Midwest Canvas Corp.

National Labor Relations Board - Board Decisions

Aug 14, 1998

326 N.L.R.B. 58 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
Midwest Canvas Corp. and Manufacturing, Produc-
tion & Service Workers Union, Local #24, Peti-
tioner and Production Workers Union of Chi-
cago and Vicinity, Local 707, National Produc-
tion Workers Union, Intervenor. Case 13–RC–
19352
August 14, 1998
DECISION AND ORDER REMANDING
FOR A HEARING
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered an objection to an election
held on October 3, 1997,1 and the Regional Director’s
report recommending disposition of it.2 The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 76 for the Petitioner and 36 for
the Intervenor with 11 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief and has decided to remand this case
for a hearing for the reasons set forth below.
In her report, the Regional Director recommended sus-
taining Objection 1 on the basis that the late opening of
the polls3 deviated from the election procedure and cre-
ated doubt and uncertainty which warranted setting aside
the election. The Regional Director found that it was
impossible to determine whether the election’s late start
affected the results of the election.
In its exceptions, the Petitioner contends that the late
opening of the polls did not warrant setting aside the
election because the number of eligible employees who
did not vote was insufficient to change the results of the
election. The Petitioner claims that it sought to introduce
evidence to the Regional Director which showed that the
number of eligible voters was less than what was re-
ported on the Excelsior list, and that when the ineligible
employees are removed from the list, the number of pos-
sibly disenfranchised employees is not determinative of
the results of the election.4 The Petitioner argues that, at a
minimum, the Regional Director should have ordered a
hearing to determine whether any of the 19 employees in
question were eligible to vote in the election. For the
reasons set forth below, we find merit in the Petitioner’s
exceptions.

