Case Egg & Poultry Co, Inc.

CASE EGG & POULTRY CO Case Egg & Poultry Co , Inc and Russell H Lute and United Food and Commercial Workers International Union, AFL-CIO-CLC, Local Union 880 Case 8-RD-1451 May 8, 1989 DECISION AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered an objection to and determinative challenges in an election held August 17, 1988, and the attached Regional Director's report and supplemental report recommending dis- position of them The election was conducted pur suant to a Stipulated Election Agreement The tally of ballots shows 28 for and 23 against the Union, with 14 challenged ballots, a number suffi dent to affect the results of the election The Board has reviewed the record in light of the exceptions' and brief and adopts the Regional Director's findings2 and recommendations, except that it finds the Employer's Objection 1 raises sub stantial and material issues of fact3 that may best be resolved by a hearing DIRECTION It is directed that a hearing be held before a des- ignated hearing officer to receive evidence to re solve the issues raised by the Employer's Objection ' The Union excepted to the Regional Directors report sustaining the challenge to Mceuen s ballot It is undisputed that Mceuen was dis charged 2 days before the election The Union s only objection to the Re gional Directors report was that the Regional Director erred in stating that no unfair labor practice charge had been filed respecting the dis charge In a supplemental report issued December 6 1988 the Regional Director noted that such a charge had been filed but that it was with drawn by the Union on October 31 1988 The Union has not excepted to this supplemental report or otherwise contended that the charge has not been withdrawn 2 Absent exceptions we adopt pro forma the Regional Directors rec ommendation that the challenges to the ballots of Gravis Mceuen and Strittmatter be sustained and that a heanng be held to resolve the chal lenges to the ballots of Ash Burson Habick Lucas McGhee Millirons Parson Sapsford Smith Taylor and Waske 9 The Employer objected to the conduct of the election because the Board agent failed to supply a voting booth as promised resulting in a compromise of the secrecy of the ballot The Regional Director found merit in the objection and recommended setting aside the election and or dering a second election be held The Union s exceptions to the Regional Director s findings raise substantial issues of fact including whether the Region interviewed the Union s election observer and whether other em ployees were permitted in the polling area while each employee was voting We note among other things that the Union quotes the sentence from the Regional Directors report stating that several voters were in the voting room at the same time and saw how other voters voted and that the Union states it will present evidence which refutes this evi dence The affidavit of the Union s business representative who was at the Employer s facility on the day of the election states that it was re ported to him that employees remained outside the room until each em ployee who was voting had marked his ballot Under these circum stances we believe the better course is to hold a heanng before ruling on the merits of the objection 941 1 and the challenged ballots of Ash, Burson, Habick, Lucas, McGhee, Millirons, Parson, Saps- ford, Smith, Taylor, and Waske IT IS FURTHER DIRECTED that the hearing officer designated to conduct the hearing shall prepare and serve on the parties a report containing credibility resolutions, findings of fact, and recommendations to the Board as to the disposition of the objection and challenges Within 14 days from the date the report issues, any party may file with the Board in Washington, D C, eight copies of exceptions Im mediately upon the filing of such exceptions, the filing party shall serve a copy on the other parties and file a copy with the Regional Director If no exceptions are filed, the Board will adopt the rec ommendations of the hearing officer IT IS FURTHER DIRECTED that this proceeding is remanded to the Regional Director for Region 8 to issue notice of the hearing MEMBER JOHANSEN, dissenting Unlike my colleagues, I would find merit in the Employer's Objection 1, alleging a breach of voter secrecy because of the manner in which the elec- tion was supervised, and find that the Union has raised in its exceptions no substantial and material issue of fact warranting a hearing First, I note that the Union's exceptions do not contradict the Re- gional Director's finding that employees were per- mitted in the polling area as other employees voted, but state only that the parties had reached an agreement on a procedure designed to prevent such irregularities Second, there is no showing here of any abuse of discretion by the Regional Di- rector in his investigation into the objection' Ac cordingly, for reasons stated by the Regional Di rector, I would direct that the election be set aside based on the Employer's Objection 1 and a second election ordered ' Had the Region neglected to request to interview the union observer and had the testimony that individual would give contradicted the testi mony of other employee witnesses on which the Regional Director relies one would have expected the substance of that testimony to be conveyed in the Union s exceptions which it is not Thus the Union does