Garrity Oil Co., Inc.

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garrity Oil Company, Inc and Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner Case 1-RC- 18095 19 September 1984 DECISION AND DIRECTION BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held on 28 March 1984 and the Regional Director's report recommending dis- position of them The election was conducted pur- suant to a Stipulated Election Agreement The tally of ballots shows 10 for and 5 against the Peti- tioner, with 5 challenged ballots The Board has reviewed the record in light of the exceptions and brief and adopts the Regional Director's findings and recommendations, as modi- fied below It should be noted at the outset that, in light of the present tally of ballots and the number of chal- lenged ballots, the Petitioner would lose the elec- tion if, and only if, all five challenged voters are ul- timately determined to have been eligible to vote in the election and all five challenged ballots are cast against the Petitioner The Petitioner challenged the ballot of Richard Turner on the ground that Turner is a supervisor The Employer challenged the ballots of employees James Cain, John Flanagan, Martin Hale, and Jef- frey Nutting on the ground that they had been per- manently laid off prior to the election and there- fore were no longer employed by the Employer on the day of the election Consequently, the Employ- er maintains they were not eligible to vote The Petitioner contends that Cain, Flanagan, Hale, and Nutting were unlawfully permanently laid off and/or discharged prior to the election because of their union activities and therefore were eligible to vote Subsequent to the election, on 30 April 1984, the Regional Director issued an unfair labor prac- tice complaint alleging, inter aim, that the Employ- er permanently laid off and/or discharged Cain, Flanagan, Hale, and Nutting in violation of Section 8(a)(1) and (3) of the Act Therefore, the eligibility of these four employees to vote in the election will be effectively determined in the unfair labor prac- tice proceeding Subsequent to the election, the Petitioner with- drew the challenge to Turner's ballot, conceding in writing that Turner is not a supervisor According- ly, the Regional Director recommended that the challenge to Turner's ballot be overruled and that it be opened and counted, and a revised tally of ballots be issued If Turner's ballot is for the Peti- tioner, the revised tally would show 11 for Peti- tioner, 5 against, and the remaining 4 challenged ballots would no longer be determinative In this situation, the Regional Director recommended that a certification of representative be issued If Turn- er's ballot were against the Petitioner, the revised tally would show 10 for and 6 against the Petition- er The four remaining challenged ballots would still be determinative During the Regional Director's investigation, Cain, Hale, and Flanagan voluntarily submitted signed and sworn statements, and Nutting, who was out of the country, submitted a telegram, in which they waived their rights to a secret ballot and requested that their ballots be opened and counted in order to resolve the election, if possible, without waiting on the outcome of the unfair labor practice case The Regional Director, relying on Ladles Garment Workers, 137 NLRB 1681 (1962), therefore recommended that if Turner's ballot were against the Petitioner, leaving the ballots of the four alleged discriminatees still determinative, then those four ballots should be opened If one or more of those four ballots were for the Petitioner, then the Regional Director recommended that the Peti- tioner be issued a certification of representative We agree with the Regional Director that the application of Ladles Garment Workers, supra, wherein the Board directed the opening of two de- terminative challenged ballots cast by individuals who were alleged discriminatees in a pending unfair labor practice proceeding, is appropriate and proper under these circumstances In so finding, we rely on the fact that all four of the remaining chal- lenged ballots (the challenge to Turner's ballot having been withdrawn) were cast by individuals who are alleged discnminatees in a pending unfair labor practice proceeding As noted at the outset, the Petitioner can lose the election only if all five challenged voters are eligible and all five vote against the Petitioner Thus, if one of the ballots was cast for the Petitioner, then the Petitioner will win Further, if even one of the five voters is found to be ineligible it will be impossible for there to be five valid "no" votes cast against the Petitioner and the Petitioner will win In these circumstances it is obviously unnecessary to know which voter cast which ballot Accordingly, in the interest of preserving the se- crecy of all five ballots in question, we do not adopt the Regional Director's recommendation that Turner's ballot alone be opened and counted In- 272 NLRB No 39 GARRITY OIL 'CO 159 stead, we shall direct that the five ballots be com- mingled and then opened at the same time DIRECTION It is directed that Case 1-RC-18095 be remanded to the Regional Director for Region 1 The Re- gional Director shall commingle and open the bal- lots of Richard Turner (the challenge to Turner's ballot having been withdrawn), James Cain, John Flanagan, Martin Hale, and Jeffrey Nutting The Regional Director shall determine if any one of these ballots is cast for Petitioner If so, and with- out issuing a revised tally of ballots, the Regional Director shall certify the Petitioner in Case 1-RC- 18095 If, however, all five of the ballots are cast against the Petitioner, the issue of the eligibility of alleged discrimmatees Cain, Flanagan, Hale, and Nutting to vote shall be consolidated for hearing with Case 1-CA-21917 If, upon the outcome of Case 1-CA-21917, any of the alleged discnmina- tees are found to have been lawfully terminated and thus ineligible to vote, the Regional Director shall certify the Petitioner If, however, all four al- leged discnminatees, having voted against the Peti- tioner, are found to have been unlawfully terminat- ed and thus eligible to vote, the Regional Director shall certify the results of the election in Case 1- RC-18095