National Van Lines

National Labor Relations Board - Board Decisions

Jun 6, 1958

120 N.L.R.B. 1343 (N.L.R.B. 1958)

NATIONAL VAN LINES -1343
National Van Lines and Van & Storage Drivers Local Union -No.
389, I. B. T. C. W. & H. of A., Petitioner., Case No. 21-RC-4426.
June 6, 1958 -
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision-and Direction of Election ',dated April 16,
1957, and Orders Amending the Direction of Election dated May 2,
and May 24, 1957, an election by secret ballot was -conducted by mail
'under the direction and 'supervision of the Regional Director for the
Twenty-first Region among the employees in the unit found appro-
priate in the above-mentioned Decision. Following the election, the
Regional Director served - on the parties, a tally of ballots which
showed that of approximately 93, eligible voters,,51 valid ballots were
cast,- of which 26 were _for, ,and 25 were against, the Petitioner, and
8 ballots were challenged.
No objections to the,'election or to the-conduct of the- election were
filed.' As the challenges`were sufficient in number to affect the results
of the election, an investigation was made pursuant to Section 102.61
of- the Board's Rules and Regulations by the Regional Director who,
on August 16, 1957, issued his report on challenged -ballots. In his
report, the Regional Director recommended that the challenges to
the ballots of John Kenney and Jerome Springer be sustained on the
ground that the.parties were in agreement as to, the ineligibility of
these individuals. ' As the parties have not excepted to this recom-
mendation, it is hereby adopted. The ,Regional Director. also recom-
mended that the challenges to the ballots cast by Dante Donati, Wal-
•lace Hall, B. C. Pringel, Robert Oltman, Earl Evans, and James Sales
'be sustained, and that these ballots be declared void on the ground
that'they were received after the time prescribed for their receipt as
set forth in the notices- of election. He therefore recommended that
an appropriate certification'of representatives be issued in the Pe-
titioner's favor. ' - - . '
On August 26; 1957; the Employer filed exceptions to the Regional
Director's recommendations' that the six ballots be declared void
and that the Petitioner be certified. In its exceptions, the Employer
contended that the'method-of mail balloting selected by the Regional
Director was inadequate in that it operated to preclude the six em-
ployees here involved from making a_timely return of their ballots,
-and impeded the casting of a representative vote. It urged that the
Board remand this, proceeding for a hearing on, its exceptions.
On November 14, 1957, the Board remanded this proceeding to the
'Regional Director for the purpose of conducting a hearing on certain
1117.NLRB 1213.
120 NLRB No. 178.
:1344 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
limited issues relating to-whether the six challenged voters received
their original -ballots, whether notices, of election were. posted in
places where they could be seen by them, and whether these voters ,saw
the notices and were aware of the election conditions prescribed
therein.
A hearing was held before Byron S. Guse, duly designated hearing
officer. On February 24, 1958, the, hearing officer issued his report on
challenged ballots containing resolutions of the credibility of wit-
nesses, finding of fact, and recommendations as to the disposition of
said issues. In his report, the hearing officer found that the six chal-
lenged voters had an adequate opportunity to cast valid ballots. He
therefore recommended that the challenges be sustained and the
Petitioner certified. Thereafter, the Employer filed timely excep-
tions and a supporting brief.
The record in this proceeding discloses that, because of the nature
of their widespread over-the-road driving duties, the eligible voters
had places of employment and residences which were scattered
throughout the United States. In view of this circumstance, the
Regional Director determined that the balloting should be conducted
by mail addressed to the residences of the prospective voters and re-
turnable to the Twenty-first Region in Los Angeles. He rejected the
Employer's suggestion that the balloting be done in person at the
Employer's operational installations throughout the country, or that
all ballots originate and be returned to the Board's Thirteenth Region
in Chicago, Illinois. In order to afford the eligible voters adequate
time in which to vote, the Regional Director was granted additional
time in which to conduct the election.
