Laubenstein & Portz, Inc.

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laubenstein & Portz, Inc. and Teamsters "General" Local No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case 30- RC-2700 November 5, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, PENELLO, AND WALTHER Pursuant to a petition and a Stipulation for Certifi- cation Upon Consent Election executed by the par- ties on November 13, 1975, an election by secret bal- lot was conducted in the above-entitled proceeding on December 2, 1975, under the direction and super- vision of the Regional Director for Region 30. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were approximately five eligible voters and that four bal- lots were cast, of which two were for and two were against the Petitioner. On December 5, 1975, the Petitioner filed a timely objection to the election alleging that the Board agent failed and refused to challenge the ballot of Emeron Robel. On January 15, 1976, the Regional Director issued a notice of hearing to resolve the is- sues raised by the objection. A hearing was held on February 5, 1976, before Hearing Officer James A. Miller. All parties to the proceeding were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues in this case. On June 15, 1976, the Hearing Officer issued and served on the parties his report in which he recom- mended that the objection be overruled and that the results of the election be certified. Thereafter, the Pe- titioner filed timely exceptions to the Hearing Offi- cer's report and the Employer filed a brief in opposi- tion to the Petitioner's exceptions. 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. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the Act to assert jurisdiction. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question of representation affecting com- r.Ierce exists concerning certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees constitute an appropriate unit for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act: All employees of the Employer at 218 Third Street, Hartford, Wisconsin, excluding all office clerical employees, salesmen, guards, and super- visors as defined in the Act. 5. We have considered the Hearing Officer's re- port, the Petitioner's exceptions, the Employer's brief, and the entire record, and find, contrary to the Hearing Officer, that a second election is warranted in view of the unusual circumstances involved in this proceeding. On August 29, 1975, the General Counsel issued a complaint in Case 30-CA-3222,' alleging violations of Section 8(a)(3) and (5) of the Act. On November 13, 1975, the parties reached a settlement agreement which provided, inter alia, that an election would be held to resolve the question concerning representa- tion. There was also a "verbal understanding" by the parties that Robel, whose supervisory status was in dispute,2 would be included on the Excelsior list but would vote subject to challenge.' Barnett Horowitz, the Board agent herein, testified as follows: About 3 weeks before the election, Burstein asked Horowitz to conduct it and indicated that one voter whose name Horowitz did not recall would be chal- lenged. Although Horowitz did not recall whether he was told the challenge was part of the settlement, he "assumed" it was. About 10 minutes before 4 p.m., when the polls were scheduled to open, Fred Hammer, the business representative of the Petitioner, appeared and in- formed Horowitz during the preelection conference that he did not have an observer and did not need one. Hammer pointed to one of the five names on the list as the individual to be challenged but Horowitz did not recall whether Hammer identified that indi- vidual as Robel. Horowitz, who "wanted to get on with the election and did not want to argue about eligibility," said, "OK, fine." ° Horowitz did not re- call whether he then removed from his briefcase an 'Counsel for the General Counsel was Mark Burstein 2 The complaint contained an allegation that Robel is a supervisor within the meaning of the Act 3 The parties stipulated to this effect at the hearing in the instant proceed- ing Horowitz testified that he did not tell Hammer that the latter would have to supply his own observer "to get the challenge made." Nor did Horowitz tell Hammer that Horowitz would not "make" the challenge. 226 NLRB No. 114 LAUBENSTEIN & PORTZ, INC 805 envelope in which to place the challenged ballot. When Robel walked into the polling area, the com- pany observer, James Moore, asked if he should put a "c" next to Robel's name to indicate that Robel would be voting subject to challenge. In response to Moore's statement that he did not intend to chal- lenge Robel, Horowitz replied, "If you aren't going to challenge [Robel], don't make . . . the `c,' and [Robel] can vote" without challenge.' Moore, who, as indicated above, served as the Company's observer, testified as follows: Hammer told Horowitz that "there will be a chal- lenge vote to Robel's name." There was a list of names "sitting on the table" and Hammer not only pointed to Robel's name but also announced it. Hor- owitz then said "OK" and pulled out "a special bal- lot . . . or special piece of paper" to be used for a challenged vote and placed it on the table. When Robel appeared, Moore asked Horowitz whether he [Moore] should challenge Robel's vote. Horowitz then inquired whether Moore was "person- ally" going to challenge Robel. Moore's response was, "no, the union is going to." Thereupon, Horo- witz said "OK," Moore checked Robel's name, and the latter voted without challenge. Petitioner's representative, Hammer, testified as follows: Hammer arrived shortly before 4 p.m. Although he had made arrangements for employee James Gertsch to serve as a union observer, Gertsch did not "show up" during the preelection period.' When Horowitz asked about the union observer, Hammer stated that he would get along without one but he wanted Robel challenged as a supervisor pursuant to the terms of the settlement and that "we could challenge him." Hammer pointed out to Horowitz Robel's name on the list as the name that Hammer wanted chal- lenged. Although Horowitz did not say "in so many words" that he would challenge Robel, Hammer as- sumed that Horowitz would do so when he reached for his briefcase, pulled out a challenge envelope, placed it "alongside" the ballots, and said, "OK." Contrary to our dissenting colleague, it is clear from the foregoing testimony that, prior to the time when Robel cast his ballot, Board Agent Horowitz was made fully aware of the settlement agreement and the understanding of the parties that Robel was to be challenged. Thus, Horowitz was told by anoth- er Board official well in advance of the election that one individual was to be challenged in connection 5In this connection , Horowitz testified that he understood that only an observer could challenge a voter and as only the Company had an observer, Horowitz assumed that the Company was the party to challenge Robel's vote 6 Gertsch arrived at 4 p in . at which time Hammer instructed him to vote with the settlement agreement. On the day of the election, the union representative referred to the set- tlement and pointed out to Horowitz that the parties agreed upon the challenging of Robel's ballot. Dur- ing the election, the company observer also called Horowitz' attention to Robel and raised the question about having his ballot challenged. With this unique situation confronting the Board agent, it was incumbent upon him to challenge Robel's ballot in order to implement a quintessential condition of the settlement agreement which had been worked out by the parties and approved by the Board. In finding that a new election was not warranted because the Petitioner did not plead an inability to obtain an observer, did not advance any reason for the challenge, and did not request the Board agent to challenge Robel, the Hearing Officer relied on sec- tion 11338 of the Board's Casehandling Manual for Representation Proceedings.' In so doing, he con- strues that section much too narrowly and does not take into account the cautionary language of the in- troduction of the Manual which states that "it is . . . expected that there may be departures [from the guidelines in the Manual] through exercise of profes- sional judgment in varying circumstances. [The guidelines] are not intended to be and should not be viewed as binding procedural rules." 8 Aside from our serious doubt as to the evaluation of the evidence by the Hearing Officer, it is obvious that the Board agent was not cognizant of or did not heed the warning against procrustean inflexibility in applying the guidelines. For "professional judgment" in this case requires a departure from or a tempering of the guidelines because of the officially sanctioned settlement of the parties who agreed upon a chal- lenge to Robel's ballot. Moreover, Section 102.69(a) of the Board's Rules and Regulations contains the following provision which is sufficiently broad to en- compass the circumstances herein: "Board agents That section provides as follows The Board agent must challenge anyone whose name is not on the eligibility list Also, he must challenge a voter if he knows or has reason to believe that the voter is ineligible to vote, but, in this instance, he should not challenge until and unless none of the parties voices a chal- lenge The Board agent will not make challenges on behalf of the parties whether or not such parties have observers present If any party genu- inely cannot obtain an observer, however, the Board agent should, upon good cause alleged by the party, state that party's challenge to a voter whose eligibility that party questions The Board agent should advise the party that he does not assume responsibility for assuring that the voter's ballot will be challenged The challenge is not made on behalf of the Board but is in terms of stating the party's challenge, e g , "The union has challenged your right to vote " The voter should then be voted under the challenge procedure 7 8 See Schwartz Brothers, Inc and District Records, Inc, 194 NLRB 150 (1971), which contains a significant warning against the danger that "rigid adherence to the guidelines of the [M]anual in all situations could well frustrate the purpose of . section [ 11338] as well as of the Act." 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may challenge, for good cause, the eligibility of any person to participate in the election." The parties' agreement prior to the election that Robel vote sub- ject to challenge constituted "good cause" for the Board agent to "state" the Union's challenge to Robel's ballot.' Accordingly, as the Board agent did not fulfill his duty to challenge Robel's ballot on behalf of the Union, we shall set aside the election held on Decem- ber 2, 1975, and direct a second election in order to comply with the agreement of the parties and thereby effectuate the purposes of the Act. ORDER It is hereby ordered that the election of December 2, 1975, among the employees in the unit described above, be, and it hereby is, set aside. [Direction of Second Election omitted from publi- cation.] 