M & N Mail Service

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 451 (N.L.R.B. 1998)

M & N MAIL SERVICE 451
M & N Mail Service, Inc. and Ed Felks, Petitioner
and Highway and Local Motor Freight Employ-
ees’ Local Union No. 667. Case 26–RD–1003
August 27, 1998
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
The National Labor Relations Board has considered
the Union’s request for review of the Regional Director’s
Decision and Direction of Election (pertinent portions
are attached as an appendix).1 The request for review is
denied as it raises no substantial issues warranting re-
view.
In denying review of the Regional Director’s direction
of an election by mail-ballot, we find that the Regional
Director did not abuse his discretion. The Regional Di-
rector’s rationale for ordering a mail-ballot election is
consistent with the Casehandling Manual and our recent
decision in San Diego Gas & Electric, 325 NLRB 1143
(1998). Under the Casehandling Manual,2 voting may be
conducted by mail-ballot where eligible voters are “scat-
tered” because of their duties. In San Diego, we set forth
guidelines clarifying the circumstances under which it is
within the Regional Director’s discretion to direct the use
of mail-ballots. Under the guidelines, a mail-ballot elec-
tion 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 at a common time to vote
manually. Where these situations exist, the Regional
Director, in the exercise of discretion, should also con-
sider, inter alia, the desires of the parties and the efficient
use of Board resources.
Here, the Regional Director found that the Employer’s
employees are scattered in the sense that their work
schedules vary significantly. The Employer’s 34 over-
the-road truckdrivers haul mail between Memphis and
New Orleans, leaving at various times throughout the
day and night and not returning to Memphis until the
following day. There are about 12 runs departing from
the Memphis area each day and returning the next. The
Regional Director found that the drivers have a staggered
work schedule so that if the election were confined to
any given 2-workday period, five of the employees (15
percent of the unit) would not be scheduled to work or be
available at the Employer’s premises for a manually con-
ducted election.

1 Review was requested of the Regional Director’s decision to con-
duct the election by mail-ballot. The Regional Director’s rationale for
that decision was contained in a letter to the parties, which is also at-
tached hereto.
2 Casehandling Manual (Part Two) Representation Proceedings, Sec.
11336.
Having found that the employees were “scattered,” the
Regional Director then properly considered the parties’
desires and the efficient use of Board resources. The
Regional Director found that the Employer and the de-
certification Petitioner stipulated to a mail-ballot elec-
tion. Although the Union opposed a mail-ballot election,
the Board in San Diego required only that the Regional
Director 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 in order to vote manually
over 2 consecutive days, the voting would have to be
scheduled from 4 to 8:30 a.m. and from 3 to 8 p.m. Fur-
ther, he concluded that the utilization of a Board agent
for a minimum of 2 days under these circumstances
would not be an efficient use of limited available Board
resources.
The Regional Director’s decision fits squarely within
the parameters of the Casehandling Manual and the
guidelines set forth in San Diego. Accordingly, we con-
clude that the Regional Director acted well within the
discretion that he has been afforded to determine the
method of conducting the election, and we deny review
of his decision 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 (1998), I would find the use of
mail-ballots appropriate in all situations where the pre-
vailing 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, 325 NLRB 1143; London’s Farm
Dairy, 323 NLRB 1057 fn. 3 (1997); and Willamette
Industries, 322 NLRB 856 (1997) (W. Gould concur-
ring).

MEMBERS HURTGEN AND BRAME, dissenting.
We would hold a manual election. The Regional Di-
rector’s decision to hold a mail-ballot election rests pri-
marily on budgetary grounds. That is, the election would
be held on 2 consecutive days from 4 to 8:30 a.m. and
from 3 to 8 p.m.1 It is clear that budgetary constraints
cannot be the sole or primary basis for holding a mail-
ballot.2 We recognize that 5 employees (in a unit of 34)
would not be scheduled to work on either of the 2 days.
However, there is no showing that they could not get to
1 Since the facility is only 20 minutes away from the Regional Of-
fice, the Board agent need not wait between shifts.
2 Willamette Industries, 322 NLRB 856 (1997).
326 NLRB No. 43
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452
the polls on either of those days. And, even if they could
not, there is no reason (other than a budgetary one) that a
Board agent could not travel 20 minutes and hold the
election on a third day. In these circumstances, there is
no showing of an adequate basis for holding a mail-ballot
election. See the dissent in San Diego Gas, 325 NLRB
1143 (1998).

