Lakewood Engineering & Mfg. Co.

LAKEWOOD ENGINEERING & MANUFACTURING CO. 699 Lakewood Engineering and Manufacturing Company and United Electrical, Radio & Machine Work- ers of America (UE), Petitioner and Interna- tional Brotherhood of Teamsters, Local 743, AFL–CIO. Case 13–RC–20869 April 30, 2004 DECISION ON REVIEW AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel, which has considered the Employer’s “exceptions”1 to the Regional Director’s Second Supplemental Decision on Objections. The Employer’s request for review is granted as it raises substantial issues warranting review. Having carefully considered the matter in light of the undisputed facts,2 the Employer’s request for review and brief in support and the Petitioner’s opposition, we find, contrary to the Regional Director, that Petitioner’s Ob- jections 1 and 2 are without merit and must be overruled. Accordingly, we remand this case to the Regional Direc- tor to resolve the outstanding challenges and Petitioner’s Objection 3. Facts On October 15, 2002, the Petitioner filed a petition to represent production, maintenance, and warehouse work- ers at the Employer’s Chicago, Illinois facility. The Re- gional Director issued a Decision and Direction of Elec- tion on December 23, 2002, directing an election for January 22, 2003, with an eligibility cutoff date of De- cember 22, 2002. The January 22 election was blocked by an unfair labor practice charge filed by the Intervenor. At the close of its investigation, the Regional Director dismissed the Intervenor’s charge and rescheduled the election for February 24 and 25, 2003. Over the Em- ployer’s objection, the Regional Director decided to use the same December 22 eligibility cutoff date for the Feb- ruary election. In response to the Region’s request, the Employer pro- vided an updated Excelsior list on February 14, 2003. Among the 320 names on the list, the Employer added eight employees who were hired between December 22, 2002, and February 2, 2003, who the Employer con- tended should be eligible to vote.3 The Employer also included a separate list along with the Excelsior list, 1 We have treated the Employer’s exceptions as a request for review. See NLRB Rules and Regulations § 102.69(g)(3)(ii). 2 The Employer and the Petitioner attached relevant documents and affidavits to their submissions. 3 February 2, 2003, was the payroll period ending prior to the Feb- ruary 7, 2003 date of the new direction of election. breaking out the names of the eight new hires for ease of reference. At the preelection conference, the Petitioner noticed the inclusion of these eight new hires on the Ex- celsior list and requested their removal. A Board agent stated that she could not remove the names in question without the agreement of the parties. Because the Em- ployer refused to strike the names, the Board agent al- lowed them to vote in the election.4 The February 24 and 25 election resulted in no party receiving a majority of the votes cast. The Region scheduled a runoff election for April 24, 2003.5 The Regional Director decided to continue to use both the December 22, 2002 eligibility cutoff date and the February Excelsior list for the April 24 runoff election. Once again, the issue of the eligibility of the eight new hires came up at the preelection conference. Once again, the Board agent stated that she could not strike the names without the agreement of the parties. And, once again, the Employer refused to so agree. The Board agent then informed the parties that absent such agreement, the party challenging the employees’ eligibility must lodge proper ballot challenges and that they should instruct their observers to make such challenges. The tally of votes for the April 24 election shows 140 votes for the Petitioner, 143 votes against the Petitioner, and 8 chal- lenged ballots. Of the disputed new hires, four voted without challenge; three voted under challenge; and one presumably did not vote. On May 1, 2003, the Petitioner filed three timely Ob- jections to Conduct Affecting the Results of the Election. Objection 1 alleges “the Board Agent failed to challenge four voters, despite having objective evidence, and thus actual knowledge, of their ineligibility to vote.” Objec- tion 2 alleges, “the day of the April 24 election, [Em- ployer’s] counsel . . . suppressed the facts regarding four voters’ ineligibility to vote.” Objection 3 alleges “the day of the April 24 election, [Employer’s] Plant Manager . . . told at least two employees known to have been hired after the cutoff date to vote in the election.” After inves- tigating the Petitioner’s objections, the Regional Director sustained Objections 1 and 2 without a hearing and set aside the results of the election.6 The Regional Director determined that because the Board agent knew the eight new hires were hired after the eligibility cutoff date, her 4 There is no indication whether the Petitioner challenged these bal- lots during the February 24 and 25 election. 