not claim that its observers testimony disputes the finding of objectionable con duct Because it is the Union s position that voter secrecy was safeguard ed by permitting no more than one voter in the polling area at a time its observer is its only potential witness having sufficient knowledge of the facts to refute conclusively the evidence in support of the objection as there is no contention that anyone continuously monitored the entrance to the polling area to establish that no two employees were admitted at any one time Neither the union business agent s statement in his affidavit that nothing was reported to [him] which would be inconsistent with the pre election agreement [to safeguard voter secrecy] nor his further assertion that he had received reports of employees found outside the polling area while others were casting their ballots is a refutation of the specific allegations supporting the objection that were relied on by the Regional Director 293 NLRB No 120 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD REPORT ON OBJECTIONS AND CHALLENGED BALLOTS Pursuant to a Stipulated Election Agreement approved by me on August 4 1988, an election was conducted August 17, 1988, among the employees in the following described unit All full time and regular part time employees em ployed at the Employer's 1330 Austin Avenue, Akron, Ohio facility, including production, ware house, shipping, drivers, packing, and plant mainte nance employees but excluding all managerial, exec utive, office clerical, sales guards and supervisors as defined in the Act The Amended Tally of Ballots issued after the election shows that of the approximately 66 eligible voters, 66 cast ballots, of which 28 were cast for and 23 against the Union There was one void ballot There were 14 chal lenged ballots, a number sufficient to affect the results of the election On August 24, 1988, the Employer filed timely objec tions to the election, duly serving a copy thereof on the Petitioner and Union A copy of the Employers Objec tions is attached hereto and incorporated herein Pursuant to the provisions of Section 102 69 of the Board s Rules and Regulations, an investigation of the Objections and Challenged Ballots has been made, and I hereby make the following findings, conclusions, and recommendations THE OBJECTIONS During the course of the investigation, the Employer requested in writing to withdraw its Objections Nos 2 3, and 4 That request is hereby approved OBJECTION NO 1 In this objection, the Employer contends that because the Board Agent failed to provide a voting booth, it was impossible to maintain the secrecy of the ballot or the appearance of privacy for voting The election was conducted on August 17, 1988, from 6am to7am andfrom2pm to3pm The investigation disclosed that the Board Agent ar rived at the election site at approximately 5 45 am on the day of the election Based upon discussions during telephone conferences to obtain the election agreement the parties expected the Board Agent to provide a voting booth However the Board Agent was unable to secure a booth and consequently one was not used during the election The election took place in the lunchroom at the Em ployer's facility This room, which is approximately 15 feet by 30 feet, contained four long tables positioned par allel to each other from the front of the room to the back The voters entered the room through a doorway located at the front of the room and approached the ob servers who were seated behind the second table facing the door The Board Agent positioned herself at the end of and in front of the observer table As noted, no booth was provided Instead after a voter received a ballot, he or she preceded to the rear of the room and marked the ballot on the fourth table with his or her back to the ob servers In support of its Objection, the Employer presented evidence that during the election there were times when one or two employees were standing in line in front of the observer's table waiting to vote while another em ployee was marking his or her ballot on the back table A number of employees testified that while awaiting their turn to vote, they saw how the voter in front of them marked his or her ballot Moreover, employees tes tified that they had expected a booth to be present at the election and felt that since there was none, the secrecy of the voting process was compromised and they were un comfortable with the arrangements Investigation re vealed that, during the election campaign Employer Representatives Larry Saywell and Mike Popowicz had advised employees that a voting booth would be used at the election The investigation further disclosed that during both the morning and afternoon preelection conferences the Employers attorney had expressed concern to the Board Agent that she had not provided a booth His objection was noted by the Employers observer who wrote no voting booth next to his name on the Certification on Conduct of Elections form The Board's Notice of Election states an agent of the Board will hand a ballot to each eligible voter at the voting place Mark your ballot in secret in the voting booth provided (Emphasis Added) The National labor Relations Board Case Handling Manual (Part II) Repre sentation Proceedings at Section 11304 3, Voting Booths," describes a voting booth as a compart ment or a cubicle which not only provides privacy but which also