1 All dates are in 1997, unless stated otherwise.
2 In her report, the Regional Director found it unnecessary to con-
sider the merits of Intervenor’s Objections 2-8 in light of her conclu-
sion that the election must be set aside as a result of the conduct alleged
objectionable in Objection 1.
3 The polls did not open until 7:20 a.m., 20 minutes after the polls
were scheduled to be open, because the Employer did not provide ac-
cess to the facility where the election was scheduled to be conducted.
4 The Petitioner alleges that at least 19 employees were terminated
or quit between August 31, when the Excelsior list was created, and the
day of the election, and that accordingly there were only 141 eligible
voters rather than the 160 eligible employees named on the Excelsior
list. The Petitioner argues that if there were only 141 eligible voters, the
number of possibly disenfranchised voters would be insufficient to
affect the election results. Accordingly, there would be no need to set
aside the election because of the late opening of the polls.
The relevant principles were summarized in Jobbers
Meat Packing Co., 252 NLRB 41 (1980). The Board
“does not set aside an election based solely on the fact
that the Board agent conducting the election arrived at
the polling place later than scheduled, thereby causing
the election to be delayed.” Id. However, the Board has
set aside elections where one of the following three addi-
tional factors was present: (1) “the votes of those possi-
bly excluded could have been determinative”;5 (2) “the
record also showed accompanying circumstances that
suggested that the vote may have been affected by the
Board agent’s late opening or early closing of the polls”;6
or (3) “it was impossible to determine whether such ir-
regularity affected the outcome of the election.”7 Id.
These principles were reaffirmed in Celotex Corp., 266
NLRB 802, 803 (1983), and more recently in Wolverine
Dispatch, Inc., 321 NLRB 796 (1996).
The second and third factors are absent here. In other
words, the record does not show any “accompanying
circumstances” suggesting that the late opening of the
polls affected the vote. Nor is it “impossible” to deter-
mine if the irregularity affected the outcome of the elec-
tion. To the contrary, the Petitioner contends that it can
be determined if the irregularity affected the outcome of
the election, but the Regional Director erroneously re-
fused to consider its evidence.
Accordingly, we now turn to an examination of the
first factor, i.e., whether the number of employees possi-
bly disenfranchised is sufficient to affect the election
outcome. In order to determine whether the number of
possibly disenfranchised employees is sufficient to be
determinative, we must know how many eligible voters
there were in the unit. Thus, evidence is required con-
cerning the eligibility status of the 19 employees alleged
by the Petitioner to be ineligible voters.
If, as alleged by the Petitioner, there were only 141
eligible voters, then there would have been only 18 pos-
sibly disenfranchised employees because 123 employees
appeared at the polls. This number of possibly disen-
franchised employees would be insufficient to affect the
results of the election. Thus, even if it is assumed that
those 18 votes, as well as the 11 votes of the challenged
voters (a total of 29) were for the Intervenor, the Interve-
nor would still not have sufficient votes to defeat the
5 The Board cited, inter alia, Nyack Hospital, 238 NLRB 257 (1978)
(technical unit and service and maintenance unit).
6 The Board cited, inter alia, Nyack Hospital, supra (office clerical
unit).
7 The Board cited Kerona Plastics Extrusion Co., 196 NLRB 1120
(1972).
326 NLRB No. 12
MIDWEST CANVAS CORP. 59
Petitioner as the tally shows 76 for the Petitioner and 36
for the Intervenor.
On the other hand, if there were 160 eligible voters,
there would have been 37 possibly disenfranchised vot-
ers. That number could possibly have affected the elec-
tion results because if those 37 votes are added to the 11
challenged ballots, those 48 votes, had they been cast for
the Intervenor, could have resulted in a victory for the
Intervenor.
Our dissenting colleague criticizes our approach as
“mathematical” and “mechanical.” In fact, our approach
follows Board precedent. In Wolverine Dispatch, supra,
for example, the Board set aside the election because
“the approximate number of eligible voters exceeded the
number of ballots cast by four,” and the four eligible
employees possibly disenfranchised by the unscheduled
closing of the polls could have been sufficient to affect
the election results.8
Here, the Petitioner’s exceptions cast doubt as to the
number of eligible voters in the unit. If the number of
eligible voters is as alleged by the Petitioner, then the
number of possibly disenfranchised employees would not
be determinative of the results of the election and there
would be no reason to set aside the election.9
Our approach is further supported by Nyack Hospital,
238 NLRB 257, 258–260 (1978), a case cited with ap-
proval in Jobbers Meat and Wolverine Dispatch. In Ny-
ack Hospital, the Board adopted the Regional Director’s
recommendation to set aside elections in two bargaining
units based on his finding that the number of voters pos-
sibly disenfranchised by the late opening of the polls was
sufficient to have affected the outcome of the elections.
238 NLRB at 260. In making that finding, the Regional
Director subtracted the number of employees who had
been terminated or excluded from the unit prior to the
election from the number of employees on the eligibility
lists. 238 NLRB at 259 fns. 8, 9, and 10. This is pre-
cisely the type of calculation that the remand in this case
will accomplish.
In two additional cases, also cited in Wolverine Dis-
patch, the Board, consistent with our approach, regarded
the approximate number of eligible voters as a significant
factor in the analysis. Thus, in Jim Kraut Chevrolet, 240
NLRB 460 (1979), the Board reversed the Regional Di-
rector and refused to set an election aside, notwithstand-
ing the late opening of the polls, because there was “no

