GPS Terminal Services

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 839 (N.L.R.B. 1998)

GPS TERMINAL SERVICES 839
GPS Terminal Services, Inc. and Chauffeurs, Team-
sters and Helpers Local Union No. 776, a/w In-
ternational Brotherhood of Teamsters, AFL–
CIO, Petitioner. Case 4–RC–18840
August 27, 1998
ORDER DENYING APPEAL
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
The National Labor Relations Board has considered
the Employer’s “amended request for review” of the Re-
gional Director’s direction of a mail-ballot election.1 The
“request for review” is denied.
In denying the Employer’s appeal from the Regional
Director’s direction of an election by mail-ballot, we find
that the Regional Director did not abuse her discretion.
The Regional Director’s rationale for ordering a mail-
ballot election is consistent with the Casehandling Man-
ual and our recent decision in San Diego Gas & Electric,
325 NLRB 1143 (1998). Under the Casehandling Man-
ual, voting may be conducted by mailballot where eligi-
ble voters are “scattered” because of their duties. In San
Diego, we set forth guidelines clarifying the circum-
stances under which it is within the Regional Director’s
discretion to direct the use of mail-ballots. Under the
guidelines, a mail-ballot election may be appropriate
where employees are scattered because of their job duties
in terms of geography and/or varied work schedules so
that all employees cannot be present at a common place
and at a common time to vote manually. Where these
situations exist, the Regional Director in the exercise of
discretion should also consider, inter alia, the desires of
the parties and the efficient use of Board resources.
In this case, the Employer provides loading and off-
loading and truck trailer repair services for railroad carri-
ers. The Petitioner seeks to represent full-time and regu-
lar part-time packer/operators, jockeys, ground crew and
mechanics employed in the Employer’s Harrisburg,
Pennsylvania operation. The Employer sought to include
on-call employees. The Regional Director found that the
appropriate unit consisted of about 30 regular and 15 on-
call employees. The Regional Director found that the
Employer’s unit employees are scattered in the sense that
their work schedules vary significantly. The Employer’s
30 regularly scheduled employees typically work either a
day or night-shift schedule covering the Employer’s 24-
hour, 7 days’ a week operation. The Employer’s 15 on-
call employees are scheduled as work is available. The
Regional Director found that because of the regular and
on-call schedules, a significant proportion of the unit
employees would be unavailable at the Employer’s
premises for a manually conducted election absent sig-
nificant alterations of the work schedules of a substantial
proportion of employees.2

1 Although the document filed by the Employer is entitled a request
for review, we have treated it as a request for special permission to
appeal the Regional Director’s direction of a mail-ballot election, since
that determination was not contained in the Decision and Direction of
Election. Pertinent portions of the Regional Director’s letter setting
forth her reasons for directing a mail-ballot election are attached as an
appendix.
Having found that the employees were “scattered,” the
Regional Director then properly considered the parties’
desires and the efficient use of Board resources. The
Petitioner sought a mail-ballot election. Although the
Employer opposed use of a mail-ballot election, our de-
cision in San Diego required only that the Regional Di-
rector consider the positions of all the parties, not that
there be unanimity for holding a mail-ballot election.
With respect to husbanding of Board resources, the
Regional Director found that a manual election would
incur substantial costs in Board agent time and travel
expenses, including a probable overnight stay. The Em-
ployer’s facility is about 105 miles (a 2–3 hour drive)
from the Board’s Regional Office. Under the Em-
ployer’s proposal, the election either would have to begin
at 9 a.m. or be held in separate sessions during the day
and night shifts. In view of these factors, the Regional
Director found that a manual election would not be an
efficient use of limited available Board resources.3
The Regional Director’s decision thus fits within the
parameters of the Casehandling Manual and the guide-
lines set forth in San Diego. Accordingly, we conclude
that the Regional Director acted within the discretion
which she has been afforded to determine the method of
conducting the election, and we deny the Employer’s
“amended request for review” of her determination to
hold the election by mail-ballot.

CHAIRMAN GOULD concurring.
I join my colleagues in denying review of the Regional
Director’s decision directing a mail-ballot election. As I
stated in my separate opinion in San Diego Gas & Elec-
tric, 325 NLRB 1143, 1144 (1998), I would find the use
of mail-ballots appropriate in all situations where the
prevailing conditions are such that they are necessary to
conserve Agency resources and/or enfranchise employ-
ees. I agree that under the guidelines set forth in San
Diego Gas, a mail-ballot is appropriate in the instant
case. I would, however, also find the Regional Direc-
tor’s reliance on the Agency’s budgetary constraints is a
sufficient basis for directing a mail-ballot election. See
San Diego Gas, supra; Diamond Walnut Growers, 326
NLRB No. 4, slip op. at 3–4 (1998); London’s Farm
Dairy, 323 NLRB 1057, 1058 (1997); and Willamette
2 In San Diego, we specifically suggested consideration of a mail-
ballot where a significant number of eligible voters work on an on-call
basis.
3 In view of the foregoing, we find it unnecessary to rely on the Re-
gional Director’s additional finding that a mail-ballot is the most effec-
tive means by which to provide the six alleged discriminatees with an
opportunity to vote.
326 NLRB No. 71
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
Industries, 322 NLRB 856 (1997) (W. Gould concur-
ring).
My dissenting colleagues rely on the Employer’s offer
to call all employees to work on a single shift or a single
day. As I stated in London’s Farm Dairy, supra, al-
though the Employer’s offer to change employees’
schedules is not improper, the message sent to employees
is that their ability to vote is predicated on a different
work schedule over which they have no control. The
unilateral change of any aspect of the work relationship
which is within the employer’s absolute control cannot
be a prerequisite to employee access to the Board’s elec-
toral process. In my view, employee free choice is not
best realized under such circumstances. My dissenting
colleagues also state that the Union bears the burden of
proof as the party seeking “an exception to the norm of a
manual ballot.” I do not subscribe to this view. It is un-
disputed that the Regional Director has the discretion to
determine the election procedure, whether manual or
mail-ballot. Once the election procedure has been set,
the party seeking to alter that procedure has the burden of
demonstrating that the Regional Director abused her dis-
cretion. See Odebrecht Contractors of Florida, 326
NLRB No. 8 slip op. at 2 (1998) (W. Gould concurring).
In the instant case, the Employer has failed to meet this
burden.

