Extract
Atlantic Industrial Constructors, 355 (1997)
Atlantic Industrial Constructors, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local #10, AFL-CIO, Petitioner. Case 5-RC-14250
September 17, 1997DECISION AND DIRECTION OF SECONDELECTIONBY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINSThe National Labor Relations Board has considered determinative challenges and objections to an election held on January 26, 1996, and the hearing officer's report recommending disposition of them (pertinent parts are attached as an appendix). The election was conducted pursuant to a Decision and Direction of Election dated October 20, 1995. The tally of ballots showed 9 for and 7 against the Petitioner, with 4 determinative challenged ballots.The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer's findings1 and recommendations, and finds that the election must be set aside and a new election held.In adopting the hearing officer's recommendation to set the election aside on the basis of objections pertaining to the erroneously incomplete description of the voter eligibility formula contained in the Decision and Direction of Election, we note the credited evidence that the Employer relied on that articulation of the formula in preparing an Excelsior list including two ineligible voters, and we conclude that such reliance was reasonable. We further note that those two ineligible voters cast unchallenged ballots in the election as a result of the error and that their votes could be determinative.2Contrary to our dissenting colleague, we would not find the Agency's erroneous statement of the formula harmless simply because the Employer had potential access to labor counsel. Since the election directions sent to the Employer contained specific references to ''working days'' in the instructions concerning the notice posting, the Employer had reason to believe that this term would have appeared in other references to ''days'' if that were intended. There was, therefore, no discrepancy or ambiguity on the face of the eligibility formula statement that would put the Employer on notice that consultation with counsel or inquiries to the Board were advisable. Therefore, unlike our dissenting colleague, we would not make the result in this case turn on whether or not the Employer sought legal counsel.Moreover, the Agency had the public responsibility for setting forth clearly, in its Decision and Direction of Election, what the voter eligibility requirements were. Such clarity is expressly called for in Steiny & Co., 308 NLRB 1323, 1327 fn. 13 (1992). Where, as here, that is not done, and confusion is the result, the Agency has a responsibility to...See the full content of this document
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