Thompson Roofing, Inc

THOMPSON ROOFING Thompson Roofing, Inc and United Union of Roof ers, Waterproofers and Allied Workers, Local No 22, Petitioner Case 3-RC-9088 November 16 1988 DECISION AND DIRFCTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board by a three member panel has considered determinative chal lenges in a secret mail ballot election held from November 12 to 25 1987 and the Regional Direc tor s report recommending disposition of them The election was conducted pursuant to a Decision and Direction of Election The tally of ballots shows six for and three against the Petitioner with seven challenged ballots The Board has reviewed the record in light of the exceptions and brief and has adopted the Re gional Directors findings and recommendations i DIRECTION It is directed that the Regional Director for Region 3 shall within 10 days of this Decision and Direction open and count the ballots of Stephen McEvoy Donald Forgone David W Chase James Kingsley Scott Labor and George Robinson and thereafter prepare and cause to be served on the parties a revised tally of ballots on the basis of which he shall issue an appropriate certification CHAIRMAN STEPHENS dissenting in part I agree with my colleagues in their adoption of the Regional Directors report except with respect to his disposition concerning the ballot of employee James T Brayton Brayton voted by mail ballot and the Board agent responsible for opening and tallying the bal lots proposed voiding his ballot because he had printed his name rather than signed it on the offi cial envelope in which the ballot was mailed The Employer challenged the decision to void the i We agree with the Regional Director for the reasons set forth in the attached portion of his report that the ballot of James T Brayton is void and should not be counted In so doing we further note that the Board has adopted specific procedures for mail ballot elections to preserve the integrity of the election process These procedures including the perti nent instructions here that voters sign and not print their names on the ballot envelope are necessary because mail ballot elections are more vul nerable to the destruction of laboratory conditions than are manual elec tions because of the absence of direct Board supervision over the employ ees voting In the absence of exceptions we adopt pro forma the Regional Direc tor s recommendation that the challenges to the ballots of employees David W Chase James Kingsley Scott Labor and George Robinson be overruled We also adopt for the reasons set forth by the Regional Di rector the Regional Directors recommendation that the challenges to the ballots of employees Stephen McEvoy and Donald Fogone be over ruled 743 ballot so Brayton s ballot was placed among those in the challenged category The Regional Direc tor recommended that Brayton s ballot not be opened and counted In making that recommendation the Regional Director relied on Section 11336 4 of the Boards Casehandling Manual (Part Two) Representation Proceedings which provides that the Board agent should also void ballots that are returned in enve lopes with no signatures or with names printed rather than signed He also relied on the direction which is contained in the instruction form sent to voters in mail ballot elections that each voter should sign his name on the outside of the ballot envelope and on evidence that Brayton was capa ble of signing his name in script The Regional Di rector acknowledged that there was no evidence of fraud and he did not find that there was any doubt that the ballot was in fact Brayton s The Employer excepts arguing that in the ab sence of any evidence of fraud or other irregular ity Brayton should not be denied the opportunity to have his vote counted I find the exception well taken Where as here there is no contention that Brayton did not in fact cast this ballot and there is no suggestion of any fraud a refusal to count the ballot elevates form over substance i I recognize of course that the Regional Director was follow mg the Casehandling Manual in reaching his deci Sion As the introduction to that manual makes clear however the manual does not consist of Board rulings or directives and although staff counsel are ordinarily expected to follow it in han dling cases it is expected that there may be depar tures through exercise of professional judgment in varying circumstances In my view such a depar ture is warranted here Therefore I would not adopt the Regional Directors recommendation on this matter and I would direct that Brayton s ballot be opened and counted i This case is distinguishable from Mission Industries 283 NLRB 1027 (1987) There the Board held that the absence of any identification stub on a returned mail ballot envelope in itself raised a reasonable doubt con cerning whether only eligible voters had participated in the election The Board agent thus had voided the ballot because he was unable to identify its source as an eligible voter As noted above there is no such uncertain ty in the present case APPENDIX James T Brayton The ballot of James T Brayton was challenged by the Employer in response to the ruling by the Board agent conducting the count of the ballots that Brayton s ballot was void because his name was printed on the ballot en velope rather than signed The Petitioner takes the post tion that the Board agent s decision was correct and that 291 NLRB No 108 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the ballot should be voided because the name on it was not signed but printed The Employer argues that at the heart of the Act is an employees right to vote in a rep resentation election and that absent evidence of fraud or other types of ineligibility a voter should not be disen franchised for the reason at issue While the investigation revealed no evidence of fraud or other types of ineligibility concerning Brayton s ballot section 11336 4 of the National Labor Relations Board Casehandling Manual (Part Two) Representation Proceedings provides in pertinent part that The Board agent should also void ballots that are returned in enve lopes with no signatures or with names printed rather than signed There is no dispute that the name on the Brayton ballot envelope was James T Brayton and that the name was printed and not signed on the enve lope The Instructions to Eligible Employees Voting By United States Mail form which is sent to all eligible voters also specifically instructs that voters are to sign and not print their names on the outside of the envelope Evidence supplied by the Employer concerning Bray ton s signature is instructive On the first document (W 4A form) appended as Exhibit 1 Brayton printed his name in accordance with the instructions On an employ ee general information form appended as Exhibit 2 he printed his name where no instructions were provided and on a third employee form appended as Exhibit 3 he signed his name under the Employees Signature line These documents demonstrate that Brayton signs rather than prints his name when so instructed The case relied on by the Employer does not address the issue that is the basis of the Board agent s challenge In Pacific Gas & Electric Co 89 NLRB 938 (1950) one of the participating unions objected to the authenticity of a signature but failed to submit evidence in support of its contention Those facts are not present in the instant case Based on the foregoing the undersigned concludes that the Board agent correctly voided Brayton s ballot and therefore recommends that the challenge to his ballot be overruled 3 Accordingly I conclude that Bray ton s ballot is void and recommend that it not be count ed S Brayton s ballot was received by the Region after the November 25 cutoff date but before the November 30 count of ballots Both parties stipulated that Brayton s ballot be opened and counted thereby waiv mg the deadline Therefore it is recommended that in the event the challenge is ultimately sustained the lateness of Brayton s ballot would not be a bar to the opening and counting of his ballot See Sec 11336 4 of the NLRB s Casehandlmg Manual Representation Proceedings supra