8 321 NLRB at 796–797. The tally of ballots in Wolverine Dispatch
showed that of approximately 34 eligible voters, 30 cast ballots, of
which 15 were for and 11 were against the Petitioner, and 4 were chal-
lenged.
9 The dissent misstates our position when it claims that our approach
“proceeds from the predicate that an Excelsior list is both accurate and
exclusive, reflecting the precise number of employees eligible to vote
in an election.” Obviously, if that statement were true, we would not be
remanding this proceeding for a hearing to determine if, as claimed by
the Petitioner, 19 employees included on the Excelsior list were termi-
nated or quit before the election and thus were not eligible voters.
evidence that any employee was disenfranchised . . . .
Indeed, the official tally of ballots . . . showed that the
number of valid votes counted plus the challenged ballot
equaled the approximate number of eligible voters.”
Similarly, in Celotex Corp., 266 NLRB 802 (1983),
the Board found that the late opening of the polls did not
warrant setting the election aside. The Board relied, inter
alia, on the tally of ballots, which showed that “the num-
ber of employees casting ballots, including challenged
ballots . . . exceeded the approximate number of eligible
voters.” 266 NLRB at 803.
We disagree with our dissenting colleague’s sugges-
tion that our approach is an unwarranted expenditure of
Board resources. To the contrary, we believe that our
approach can conserve the Board’s resources. The eligi-
bility of the 19 employees in question likely can be easily
ascertained, at minimal agency expense. If that determi-
nation results in a clear expression of the will of a major-
ity of the eligible unit employees, no second election
(probably a more costly proposition) will be necessary.
If not, then a second election will be held. We certainly
agree with our dissenting colleague that the polls should
open at the scheduled time. But, where the late opening
could not have disenfranchised enough eligible voters to
affect the election results, we see no reason to set aside
the election. In our view, adherence to the Wolverine
Dispatch line of caselaw both protects the integrity of the
election process and safeguards the choice of the major-
ity of employees voting in the election.
For these reasons, we remand this case to the Regional
Director and direct her to arrange a hearing to receive
evidence concerning the eligibility of the 19 employees
the Petitioner alleges were terminated or quit. The hear-
ing officer shall issue recommendations concerning the
19 employees’ eligibility status and shall determine
whether the number of eligible voters possibly excluded
from voting as a result of the late opening of the polls
proved determinative of the results of the election. If the
number of possibly disenfranchised employees is suffi-
cient to affect the results of the election, the election shall
be set aside and a new election held.
ORDER
IT IS ORDERED that a hearing be held before a duly des-
ignated hearing officer for the purpose of receiving evi-
dence to resolve the issue raised by Objection 1.
IT IS ORDERED that the designated hearing officer shall
prepare and serve on the parties a report containing
credibility resolutions, findings of fact, and recommenda-
tions to the Board as to the disposition of Objection 1.
Any party may, within the time prescribed by the
Board’s Rules and Regulations, file with the Board in
Washington, D.C., eight copies of exceptions to the hear-
ing officer’s report. Immediately upon the filing of ex-
ceptions, the filing party shall serve a copy on the other
parties and file a copy with the Regional Director. If no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
exceptions are filed, the Board will adopt the recommen-
dations of the hearing officer.
IT IS ORDERED that this proceeding is remanded to the
Regional Director for Region 13 to issue notice of the
hearing.

MEMBER BRAME, dissenting.
I do not join my colleagues’ decision to remand this
proceeding for a hearing. Rather, I would adopt the Re-
gional Director’s recommendations, as set forth in her
attached report, to sustain the Intervenor’s Objection 1
and to set aside the election based on the opening of the
polls 20 minutes late and the possible disenfranchisement
of voters.
Briefly, the parties’ Stipulated Election Agreement
called for the election to be held from 7 to 8 a.m. and
from 3 to 5:30 p.m. However, the polls in the morning
session did not open until 7:20 a.m. The tally of ballots
showed that, of approximately 160 eligible voters, 76
cast ballots for the Petitioner and 36 for the Intervenor,
with 11 challenged and 2 void ballots.
In support of their decision to remand this proceeding
for a hearing, my colleagues assertedly rely on principles
established by a long line of precedent, as summarized in
Jobbers Meat Packing Co., 252 NLRB 41 (1980), and as
more recently reaffirmed in Wolverine Dispatch, Inc.,
321 NLRB 796, 797 (1996). My colleagues, however,
have misapplied this precedent. Thus, I note that the
Board in Wolverine Dispatch stated: “[W]hen election
polls are not open at their scheduled times, the proper
standard is whether the number of employees possibly
disenfranchised thereby is sufficient to affect the election
outcome, not whether that number of voters, or any vot-
ers at all, were actually disenfranchised.” (Emphasis in
the original, footnote omitted.) Purporting to apply Wol-
verine Dispatch, the majority remands this proceeding
for a hearing to determine the precise number of eligible
employees in the unit in light of the Petitioner’s asser-
tions that 19 of the employees included on the Excelsior
list in fact were ineligible to vote because they either quit
or were terminated before the election and that, therefore,
the number of eligible voters who may have been disen-
franchised could not have affected the results of the elec-
tion.
I find that Wolverine Dispatch and the precedent it
cites do not contemplate a hearing of the kind directed in
the present case. In Wolverine Dispatch, the Board set
aside an election where, as here, the number of appar-
ently eligible employees possibly disenfranchised due to
the late opening of the polls, when combined with the
number of challenged ballots in the election, could be
sufficient to affect the election results. Thus, the Board
did not, as the majority’s reading of that case would
seemingly require, remand the proceeding for a determi-
nation whether, after resolution of the challenged ballots,
there remained a sufficient number of possibly disen-
franchised employees to affect the outcome. Further-
more, the case law cited in Wolverine Dispatch is ex-
pressly based on the realistic assessments that the extent
to which a substantial departure from scheduled election
hours may affect an election is frequently impossible to
determine, that such a deviation may affect the ensuing
votes in the election, and that, where doubts are cast on
the election results, the Board has no alternative but to
direct a second election to ensure the integrity of the
election process itself. See Nyack Hospital, 238 NLRB
257, 258–260 (1978), and cases discussed therein. In
short, the Board has previously rejected the mathematical
and mechanical approach taken by the majority here.1
I find wholly unpersuasive my colleagues’ reliance on
Nyack as support for their approach. Although, as they
point out, the Regional Director in Nyack subtracted the
number of employees who had been terminated or ex-
cluded from the number of the employees on the eligibil-
ity lists for each of the three units involved, he relied on
the apparent agreement of the parties at the pre-election
conference. Nor are Jim Kraut Chevrolet, 240 NLRB 460
(1979), and Celotex Corp., 266 NLRB 802 (1983), on
which the majority also relies, any more availing to their
argument. Thus, in Jim Kraut the Board specifically
found that there was no evidence that any employee had
been disenfranchised, and in Celotex the Board expressly
noted that the objections did not allege any possible dis-
enfranchisement of employees. And, significantly, none
of these cases involved, as does the present case, asser-
tions by one party in the nature of postelection chal-
lenges to employees whose names appeared on the eligi-
bility list and the Board’s remanding for litigation to re-
solve the issue.
My colleagues cite these cases as support for the “type
of calculation that the remand in this case will accom-
plish.” But, as indicated, the situations in those cases are
clearly distinguishable from that in the present case and,
in my view, the holding of a hearing here cannot rea-
sonably be characterized as merely involving a “calcula-
tion.” Furthermore, in relying on Jobbers, Nyack and
Celotex, my colleagues effectively read out of these cases
the language from Board precedent stating that it is fre-
quently impossible to determine the impact on employ-
ees of a substantial departure from the scheduled opening

