NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Sweetener Supply
Corporation, and International
Brotherhood of Teamsters, Local 705, Petitioner. Case 13–RC–21492
May 23, 2007
DECISION AND DIRECTION
By Members Liebman, Schaumber, and Kirsanow
The National Labor Relations Board, by a
three-member panel, has considered determinative challenges and an objection in
a second election held on July 14, 2006,[1]
and the hearing officer’s report (pertinent portions of which are attached as
an appendix) recommending disposition of them.
The election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 9
for and 7 against the Petitioner, with 7 determinative challenged ballots.[2]
The Board has reviewed the record in light of
the exceptions and brief, and has decided to adopt the hearing officer’s findings and recommendations only to
the extent consistent with this Decision and Direction.
The primary issue is whether or not employees Michael
Pew, Mark Pelafas, and David Cohen were eligible to vote in the July 14 election. The eligibility cutoff date for the election
was June 18. The Employer timely submitted
an updated Excelsior list that
included the names of Pew, Pelafas, and Cohen.
At the election, however, the Board agent stated that the updated Excelsior list was not in the file and
that she would use instead the list from the first election. The Board agent challenged the ballots of
Pew, Pelafas, and Cohen on the basis that their names were not on that list.
For the reasons that
follow, we reverse the hearing officer’s recommendations to sustain the
challenges to the ballots of Pew, Pelafas, and Cohen.[3]
At the hearing, Dorey A.
McCarty, general manager of operations for the Employer, testified that Pew,
Pelafas, and Cohen started their employment on the eligibility cutoff date,
Sunday, June 18. McCarty testified that
the employees were required to undergo training on June 18. Time records showed that each of the employees
was paid for 5 hours. No evidence was
introduced to show that the employees performed no bargaining unit work that
day.
The hearing officer found
that on June 18 all three employees were in training but did not perform any
bargaining-unit work and were therefore ineligible to vote. Accordingly, the hearing officer recommended
sustaining the challenges to the ballots of the three employees. The Employer excepts.
To be eligible to vote, an
individual must be “employed and working” in the bargaining unit on the
eligibility date, unless absent for certain specified reasons. Dyncorp/Dynair
Services, 320 NLRB 120 (1995). The
Board defines “working” as the actual performance of bargaining-unit work.
The hearing officer found
that there was no evidence that Pelafas, Pew, or Cohen performed any bargaining-unit
work on June 18. Accordingly, she
concluded that none of the three employees performed bargaining-unit work during
the eligibility period. However, the burden of proof rests on the party seeking to exclude a challenged individual
from voting. See, e.g., Golden Fan Inn, 281 NLRB 226, 230 fn. 24
(1986). Although the Board agent challenged
the ballots of Pew, Pelafas, and Cohen, it is the Petitioner as the party
seeking to establish their ineligibility that bears the burden of proof. See Arbors
at New Castle, 347 NLRB No. 50, slip op. 2–3 (2006) (although the Board
agent challenged employee
Gibson because her name was not on the eligibility list, it was the petitioner
seeking to establish Gibson’s ineligibility that had the burden to so prove). Thus, the burden is on the Petitioner to show
that the challenged employees did not perform bargaining-unit work, not on the
Employer to show that they did. McCarty’s
testimony establishes that the employees were in training on June 18. But neither McCarty’s testimony nor any other
evidence establishes that these employees did not perform any bargaining-unit work on June 18, either as part of
the training or in addition to the training.
The Petitioner has failed to meet its burden.[4] Accordingly, the challenges are overruled.
DIRECTION
It is directed that the Regional
Director for Region 13 shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of Michael Pew, Mark Pelafas, David
Cohen, and Debra Galvin. The Regional
Director shall thereafter prepare and serve on the parties a revised tally of
ballots and issue the appropriate certification.
Dated,
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Wilma B. Liebman, |
Member |
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Peter C. Schaumber, |
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Peter N. Kirsanow, |
Member |
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(Seal) National Labor Relations Board
APPENDIX
Hearing Officers’ report on challenged ballots and objections to conduct
affecting the results of the election with findings and recommendations
. . . .
The Challenged Ballots
The Board agent challenged the ballots of Michael
Pew, Mark Pelafas, David Cohen, and Steve Ohlrich on the basis that their names
were not on the Excelsior list1 (Excelsior
Underwear, Inc., 156 NLRB 1236 (1966)). The Petitioner challenged the ballot of Debra
Galvin on the basis that she is an office clerical and does not share a
community of interest with the bargaining unit employees.
. . . .
David Cohen
The Employer contends that David Cohen is an
eligible voter and the challenge to his ballot should be overruled. The Petitioner
contends that he is not eligible, as he was not hired until after the payroll
cutoff date.
