Tekweld Solutions, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 2014

361 N.L.R.B. 201 (N.L.R.B. 2014)

TEKWELD SOLUTIONS, INC. 201
Tekweld Solutions, Inc. and Warehouse Production
Sales and Allied Services Employees Union, Lo-
cal 811. Case 29–RC–099621
August 15, 2014
DECISION AND DIRECTION
BY MEMBERS MISCIMARRA, HIROZAWA,
AND JOHNSON
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held on November 19, 2013, and the Act-
ing Regional Director’s report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 22 for and 21 against the Petitioner, with 30 chal-
lenged ballots, a number sufficient to affect the results.
The Board has reviewed the report in light of the Em-
ployer’s exceptions and brief, and has adopted the Acting
Regional Director’s findings and recommendations for
the reasons that follow. In short, we conclude that the
Acting Regional Director did not abuse his discretion.
As the Acting Regional Director’s report explains, the
Union filed its representation petition1 on March 5,
2013.2 On March 21, the parties entered into a Stipulat-
ed Election Agreement that provided for a voting eligi-
bility date of March 8 and an election date of April 16.
Because the Union filed several unfair labor practice
charges, however, the election was not held as scheduled.
After a complaint issued and a hearing on the allegations
was scheduled, the parties settled the charges on August
30 and agreed that the election would be held as soon as
practicable after the completion of the settlement agree-
ment’s specified notice-posting period. Ultimately, the
election was held on November 19, and, as stated above,
the Union prevailed by a vote of 21–20, with 30 chal-
lenged ballots.
The Board agent challenged 24 of the ballots because
the voters’ names did not appear on the eligibility list.3
1 The Union seeks to represent a unit of:
All full-time and regular part-time printing department employees,
packaging, labeling, bottle capping, warehouse employees, shipping,
receiving, machine operators, and production employees employed by
the Employer at its 180 Central Avenue, Farmingdale, New York lo-
cation, but excluding all clerical employees, sales personnel, guards
and supervisors as defined by Section 2(11) of the Act.
2 All dates are in 2013, unless otherwise stated.
3 The Employer challenged the remaining six ballots—those of Ana
Ojeda, Alicia Benitez, Raquel Benitez, Wendy Figueroa, Osiris Canas,
and Roberto A. Portillo—contending that it was investigating their
eligibility to vote. Based on the parties’ later agreement that those
employees were eligible voters, the Acting Regional Director recom-
mended that their ballots be counted, and no party excepts to that rec-
The Employer acknowledges that 23 of the 24 were hired
after the eligibility date set forth in the Stipulated Elec-
tion Agreement, but argues that the Acting Regional Di-
rector nonetheless erred in sustaining the challenges to
their ballots.4 Specifically, the Employer argues that the
Acting Regional Director was obligated to revise the
voting eligibility date sua sponte to accord with the re-
vised election date. Having failed to do so, the Employer
contends, the Acting Regional Director should have
overruled the challenges to ballots cast by employees
hired after the unrevised eligibility date. Our dissenting
colleague would go further and order that a new election
be conducted using an updated eligibility list. Board
practice and precedent support neither result, and, in any
event, the Employer failed to raise its concerns in a time-
ly and procedurally appropriate manner.
The Board’s Casehandling Manual provides that for an
initial election like this one,5 the eligibility date should
normally “be the last [payroll] period ending before the
Regional Director’s approval of the agreement.”6 It fur-
ther states that in rescheduled elections, an employer
“will not be required to furnish a second list of names
and addresses” absent unusual circumstances.7 More-
over, the Casehandling Manual contains no indication
that the Region should, of its own accord, change a stipu-
lated eligibility date where the initial election has been
delayed due to blocking charges.8 We find that the Act-
ommendation. Accordingly, we shall direct the Acting Regional Direc-
tor to open and count those six ballots.
4 The Union argues that Christian C. Dominguez, the 24th voter
challenged by the Board agent, was ineligible to vote both because he
was not on the payroll as of the eligibility date and also because he was
employed by an employment agency, rather than by the Employer. The
Acting Regional Director found Dominguez ineligible to vote for the
latter reason. The Employer, in its exceptions, neither disputes the
finding that Dominguez was employed by an employment agency nor
asks the Board to overrule the precedent on which the Acting Regional
Director properly relied. Thus, we adopt the Acting Regional Direc-
tor’s recommendation, for the reasons he stated, to sustain the challenge
to Dominguez’ ballot.
5 We do not rely on Board precedent and practice regarding either
rerun elections, which the Employer finds applicable, or runoff elec-
tions, which the Acting Regional Director found “instructive.” The
election here was neither. It was simply the initial election, albeit post-
poned from the date initially agreed to.
