Nouveau Elevator Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 470 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470
Nouveau Elevator Industries, Inc., Nouveau Industries,
Inc., and Elevator Industries Association, Inc. and
Its Employer and Local 1, International Union of
Elevator Constructors, AFL–CIO, Petitioner.
Cases 29–RC–8701 and 29–RC–8732
August 27, 1998
ORDER DENYING APPEAL
By CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
On March 26, 1998, the Regional Director for Region 29
issued a Decision and Direction of Election in the above-
captioned cases, in which he directed elections in three
separate units of employees of the members of the Elevator
Industries Association [unit A], Nouveau Elevator Indus-
tries, Inc. [unit B], and Nouveau Industries, Inc. [unit C].
On May 1, 1998, the Board agent notified the parties that a
manual election in unit A would be conducted on May 28
and 29, 1998, between the hours of 8 a.m. and 5 p.m. on
each day (subsequently extended to 6 p.m.) at the Southgate
Tower Hotel in Manhattan. Manual elections in units B
and C were scheduled to be held in the Employers’ Brook-
lyn office on the same days. Thereafter, on May 4, 1998,
the Petitioner filed a Special Request for Leave to Appeal
from Regional Director’s Decision to Refuse to Conduct
Mail Ballot Election. On May 11, 1998, the Regional Di-
rector filed a memorandum with the Board which was
served on the parties. In response to points raised by the
Petitioner regarding the scheduling of a manual election in
unit A, the Regional Director observed that:

[B]ecause about 75% of the eligible voters work in Man-
hattan, the polls are open for 2 days for 9 hours a day,1
longer than the normal work days of the unit employees,2
and since the polling place is centrally located in Manhat-
tan and readily accessible by numerous forms of public
and private transportation to the entire unit, including
those who do not work in Manhattan, it was well within
the discretion of the undersigned to direct a manual elec-
tion . . . . [M]oreover, the election is being held at a time of
year that will not discourage voters from traveling to the
centrally located polling place. In addition, holding of the
election manually, will save the Agency about $1000 over
what it would cost to conduct this election of over 1600
employees by mail. Finally, it is well known that voter
turnout is considerably higher in manual as opposed to
mail ballots elections, and maximizing voter turnout is a
legitimate objective in all elections.

1 As noted above, the polling period subsequently was extended
by 1 hour; thus, the polls were scheduled to be open 10 hours each
day.
2 The current collective-bargaining agreement between the Em-
ployers and Local Union No. 3, International Brotherhood of Elec-
trical Workers, AFL–CIO (Intervenor) provides that the work shift
consists of any 8 hours between 7 a.m. and 4:30 p.m., with a half
hour lunch period. The Regional Director noted that the normal
workweek for unit employees is Monday through Friday.
The Petitioner, citing London’s Farm Dairy, 323 NLRB
1057 (1997), argues that the unusual circumstances of this
case make a mail ballot election the only feasible voting
arrangement that would make it possible for all eligible
employees to vote. The over 1600 employees of the differ-
ent employers involved are located throughout the New
York City metropolitan region, including New Jersey, and
are assigned by their employers to travel to various loca-
tions at thousands of sites on a daily basis. The Petitioner
contends that these employees work a myriad of schedules,
including being on-call 24 hours a day, and argues that mass
transportation problems and traffic congestion within New
York City would subject voters to unforeseen grid lock or
unpredictable delays. Further, the Petitioner contends, dis-
similar employer reimbursement policies with regard to
expenses related to voting could lead to objections. More-
over, many evening and night-shift employees who are as-
signed to work outside the Borough of Manhattan might not
be willing to travel into Manhattan to vote, as to do so might
mean either subjecting themselves to discipline for failing to
report to their assignments on time or losing the chance to
rest before their next shift begins. Lastly, the Petitioner
maintains that the 25 employers of employees in unit A
would have to revise work schedules and reroute all em-
ployees to allow them the opportunity to vote in Manhattan
during the limited hours set by the Regional Director.
