Central Delivery Service of Massachusetts, Inc.

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Delivery Service of Massachusetts , Inc. and Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case 1- RC-14022 July 27, 1976 DECISION AND ORDER DIRECTING HEARING BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO The Board has decided that the attached decision, issued July 12, 1976, which now includes pertinent portions of the Regional Director's Report, is to be printed in the bound volumes of Board decisions. Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered determinative challenges in, and objections to, an election held on November 14, 1975,1 and the Regional Director's Re- port recommending disposition of same. Pertinent portions of the Report are attached hereto. The Board has reviewed the record in light of the excep- tions and brief, and hereby adopts the Regional Director's findings and recommendations.' ORDER It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the following issues raised by the Petitioner's objections and challenges: (1) Whether the Employer engaged in a scheme to defeat the Petitioner by "flooding" the payroll with new employees, both temporary and permanent, hired specifically to vote against the Petitioner in the election; and (2) whether Conrad Gagel and David O'Brien were hired as part of the Employer's alleged scheme to "flood" the payroll with employees unfa- vorably disposed to the Petitioner and the challenges to their ballots should be sustained for that reason.' IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting such hear- ing shall prepare and cause to be served on the par- ties a report containing resolution of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the said objection and challenged ballots. Within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D.C., eight copies of ex- ceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER ORDERED that the above-entitled mat- ter be, and it hereby is, referred to the Regional Di- rector for Region 1 for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. 1 The election was conducted pursuant to a Stipulation for Certification Upon Consent election The tally was 12 for, and 14 against, the Petitioner, there were 10 challenged ballots , a sufficient number to affect the results 2 In the absence of exceptions thereto, we adopt pro forma the Regional Director's recommendations that the challenges to the ballots of David Gor- man, Edward Simons, Michelle Harty, Charles Willett, Stuart Garr, George Ducharme, and Issac Williams be sustained , and that the Petitioner's objec- tions alleging misrepresentations and improper threats be overruled We also agree with the Regional Director's recommendation that the challenge to the ballot of Carlton Cox be overruled. The Employer' s exception to this recommendation raises no substantial issues of fact or law requiring reversal of his findings or a hearing on the matter Since Cox's ballot alone is not determinative of the election results , it shall not be opened and counted until the challenges to the ballots of Conrad Gagel and David O'Brien are resolved Chairman Murphy agrees that Cox's ballot be counted in view of the fact that he was late solely because of his work, a factor over which he had no control Cf Howard Johnson Company, 221 NLRB 542 (1975). ' Value City Furniture of Springdale, Inc, 222 NLRB 455 (1976) APPENDIX During the investigation , evidence was presented in support of the Petitioner's further allegation that the Employer engaged in a scheme to defeat the Peti- tioner by "flooding" the payroll with new employees, both temporary and permanent , hired specifically to vote against the Petitioner in the election, and by adding an employee to the payroll during the payroll period determining eligibility 2 prior to the time the employee actually started to work. Pursuant to Section 102.69 of the Board 's Rules and Regulations, Series 8, as amended, I have con- ducted an investigation of the Objections, as well as of the challenged ballots, inasmuch as they are deter- minative of the results of the election, and make this report thereon . Investigation reveals: THE CHALLENGED BALLOTS 5. Conrad Gage!: Gagel, the brother of General Manager Robert Gagel, began working for the Employer again' on October 4, 1975, the last day of the eligibility period, as a part-time dispatcher on Saturdays. He continued 2 The payroll period determining eligibility was the week ending Satur- da4,, October 4, 1975 Gagel had worked for the Employer a year previous to this 225 NLRB No. 98 CENTRAL DELIVERY SERVICE 759 to work on this basis until December 1, 1975. During this period, he was employed full time elsewhere. Around December 1, 1975, Gagel began working full time for the Employer as a driver and has continued to work as such up to the time of the investigation. Since he was working in the unit on the eligibility date and thereafter, I recommend that the challenge to his ballot be overruled on the ground specifically alleged by the Petitioner. However, inasmuch as it is alleged that Gagel was also employed as a part of the Employer's alleged scheme to flood the payroll, no final recommenda- tion is made on the challenge to his ballot at this time, and I recommend that a hearing be held to determine his eligibility. 6. David R. O'Brien: O'Brien also began working as a driver on Satur- day, October 4, 1975. He continued to work full time in this capacity until November 8, 1975, when he was moved into the position of dispatcher on the mid- night to 8 a.m. shift and was working that position at the time of the election. While working as a driver, O'Brien was paid on the same basis as the other driv- ers and at all times received the same benefits, such as holiday pay and bonuses, that other full-time em- ployees received. O'Brien receives a Social Security disability pension and is thereby limited in the amount of annual earnings he may make. The Board has previously held that employees who are other- wise within the unit will not be excluded solely on the basis that their earnings are limited because they are Social Security annuitants. Noesting Pin Ticket Co., Inc., 214 NLRB 987 [Board's fn. 3] (1974); Consoli- dated Supply Co., Inc., 192 NLRB 982, 986 (1971). Accordingly, since O'Brien was working within the unit on the payroll period eligibility date, I recom- mend that the challenge to his ballot, on the above basis, be overruled. However, inasmuch as O'Brien is also alleged to have been employed as part of the Employer's al- leged scheme to "flood" the payroll, no final recom- mendation is made as to his eligibility at this time, and I recommend that a hearing be held to determine his eligibility. 