K&N Engineering, Inc., (2017)

Docket Number:21-RC-174486
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

K&N Engineering, Inc. and International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge 725, Petitioner. Cases 21–RC–174486 and 21–RC–174700

October 12, 2017

DECISION ON REVIEW AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

In this representation case the parties entered into a stipulated election agreement providing that enumerated classifications of “production employees” were eligible to vote in the election while employees in four maintenance classifications, whom the employer additionally contended should be included in the unit, would vote subject to challenge. The issue presented is whether the challenged ballots of those maintenance employees should be opened and counted where, as here, they are determinative to the results of the election. Applying Odwalla1 and Specialty Healthcare2 to the facts of this case, we find that the challenged ballots of employees in the four maintenance classifications should be opened and counted. Accordingly, we grant the Employer’s request for review insofar as it argues that the four maintenance classifications are in the unit, and we remand this case to the Regional Director to open and count these challenged ballots and issue the appropriate certification. In all other respects, we deny the Employer’s request for review of the Regional Director’s Decision and Order Sustaining Challenges, Overruling Objections and Certification of Representative.

  1. PROCEDURAL HISTORY

    Pursuant to a Stipulated Election Agreement approved by the Acting Regional Director for Region 21 of the National Labor Relations Board, the parties agreed to an election in a unit of the Employer’s full-time and regular part-time “production employees,” including employees in more than 30 listed job classifications (including janitors), excluding all other employees, office clerical employees, professional employees, confidential employees, managers, guards and supervisors as defined by the Act. The Stipulated Election Agreement also provided that the eligibility of four classifications—Maintenance 1 Odwalla, Inc., 357 NLRB 1608 (2011).

    2 Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), affd sub. nom, Kindred Nursing Centers East, LLC

    v. NLRB, 727 F.3d 552 (6th Cir. 2013).

    Leads, Maintenance Techs I, Maintenance Techs II, and Maintenance Techs III (collectively, “Maintenance Techs”)—was not resolved, and that individuals in those classifications could vote subject to challenge.3

    An election was conducted on May 12, 20164 where, of the approximately 641 eligible voters, 285 voted for the Petitioner, 271 voted against representation, and 30 ballots were challenged—a number sufficient to affect the results of the election.

    On May 18, the Employer filed timely objections to the election, alleging that the Board agents conducting the election improperly allowed the Petitioner to speak to voters outside the polling place, that one of the Board agents identified himself to voters as being with the Petitioner, and that the Board agents failed to properly mark and identify two of the challenged ballot envelopes. The objections also alleged that during the critical period, the Petitioner and its representatives, agents, and supporters engaged in threatening, intimidating, and coercive conduct, created a general atmosphere of fear, coercion, and confusion, and distributed false, misleading and deceptive flyers.

    On July 5, the Regional Director for Region 21 approved a supplemental stipulation between the parties resolving 11 of the 30 challenged ballots, agreeing to open and count 8 of them. The revised tally of ballots showed 289 votes for the Petitioner, 275 votes against representation, and 19 remaining determinative challenged ballots.

    On August 1, the Acting Regional Director for Region 21 issued an Order directing a hearing on the 19 remaining challenged ballots and the Employer’s election objections. The Order explained that 16 of the challenged ballots were cast by voters working in the Maintenance Tech classifications whom the parties agreed would vote subject to challenge. Another voter (classified as a Facilities Maintenance Technician) had been challenged by the Board agent because he was not on the voter list. The two remaining challenged ballots were in envelopes that did not list any voter identifying information or reason for the challenges. However, the Order stated that the Region administratively had determined that the envelopes contained the ballots of two voters who worked in a Maintenance Tech classification that the parties agreed to vote under challenge.

    3 The Employer took the position that these maintenance employees should be included in an appropriate unit, while the Petitioner would have excluded them.

    4 All dates are in 2016 unless otherwise noted.

    2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    At the September 19 hearing,5 the parties litigated the Employer’s objections and the eligibility of the 19 challenged voters. The Employer also raised a new eligibility...

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