Mechanical Seal Div., Borg-Warner Corp.

MECHANICAL SEAL DIV., BORG-WARNER CORP. Mechanical Seal Division, Borg-Warner Corporation and Rudolph Roberts, Petitioner and Interna- tional Association of Machinists & Aerospace Workers, Local Lodge No. 2644, AFL-CIO. Case 21 -R D-) 1692 January 14, 1981 DECISION AND ORDER DIRECTING HEARING BY CAIRMAN FANNING AND) MMMBEIRS JENKINS ANI) P NI I ) Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered the objections to an election held on May 21, 1980,' and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Regional Director's report and recommendations only to the extent consistent herewith. In his report, the Regional Director, inter alia, recommended that the portion of the Petitioner's Objection 3 relating to the disenfranchisement of an employee be sustained and a new election be di- rected.2 We do not adopt that recommendation. The investigation reveals that on the day of the election employee Hamblin. who was an eligible voter, was told by Supervisor Reynolds that she could not vote because she was a probationary em- ployee. Thereafter, upon learning that Hamblin was in fact eligible to vote, Reynolds informed her of his error. The Regional Director found that it was not clearly established that Hamblin was in- formed of her eligibility prior to the closing of the polls. There is no evidence that any other unit em- ployee was a witness to or aware of the conversa- tions between Hamblin and Reynolds. The Regional Director concluded that the Em- ployer unintentionally disenfranchised Hamblin and sustained the relevant portion of the Petitioner's objections. In so doing, he rejected the Employer's contention that its action toward Hamblin was un- objectionable because Hamblin's vote could not have affected the outcome of the election. Thus, the Regional Director stated, "... where an eligi- ble voter is disenfranchised by the actions of a party to the proceedings, the election must be set aside." In its exceptions, the Employer contends The election was conducted pursuant to a Stipulation for Certifica- tion Ux)n Consent Election The tall was: 55 for, and 57 against, the Petitioner; there were no challenrged hallols 2 In the absence of exceptlons, we adopt. pro fjorrta, the Regional Di- rector's recommendations that the It o unlnunitr crd ohiccliols. file h the Petitioner on Ma) 27. and Petitloner's ()hwc tions 1, 2. 4. . t.r 7, 8. 10, and the remainder of 3. filed on MaN 2, he o( erruled 254 NLRB No. 71 that the Board has only found the disenfranchise- ment of employees by a party to an election objec- tionable where the ballots of the disenfranchised employees would have been determinative (Yerges lan Liners, Inc., 162 NLRB 1259 (1967)), 3 or where unfair labor practices, not present here oc- curred (Marine Welding and Repair Works, Inc.. Williamson Engine and Supply, Inc., Greenville Man- ufacturing and Machine Works, Inc., Greenville Pro- peller Works, Inc., 174 NLRB 661 (1969), enfd. 439 F.2d 395, 398 (8th Cir. 1971)). It argues that the al- leged disenfranchisement of one employee whose vote could not have affected the election's results does not constitute substantial interference with the free conduct of the election. We find merit in the Employer's contentions. The Regional Director's conclusion in the instant case is, in effect, the formulation of a per se rule re- garding the disenfranchisement of voters. The Board has recently avoided establishing such a per se rule. In Jobbers Meat Packing Co., Inc., 252 NLRB No. 8 (1980), the Board refused to set aside an election where a Board agent's delay in opening the polls disenfranchised an eligible voter whose ballot would have been nondetermina;tive. Noting the absence of any evidence that the delay in open- ing the polls affected the outcome of the election, the Board saw no reason to find that the possible disenfranchisement of a single employee whose ballot could not have been determinative warrant- ed the setting aside of tile election. In so doing, the Board stated that it had carefully avoided establish- ing a per se, rule which could easily be abused: The same reasoning applies in the instant case. Here, the disenfranchised employee's vote was not deter- minative. Nor is there any evidence that the Em- ployer's unintentional disenfranchisement of Hamb- lin in any way affected the outcome of the elec- tion.4 In these circumstances, we reject the Re- gional Director's formulation of a per se rule and shall overrule the Petitioner's Objection 3. In sum, we find no merit in the Petitioner's Ob- jection 3, and we hereby overrule it in its entirety.5 However, we have adopted the Regional Direc- tor's recommendation that Objection 9 be sent to a hearing. a See also Haskcil li, d .tfanufictruring Co, 77 N.RB 572. 573 (1948) We dLi ngish the Frimplorer' s 11illlllrtiinTIil disenifra l hli.Crentl orf an emplIoy)e. foiund here, from an eniploreCr' firrcible preccntinon f employ- ees from ,oting .lMarin, Weiding and Repuair 14ork.,. In. uypr See .iao AInt-cr ,o, rr . 2 s R 121. I 4' 1[7)1 Iid,; I,,. 2O N R 57. lS7 t 1 t7 /- ! . ( I ' NIS RH 5,~l I9n07 s We IherCfore fill] it unnecessar s to rule ion the F-mplo)cr' alterna- t\ie requeit for . hirilng on ()hleCtcilin 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 issues raised by the Petitioner's Objection 9. IT IS FURTHER ORDERED that the hearing officer designated for the purpose of such hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said objection. 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 exceptions there- to. 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 there- to, the Board will adopt the recommendations of the hearing officer. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 21 for the purpose of conduct- ing such hearing, and that said Regional Director be, and he hereby is, authorized to issue notice thereof. 598