Facts
Cohen, McCarty’s brother, was an employee of the
Employer prior to being incarcerated.2
According to McCarty, Cohen had to be
cleared for work and permission obtained for him to travel across State lines to work for
the Employer after his release.
McCarty testified that Cohen was released
shortly before the payroll cut off date of June 18. When McCarty talked with
Cohen about returning to the Employer, he offered Cohen $12 per hour and told
Cohen that since he was training other employees on June 18 Cohen could join
them. Cohen accepted and punched in on June 18; he was paid for 5 hours for
that day.
McCarty testified that the training consisted of
going through the Employer’s requirements and good manufacturing processes
(GMPs), which was extensive. A movie was
also shown. There is no evidence that Cohen performed any bargaining unit work
on June 18.
Analysis
The Employer contends that Cohen is eligible on
three grounds. The first is that Cohen had an expectation of returning to work
after his incarceration. The Employer further contends that Cohen was working
on the day of the payroll cut off date and was also working on the day of the
election, satisfying the Board’s requirement for eligibility to vote under Excelsior Underwear, Inc. The Employer also contends that, because the
wrong list was used at the election, his ballot is valid.
To support its argument that Cohen had an
expectation of returning, the Employer cites a judge’s decision,
In the instant case, no evidence was presented
at hearing that Cohen requested or was granted a leave of absence, or that he
was treated as an employee on a leave of absence or on layoff. No evidence was
presented that he was retained on the payroll, that any of his benefits
continued, or that he was replaced by another employee, whether temporary or
permanent, all the elements that the judge relied on in Chicago Future, supra. McCarty testified that he was in contact
with his brother, but I do not find that establishes Cohen’s expectation of
returning to the Employer. Thus, I do not find that he had a reasonable expectation
of returning to the Employer at the time of his incarceration.
The second argument, that he was on the payroll
on the payroll cutoff date as well as the day of the election to make him
eligible, must also fail. The evidence establishes that Cohen was working the
day of the election. However, Cohen reported on June 18, for which he was paid,
but he did not perform any bargaining unit work. Rather, the evidence presented
at hearing showed that he attended a mandatory training session along with
newly hired employees Pew and Pelafas. The Board has held in Dyncorp/Dynair Services, 320 NLRB 120
(1995), that in order to be eligible to vote, the employee must be employed and (emphasis added) performing
bargaining unit work during the payroll period, including the payroll cutoff
date, unless absent for certain reasons. The day that Cohen reported, June 18,
was the last day of the eligibility period. On that day, I find that he was in training
and did not perform bargaining unit work.
The third argument is that since the wrong list
was used, Cohen is eligible. I find that whether or not the correct list was
used is not dispositive of Cohen’s eligibility, as he appeared at the polls and
voted, albeit under challenge. Based on all the above, I find Cohen is not
eligible to vote and I recommend that the challenge to his ballot be sustained.
Mark Pelafas and Michael Pew3
The ballots of Mark Pelafas and Mike Pew were
challenged by the Board agent on the basis that their names did not appear on
the Excelsior list used at the
election. The Employer contends that the Pew and Pelafas are eligible because
they were employed on the payroll cutoff date and the day of the election, and
that since the wrong list was used at the election, their ballots are valid.
The Petitioner argues that they are not eligible, as they did not work for the
Employer as regular part-time employees.
I find that they are not eligible voters and I recommend that the
challenges to their ballots be sustained.
Facts
Both employees attended the same training on
June 18 with David Cohen. That date was also the first day that Pew and Pelafas
appeared on the payroll for the Employer and they were paid for five hours. The
evidence presented fails to establish that they performed any bargaining unit
work that date, but, according to McCarty, received the same training including
the movie, that Cohen received.
Analysis
As noted above, the Board has held in Dyncorp/Dynair Services, supra, that in
order to be eligible to vote, the individual must be employed and performing
bargaining unit work during the payroll period, unless absent for certain
reasons. The evidence established that Pelafas and Pew were in training and no
evidence was presented that they performed any bargaining unit work. The
Employer also argues that they are eligible because the wrong list was used. As
in the case of Cohen, I find that whether or not the correct list was used is
not dispositive of Pew’s and Pelafas’ eligibility as they too appeared at the
polls and voted under challenge. The testimony of the Union’s witness, Tim
Tatum, that he would have challenged them had their names been on the list, is
self-serving and speculative at best and cannot be relied on. Based on the
above, I find Pew and Pelafas are not eligible to vote and I recommend that the
challenges to their ballots be sustained.
. . . .