On May 13, 1998, the Employers filed a brief in opposi-
tion to the Petitioner’s special request for leave to appeal the
Regional Director’s decision. The Employers contend that a
manual election (in unit A) would ensure maximum em-
ployee participation for the following reasons: the voting
was scheduled to take place in a centrally located facility
within close proximity to the overwhelming majority of the
electorate who work in New York City on a daily basis,
within a few short miles of the polling site—close to public
bus and subway transportation; the small number of em-
ployees working in the suburbs have vehicles and could
drive to the voting facility where ample parking is available,
and they would be reimbursed as a work-related expense;
less than 2 percent of the electorate are on a second-shift
schedule; many of these employees work in Manhattan and
would be able to vote on their way to work; no employee
works on-call during the daytime voting hours; and employ-
ees could vote on company time so that no one would lose
any pay (or have their schedules disrupted or altered) as a
result of his or her decision to vote.
The elections were held on May 28 and 29, 1998, and the
ballots were impounded pending the Board’s consideration
of the Employers’ request for review3 and the Petitioner’s
Special Request for Leave to Appeal from Regional Direc-
tor’s Decision to Refuse to Conduct Mail Ballot Election.
Having duly considered the matter, we have decided to
deny the Petitioner’s appeal of the Regional Director’s deci-
3 The Employers’ request for review of the Regional Director’s
decision to process the petitions (originally held in abeyance pend-
ing the resolution of an antiraiding proceeding under art. XX of the
AFL–CIO’s constitution) as well as certain unit determinations,
was withdrawn on June 3, 1998.
326 NLRB No. 49
NOUVEAU ELEVATOR INDUSTRIES 471
sion to conduct the elections by manual ballot. We find that
the Regional Director acted within his discretion in deter-
mining that manual ballot elections would maximize turnout
and afford all eligible voters an adequate opportunity to cast
ballots.
It is well established that a Regional Director has broad
discretion in determining the method by which an election is
held, and whatever determination a Regional Director
makes should not be overturned unless a clear abuse of dis-
cretion is shown. San Diego Gas & Electric, 325 NLRB
1143, 1144 fn. 4 (1998); National Van Lines, 120 NLRB
1343, 1346 (1958). Under Board precedent and policy, the
applicable presumption favors a manual, not a mail-ballot
election. San Diego Gas, supra, slip op. at 2. See also
NLRB Casehandling Manual (Part Two), Representation
Proceedings, section 11336; Willamette Industries, 322
NLRB 856 (1997).
There are factors in this case that would have supported
the Regional Director’s direction of either a mail ballot or a
mixed manual-mail ballot election. See San Diego Gas,
supra; London’s Farm Dairy, supra; and Reynolds Wheels
International, 323 NLRB 1062 (1997). Indeed, had the
decision been ours as an initial matter, we would have de-
termined to conduct some or all of the election by mail.
Specifically, the employees work at jobsites scattered
throughout the New York City metropolitan area, including
New Jersey, their hours of work are widely varied, and they
spend most of their workday traveling to other sites. In
addition, a manual election required most of the employees
to adjust their work schedules or their off-hour commit-
ments to travel to a hotel in Manhattan, which was the des-
ignated voting facility for unit A, and they may well have
encountered travel or other personal difficulties to get to the
polling place.
Nevertheless, under the circumstances of this case, and
given the broad discretion that the Board has invested in the
Regional Director, we find that the Regional Director did
not abuse his discretion by ordering a manual election.
Accordingly, the Petitioner’s appeal of the Regional Di-
rector’s direction of elections by manual ballot is denied,
and the case is remanded to the Regional Director for fur-
ther appropriate action.

MEMBERS HURTGEN AND BRAME, concurring.
We agree with our colleagues that the Regional Director
was correct in directing a manual election. However, we
disagree with them that a mail ballot or a mixed mail man-
ual ballot would also have been proper.