1 The majority’s approach necessarily proceeds from the predicate
that an Excelsior list is both accurate and exclusive, reflecting the pre-
cise number of employees eligible to vote in an election. An Excelsior
list, however, is prepared solely by the employer and primarily for the
purpose of enabling the parties to communicate with unit employees. It
does not constitute an agreement by the parties as to the eligibility of
the listed employees to vote, nor is it given conclusive effect by the
Board on questions of eligibility. See O.E. Szekeley & Associates, 117
NLRB 42, 44–45 (1957). Moreover, our reported cases illustrate that
omissions of names from Excelsior lists are common. See, e.g.,
Meadow Valley Contractors, 314 NLRB 217 fn. 1 (1994); Ponce Tele-
vision Corp. (WRIK-TV-Channel 17), 192 NLRB 115 (1971); Gamble
Robinson Co., 180 NLRB 532 (1970).
MIDWEST CANVAS CORP. 61
of the polls and holding that, where doubts have been
cast on the election results, the election should be set
aside even where the votes of possibly disenfranchised
employees could not have been determinative. See Job-
bers, supra at 41,2 Nyack, supra at 259, and Celotex, su-
pra at 803. Finally, my colleagues’ reliance on Nyack is
particularly puzzling given the fact that the Board there
applied the above-stated principles and set aside the elec-
tion in the office clerical unit, notwithstanding its spe-
cific finding that the number of possibly disenfranchised
employees was not determinative of the election out-
come. Thus, Nyack is directly contrary to the approach
my colleagues espouse.
In sum, the present case involves a substantial depar-
ture from the scheduled opening of the polls, the possible
disenfranchisement of a substantial number of employ-
ees, and substantial doubts as to the integrity of and em-
ployee confidence in the Board’s election process. Ac-
cordingly, I conclude that the holding of a hearing is
wholly unwarranted and a totally unnecessary expendi-
ture of the Board’s limited resources.3 Therefore, and in
agreement with the Regional Director, I would sustain
the Intervenor’s Objection 1, set aside the election and
direct a second election.