The Objection
Positions of the Parties
The Employer filed an objection to the conduct
of the election contending that the Employer timely filed with the Region, by
fax, a copy of the updated Excelsior
list for the rerun election. The remedy sought is a new election if the revised
tally shows that the Petitioner has a majority. In its brief, the Employer
requests that the Board adopt a per se rule to invalidate an election when an
incorrect eligibility list is used. The Petitioner contends that the objection
is irrelevant, as the employees who were left off the updated list would have
been challenged by the Petitioner even if they had been on the list.
Based on the evidence, the demeanor of the witnesses,
and relevant case law, I recommend that the objection be overruled as the
Employer failed to prove that the Board did not receive the list or that it
failed to provide it timely to the Petitioner. Based on the evidence, I do not
find that the use of the Excelsior
list interfered with the conduct of the election.
Facts
As noted above, the parties entered into a
Stipulation to Set Aside the Election and agreed to rerun the election, which
was approved on June 23, with the Excelsior
list due no later than June 30 in the Regional Office. The stipulation
provided that a second election was to be conducted on July 14, and the payroll
cutoff eligibility date was June 18.
The Employer presented Steve Safford, a systems
administrator for the Employer, who is familiar with the fax machines at the
Employer’s offices. He testified that the updated Excelsior list was faxed on June 30 at 3:24 p.m. and that it was received
by the Board, according to the fax receipt, Employer Exhibit 2. The fax log, Employer
Exhibit 3, showed that it was faxed by Edgar Palencia, manager of the file
room. Although there is a three-number prefix to the fax number of the Board
office, Safford testified that this number is a job code for the cost
accounting, not an area code for the telephone number. The Petitioner did not
cross-examine Safford.
Tim Tatum, the Petitioner’s observer, testified
that the Board agent informed the parties at the rerun election there was no
updated list in the file and stated the previous list would be used. Tatum
further testified that Employer Attorney Mike Klupchek did not object to the
use of the first list for that election. He testified that he heard Klupchek
say the Employer had sent another list but that Klupchek also said he was
willing to go through with the election using the first Excelsior list. Klupchek
made an offer of proof on the record that, when the Board agent said that the
original list was the only list she had in the file and that was the list they
were using, he had no option but to go ahead with the election.
Analysis
The Board has held that in order to set aside an
election on the basis of Board agent misconduct, the Board must be presented
with facts raising a “reasonable doubt as to the fairness and validity of the
election.” Smithfield Packing Co., 344
NLRB No. 1 (2004); Rheem Mfg. Co.,
309 NLRB 459 (1992). In this case, the Employer contends that the Board agent’s
use of the incorrect eligibility list interfered with the rights of the voters
as well as the laboratory conditions required for a fair and free election. The
remedy sought by the Employer is to have a rerun election if the
According to the Case Handling Manual (CHM)
Section 11312.1, the Employer is requested to prepare a list of full names and
addresses of eligible voters as of the payroll period contained, in this case
the stipulation to set aside the election. For the rerun election, the list is
updated to reflect those employees in the bargaining unit as of the payroll
cutoff date in the stipulation. The
Regional Director is to make the list available to all parties in the case. NLRB v. Wyman-Gordon Co., 394 U.S. 759
(1969), Excelsior Underwear, supra.
The Rules and Regulations provide that the list may be faxed to the parties.
The Excelsior rule is not intended to
test employer good faith or level the playing field between petitioners and employers,
but to achieve important statutory goals by ensuring that all employees are
fully informed of the arguments concerning representation and can freely and
fully exercise their Section 7 rights. J. P. Phillips, Inc., 336 NLRB 1279
(2001); Mod Interiors, Inc., 324 NLRB
164 (1997).
Immediately upon receipt of the list, the Region
should mail to all petitioners the list, which can also be faxed or picked up,
according to CHM Section 11312.2. In the CHM, Section 11318, any last minute
changes are to be discussed at the preelection conference.
The evidence establishes that the Employer
complied with submitting a complete list to the Region in a timely fashion. The
Employer presented no evidence that that the Region did not receive it, or that
the Region did not forward it to the Petitioner. The Petitioner did not present
evidence that it contacted the Region concerning the whereabouts of the updated
list. The only evidence presented was the Board agent’s statement at the
election that the updated list was not placed in the file and therefore she was
using the list from the first election. This
is not a case where the Board ordered a new election because the updated list
was received after the due date, Alcohol &
Drug Dependency Services, 326 NLRB 519 (1998); Coca-Cola Co. Foods Division, 202 NLRB 910 (1973). This is not a
case were the Board sent the list to the Petitioner late, J. P. Phillips Inc., supra; Alcohol
& Drug Dependency Services, supra, or that it was incomplete, Special Citizens Futures Unlimited, 331
NLRB 160 (2000). The issue to be considered is whether the Board’s failure to
have the updated list in the file for the rerun election, but continued with
the election using the former list, resulted in an invalid election.