6 See Casehandling Manual (Part Two) Representation Proceedings
(Casehandling Manual) Sec. 11086.3. Consistent with that instruction,
March 8, the voting eligibility date here, was the end of the Employer’s
last payroll period before the Acting Regional Director approved the
Stipulated Election Agreement on March 21.
7 Id. Sec. 11312.1(j). We are not persuaded that delaying the sched-
uled election by 7 months for the purpose of investigating, resolving,
and remedying the multiple unfair labor practice allegations at issue
here constitutes “unusual circumstances.”
8 A Stipulated Election Agreement is not normally subject to change.
Had the Acting Regional Director changed the eligibility date sua spon-
te, as the Employer contends he should have, such action could have
361 NLRB No. 18

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
ing Regional Director did not abuse his discretion by
following the guidelines set forth in the Casehandling
Manual, particularly absent any request by the Employer
that he do otherwise.
The cases on which the Employer and the dissent rely
are distinguishable. First, neither Interlake Steamship
Co., 178 NLRB 128 (1969), nor Hartz Mountain Corpo-
ration, 260 NLRB 323 (1982), involved the straightfor-
ward postponement of an initial election, as this case
does. The election ordered in Interlake Steamship was a
rerun of a runoff election (which had been set aside be-
cause of the employer’s objectionable conduct), and the
Board reasonably rejected the employer’s unpersuasive
contention that the rerun of the runoff election should use
the original eligibility date simply because the original
runoff election had used that date.9 Hartz Mountain also
involved a second election, where the initial election was
nullified because the union that had prevailed subse-
quently disclaimed interest in representing the unit.10 In
both Interlake Steamship and Hartz Mountain, not only
was the passage of time between the eligibility date and
the election—over 2 years in each case—at least triple
the 8 months that elapsed here, but each case also in-
volved intervening events that reasonably warranted up-
dating the eligibility list for the subsequent election.
Accordingly, neither case constitutes persuasive prece-
dent for changing the eligibility date in this case, let
alone for ordering a new election. In any event, the
Board has never set aside an election, as our colleague
would, based only on challenged ballots and in the ab-
sence of a party’s objections to the election.
In addition, the Employer’s failure to file objections,
particularly in conjunction with its failure to question the
eligibility list’s adequacy until 8 days after the election,
limits the issues that the Employer has preserved for our
consideration. As the events of this case unfolded, there
were a number of occasions on which the Employer
could have raised questions and concerns about the eligi-
bility date or offered to provide a new Excelsior list, but
constituted a material or prejudicial breach of the Stipulated Election
Agreement warranting a new election. See, e.g., T & L Leasing, 318
NLRB 324, 325–326 (1995). Even rescheduling the election here was
apparently done by agreement. See Acting Regional Director’s Report
on Challenges at 4 (in connection with settling the pending charges,
“[t]he parties agreed to schedule an election as soon as practicable upon
the closing of the Notice posting period defined in the Settlement
Agreement”).
9 As the Employer itself argues, the Board’s standard practice is to
use a new eligibility list for rerun elections. See also Casehandling
Manual Sec. 11452.2.
10 Further, it is not clear whether the administrative law judge in
Hartz Mountain raised the eligibility date sua sponte.
it did not:11 for instance, in mid-April, when the Employ-
er learned that resolution of the Union’s unfair labor
practice charges would prevent the election from being
held on schedule; in August, when the parties negotiated
a settlement of the charges, including a notice-posting
period that would clearly delay the election until at least
November;12 in communications with the Region in
preparation for the November 19 election; and at the
preelection conference on November 19. Even when the
votes were counted, there is no indication that the Em-
ployer suggested that the high number of challenged bal-
lots demonstrated that an updated list should have been
used. Nor, as stated, did the Employer file objections to
the election based on the assertedly outdated Excelsior
list. Only after voting had closed, the tally of ballots had
been completed, and the deadline for objections had
passed did the Employer first contend that an updated list
should have been used.13 In these circumstances, we find
that the Employer failed to raise its dissatisfaction with
the eligibility date and Excelsior list either at an appro-
priate time or in a manner that would allow us to consid-
er setting aside the election because of it.
Lest there be any doubt, we share our dissenting col-
league’s concern about voter disenfranchisement, and we
likewise aspire to an election process that allows for
broad employee participation.14 But our precedents re-
flect the reality that countervailing factors, which protect
the overall process, will sometimes outweigh the value of
enfranchising each and every employee. Our colleague
acknowledges that changes in the employee complement
between a Stipulated Election Agreement’s eligibility
date and the election date are often unavoidable,15 and
11 Parties are encouraged to resolve as many voting eligibility issues
as possible before the election. Casehandling Manual Sec. 11312.4.