APPENDIX
REGIONAL DIRECTOR’S DECISION AND
DIRECTION OF ELECTION
5. The following employees of the Employer consti-
tute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act:

INCLUDED: All full-time and regular part-time over-
the-road truck drivers based at M & N Mail Service, Inc.,
West Memphis, Arkansas facility, including full-time
drivers regularly servicing the Memphis Area Post Of-
fice.
EXCLUDED: All office clerical employees, watch-
men, guards, mechanics and supervisors as defined in the
Act.
DIRECTION OF ELECTION3
An election by secret ballot shall be conducted by the
undersigned among the employees in the unit found ap-
propriate by mail-ballot as specifically set forth in the
Notice of Election to issue subsequently, subject to the
Board's Rules and Regulations. Eligible to vote are those
in the unit who are employed during the payroll period
ending immediately preceding the date of this Decision,
including employees who did not work during that period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an engaged
in an economic strike which commenced less than 12
months before the election date and who retained the
status as such during the eligibility period and their re-
placements. Those in the military services of the United
States Government may vote if they appear in person at
the polls. Ineligible to vote are employees who have quit
or been discharged for cause since the designated payroll
period, employees engaged in a strike who have been
discharged for cause since the commencement thereof
and who have not been rehired or reinstated before the
election date, and employees engaged in an economic
strike which commenced more than 12 months before the
election date and who have been permanently replaced.
Those eligible shall vote whether or not they desire to be
represented for collective-bargaining purposes by High-

3 The only issue presented for hearing by the parties was whether a
manual ballot or a mail-ballot procedure should be utilized in the elec-
tion. In view of my finding that under the circumstances of the instant
case, a mail-ballot election is appropriate, attached hereto as Appendix
A is a letter to the parties explaining my rationale for ordering a mail-
ballot election.
way and Local Motor Freight Employees, Local Union
No. 667.
APPENDIX A
REGIONAL DIRECTOR’S LETTER TO
THE PARTIES
As indicated in the Decision and Direction of Election
issued this date, I have directed that the election in the
above-captioned matter be conducted by mail-ballot. My
specific reasons for utilizing the mail-balloting proce-
dure, as opposed to manual balloting at the Employer’s
West Memphis, Arkansas facility, are as follows:
As reflected in the record, the Employer employs 34
employees in the undisputed appropriate unit. The Em-
ployer, under contract with the United States Postal Ser-
vice, utilizes its employees to transport mail back and
forth from Memphis to New Orleans. The employees
depart at various hours throughout the day and night.
There are approximately 12 runs departing from the
Memphis area each day and returning the following day.
During any given 2-day period five employees are not
scheduled to work and thus would be unavailable at the
Employer’s premises in a 2-consecutive-day manually
conducted election.
Furthermore, in order to manually vote the employees
in the unit who have scheduled runs in 2 consecutive
days, it would be necessary to conduct the voting from 4
a.m. to 8:30 a.m. and from 3 p.m. to 8 p.m. on those
days. Consequently, 19 hours of an agent’s time would
be utilized, not counting the preelection conference, set-
up and take -down time, and a minimal amount of travel
time. The lengthy off-duty hours of the election would
result in substantial compensatory time being accrued by
the Board agent assigned to conduct the election. The
compensatory time earned would allow the agent an ad-
ditional approximate 2 working days off at his or her
convenience.
As you know the Agency, as a whole, is currently experienc-
ing a budgetary crisis which has resulted in the near elimination
of travel for unfair labor practice charge investigations and a
moratorium on ulp trials this coming September. Budget con-
siderations have limited hiring in recent years to the degree that
this Region, as most, is processing more cases with less avail-
able staff. Accordingly, given the current case backlog in the
Regional Office and the Agency’s budgetary constraints, with-
out question the utilization of one Board agent for a minimum
of 2 days to conduct an election under these circumstances is
not an efficient utilization of limited available resources. See
Reynolds Wheels International, 323 NLRB 1062 (1997). It is
noted that the Petitioner and Employer are in agreement that a
mail-ballot is appropriate given the facts described here and
had, in fact, stipulated to a mail-ballot election prior to the issu-
ance of the notice of preelection hearing.