9. Carlton Cox: Cox is employed as a driver. The Employer runs a courier service picking up and delivering packages for its customers. The Employer operates a fleet of vehicles to perform such services. Drivers on the road are dispatched to their particular assignments and do not necessarily return to the Employer's premises af- ter each run. General Manager Gagel testified that drivers do not have any discretion in taking runs, and that they must take an assigned run or be subject to disciplinary action. Gagel also testified that on the day of the election only one driver, not involved herein, was given the option of declining a run that might have interfered with his returning in time to vote. At the informal conference, which resulted in the signing of the Stipulation, there was a discussion con- cerning keeping the polls open after the scheduled time if employees had not returned from runs. It is in dispute as to what, if anything, was agreed to or un- derstood. In any event, the election was scheduled for 4:30 p.m. to 6:30 p.m. During the actual voting period, it was brought to the attention of the Board Agent conducting the elec- tion that some drivers might not make it back in time to vote during the scheduled period. There was some discussion on extending the voting period, the Employer's attorney admittedly agreeing initially to a 15-minute extension, while the Petitioner's repre- sentative wanted a 30-minute extension to 7 p.m. The Board Agent extended the voting period to 7 p.m. It is in dispute whether the Company's attorney with- drew his earlier agreement to a 15-minute extension. Cox arrived after the scheduled closing time and voted at 6:42 p.m., 12 minutes past the scheduled closing time. He was challenged by the Board Agent. Prior to the tally of ballots, the Board Agent unsuc- cessfully tried to resolve the challenges. Cox's manifest indicates that, starting at 3:10 p.m., he had five assigned runs in various parts of the Bos- ton area, the last run being made to Somerville, a city bordering on Boston. Cox states that the reason for his being late was that he was doing his assigned runs. There is no evidence to the contrary. In Westchester Plastics of Ohio, Inc. v. N. L. R. B., 401 F.2d 903, 908 (C.A. 6, 1968), enfg. 165 NLRB 219 (1967), the circuit court set out the standards the Board has traditionally used in determining the eligi- bility of a late voter: (1) the reason the employee was late; (2) how late the employee was; (3) how long the voting period was; (4) whether the ballot box was opened or the tally commenced at the time. In that case, the Board and the court approved the action of the Board Agent who permitted a late employee to cast a ballot. This principle was later confirmed in Groendyke Transport, Inc. and Ann Myers Bell d/b/a Bell Transport Company, 204 NLRB 96, 98 (1973). In the most recent case to address the issue, How- ard Johnson Company, 221 NLRB 542 (1975), the 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board overruled the challenge to the ballot of a part- OBJECTIONS time employee who missed the first voting session * * * * * because he was in school and missed a second later voting session by 5 minutes solely because he was practicing with a theatre group and forgot about the election. This apparent decrease in the weight to be given the first of the Westchester criteria, namely the reason for being late, was strenuously dissented to by Chairman Murphy, who recognized, however, that a valid and a reasonable excuse for being late was the Board's first criterion. Absent such a showing or a showing that the voting period was too short, Chair- man Murphy would require strict adherence to the time limit set for the voting period. Cox's reason for being late was solely related to his performing his runs, as to the assignment of which he had no control. Moreover, the time that he was per- forming these runs overlapped considerably into the very busy rush hour period. Although the voting pe- riod at first glance seems adequately lengthy, the na- ture of the business (employees being on the road) detracts from such a view. That this is so is supported by the earlier discussion at the informal conference concerning the possibility of drivers returning late. Furthermore, Cox was only 12 mimutes late .9 which puts him into the extension of time admittedly at one time agreed to by both parties. Finally, when Cox voted, the ballot box had not been opened nor the tally commenced. Based on all of the above, I recommend that the challenge to the ballot cast by Cox be overruled. [A]s stated earlier, evidence was presented dur- ing the investigation 11 in support of the Petitioner's allegation that, just prior to and dur- ing the payroll period determining eligibility, the Employer flooded the payroll with employees who were either members of Gagel's family or associated therewith, and with employees who were hired to vote against the Petitioner. The Employer denies having done so. Inasmuch as this issue raises questions of credibility which could best be resolved at a hearing, I recom- mend that a hearing be held on this aspect of the Objections. In summary, I recommend that: 1. The challenges to the ballots of David Gorman, Edward Simons, Michelle Harty, Charles Willett, Stuart Garr, George Ducharme, and Issac Williams be sustained; 2. The challenge to the ballot of Carlton Cox be overruled, but not opened at this time; * * * * * 4. A hearing be held to resolve the challenges to the ballots of Conrad Gagel and David O'Brien and that portion of the Petitioner's Objections, not specif- ically alleged in writing, which relates to the alleged scheme of the Employer to flood the unit with em- ployees unfavorable to the Petitioner. 15 It is well settled that the Board can consider evidence disclosed in its investigation independent of whether the conduct is raised in formal obiec- 9 See Glauber Water Works, 112 NLRB 1462 (1955), where the late voters tions Pure Chem Corporation, 192 NLRB 681 (1971); National Electric Coil voted 2-1/2 hours after the scheduled closing time Div McGraw-Edison Company, 184 NLRB 691 (1970)