The Casehandling Manual further instructs that “[a]rrangements should
be made for keeping the [eligibility] list(s) up to date, with a final check
made at a preelection conference.” Id. Although the Casehandling
Manual suggests that “[i]f the number or nature of challenges raised is
significant, consideration should be given to withdrawal of the Region-
al Director’s approval of the election agreement,” id., that option exists
only if the challenges are raised before the election. Preelection resolu-
tion of challenges relies on the parties themselves to raise their con-
cerns promptly, which the Employer did not do.
12 According to the Employer, it had already hired 18 of the chal-
lenged voters before the August 30 settlement. Thus, it knew or should
have known by then that the March eligibility list would omit a signifi-
cant number of employees.
13 Given the Employer’s knowledge of changes to its employee
complement but persistent lack of effort to prevent the voter disenfran-
chisement that it now protests, its belated dismay rings somewhat hol-
low.
14 We do not, however, find it useful to assess the election’s fairness
by comparing the number of challenged voters to the number of valid
votes for or against the Union.
15 Like our colleague, we note that our blocking charge standards are
under review in our pending rulemaking process regarding the repre-

TEKWELD SOLUTIONS, INC. 203
also that employees, along with the union and the em-
ployer, need to know who will be permitted to vote. A
settled voting eligibility date also minimizes the possibil-
ity that hiring decisions will be made with an eye toward
affecting the election’s outcome. See Roy N. Lotspeich
Publishing Co., 204 NLRB 517, 517–518 (1973), and
cases cited.16 And, as explained, the Employer took no
action to seek the later-hired employees’ enfranchise-
ment before the election, or even to file objections to
their disenfranchisement after the election. Thus, contra-
ry to our colleague’s view that our “overriding statutory
responsibility” requires us to cure the perceived deficien-
cy in this election by setting the election aside, our view
is that the only issue properly before us is the question of
whether to sustain the Board agent’s ballot challenges.17
We answer that question, in accordance with our
longstanding practice and precedents and consistent with
the applicable abuse-of-discretion standard, by adopting
the Acting Regional Director’s recommendation to sus-
tain the challenges to the ballots of the 23 employees
hired after the stipulated eligibility date.
DIRECTION
It is directed that the Regional Director for Region 29
shall, within 14 days of the date of this Decision and Di-
rection, open and count the ballots of Ana Ojeda, Alicia
Benitez, Raquel Benitez, Wendy Figueroa, Osiris Canas,
and Roberto A. Portillo. The Regional Director shall
then serve on the parties a revised tally of ballots and
issue the appropriate certification.

sentation process. See “Representation-Case Procedures,” Notice of
Proposed Rulemaking, 79 Fed. Reg. 7317 et seq. (February 6, 2014).
In the meantime, we apply extant law and procedure.
16 See also Concepts & Designs, Inc., 318 NLRB 948, 958 (1995)
(Board agent explained that negotiated eligibility date was intended to
avoid “concerns [that] an [e]mployer could pad the list with other em-
ployees . . . .”).
17 We reject, as contrary to longstanding Board practice and damag-
ing to the representation process, our colleague’s contention that a
Stipulated Election Agreement becomes wholly unenforceable if the
election date—or any other material term—changes. The dissent’s
approach would essentially require regional directors to monitor elec-
tion agreements and sua sponte open them to renegotiation under a
wide variety of circumstances. We decline to place those additional
burdens on our regional directors.
The dissent also suggests that, because the Stipulated Election
Agreement here did not expressly address a possible election post-
ponement, the Employer cannot fairly be expected to have known that
the original eligibility date would apply. We reject that claim in view
of the clarity of the Board’s procedure regarding rescheduled elections,
counsel for the Employer’s extensive experience with Board proce-
dures, and the Employer’s failure to seek clarification or offer a new
Excelsior list. But even assuming that the Employer did not understand
all the ramifications of the election agreement when it later agreed to
the rescheduling of the election, we cannot excuse its failure to raise
this issue prior to the election itself or in postelection objections.
MEMBER MISCIMARRA, dissenting in part.
The instant case involves a Stipulated Election Agree-
ment, entered into on March 21, 2013, that expressly
provided (i) the election would take place on April 16,
2013, and (ii) the eligibility date (when individuals must
be employed to be eligible to vote) would be March 8,
2013. The March 8, 2013 eligibility date is also used to
identify those employees whose names and addresses
must be disclosed to the Union in the “Excelsior list”
required to be submitted by the Employer within 7 days
of the Regional Director’s Decision and Direction of
Election. The Union filed unfair labor practice charges
against the Employer, which, under the Board’s “block-
ing charge” doctrine, deferred the election until Novem-
ber 19, 2013. By then, there were substantial changes in
the composition of the workforce. Ultimately, in the
November 19 election, 22 employees voted for the Un-
ion, 21 employees voted against the Union, and the larg-
est number of voters—23 employees, whose ballots were
challenged—were hired after the March 8, 2013 eligibil-
ity date. These 23 voters unquestionably are in the bar-
gaining unit, they voted, and they will be bound by the
results of the election. Nonetheless, the Board directs
that their votes not be counted, even though their votes
outnumber both the employees whose recorded votes
were in favor of the Union and the employees whose
recorded votes were against the Union.
