Sabine Towing & Transportation Co., Inc.

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sabine Towing & Transportation Co., Inc. and Russell D. Haynes and William T. Mayo Sabine Towing & Transportation Co., Inc. and Seafar- ers International Union of North America , Atlantic, Gulf, Lakes and Inland -Waters District, AFL-CIO,- Petitioner. Cases 23-CA-4996, 23-CA-5403, and 23-RC-3606 October 14, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On June 16, 1976, the National Labor Relations Board issued a Decision, Order, and Direction of Third Election in the above-entitled proceeding.' Thereafter, on July 9, 1976, the Petitioner filed a mo- tion for reconsideration requesting that the Board re- consider its decision with respect to: (a) overruling Petitioner's objection that a list of certain persons, prepared by the Employer,, was utilized to determine who was entitled to board its vessel, the Trinity, for the purpose of voting in a Board-conducted elec- tion;' and (b) the Board's order-that an Excelsior list be made available to the parties herein only within 7 days after the issuance of a Notice of Third Election by the Regional Director.' We adhere to our original determination that Re- spondent's use of a guard and a list of off-duty em- '224 NLRB 941 2 In par. 7 of our Decision, Order, and Direction of Third Election, we referred to the list used by the Employer 's guard to determine who was permitted to board the Trinity as an eligibility list The list, however, was a list of employees not on duty aboard any of the Employer's vessels. 3 We find no merit in Petitioner's motion for reconsideration relating to the filing of the Excelsior list We find Petitioner's asserted reasons as to the inappropriateness of the traditional 7-day period for the filing of the Excel- sior list to be unpersuasive. In the absence of any compelling reason to deviate from our customary procedure , we shall adhere to our well-estab- lished policy of directing the filing of the Excelsior list within 7 days of the issuance of a Notice of Third Election by the Regional Director ployees to determine who was permitted to board the Trinity did not establish favoritism for Sabine Inde- pendent Seamen's Association over -the., Petitioner. However, upon due= reconsideration of our previous decision relating to Petitioner's objection to Respon- dent's use of such a list, we find merit in the Petitioner's,position that this was objectionable con- duct. We find that Respondent's conduct was a serious and improper interjection into the Board's, election processes., In effect, Respondent, in posting the guard with the list--of off-duty employees, was arrogating to itself the right to determine unilaterally Who should cast ballots-challenged or unchallenged-at any given location. These are questions for the Board agent to resolve,_ and the Board has held that any individual who presents himself at the polls has a right to cast at least a challenged ballot ( unless in a category specifically excluded by the Board in a deci- sion).4 Further, any individual has a right to assert his claim to the right to- vote directly to the Board agent. More importantly, -though, no party has a right to prejudge that claim or prevent the individual from presenting it to the Board agent. Thus, we find that. Respondent' s utilization of the guard and off-duty employee list was improper con- duct which prevented employees from asserting their right to vote to the Board agent conducting the elec- tion. Accordingly, we find that this objectionable conduct is a further basis for setting aside the second election held in February 1974, and directing a third election as provided in the underlying decision here- in. ORDER It is hereby ordered that the Petitioner's motion be, and it hereby is, granted with respect to the Em- ployer's use of the off-duty employee list to de- termine who was entitled to board its vessel to vote in the Board-conducted election, and our previous decision is modified in accordance with this Order. 4Jat Transportation Corp, 131 NLRB 122, 125 (1961) 226 NLRB No. 68