It is undisputed that there was no mutual agreement
among the parties to utilize mail ballots, and no party re-
quested mixed mail manual balloting. Further, the facts fail
to establish that the presumption in favor of a manual elec-
tion has been rebutted. In this regard, the Regional Director
found that 75 to 80 percent of the eligible voters work in
Manhattan and all voters, even those who work outside of
Manhattan, would have access to the polling sites by several
available modes of transportation. The Employers stated
that they would permit the employees to vote on company
time. Although Petitioner claims that “some” of the unit
employees are on 24-hour call, the Regional Director noted
that fewer than 5 percent of the employees work on-call,
and such employees usually work during the day shift and
would be able to cast their ballots during either of 2 days.
Further, the small number of employees who work evening
shifts would have most of the day to vote while they are not
working.
Our dissenting colleague refers to difficulties that certain
employees might face in getting to the polls, and to the “at-
tendant inconvenience” (as to family responsibilities or
plans) that would befall those who would be on their normal
off-worktime. However, while all of this may be true, there
is no evidence to support it. In addition, the Employers
have indicated that they would permit employees to vote on
company time, and most employees are accustomed to trav-
eling during the course of their work duties. Further, the
Regional Director, who is more familiar with the logistics of
traveling in this area than we are, directed a manual ballot.
Finally, we note that 1333 out of 1556 individuals in fact
voted in the election—a figure in excess of 85 percent of the
eligible voters.1
In sum, for the reasons set forth above, we agree that a
manual election was correct.2

CHAIRMAN GOULD, dissenting.
Contrary to my colleagues, I would grant the Petitioner’s
request for leave to appeal the Regional Director’s direction
of a manual election and would direct a mail ballot election
for those eligible employees who work outside of Manhat-
tan and for whom the logistics of traveling into and out of
Manhattan may restrict their ability to reach the polls.1 As I
have previously observed,2 the use of mail ballots is appro-
priate in all situations where the prevailing conditions are
such that they are necessary to conserve Agency resources
and/or enfranchise employees. Thus, in the circumstances

1 Our dissenting colleague says that there is “no evidence” to
support the assertion that the 15 percent (nonvoters) are not geo-
graphically scattered. We disagree with this “double negative”
approach. We believe that the burden of proof is on the party who
wishes to depart from the norm of a manual ballot. See our dissent
in San Diego Gas & Electric. In this case, the burden is on the
Union to show affirmatively that employees are widely scattered.
The dissent correctly notes that the facts concerning the election
were not available at the time of the preelection appeal. But, this
need not blind us to those facts. In the instant case, we have the
advantage of hindsight. That is, we can ascertain, from objective
ascertainable evidence, how well or poorly the election process
turned out. Unlike the apparent position of the dissent, we would
not ignore these matters, or change the burden of proof with respect
to them.
2 The Regional Director relied in part on his finding that a man-
ual ballot would be cheaper than a mail ballot. We would not rely
on this finding. Absent extraordinary expenses (not present here),
we would not rely on the monetary savings to be achieved by a
mail or manual ballot. See our dissent in San Diego Gas & Elec-
tric, supra at 1149-1152 (1998).
1 I agree with my colleagues that the Employer’s request for re-
view of the Regional Director’s Decision of Election raises no
substantial issues warranting review..
2 See my concurring opinion in San Diego Gas & Electric, 325
NLRB 1143, 1146-1149 (1998).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472
of this case, where the record establishes that a significant
number of eligible voters are scattered throughout the five
boroughs of New York City and several cities in New Jer-
sey, I would find that the Regional Director abused his dis-
cretion by not directing a mixed mail and manual election.
The Regional Director directed that the election be held
on 2 consecutive days at a hotel in midtown Manhattan. The
polling hours were originally scheduled as 8 a.m. to 5 p.m.
but were extended by the Region to 6 p.m3. In directing a
manual only election, the Regional Director noted that ap-
proximately 75 percent of the over 1600 eligible voters
work in Manhattan, the polls are open for 9 hours each day,
longer than the normal workday for the unit employees, and
the polling place is centrally located and readily accessible
by public and private transportation. The Regional Director
also noted that holding the election manually will save the
Board approximately $1000 over what it would cost to con-
duct this election by mail and that the turnout is considera-
bly higher in a manual election.