5 The April 24 runoff election was scheduled after Intervenor’s ob- jections to the February election were investigated and dismissed. The ballot question before the employees at the April 24 runoff election was between representation by the Petitioner and no representation. 6 Because the Regional Director set aside the election based on her resolution of Objections 1 and 2, she did not address Objection 3 or the eight outstanding ballot challenges. 341 NLRB No. 101 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700 failure to challenge their ballots required that the election be set aside. We disagree. Analysis Petitioner’s Objections 1 and 2 raise two separate but interrelated issues. Objection 1 essentially alleges that the Board agent’s failure to challenge the ballots of the four new hires who voted without challenge amounts to Board agent misconduct requiring that the election be set aside. This objection requires the Board to determine whether the Board agent was required to challenge these ballots. Objection 2 makes a different allegation. Re- gardless of the Board agent’s duties, Objection 2 at- tempts to raise a postelection challenge to the eligibility of the four new hires who voted without challenge. This objection requires the Board to determine whether the Employer knew of the new hires’ ineligibility and sup- pressed the facts such that the Petitioner was unaware of a reason to challenge their ballots. We address these separate questions in turn. It is well settled that parties to an election bear the primary responsibility for challenging voter eligibility. See Balfre Gear & Mfg. Co., 115 NLRB 19, 22 (1956); Solvent Services, 313 NLRB 645, 646 (1994). Accord- ingly, the circumstances under which a Board agent must challenge a ballot are exceedingly narrow, lest the par- ties’ responsibility to lodge eligibility challenges be transferred to the Board and its agents. As a general proposition, a Board agent must challenge a ballot only when he or she “has actual knowledge of the voter’s ineligibility” and not merely where an em- ployee’s eligibility is “in dispute.” Solvent Services, 313 NLRB at 646. This actual knowledge requirement is satisfied in two limited circumstances: (1) where the em- ployee’s name does not appear on the Excelsior list or (2) where the Board has made an affirmative ruling that a given employee or employee classification is ineligible to vote or is to vote under challenge. See Wayne Hale, 62 NLRB 1393 (1945) (election set aside where Board agent failed to challenge foreman specifically excluded by the Board’s Direction of Elections); Laubenstein & Portz, Inc., 226 NLRB 804, 805 (1976) (election set aside where Board agent failed to challenge voter pursu- ant to a “quintessential condition of the settlement agreement which had been worked out by the parties and approved by the Board”). Absent such clear-cut facts, it cannot be said that the Board agent has actual knowledge of ineligibility. While other situations, like the current one, might create strong suspicions that a given em- ployee might eventually be found ineligible to vote, such suspicions, however strong, are not sufficient.7 Circum- scribing the situations in which a Board agent must chal- lenge a ballot serves the Board’s longstanding policy that the parties have the burden to raise eligibility issues and, importantly, protects the Board’s position as an unbiased neutral in the resolution of the question concerning rep- resentation raised by the petition. Based on our review of the undisputed facts, this case does not present the rare circumstances in which a Board agent’s failure to challenge a particular ballot will result in the election being set aside. The eligibility of the eight new hires was in dispute for at least 2 months before the April 24 runoff election, and the Petitioner was well aware of the presence of the new hires’ names on the Excelsior list. At no point during this time did the Board rule in any way on the appropriateness of the cutoff date or the eligibility of the new employees to vote. Absent such a ruling, we will not impute actual knowledge of ineligibility to the Board agent, requiring the Board agent to challenge the disputed ballot. Rather, we continue to leave the decision to raise such eligibility issues solely in the hands of the parties to the election.8 Our resolution of Objection 2 further supports our conclusion that the Board agent did not err in refusing