Pea Ridge Iron Ore Co.

PEA RIDGE IRON ORE CO. 161 Pea Ridge Iron Ore Company, Inc. and Unification Organizing Committee, United Auto Workers (UAW), International Association of Machinists (IAM), United Steel Workers of America (USWA), AFL–CIO–CLC, Petitioner. Case 14– RC–12165 August 24, 2001 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH The National Labor Relations Board, by a three- member panel, has considered objections to an election in the above-captioned case conducted on June 7 and 8, 2000, and the Regional Director’s supplemental report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows that of approximately 70 eligi- ble employees, there were 33 votes cast for and 32 votes cast against the Petitioner, with no challenged or void ballots. The Board has reviewed the record in light of the Em- ployer’s exceptions and brief, and has adopted the Re- gional Director’s findings and recommendations only to the extent consistent with this Decision. Under the Stipulated Election Agreement, the election was scheduled to be held from 5:30 to 6:30 p.m. on June 7, 2000, and from 6 to 8 a.m. and 3:30 to 6:30 p.m. on June 8, 2000. The Regional Director found, and it is undisputed, that the polls did not open until 5:37 p.m. on June 7, 2000. The Employer contends that the election should be set aside because the late opening of the polls possibly impaired the right of a determinative number of eligible voters to vote and thereby affected the outcome of the election. In the course of his investigation into the Employer’s objections, the Regional Director obtained statements from the five eligible voters who did not vote. Three of the eligible voters stated that they were out of town on vacation on June 7, a fourth stated he was unavailable because of a medical emergency on that date, and a fifth appeared at the polls on June 7 when they were open, but decided not to vote. On the basis of these statements, the Regional Director concluded that no eligible voter was possibly disenfran- chised by the late opening of the polls. We disagree. When election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of em- ployees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised. Wolver- ine Dispatch, Inc., 321 NLRB 796 (1996). The Board has made it clear that this objective standard not only safeguards the choice of the majority of employees vot- ing in the election, but also is necessary to protect the integrity of the election process itself. Id., Midwest Can- vas Corp., 326 NLRB 58, 59 (1998). Thus, the Board has consistently adhered to an objective standard that does not rely on after-the-fact statements obtained from eligible voters as to the reasons why they did not vote in an election. See, e.g., G.H.R. Foundry Div., Dayton Malleable Iron Co., 123 NLRB 1707, 1709 (1959); Whatcom Security Agency, 258 NLRB 985 (1981); and Nyack Hospital, 238 NLRB 257, 259 (1978). Here, the Regional Director erred by relying on such a statement. Thus, the statement from one employee that he appeared at the polls on June 7 but “decided not to vote” is clearly his subjective explanation for not voting. This is precisely the type of statement that the Board has said it will not accept as a means of determining subjec- tive voter intent. Thus, it does not constitute evidence sufficient to establish that the employee could not possi- bly have been prevented from voting by the late opening of the polls. Under these circumstances, where the election was de- cided by one vote, we find that the late opening of the polls potentially affected the results of the election. We therefore sustain the Employer’s objection and order that the election be set aside and a new one held.1 [Direction of Second Election omitted from publica- tion.] CHAIRMAN HURTGEN, dissenting. I would uphold the election and certify the Union. I agree that the Board does not accept postelection state- ments regarding the subjective reasons for an employee’s failure to vote.1 However, the instant case does not in- volve such statements. Rather, it involves contempora- neous objective facts which clearly indicate that the five employees’ failure to vote was not caused by the 7- minute delay in opening the polls. That is, three employ- ees were vacationing out of town on the date of the elec- tion. A fourth had a medical emergency on that date. A fifth employee appeared at the polls when they were open, and nonetheless declined to vote. 1 The Regional Director’s reliance on the statements from the other four employees who did not vote raises a closer issue. However, since the fifth employee’s situation was determinative, we need not reach this issue. 1 See G.H.R. Foundry Div., Dayton Malleable Iron Co., 123 NLRB 1707, 1708 (1959); Whatcom Security Agency, 258 NLRB 985 (1978). 335 NLRB No. 21 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162 With respect to this fifth employee, the significant point is not that he “decided not to vote.” Rather, the significant point is the objective fact that he arrived at the polls when they were open. Clearly and objectively, the late opening of the polls had nothing whatever to do with his nonvoting. Wolverine Dispatch, Inc., 321 NLRB 796 (1996), does not support the position of my colleagues. The Board there held that it would set aside an election if “the num- ber of employees possibly disenfranchised due to polls being closed when scheduled to be open is sufficient to affect the election outcome.” As discussed above, the objective evidence in the instant case affirmatively shows that no employees were possibly disenfranchised because of the 7-minute delay in opening the polls. Their failure to vote was attributable to other factors. In short, this case does not involve the vice of G.H.R. and Whatcom, viz. probing into subjective intentions revealed by postelection statements. I recognize that, in Whatcom, the Board also set forth a secondary rationale for overturning the election. The Board said: Moreover, where the irregularity concerns an essential condition of an election, and calls into question a de- terminative number of ballots to affect the outcome, to maintain the Board’s high standards the election must be set aside. It is difficult to ascertain whether this secondary rationale, by itself, would have prompted the result in Whatcom. However, even if it would have done so, it has no applica- tion here. As discussed above, the objective evidence makes it clear that the “irregularity” in this case had no ef- fect on the outcome of the election. Accordingly, I would certify the Union.