2 My colleagues acknowledge the language from Jobbers that the
Board has set aside elections where it was impossible to determine
whether the deviation from the scheduled election times affected the
outcome. They conclude, however, that this is not such a case because
the number of employees actually disenfranchised may, after a hearing,
no longer be determinative of the results. My colleagues’ reasoning
escapes me. Thus, Jobbers, in summarizing the situations in which
elections have been set aside, refers separately to cases in which the
number of possibly disenfranchised employees could have been deter-
minative. It then, in addition, refers to other situations where, although
the number of possibly disenfranchised employees could not have been
determinative, the Board has set aside elections, including as one cate-
gory, cases where it is impossible to determine whether the deviation
from the scheduled election times affected the outcome. Jobbers, supra
at 41. (Emphasis provided.) Thus, it is plain from the language of
Jobbers itself that the latter category of cases applies whether the num-
ber of possibly disenfranchised employees is determinative. My col-
leagues, by construing the language of Jobbers as they do, have simply
read out the very language on which the Board has effectively relied to
set aside elections where there are substantial doubts as to their fair-
ness.
3 I am not as confident as my colleagues that the eligibility of the 19
employees whom the Petitioner asserts were no longer employed as of
the date of the election can be decided at “minimum agency expense.”
At the hearing the Employer, the Intervenor, or both may contest the
Petitioner’s assertions concerning the status of the 19. Moreover, fol-
lowing the hearing and the issuance of a report, it may be that the num-
ber of possibly disenfranchised employees will remain determinative of
the election results and that a second election must nevertheless be
directed. As a practical matter, the immediate direction of a second
election eliminates both the delay and the expense of a hearing, and,
more importantly, it ensures the integrity of the Board’s election proc-
esses.
APPENDIX
THE OBJECTIONS
Objection 1

The polling place for the election was opened late by over 20
minutes.
From the investigation, the evidence is clear that the polls
did not open until 7:20 a.m., 20 minutes after the polls were
scheduled to open. It is also clear the reason the polls were
opened late was because the Employer did not provide access
to the facility where the election was scheduled to be conducted
by the Board agent. The Employer claimed that he had no keys
to the facility where the election was being conducted. This
irregularity concerns an essential condition of an election which
is that all eligible employees must be given an opportunity to
vote. Whatcom Security Agency, Inc., 258 NLRB 985 (1981).
The Petitioner contends that the late opening of the polls
does not warrant overturning the election because the number
of eligible employees who did not vote is insufficient to change
the outcome of the election. However, even if the votes of the
excluded employees would not have affected the results of the
election, the Board has set aside elections where it was impos-
sible to determine whether such an irregularity affected the
outcome of the election. Jobbers Meat Packing Co., 252 NLRB
41 (1980). Further, the Board has set aside elections regardless
of whether the ballots of employees possibly excluded from
voting proved determinative, because the votes cast after the
polls were opened late may have been affected by the late open-
ing. The Nyack Hospital, 238 NLRB 257 (1978) and B & B
Better Baked Foods, Inc., 208 NLRB 493 (1974). In this in-
stance, it is impossible to determine whether the lateness of the
opening of the polls affected the results of the election. This
deviation from the election procedures creates doubt and uncer-
tainty as to the results of the election and warrants setting aside
the election and holding a new one. Whatcom, at 985.
Under these circumstances, I am setting aside the election
based on the evidence contained in Objection 1, and, accord-
ingly, I find it unnecessary to consider the merits of the other
objections filed by the Intervenor.
CONCLUSION
On the basis of the foregoing, it is the conclusion and the
recommendation of the undersigned that the election conducted
on October 3, 1997, should be set aside and that a new election
be conducted.1
1 Under the provision of Sec. 102.69 of the Board’s Rules and Regu-
lations, as amended exceptions to this report may be filed with the
Board in Washington, D.C. Exceptions must be received by the Board
in Washington on November 7, 1997.
Under the provisions of Sec. 102.69(g) of the Board’s Rules and
Regulations, documentary evidence, including affidavits, which a party
has timely submitted to the Regional Director in support of its objec-
tions or challenges and which are not included in the Report, are not
part of the record before the Board unless appended to the exceptions or
opposition thereto that the party filed with the Board. Failure to append
to the submission to the Board copies of evidence timely submitted to
the Regional Director and not included in the Report shall preclude a
party from relying on that evidence in any subsequent related unfair
labor practice proceeding.