10 MEMBER WALTHER, dissenting: I believe that the Hearing Officer correctly dis- posed of the dispute in this case and that the majority has unwarrantedly rejected his recommendation. Ac- cordingly, I dissent. The facts in this case are simple. Petitioner filed an unfair labor practice charge against the Employer (Case 30-CA-3222) upon the basis of which the Gen- eral Counsel issued a complaint alleging, inter alia, that Emeron Robel was a supervisor. On the day of the hearing of the unfair labor practice case, as part of discussions relating to an informal settlement of the complaint, the Petitioner and the Employer oral- ly agreed that Robel's name would be included on the Excelsior list in the representation election to be held in this case and he would be permitted to vote subject to challenge. The parties stipulated that, while the General Counsel's representative in Case 30-CA-3222 knew of the agreement, there was no understanding at the time of the settlement of the unfair labor practice case that the Board would chal- lenge Robel. The election was scheduled to be held on Decem- ber 2, 1975, between 4 and 4:30 p.m. in the Employ- er's garage. The parties had been informed of the election details on November 14, 1975. The Board agent (Barnett Horowitz) who conducted the election had not been involved in the settlement discussions of the unfair labor practice case. About 10 minutes before the opening of the polls, Petitioner's business representative, Fred Hammer, arrived at the polling area with the intention of desig- nating employee Gertsch as Petitioner's observer at the election. Gertsch, however, did not appear at the polling place for the preelection conference. Two other employees did appear at the conference. One (Moore) was designated as the Employer's observer. Hammer testified that he considered using the other (Yunk) as a substitute for Gertsch, but did not do so in order not to get Yunk "in any trouble." 11 After Hammer arrived in the election area, Agent Horowitz asked him if Petitioner was going to have an observer. Hammer said Petitioner would get along without one. Horowitz requested Hammer to look over the eligibility list which consisted of five names. What happened next is in dispute. According to Hammer, he pointed to Robel's name on the list and said he wanted Robel challenged according to the settlement. According to Horowitz, Hammer pointed to one of the names, said he would be challenged, but did not request Horowitz to do the challenging. Em- ployee Moore, who acted as the Employer's observer at the election and was present at the conversation between Hammer and Horowitz, testified that Ham- mer said "there will be a challenge vote to Robel's name." At this point Horowitz said, "fine," took out a challenge envelope, and laid it on the voting table. Horowitz testified that he knew there had been a set- tlement of the unfair labor practice case, but was not aware of its "specifics." Hammer did not tell Horo- witz why he wanted Robel challenged. Horowitz did not inquire further because he was pressed for time and the election was scheduled to start in a few min- utes. Employee Gertsch, who was the intended observer for Petitioner, arrived in the polling area approxi- mately 2 to 5 minutes prior to the opening of the polls. He briefly conversed with Hammer before ap- pearing at the polls to vote. Hammer did not ask Gertsch to act as observer because he thought it was too late. Robel was second in line to vote and voted without challenge. The Hearing Officer concluded that Agent Horo- witz' failure to challenge Robel did not interfere with the conduct of a fair and free election and therefore recommended that the objections be overruled and a certification of results issue. I agree with him. Robel's name appeared on the eligibility list. If one of the parties objected to his eligibility to vote, it was the responsibility of that party to challenge his ballot. (See sec. 11338 of the Board's Casehandling Manual for Representation Proceedings.) The failure to do so 9 See N L R B v Schwartz Brothers and District Records, Inc, 475 F 2d 926 (C A D C, 1973), wherein the court found it proper for the Board agent There is no explanation as to why Yunk would be expected to get into to "state" the challenge "made" by a union "trouble" when, according to Hammer, no such fear existed with respect to 10 [Excelsior footnote omitted from publication ] Gertsch LAUBENSTEIN & PORTZ, INC. 807 was the result of the Petitioner's negligence in failing timely to designate an observer who would make the challenge and then in failing clearly to make the Board agent understand that he was asking the agent to challenge Robel and why . Hammer delayed until 10 minutes before the election to name his observer. When this designated observer , Gertsch , failed to ap- pear at the preelection conference , Hammer, instead of designating another employee who was present at the conference, did nothing and thus left himself without any observer . Moreover, Gertsch did actual- ly arrive in the polling area before the opening of the polls. Again, instead of trying to place Gertsch in the observer position , Hammer did nothing . Hammer also failed to make clear to Agent Horowitz what he wanted done . Horowitz did not know of the details of the agreement settling the unfair labor practice case. Moreover, that agreement did not require the Board to make the challenge to Robel 's ballot. There is disagreement as to exactly what Hammer said to Horowitz about the challenge . But there is no dis- agreement that at the time Horowitz was busy getting ready for the election which was to start in a few minutes. As events proved, he did not fully appreci- ate what Hammer desired, but this is understandable because at the time he was rushing to get ready for the election which was about to begin. There was a failure of communication, but this failure seems to me to be the fault of • Hammer rather than of the Board agent. It was Hammer's responsibility to see to it that Robel was challenged. Just as he was negli- gent about having an observer present at the election, so he was negligent in his communication to the Board agent with respect to Robel's challenge. The majority decision treats this case as if the sole cause of the failure to challenge Robel's ballot was the overstrict interpretation of the Board's Casehan- dling Manual instructions. I do not think that is the case at all. It appears to me that Agent Horowitz did not challenge Robel's vote because he did not under- stand that Hammer was asking him to challenge Ro- bel and he did not question Hammer further because of the pressure of time. There was fault here, but the fault was that of Hammer and not of Agent Horo- witz. Accordingly, I would adopt the Hearing Officer's recommendation to overrule Petitioner's objections and certify the results of the election.