Lemco Construction, Inc.

LEMCO CONSTRUCTION Lemco Construction, Inc. and International Brother- hood of Electrical Workers, Local Union 613, Petitioner. Case 10-RC-13029 31 March 1987 DECISION AND CERTIFICATION OF RESULTS OF ELECTION By CHAIRMAN DOTSON. AND MEMBERS JOHANSEN, BABSON, AND STEPHENS The National Labor Relations Board has consid- ered objections to an election held 24 October 1984 and the hearing officer's report recommending dis- position of them. The election was conducted pur- suant to a Stipulated Election Agreement. The tally of ballots shows no votes for and one against the Petitioner, with no challenged ballots. The Board has reviewed the record' -in light of the exceptions and brief, has adopted the hearing officer's findings2 and recommendations only to the extent consistent with this decision, and finds that a certification of results of election should be issued. The election in this case was scheduled to take place between 7 and 7:30 a.m. on 24 October 1984. Of approximately eight eligible voters, 3 only one cast a vote. The Petitioner filed objections to the election, claiming, inter alia, that the number of votes cast was not representative of the unit and the election should be rerun. The Regional Direc- tor found merit in this objection, and recommended that the election be set aside on this basis. The Em- ployer filed exceptions to the Regional Director's Report on Objections, contending that the vote was representative and that, in any, event, the lack of participation in the election was due to the Peti- tioner's conduct. A hearing was held pursuant to a Board Order issued 8 April 1985. i The hearing officer recommended that Objection 5 be overruled, and no exceptions to this finding were filed. We note that in his discussion of Objection 5 the hearing officer mistakenly identified a witness as "Adams" instead of "Lewis." 2 The Employer has excepted to some of the hearing officer 's credibil- ity findings. The Board's established policy is not to overrule ,a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the resolu- tion. The Employer also excepted the hearing officer's ruling that the Em- ployer had the burden to go forward at the hearing . We agree with the Employer that the burden to go forward at a representation hearing lies with the objecting party, which in this case is the Petitioner. However, we find that this erroneous ruling by the bearing officer is not prejudicial to the Employer and does not affect the outcome of this case. S The eligibility list stated that there were 11 employees eligible to vote in the election. Based on evidence provided by the Employer, the hearing officer found that three of these employees were no longer em- ployed by the Employer on the election date and thus were ineligible to vote No exceptions were filed to this finding , and, we adopt the hearing officer's conclusion that there were eight eligible voters. 459 In his Report and Recommendation on Objec- tions, the hearing officer found that there was no credible evidence to support the Employer's con- tention that the Petitioner's conduct had interfered with the election. He also found that the low voter turnout was caused by two employee absences, the desire of some employees to wait outside the poll- ing area together in order to vote as it group, and their mistaken belief that the timepiece used for the election would indicate the, same time as their own. When this group presented itself to vote, the polls were already closed . Based on the fact that only one vote was cast, the hearing officer then con- cluded that a substantial and representative comple- ment of employees did not vote, and the election should be set aside. We disagree. The Board has long held that the "majority" re- quired by Section 9(a) of the Act for purposes of selecting a collective-bargaining representative refers to a majority of those employees voting in an election. R. CA. Mfg. Co., 2 NLRB 159, 173-178 (1936). In situations where only one vote was cast, the initial Board position was to issue a certifica- tion. See Williams Dimond & Co., 2 NLRB 859, 870 (1937) (union certified as the representative in three-person unit where only one vote was cast). Five years later, however, in S.A. Kendall, Jr., 41 NLRB 395, 397 (1942), the Board reversed itself without any reference to Williams Dimond, and held that where only one employee voted in a three-person unit, the election was not representa- tive, and a second election should be held.4 Neither Kendall nor the other one-employee-vote cases that followed contain any explanation of the concept of a "representative" election or any anal- ysis of why a single vote cast in an election is not "representative" of employees' sentiment on union- ization. It seems apparent, however, that this con- cept emerged as a counterbalance to the "simple majority" rule in R. CA. Mfg., supra, because a rigid application of that rule could lead to the cer- tification of a union as the bargaining representa- tive in a unit where only a small fraction of the eli- gible employees had voted. One way to offset this "inequity" would be to consider an election to be "representative," and hence valid, only if a "sub- stantial" number of eligible employees voted.` No 4 See also Gold & Baker, 54 NLRB 869 (1944) (election petition dis- missed without prejudice where only one out of two eligible voters cast a ballot in the election); Firestone Tire & Rubber Co., 57 NLRB 868 (1944) (one valid ballot cast out of four eligible votes; election petition dismissed without prejudice); Kit Mfg., 198 NLRB 1 (1971) (second election or- dered where one out of two eligible employees voted). Compare Gemco Automotive Center #507, 198 NLRB 950 (1972) (election deemed repre- sentative where both eligible employees voted but one ballot was void). 9 See Standard Lime & Stone Co., 56 NLRB 522, 523 (1944)r enfd. 149 F.2d 435 (4th Cir. 1945) (election valid where less than a majority but still a "substantial" number of employees voted) 283 NLRB No. 68 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD numerical standard was established , to define "sub- stantial," however, and ad hoc judgments have since been made on a case-by-case basis. In general, as the percentage of employee participation de- clined, the likelihood of the election being set aside as unrepresentative increased. 