Three hundred and fifty notices of election were made available to
the parties. These notices were posted between May 29, 1957, and
June 13, 1957 at various installations of the Employer stretching from
New York to California. The notices stated that each eligible voter
would be sent a ballot by the Region on May 29, 1957, addressed to
their places of residence, and that the ballots, in order to be valid,
should be returned to the Regional Office not later than 5 p. m. on
Friday, July 12, 1957. The notices also stated that any eligible voter
who had not received a ballot by June 12, 1957, should immediately
wire collect to the Region and furnish an address at which duplicate
ballots should be sent. The notices further provided that ballots
would be opened and counted at 10 a. m. on Monday, July 15, 1957.
Ninety-three ballots were mailed by the Region as scheduled on
May 29, 1957. On July 8 and 9, 1957, 3 •to 4 ,days before the date on
which ballots were to be returned to the- Region, the Employer's
attorney requested that duplicate ballots be mailed to Donati, Hall,
and Pringel because they had not received their originals. This the
Region did by air mail special delivery addressed to the places speci-
NATIONAL VAN LINES 1345
fled. On Monday, July 15, 1957; the Region received the six ballots
here involved. , Because they were received subsequent to the date
established in the notices of election,.the , Board, agent conducting. the
count challenged the ballots for that reason.
The record discloses that Hall, who mailed his duplicate ballot from
New, York on July 13, 1957, read the notice of election at the, Em-
ployer's offices in Los Angeles early in June. Hall knew of the time
and,date on which ballots were to be returned to the Regional Office
and could have requested a duplicate ballot then,, but failed to do so
because he was not interested in voting at that time. It,was only when
Hall was reminded by the Employer's dispatcher in Atlanta, Georgia,
that time was running out that Hall -decided to participate in the
election. Pringel, who mailed his duplicate ballot from Long Island
City, New York, on July 12, 1957, testified that he never saw notices
of election during the election period and that he was not aware of
the time when ballots were returnable to, the Region. Because of his
manner and demeanor on the stand, the hearing officer discredited him
and found that Pringel saw the notices in, June at the Employer's
offices in Los Angeles, which Pringel visited on at least two occasions
during that month. On July 8 Pringel was advised by the Employer's
dispatcher in New York of the election date and a duplicate ballot
was requested for him. ' This ballot was received at the Employer's
New York office on the morning of July 10. , Although Pringel was
in the city and off duty on that day and could have cast a timely
ballot, he did not mail his ballot until July 12. Donati, who apparently
mailed his duplicate ballot from the Employer's offices in Broadview,
Illinois,' talked about the election during June with other drivers.
He admitted that he might not have attempted to vote had not an
official of the Employer reminded him to do so.
Oltman, who mailed his original ballot on July 10, 1957, saw the
notices and was aware of the time and date on which he was to return
his ballot. Although. he had ample time to do so, he `conceded that
voting his ballot did not interest him until he was reminded by the
Employer's dispatcher that the election date was near. Evans, who
mailed his'original ballot on July 11, 1957, read the notices of election.
He was reminded by a dispatcher 'on July 5 of the election date.
Evans returned to his home on July 6, 6 days before the election, and
filled out his ballot, but left the ballot for ,his mother to mail several
days later. Sales, who mailed his original ballot on July 11, 1957,
testified that he received 1 ballot at his home and 3 other ballots at
various offices of the Employer. Because he would not conduct any
of his business away from his residence, Sales did not vote until he
got home although he admitted he could have cast a timely ballot had
he chosen to do so. '
483142-59-vol. 120-86 '
J346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer contends that the foregoing challenged ballots should
The opened and counted because the election procedures adopted by
the Regional Director precluded the six challenged voters from casting
timely votes, and because the election did not produce a representative
vote. We find no merit in these contentions. The- Board has -fre-
- quently pointed out that circumstances surrounding working condi-
tions in various industries require an adaptation of established election
-standards to those peculiar conditions 2 Because of these circum-
stances, the Board has invested Regional Directors with broad
-discretion in determining the method by which elections shall be con-
-ducted. Only where it is affirmatively shown that a Regional Direc-
tor has clearly abused the discretion afforded him to conduct repre-
-: sentative elections will the Board nullify an election and prescribe
=other election 'standards. -
In the instant case, the Regional Director determined that, in view
of the wide dispersion of eligible employees, a mail ballot should be
=-conducted from his office. - To insure that the employees would be
afforded an adequate period of time in which to vote, the Regional
Director requested and obtained from the Board an extension of time
- in which to conduct the election. Forty-four days were allotted for
'-the election period. Ballots were mailed to the homes of-all eligible
- voters based on lists furnished by the Employer. Three hundred and
- fifty notices of election were made "available to the parties and were
posted-well in advance of the election date in various installations of
;the Employer for all eligible voters to read. Out of the 93 individuals
- to whom ballots were sent, 59 voted in the election. - -
In our opinion, the Regional Director's decision to conduct a mail
.ballot from his offices in the Twenty-first Region, under the voting
procedures which were .prescribed, was designed to afford an adequate
-opportunity for all" eligible voters to cast a ballot and did not constitute
..an abuse of discretion.. The fact that the°six challenged voters failed
;.to cast valid,ballots was not, in our view, due to any defect in the elec-
-tion procedures utilized, but rather was occasioned by their lack of
diligence and interest in mailing their ballots on a date which would
have assured their timely receipt by the Regional Director. Further-
more; the fact that. 59 out of 93 individuals voted in the election, a
figure in excess of 50 percent of the voters, convinces us that the elec-
tion produced a representative :vote.'