The overriding objective when considering the mail ballot
procedure is expanded enfranchisement so that those em-
ployees who would have limited or no opportunity to cast a
ballot in a manual election will be able to vote in a mail
ballot election. Contrary to the assertion of Members Fox
and Liebman, the teaching of Shepard Convention Services4
and its progeny is that a Regional Director abuses his discre-
tion by directing a manual election in circumstances where
it will not afford full enfranchisement to employees in the
appropriate unit. In the instant case, although 75–80 percent
of the eligible employees work in Manhattan or within 3
miles of the polling place, it is undisputed that 20–25 per-
cent do not. These 20–25 percent or between 320 and 400
employees have only a brief period of time to reach the mid-
Manhattan polling site and must rely on rush-hour public or
private transportation. In view of the burden placed on
these employees in terms of the time and expense to travel
to and from the polls and the attendant inconvenience on
their family responsibilities or plans for what would nor-
mally be their off-worktime, it is likely that a significant
number will be unable or unwilling to participate. The use
of mail ballots for these employees significantly reduces this
risk of decreased participation in the election process.
In directing a mail ballot election, the Regional Director
also relied on the added cost of a mail ballot election in a
unit of 1600. To be sure, cost is an extremely important
factor in determining the mechanics of an election—a factor
which may establish the propriety of a postal ballot.5 How-
ever, under the circumstances of this case, cost is only one
factor and must be balanced against considerations such as
the question of whether a manual ballot will disenfranchise
eligible voters.6

3 Under the Employer’s collective-bargaining agreement with
the Intervenor, the work shift consists of any 8 hours between 7
a.m. and 4:30 p.m. with a half hour lunch period.
4 314 NLRB 689 (1994), enf. denied 85 F.3d 671 (D.C. Cir.
1996).
In the instant case, I do not dispute the Regional Direc-
tor’s conclusion that an all mail ballot election would be
more costly than a manual ballot election. I simply find that
where it is possible to direct a mixed mail and manual bal-
lot, the total additional cost is diminished and certainly out-
weighed by the likelihood of enfranchising a significant
number of eligible voters.
Finally, the Regional Director relies on the assertion that
turnout is higher in manual elections. There is insufficient
evidence, however, to suggest that the use of mail ballots
would result in lower voter turnout.7 To the con-
trary, where as here nearly one quarter of the eligible workers
are geographically scattered, the use of mail ballots for those
voters will eliminate the additional burdens on their participa-
tion and will likely encourage higher voter turnout than would
be the case with a manual ballot.
5 In my concurring opinion in Willamette Industries, 322 NLRB
856 (1997), I emphasized the importance of “an unduly burden-
some strain” on Agency resources as a factor to be taken into ac-
count by the Regional Director in ordering postal ballots. See also
NLRB Office of the General Counsel Field Memorandum OM 98–
7, issued January 30, 1998.
6 My position here accords with the Board’s action in San Diego
Gas & Electric, supra, and Lone Star Northwest, Inc., 36–RD–1434
(unpublished). See also Shepard Convention Services, supra.
7 In resolving the Petitioner’s appeal of the Regional Director’s
failure to direct a mail ballot election, I have treated the appeal the
way it was presented, namely as a preelection appeal. Members
Hurtgen and Brame, however, have taken administrative notice of
the fact that approximately 85 percent of the eligible employees
voted. Yet, as previously noted, 75–80 percent of the eligible em-
ployees work in Manhattan. My concern is and remains the en-
franchisement of the 20–25 percent of employees who work at
widely scattered jobsites outside of Manhattan. There is no evi-
dence that the 15 percent who did not vote in the election were not
predominately from that group of scattered employees. Therefore,
I do not conclude, as my colleagues do, that those scattered em-
ployees were not disenfranchised by the burdens of traveling to the
polling place. Unlike Members Hurtgen and Brame, I am unwill-
ing to place the burden on the Petitioner to refute facts that were
not in existence at the time the Petitioner filed its preelection ap-
peal.