6 The exception to this has been the one-voter participation cases which involve two-employee units.'' In another series of early cases, the Board did not measure the "representative" character of an election in terms of numbers or percentages alone. Rather, there developed a multifactor analysis con- cerned with certain elements in the election proc- ess. In these cases, the operative factors are: (1) whether there was sufficient notice of the election; (2) whether there was an adequate opportunity for employees to vote; and (3) whether there was evi- dence of interference with the electoral process by any party.8 As long as the election was fairly con- ducted, the failure of a majority of employees to exercise their right to vote was not permitted to in- validate the election, and the reasons for the em- ployees' failure to vote were considered immaterial to the certification of the , election results. We have considered these two lines of case law, and have determined that election results should be certified where all eligible voters have an adequate opportunity to participate in the election, notwith- standing -low voter 'participation. The fundamental purpose of a Board election is to provide employ- ees with a meaningful opportunity to express their sentiments concerning representation for the pur- pose of collective bargaining . The law does not compel any employee to vote, and the law should not permit that right, to refrain from voting, to defeat an otherwise valid election. As the Board observed in Yersail Mfg., 212 NLRB 592, 593 (1974), "[t]here must be some degree of finality to the 'results of an election, and there are strong policy considerations favoring prompt completion of representation proceedings ." In political elec- tions, voters who absent themselves from the polls are presumed , to assent to the will of the majority of those voting. Similarly, when a Board election is met with indifference, it must be assumed that the majority of the eligible employees did not wish to 6 Compare Weldmaster Co., 56 NLRB 168 (1944) (18-percent participa- tion unrepresentative), and Mechling Barge Lines, 69 NLRB 838 (1946) (21-percent participation unrepresentative), with Wanzer Dairy, 232 NLRB 631 (1977) (participation by two of three eligible voters consid- ered representative). 7 See, e.g., Gold & Baker and Kit Mfg., in which elections were set aside notwithstanding the fact that the one vote cast represented 50-per- cent 'participation. See Stiefel Construction Corp., 65 NLRB 925, 926-927 (1946); S .W. Evans & Son, 75 NLRB 811, 813 (1948); Valencia Service Co., 99 NLRB 343, 344 (1952). See also New York Handkerchief Mfg Co. v. NLRB, 114 F.2d 144 (7th Cir. 1940). participate in, the selection ,of a bargaining repre- sentative and are content to. be bound by the re- sults obtained without their participation . Only if it can be shown by objective evidence that eligible employees were not afforded an "adequate oppor- tunity to participate in the balloting"9 will the Board decline ,to issue a certification and direct a second election. Based on these considerations, we have decided to abandon any analysis dependent on a numerical test to determine the validity of a representation election. Rather, we will issue certifications where there is adequate notice and opportunity to vote and employees are not prevented from voting -by the conduct of a party or by unfairness in the scheduling or mechanics of the election.10 Prece- dent such as Kit Mfg. and Gold & Baker are incon- sistent with this approach and are, accordingly, overruled. In the present case, out of a unit of approximate- ly eight eligible voters, only one employee, the Employer's election observer, cast a vote. Five of the other unit employees were present on the Em- ployer's premises during the time of the election, and some had even indicated their desire to partici- pate in the election. These employees failed to vote, not because they lacked an adequate opportu- nity to participate in the balloting, but because' they chose to wait until the final minutes before the polls closed to, vote together as a group , and then found that the timepiece on which they relied dif- fered from the official timepiece used in the elec- tion. In the absence of a showing that any of the concerns articulated above have not been met or other unusual circumstances exist,", the reasons that an employee fails to exercise an ; opportunity to vote are not 'material to the certification of the election. As no such irregularities exist in the present case, the results of the election will be cer- tified. 9 International Total Services, 272 NLRB 201 (1984), quoting SW. Evans & Son, 75 NLRB at 813. 10 Southland Corp., 232 NLRB 631 (1977); Versail Mfg., 212 NLRB 592 (1974), NLRB v. MacDonald's Industrial Products, 731 F.2d 340, 342 (6th Cir 1984), enfg 264 NLRB No., 51 (Sept. 29, 1982) (unpublished). 11 This case is distinguishable from V.I.P. Limousine, 274 NLRB 641 (1985), retied on by the hearing officer; where a 20-inch snowstorm of blizzard proportions occurred during the polling period and a substantial number of employees did not vote . There, unlike here, the election proc- ess was disrupted by circumstances so severe that the Board 'had no alter- native but to set the election aside. In reaching that result, the Board fo- cused on "whether the election was conducted properly and in such a manner as to assure that all employees were given a sufficient opportuni- ty to vote," 'a test essentially identical to the one we have used in this case. Id at 642. In the present case, the circumstances leading to the em- ployees' failure 'to vote,' although unfortunate, were within their control, and do not constitute "unusual circumstances." LEMCO CONSTRUCTION 461 CERTIFICATION OF RESULTS OF erhood of Electrical Workers, Local Union 613, ELECTION and that it is not the exclusive bargaining repre- IT Is CERTIFIED that a majority of the valid bal- sentative of these bargaining unit , employees. lots have not been cast for the International Broth-