Accordingly," we 'shall overrule the- Employer's exceptions, sustain
--the challenges, and issue. a certification of representatives in favor of
the .Petitioner. - - - - -
[The Board'certified Van & Storage Drivers Local Union No.' 389,
I. B. T. C. W. & H. of A., as'the designated"collective-bargaining rep-
2 See Shipowners' Association of the Pacific Coast, at at., 110 NLRB 479; 480.
8 See Stiefel Construction Corporation, 65 NLRB 925, 926-27.
AMERICAN RADIATOR & STANDARD SANITARY CORPORATION 1347
•resentative of the Employer's lease and owner operators (otherwise
-known as contract drivers), in the unit found appropriate.]
MEMBERS RODGERS and JENKINS took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
American Radiator & Standard Sanitary Corporation , Pacific
Order Handling Division and Office Employees International
Union, AFL-CIO, Petitioner. Case No. W-RC-3361. June -6,
1958
SUPPLEMENTAL DECISION AND. CERTIFICATION OF
REPRESENTATIVES-
Pursuant to a Decision and Direction of Election issued by .the
Board on February 26, 1958,1 an election-by secret ballot was con-
ducted on March 25, 1958, under the direction and -supervision -of
the Regional Director for the Twentieth Region of the National Labor
Relations Board among the employees in the unit found appropriate
by the Board. The parties were furnished a tally of ballots which
shows that of approximately 28 eligible voters, ,15 cast ballots for,
and 12 cast ballots against, the Petitioner.
Thereafter, the Employer filed timely objections to conduct af-
fecting, the results of the, election and the Petitioner filed an answer
to the Employer's objections... Iri accordance With the Rules and Reg-
ulations of the Board, the Regional Director caused an investigation
of the objections to be made and, on'April 9, 1,958, issued and served
on- the,parties his report on objections, in which 'he found that the
objections did not -raise-substantial or material- issues with-respect
to- the -election-- and recommended that the Board overrule the ob-
jections and certify the Petitioner. The; Employer filed timely ex-
ceptions, to the Regional- Director's report and a brief in, support, of
objections. ;
Pursuant to the provisions of Section 3 (b) of :the Act, the Board
has, delegated its -powers in connection with this case. to a three-
member-panel [Chairman Leedom and Members Bean and, Jenkins].
The Employer's objections are based upon a statement 2 contained
in a leaflet distributed to employees by the Petitioner on March 21,
1958..- The Employer urges that this statement was, so, misleading as
to prevent a free and untrammeled choice. by the employees and: that
the employees • were unable to evaluate it. The Regional Director,
1 119 NLRB 1715.
2 The. statement, referred to reads as .follows : ','By voting. 'Yes', on Tuesday, March 25,
1958, YOU ARE.GUARANTEED BY LAW that all rates of pay, and other benefits in effect
shall REMAIN IN full force and EFFECT plus all negotiated improvements."
120 NLRB No. 176.