MEMBER HURTGEN AND MEMBER BRAME, dissenting.
For the reasons stated in our dissent in San Diego
Gas& Electric, 325 NLRB 1143 (1098), we would re-
verse the Regional Director’s direction of a mail-ballot
election. In our view, a traditional manual election is not
infeasible. The Employer has offered to call all employ-
ees to work on a single shift, or to call them on a single
day (two shifts). A Board agent could easily travel the
105 miles to the election, incurring at most a single over-
night stay. These circumstances make a manual election
far from infeasible.
The Regional Director found that unit employees were
scattered by schedule/shift and by on-call status. She
asserted that some employees would “possibly” be in-
convenienced by the change offered by the Employer.
Of course, for those employees who would normally be
working on the shift during which the election is held,
there is no change at all. As to those who would be
changed to a different shift, there is no evidence of in-
convenience. The Union, as the party seeking an excep-
tion to the norm of a manual ballot, has the burden of
proof. There is no such proof.
Further, as to the “on-call” employees, such employees
are always subject to the Employer’s call. Thus, the Em-
ployer’s calling them in during an election period is not a
change in their “on-call” conditions.
Finally, the concurring opinion asserts that the Em-
ployer’s offer to make a change in the work schedule
sends a message to employees that they do not control
the work schedule. The concurring opinion concedes
that the Employer’s offer is not improper. Indeed, it
should be obvious to all that the Employer controls the
work schedule. No message is needed for that. Where,
as here, the Employer offers to change the work sched-
ule, so as to facilitate the voting process, the message
sent is that the Employer is accommodating the Board
and the rights of the employees. Indeed it is fanciful to
view such a scheduling change as an effort of the em-
ployer to demonstrate control. We agree with the
Chairman that employer control cannot be used so as to
deny “employee access to the Board’s electoral machin-
ery.” However, the control here was exercised to facili-
tate access to such machinery.
Accordingly, we would conduct a manual election.
APPENDIX
The voting unit in this case consists of all full-time and regu-
lar part-time packer operators, jockeys, ground crew, mechan-
ics, and production clerks employed by the Employer at its
Harrisburg, Pennsylvania facility. The Employer advises that
the voting unit consists of approximately 30 regularly sched-
uled employees and 15 “on-call” employees. The Employer
operates 24 hours a day and 7 days a week, and the regularly
scheduled employees typically work either a day or night shift
schedule. On-call employees are scheduled to work whenever
work is available. The Employer’s facility is approximately 105
miles from the Regional Office, and the driving time to the
Employer’s facility from the Regional Office is 2 to 3 hours.
The Employer acknowledges that the significant percentage
of on-call employees, many of whom would not be scheduled
to work on any given day, represents a significant problem in
conducting a meaningful manual representation election. None-
theless, the Employer requests that a manual ballot election be
conducted and has offered two proposals which it asserts would
facilitate the conduct of such an election. Under the first pro-
posal, the Employer would direct all employees to work a day
shift on the date of the election and conducting the election
from 9 to 11 a.m. In this scenario, the Employer would both
reschedule the night shift employees to the day shift and sched-
ule all on-call employees to work on the day of the election.
The Employer’s second proposal would be to schedule a split
shift election with separate 1-hour voting sessions for the day
shift and the night shift employees, while the Employer would
direct all on-call employees to work during the hours of the
election.
The Union requests that the voting be conducted by mail-
ballot. The Union particularly objects to any procedure which
would depend on revising the schedules of a significant number
of employees in order to facilitate a manual election. The Union
also asserts that a manual election would make voting difficult,
or even impossible, for individuals alleged to be discriminatees
in the concurrent unfair labor practice charge filed by the Union
in Case 4–CA–24834. The Union notes that these individuals
are not currently employed by the Employer, they may have
employment or personal obligations which could preclude them
from voting in a manual election.
Both of the Employer’s proposals would require in altera-
tions of the work schedules of a substantial proportion of em-
ployees, possibly inconveniencing them. In addition, because of
the travel distance and the timing of the start of the election, the

GPS TERMINAL SERVICES 841
Agency would incur substantial costs in Board agent time and
travel expenses, including a probable overnight stay. Because
of our limited resources, the National Labor Relations Board
must carefully limit expenditures and conserve budgetary re-
sources whenever possible.
In view of the foregoing, it is not prudent or efficient to have
a Board agent conduct a manual election in this matter. See
Reynolds Wheels International, 323 NLRB 1062 (1997). Fur-
thermore, it is not advisable to conduct a manual ballot election
in a circumstance which would require an alteration in a sub-
stantial percentage of employees’ schedules and may poten-
tially affect their views of the election process or interfere with
their other personal responsibilities. London’s Farm Dairy, 323
NLRB 1057 (1997). Finally, giving consideration to the alleged
discrimnatees who may chose to cast ballots, a mail-ballot is
the most effective means by which to provide them with an
opportunity to vote. Accordingly, I am directing a mail-ballot
election in this matter.