We do not know what the outcome of the election
would be if the 23 votes were counted. However, I dis-
sent from the decision not to count these votes, although
I believe the proper outcome—rather than counting these
votes based on a resolution of the pending challenges—is
to establish a new eligibility date and to direct a new
election.
Preliminarily, the Board does not guarantee that all
bargaining unit employees as of the election date will be
eligible to vote in an election. Rather, the Board sets an
eligibility date so that all parties—employees, union, and
employer—have reasonable certainty regarding who will
participate in the election. Also, the eligibility date helps
ensure that the names and addresses provided to the Un-
ion in the Excelsior list—which the Union can use to
communicate with listed individuals—accurately identify
the actual eligible voters. But there will often be some
employees identified as eligible voters who subsequently
become ineligible (for example, if their employment ter-
minates before the actual election date), and there will
often be some individuals who, as of the election date,
are bargaining unit employees, but nevertheless are not
eligible to vote (for example, because they were hired
after the eligibility date). I would not change these gen-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
eral principles, which are important to the Board’s ability
to conduct elections in an orderly manner.
However, this case presents a situation where, predict-
ably, the March 8, 2013 eligibility date would be a poor
benchmark for identifying eligible voters in a postponed
election that took place on November 19. In fact, “poor
benchmark” has proven to be an understatement, since,
as noted above, the number of challenged voters hired
after March 8 outnumber both the eligible voters who
voted in favor of the Union and those who voted against
the Union. In the unusual circumstances presented here,
I would establish a new eligibility date and direct a new
election—rather than counting the 23 challenged ballots
cast by voters employed after March 8—for the follow-
ing reasons.
First, we cannot fairly enforce the Stipulated Election
Agreement, which is the source of the March 8 eligibility
date, because the same agreement specified that the elec-
tion would take place on April 16. It is a black-letter
principle of contract law that a party cannot selectively
enforce one material term in an agreement while freely
disregarding the other material terms. Nothing in the
agreement addressed the possibility that the election date
might change, nor did the agreement indicate, in such a
circumstance, whether the eligibility date would change
or remain the same. For these reasons, the Board cannot
reasonably consider either party bound by the March 8
eligibility date specified in the Stipulated Election
Agreement.
Second, I do not believe the Board can reasonably
make the Employer or the Union responsible for the
problem caused by a failure to update the eligibility date,
nor do I fault the Region based on the failure to set a new
eligibility date. As noted above, the Stipulated Election
Agreement cannot reasonably be enforced against the
Employer or the Union given the changed election date,
the possibility of which is not addressed anywhere in the
agreement. It is possible that the Employer or the Union
could have raised a question about the eligibility date in
advance of the election. There is some precedent, how-
ever, where the Board has revised and made current the
eligibility date on its own initiative. See Hartz Mountain
Corp., 260 NLRB 323, 327 (1982); The Interlake Steam-
ship Co., 178 NLRB 128, 129 (1969). Moreover, the
problem in the instant case results primarily from the
Board’s blocking charge doctrine, which has spawned
criticism and commentary to a degree that prompted the
Board to solicit public input regarding potential modifi-
cations to the doctrine. See 79 Fed. Reg. 7318–7364
(2014).
Third, although I disagree with the outcome here, I
cannot even fault my colleagues, who reasonably con-
clude we should not resolve these problems by counting
the 23 challenged ballots cast by employees hired after
the March 8 eligibility date. Because the eligibility date
was never changed, these 23 voters were not named in
the Excelsior list provided to the Union. Under
longstanding Board law, the absence of these voters from
the Excelsior list unfairly disadvantages the Union be-
cause it never received proper notice regarding these
potential voters. (The content of Excelsior list disclo-
sures is also being reevaluated as part of the pending
proposed rule referenced above. Id.) There is also some
reasonable basis for my colleagues’ conclusion that the
only matter currently pending before us involves the dis-
puted challenged ballots, which suggests the Board could
reasonably limit its review to the question of whether or
not the disputed votes should be counted.
In my opinion, in an extremely unusual case like this
one, and when our regular procedures have been defi-
cient, we should satisfy our overriding statutory respon-
sibility to “assure to employees the fullest freedom in
exercising the rights guaranteed by [the] Act.” NLRA
Sec. 7, 29 U.S.C. § 157. I am not enthusiastic about
causing further delay, but I believe the most appropriate
action here is to set a new eligibility date and to direct a
new election.
Accordingly, for the above reasons, I dissent in part.