to challenge the disputed ballots. Objection 2 is in effect a postelection challenge to the new hires’ eligibility to vote. The Board, with consistent approval of the courts, has long required that “challenges to the eligibility of voters be made prior to the actual casting of ballots, so that all uncontested votes are given absolute finality.” NLRB v. A. J. Tower Co., 329 U.S. 324, 331 (1946); Sol- vent Services, 313 NLRB at 646 (“[I]n the interest of promoting election finality, post-election challenges will not be permitted.”). An exception to this prohibition is where the party benefiting from the Board’s refusal to entertain the issue (1) knew of the voter’s ineligibility and (2) suppressed the facts masking the need for a chal- lenge. See A. J. Tower Co., 329 U.S. at 333. Based on our review of the undisputed facts, the circumstances surrounding the eight new hires establish that the Em- ployer did not suppress the facts concerning the eligibil- ity issue. Indeed, the Petitioner was aware of the Em- ployer’s inclusion of the new hires on the updated Excel- sior list for two full months before the April runoff elec- tion. 7 Similarly, a Board agent is not required to challenge voters where one of the parties does not have an election observer. See Balfre Gear & Mfg. Co., 115 NLRB 19, 22 (1956) (“The Union’s failure to provide an observer did not shift the responsibility of challenging to the Board agent.”). 8 Of course, the Board agent may within his or her discretion chal- lenge such a ballot or at the preelection conference strike certain names from the Excelsior list. LAKEWOOD ENGINEERING & MFG. CO. 701 This case is distinguishable from Beggs & Cobb, Inc., 62 NLRB 193 (1945), relied on by the Regional Director, where the Board sustained an objection amounting to a postelection challenge. In Beggs, eight employees who were originally included on the Excelsior list were no longer in the employ of the employer at the time of the election. The employer, the Board agent, and one of the two petitioning unions were all aware of the employees’ ineligibility, but the second union on the ballot was not. Because only three of the four parties were aware of the employees’ ineligibility, the Board determined the Board agent should have challenged the ballot. Here, there is no such prejudice to the Petitioner. The Petitioner was fully informed that the Employer had included the new hires on the Excelsior list and had an election observer capable of lodging objections throughout the balloting.9 The Employer even went as far as to include an addi- tional list highlighting these new employees for ease of reference. The Petitioner contends that the Employer suppressed the information by not explicitly stating that the new hires were both on the main Excelsior list and on the second new hire list.10 Two facts belie the Petitioner’s 9 In fact, the Petitioner challenged three of the eight new hires’ bal- lots at the election. No party provides an explanation for why the Peti- tioner challenged these three ballots, but did not challenge the ballots of the other four new hires who voted. 10 The relevant portion of the cover letter accompanying the Excel- sior list states: “It is the Company’s current position that these employ- argument. First, a simple comparison of the Excelsior list and the new hire list would have easily shown that the new hires were indeed included on the Excelsior list. Second, even if we were to accept the Petitioner’s ar- gument that the Employer’s letter implies that the new hires were included on only the separate list and not on the main Excelsior list, the simple fact remains that the Petitioner discovered the presence of the new hires on the Excelsior list before the first election in February. In fact, anticipating a similar problem at the runoff election, the Petitioner requested extra time at the preelection con- ference to deal with potentially ineligible voters being included on the Excelsior list. Under these circumstances, it is clear that the Em- ployer did not attempt to suppress the facts surrounding the eight new hires. Accordingly, we find no merit in Petitioner’s Objection 2. For the reasons discussed above, we therefore overrule Petitioner’s Objections 1 and 2. We remand this case to the Regional Director to resolve the outstanding chal- lenges and the Petitioner’s Objection 3. ees should be entitled to vote and should not be disenfranchised. We are, therefore, sending you a separate list of those employees hired in the apparently disputed time frame. We are submitting the list as a separate list so that it can be supplied to both Petitioners in this case to avoid arguments over the identity of these individuals in the future.