Fern Laboratories

FERN LABORATORIES Fern Laboratories, Inc. and Oil, Chemical & Atomic Workers International Union, Local 8-149. Cases 29-CA-5156 and 29-RC-3536 September 26, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered an objection and challenges to an election held on September 22, 1976,1 and the Regional Director's Report on Objections and Challenged Ballots, Order Consoli- dating Cases, and Notice of Hearing. The Board has reviewed the record in light of the Employer's exceptions and hereby adopts the Regional Direc- tor's findings and recommendations. The Employer has excepted to the Regional Director's recommendation to overrule its objection alleging that "a ballot challenged by the company was not properly segregated in a separate envelope, but was instead permitted to be cast and counted in the tally of ballots." At a preelection conference held in the Board's Regional Office, the Employer, who was represented by counsel, and the Petitioner executed and fur- nished the Board agent an election eligibility agree- ment providing that the ballots of Rose Presti and Julia Seargent would be "subject to challenge." Immediately prior to the election, Abe Abramow- itz, the Employer's observer, was instructed by the two Board agents as to the challenge procedure.2 Seargent, who served as the Union's observer, and Abramowitz were the first to vote. Abramowitz did not orally challenge the ballot of Seargent before it was cast. Later, when Seargent voiced a challenge to the ballot of Presti and the Board agent segregated Presti's ballot, Abramowitz asked the agent why Seargent's ballot had not been similarly segregated. The Board agent replied that there had not been a proper challenge to Seargent's ballot and that it was now too late to make one since the ballot had already been cast. Abramowitz claims he protested that he I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was: six for, and five against, the Petitioner; there were two challenged ballots. 2 While there is some dispute between Abramowitz on the one hand and the two Board agents and Seargent on the other as to whether Abramowitz was properly instructed to orally notify the Board agent of any challenges to a ballot before it was cast, it is uncontroverted that the Employer was supplied with the Board's Official Election Notice and the Instructions to Observers (Form NLRB-722) a few days prior to the election. 3 The Regional Director's report indicates that Abramowitz claims to 232 NLRB No. 84 had challenged the ballot in accordance with the Board agent's preelection instructions.3 The Employer alleges and our dissenting colleague would hold that the Board agent had an obligation to "state" the Employer's challenge to Seargent's ballot pursuant to the provisions of the parties' preelection agreement. The Chairman proposes that we expand the obligation of the Board agents by requiring them to state challenges noted in a preelection agreement even where a party's observer either inadvertently or negligently fails to state that party's challenge. We are of the view that such a result would be inconsistent with the principle that parties must state their own challenges unless there is an "unexpected occurrence." N. LR.B. v. Schwartz Brothers, Inc., et al., 475 F.2d 926 (C.A.D.C., 1973). An observer's mistake is not such an occurence against which a Board agent should be required to guard. To support his position, our colleague cites the Board's decision in Laubenstein & Portz, Inc., 226 NLRB 804 (1976), in which it set aside an election because a Board agent failed to state a challenge pursuant to the parties' "verbal understanding" which was a "quintessential condition" of an agreement settling an unfair labor practice charge. That case, however, is distinguishable from this one. Deviation from an agreement resulting from a preelection conference, which occurred in this case, is hardly the same thing as deviation from an agreement settling rights and liabilities arising out of an unfair labor practice charge, which was the situation in Laubenstein. In contrast to the Employer in this case, the union in Laubenstein did not designate an observer at all. Moreover, the Board agent in Laubenstein appeared to agree to "state" the challenge when notified by the union's business representative that, despite the fact that it could not provide an observer, the union desired to challenge a particular ballot. No such representation responsibil- ity on the part of the Board agent is present here. Finally, the Board agent in Laubenstein refused to "state" the union's challenge when the employer's observer directed the agent's attention to the agree- ment. In the present case, although she was aware of it, there is no evidence that anyone raised the preelection agreement with the Board agent prior to Abramowitz' later protest. 4 Accordingly, we hold have written a "c" next to the name of Seargent on the eligibility list prior to the balloting. However. Seargent, corroborated by one of the Board's agents, stated to the Regional Director that Abramowitz wrote the "c" during the discussion occurring after the challenge to Presti's ballot. 4 In our opinion the Employer's contention that prior to the casting of any ballots Abramowitz marked a "c" next to the name of Seargent does not raise substantial and material issues warranting a heanng beyond the scope of the hearing ordered by the Regional Director. Assuming the truth of Abramowitz claim, his noting a potential challenge on an eligibility list would not constitute the making of a challenge. See Casehandling Manual (Continued) 379 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Board's agent did not have a duty to state the Employer's challenge. We also agree with the Regional Director that it is unnecessary to remand for a hearing to determine whether the Board agent gave clear instructions as to proper challenge procedures or whether Seargent was a supervisor. First, it is uncontroverted that the Employer received the Board's Instructions to Observers a few days prior to the election. Second, the Employer's admission that Seargent was not a supervisor disposes of its challenge to her eligibility on that basis. A finding that she was or should have been challenged would not change the fact that she was nevertheless entitled to vote by the Employer's own admission that its ground for challenging her was invalid.5 Accordingly, we hereby adopt the Regional Direc- tor's findings and recommendations. ORDER It is hereby ordered that this case be remanded to the Regional Director for Region 29 for further processing in accordance with his recommendations. CHAIRMAN FANNING, concurring in part and dissent- ing in part: I agree with my colleagues' adoption of the Regional Director's recommendation that a hearing for Representation Proceedings, Sec. 11338.2. A proper challenge must be "voiced... before the ballot is dropped into the ballot box." Casehandling Manual, Sec. 11338.3. In any case, our conclusion that Seargent was not a supervisor and hence that the Employer's challenge was invalid on its ments renders this issue at best academic. be held concerning the issues raised by the challenges to the ballots of Rose Presti and Francine Citera. However, for reasons given below, I am of the opinion that the scope of the hearing should be extended to Julia Seargent. The parties executed and furnished to the Board agent a written election agreement which provided that Seargent "will be voting subject to challenge." The parties are now in dispute as to (1) whether the Board agent, who was or should have been aware of that agreement, gave the observers clear instructions as to the proper challenge procedure and (2) whether the Employer's observer placed a "c" next to Seargent's name. In view of the existence of substantial questions of fact and law and the Board's decision in Laubenstein & Portz, 226 NLRB 804 (1976), wherein it was found that the Board agent had a duty to "state" a challenge pursuant to the parties' agreement, I would find that the hearing should extend to the issues respecting Seargent's ballot. As the Employer further contends that the duties of Seargent are similar to those of Presti, Seargent's supervisory status should also be dealt with at the hearing. Accordingly, I conclude, contrary to the Regional Director, that the hearing should include both aspects of the challenge to Seargent's ballot. s The Employer admitted that Seargent was not a supervisor in the proceeding before the Regional Director. It now contends that she is a supervisor. We agree with the Regional Director ,hat Seargent is not a supervisor. 380