demonstrates the appearance of providing pn vacy The Board is responsible for assuring properly con ducted elections and consequently its role in the conduct of elections must not be open to question New York Telephone Co 109 NLRB 788 790 (1954) In order to maintain its high standards for election procedures the Board has further adopted the policy of invalidating elections on the basis of evidence which raises merely a doubt as to the complete secrecy of the balloting proc ess Royal Lumber Co, 118 NLRB 1015 (1957), see also Sewell Plastics Inc 241 NLRB 887 fn 4 (1979) While I am not unmindful of the fact that in many elections Board Agents do not furnish booths because the Employer has agreed in advance to provide one or more boothlike structures, such was not the case in the instant matter Here, the improvised voting arrange ments, specifically the absence of a booth or boothlike apparatus, were entirely too open and too subject to ob servation to ensure the secrecy of the ballot Imperial Reed & Rattan Furniture Co, 118 NLRB 911 (1957) Accordingly, I conclude the Employers Objection No 1 has merit and, consequently I recommend that it be sustained and the election be set aside THE CHALLENGES As noted, there were 14 challenged ballots a number sufficient to affect the results of the election At the elec CASE EGG & POULTRY CO tion, the Union challenged the ballot of G Gravis based on its uncertainty as to the date he began his employ ment The following ballots were challenged by the Board Agent inasmuch as their names did not appear on the list of eligible voters P Ash F Burson V Habick D Mceuen Jr J Strittmatter R Waske M McGhee J Sapsford R Taylor E Parson H Lucas C Millirons, and D Smith By letter dated August 25, 1988, 1 requested that each of the parties to the election submit their respective posi tions regarding the validity of the challenged ballots The evidence submitted by the parties established that G Gravis and J Strittmatter commenced their employ ment with the Employer on July 18, 1988 Inasmuch as the payroll period for eligibility date in this matter was July 16, 1988, I conclude that the above named individ uals weie ineligible to vote in this election , and in the event that a second election is not ordered in this case, I would recommend that the challenges to their ballots be sustained D Mceuen Jr The investigation disclosed that D Mceuen, Jr was separated from his employment with the Employer effec tive August 15, 1988 In order to be eligible to vote in a Board election, an employee must be in the appropriate unit during the payroll period of eligibility and in em ployee status on the date of the election Plymouth Towing Company Inc, 178 NLRB 651 (1969), Greenspan Engraving Corp, 137 NLRB 1308, 1309 (1962) The em ployee seeking to vote must be employed and working ont he established eligibility date, unless he was absent for one of the reasons specified in Stipulated Election Agreement, i e, vacation, temporary layoff status, or military service Roy N Lotspeich Publishing Co, 204 NLRB 517 (1973) None of these circumstances apply to Mceuen Inasmuch as Mceuen does not meet the eligibility re quirements outlined above and there are no pending unfair labor practice charges alleging that his discharge was unlawful, I shall recommend that the challenge to his ballot be sustained P Ash F Burson V Habick, H Lucas, M McGhee C Millirons, E Parson, J Sapsford, D Smith R Taylor and R Waske 943 The ballots of the above named individuals were chal lenged by the Board Agent inasmuch as their names did not appear on the list of eligible voters The investigation disclosed that these persons were laid off shortly before the conduct of the election The Union, contrary to the Employer, takes the pose tion that the layoff is temporary in nature and that these persons have a reasonable expectancy of recall in the near future Inasmuch as the challenges to the ballots of Ash Burson Habrick Lucas McGhee Millirons Parson Saps ford Smith Taylor and Waske raise issues of fact amd credibility which cannot be resolved in an ex parte pro ceeding, I shall recommend that, in the event my recom mendation concerning Objection No 1 is not adopted, the challenges to the above ballots be resolved following a heanng before a duly designed hearing officer Howev er, if a second election is ordered, I recommend that challenges remain uncounted without dispositive ruling as to their ultimate eligibility to vote in the second elec tion CONCLUSIONS AND RECOMMENDATIONS The Employer s request to withdraw Objections Nos 2, 3, and 4 is hereby approved I conclude that the Employers Objection No 1 is meritorious and consequently recommend that it be sus tained, that the election be set aside and that a second election be ordered I further conclude that the G Graves D Mceuen Jr, and J Strittmatter were ineligible to vote in this election and in the event that a second election is not ordered in this matter I would recommend that the challenges to their ballots be sustained Finally, I conclude that the challenges to the ballots of P Ash F Burson V Habick H Lucas M McGhee C Milltrons E Parson J Sapsford D Smith R Taylor and R Waske raise issues of fact and credibility which cannot be resolved ex parte and therefore recommend that if a second election is not ordered in this matter, these challenges be resolved following a hearing before a duly designated hearing officer