There was no evidence presented that the Board
did not receive the list, and in fact, the evidence presented by the Employer
shows that the Board did in fact receive it. Therefore, I must conclude that
the Board received the list. There is no evidence that the Board agent, after
the due date for receipt of the list passed, asked the Employer to resubmit the
list or contacted the Employer about its failure to submit the list. There was
no evidence presented that the Board did not forward the list to the
Petitioner. Therefore, I must conclude that the Board received the list and
forwarded it to the Petitioner. There was no evidence presented that the
Petitioner did not receive the updated list. There was no evidence presented to
establish that, after the deadline of the submission of the updated list
passed, the Petitioner inquired of any Board agent concerning the whereabouts
of the updated list. Therefore, I must conclude that the Petitioner did in fact
receive the list. The only evidence presented is a hearsay statement of the Board
agent at the time of the election that the updated list was not in the file,
and that the Board Agent decided to conduct the election using the first list,
according to the CHM. The fact that the updated list was not in the file is not
conclusive that the Board did not receive it or that it was not sent to the Petitioner.
There is no evidence on the record that the Petitioner objected to the use of
the old list or contended at the preelection conference that it did not receive
it. The evidence did establish that although the Employer commented on its use,
the Employer went forward with the election using the old list. There is no
evidence that, at the preelection conference, the Employer raised the issue of
the three employees whose names were not on the former list, should be added
and that they were eligible or that the parties discussed their eligibility. I
therefore find that the use of the list used in the original election did not
destroy the laboratory conditions of the election or that the use of that list
interfered with the conduct of the election. I also find that the Board agent’s
use of the list from the first election did not constitute Board agent misconduct
as the CHM provides that an election would go forward even without the list. I
recommend, therefore, that the objection be overruled.
RECOMMENDATION
Based on the record, I recommend that Michael
Pews, Mark Pelafas, David Cohen, and Steve Ohlrich are not eligible to vote and
that the challenges to their ballots be sustained. Having concluded that the Employer’s objection
to the election does not raise material or substantial issues with respect to
the conduct affecting the results of the election, I recommend that the objection
be overruled. I further recommend that the challenge to Debra Galvin’s ballot
be overruled.
[1] All dates herein are 2006. The first election was conducted on June 7;
the hearing officer inadvertently stated the date as June 6. The parties stipulated that that election be
set aside and a second election conducted.
[2] The parties entered into a stipulation
not to count the ballots of two of the challenged voters.
[3] We adopt, for the reasons stated by the
hearing officer, her recommendation to overrule the Employer’s objection to the
Board agent’s use of the eligibility list prepared for the first election. The Employer also submits that the Board
should not reach the merits of the Pew, Pelafas, and Cohen challenges because,
had the Board agent used the updated Excelsior
list that included their names, the agent would not have challenged them. We reject this argument, as did the hearing
officer. The fact of the matter is, they
were challenged, and their ballots are determinative. We must therefore resolve those challenges,
regardless of what may or may not have happened had the revised list been used.
In
the absence of exceptions, we adopt pro forma the hearing officer’s
recommendations to overrule the challenge to the ballot of Debra Galvin and to
sustain the challenge to the ballot of Steve Ohlrich.
Members
Schaumber and Kirsanow find it unnecessary to pass on the Employer’s
alternative contention that employee David Cohen was eligible to vote as an
employee who had previously worked for the Employer before being incarcerated,
and who had a reasonable expectancy of returning to work after his incarceration. As the challenge to Cohen’s ballot is
overruled on other grounds, this argument need not be addressed.
[4] Harold
J. Becker Co., 343
In
Member Liebman’s view, Harold J. Becker
is on point. It is undisputed that
Cohen, Pew, and Pelafas were in training on June 18. Under Board law, this demonstrates, as a
threshold matter, their ineligibility to vote.
Accordingly, the burden shifts to the Employer to show that the trainees’
activities that day included bargaining-unit work, and here, the Employer made
no such showing. Member Liebman would
thus adopt the hearing officer’s finding that the three trainees were not
eligible to vote.
1 The Employer filed an objection that the
incorrect Excelsior list was used at the election, which will be discussed below.
2 McCarty did not testify as to how long
Cohen worked for the Employer prior to his incarceration
3 The record reflects that
Pew left the Employer in early August.
4 The Employer does not present a remedy if
the