the Cocoa Beach restaurant, to which he reports, when called, on an average of one day each week when the restaurant manager needs his services.' He is paid by each store for his time worked including travel time. As mentioned, Cherry is supervised by and respon- sible to the District Manager who at the crucial time herein was Andrew Shaffer. When working at a par- ticular store, the store manager further instructs Cherry as to the job he wants done and sees that it is done. When purchases of materials and repair parts are necessarily made, time permitting, Cherry nor- mally calls the District Manager for a purchase order number which he utilizes in making the purchases at designated suppliers where the employer has estab- lished credit. In emergencies or absence of the Dis- trict Manager, Cherry testified that he may and does make purchases without prior clearance, either at es- tablished suppliers sources, or at other suppliers where he pays for the items and is later reimbursed.' Cherry normally works alone. However, at times when assistance is necessary, someone is hired to help, or employees at the particular restaurant are assigned by the Restaurant Manager to assist, either on a full-time or part-time basis. Such a period oc- curred at the Cocoa Beach restaurant during the cru- cial times involved herein between the eligibility and election dates, when in connection with the redoing of the kitchen, substantial cleaning and other work was necessary. This work entailed the utilization of Cherry more steadily than usual , as well as two of the restaurant employees on a regular full-time basis, to- gether with one newly hired employee who, upon conclusion of the kitchen work, was to work as a bus boy. Cherry's wages of $4.75 per hour are substantially greater than the $2.00 to $2.25 per hour paid to the others who assisted him in redoing the kitchen. Al- though claimed by the Union to be a supervisor, and the existence of evidence that he directed the work of the others, during such periods of time, there is no evidence to show that he hired the persons who helped him or had any authority to discipline or dis- charge them. Cherry states that during the kitchen project at the Cocoa Beach restaurant, one of the employees working with him, Tom Dugan, was not 8 Although complete time records of Cherry's work at the Cocoa Beach restaurant were requested, they were never submitted e Cherry states that he has made purchases amounting to as much as $75 for which he was subsequently reimbursed upon presentation of the bills NEW ENGLAND OYSTER HOUSE 685 performing his work satisfactorily, and admittedly told Cherry to do it himself when asked to perform a specified task. Cherry states he told restaurant man- ager Walters of the matter. According to Cherry and Dugan, the next day Dugan was transferred back to his regular restaurant job. Walters acknowledges that Dugan was put back on his regular job, but says that he had noticed Dugan goofing off and therefore took him off the maintenance work, adding that he does not recall Cherry reporting a refusal of Dugan to per- form a task assigned to him by Cherry. Cherry also testifies that on one occasion several months ago Shaffer asked him to find someone to do some painting at the Vero Beach store at a specified wage rate. Thereafter, according to Cherry, Shaffer asked him about the man's work and whether he should be paid 25 cents more per hour. Cherry says he told Shaffer that "Bill" was doing a good job and was worth the extra quarter. As reflected above, Cherry normally works alone and it is only occasion- ally that he has others work with him whose work he may direct. While the evidence does show some indi- cia of supervision, it is not deemed sufficient to find Cherry to be a supervisor. As needed, Cherry primarily services the air-condi- tioning and refrigeration equipment and usually works alone in the performance of his work. His con- tacts therefore appear to be largely with manage- ment, rather than with the rank and file employees of the restaurant. It is clear that his work is totally dif- ferent from that performed by the regular restaurant employees, for which he receives a substantially high- er rate of pay. Cherry is also supervised by and di- rectly responsible to the District Manager with whom he has frequent contacts during the average work week, whereas the regular restaurant employees are totally supervised by the restaurant manager. The facts also show that his attendance at the Cocoa Beach store is only on a when-called basis with no fixed schedule, which may average about one day per week. On the basis of such facts , the undersigned concludes that Cherry, who performs maintenance work on a "when-called" basis, has no real commu- nity of interest with the restaurant employees and is not sufficiently concerned with the terms and condi- tions of employment within the unit to warrant his inclusion therein . Accordingly, and for that reason, the undersigned concludes that Al Cherry was not an eligible voter and will recommend that the challenge to his ballot be sustained. RECOMMENDATIONS 10 Having concluded, for the reasons set forth above, that Debbie Giallanzo and Al Cherry were not eligible voters, the undersigned recommends that the chal- lenges to their ballots be sustained. Having concluded, for the reasons set forth above, that Kevin Keeney, Frank Paull, and Tom Dugan were eligible to vote, the undersigned recommends that the challenges to their ballots be overruled, and that the undersigned be directed to open and count said ballots and issue a revised tally of ballots. 10 Pursuant to the provisions of Sec 102 69 of the Board's Rules and Regulations, eight copies of exceptions to this report may be filed with the Board in Washington , D C, with a copy thereof simultaneously served on the other parties and the Regional Director Exceptions must be received by the Board in Washington by February 23, 1976