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,
Reliable Trucking, Inc. and Teamsters Local 853, International Brotherhood of Teamsters. Case 32–RC–5367
April 23, 2007
DECISION AND CERTIFICATION
OF REPRESENTATIVE
By Chairman Battista and Members Kirsanow
and Walsh
The National Labor Relations Board, by a three-member panel, has considered challenges in and objections to a mail-ballot election held between August 10 and 30, 2005, and Administrative Law Judge Clifford H. Anderson’s attached supplemental report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 43 votes for and 38 votes against the Petitioner, with 6 challenged ballots, a sufficient number to affect the results.
The Board has reviewed the record in light of the exceptions and briefs, has adopted the judge’s findings1 and recommendations,2 and finds that a certification of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
It is certified that a majority of the valid ballots have been cast for Teamsters Local 853, International Brotherhood of Teamsters, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit:
All full-time and regular part-time drivers employed by the Employer at or out of, its Northern California facilities and other locations of operations, including but not limited to those located in Stockton, Pleasanton, Redding and Woodland, California; excluding all managerial and administrative employees, mechanics, salespersons, office clerical employees, all other employees, guards, and supervisors are defined in the National Labor Relations Act (the Act).
Dated,
Peter N. Kirsanow, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Chairman Battista, dissenting in part.
Contrary to my colleagues, I find merit to Employer Objections 6–9, and I would set aside the election.1 Specifically, I find that the Petitioner’s agents’ intrusion into the Employer’s August 9, 2005 election meeting constitutes objectionable conduct under Phillips Chrysler Plymouth, 304 NLRB 16, 16 (1991) (union agents engaged in objectionable conduct by invading employer’s premise and repeatedly and belligerently rejecting employer’s lawful directives to leave).
The Employer conducted a meeting on August 9, the day before ballots were mailed to unit employees. The meeting, held in a private hotel meeting room rented by the Employer, was attended by 15–20 unit employees. During that meeting, when the room was darkened, and a slide presentation was underway, seven or eight agents of the Petitioner, headed by Petitioner’s secretary-treasurer, Rome Aloise, defied the Employer’s directive and barged into the meeting. Once inside, these union agents disrupted the meeting and yelled at, and exchanged profanities with, employees and the Employer’s representatives. Both the Petitioner’s and the Employer’s witnesses testified that the meeting degenerated into a shouting match. Even after hotel security was summoned and requested that the union agents leave, the latter belligerently refused to do so. Instead, they insisted on remaining in the meeting room until the police arrived and escorted them out.
The judge found that the invasion of the Petitioner’s agents and the subsequent chaotic shouting session caused apprehension and fear among employees at the meeting. The judge also found that these employees reasonably would remember the forcefulness of the incident throughout the mail-ballot election period.2 The outrageous and trespassing conduct was committed by 7–8 union agents. The sheer number of the agents, who were engaged in this conduct in a small room, was surely enough to intimidate the 15–20 employees who observed it. Notwithstanding these findings, the judge and the majority concluded that this conduct was unobjectionable. I disagree.
The union agents’ belligerent conduct conveyed to the employees at the meeting that the Employer was powerless to enforce its own right to conduct the meeting and to control the premises. Even the hotel’s agents were unable to enforce the hotel’s property rights. The union agents left only after the police arrived and led them out. The fact that the conduct occurred “off site” at a hotel, rather than the Employer’s premises is immaterial. The Employer had rented the hotel meeting room for the purposes of the meeting, and the union agents blatantly invaded that space and disrupted the meeting. Further, the fact that the union agents did not punctuate their substantial misconduct with direct threats or physical altercations does not undercut the severity of their conduct. In refusing to leave, the union agents effectively communicated to the employees an equally coercive message that the Employer was unable to prevent the intrusion or to adequately protect its own legal rights in a confrontation with the union agents.
Nor does the fact that this conduct occurred only once eliminate its coercive effect. Given the timing and persistence of the Petitioner’s misconduct, its outrageousness, and the sheer number of Petitioner’s agents who participated in it, such misconduct would be indelibly imprinted in the employees’ memories throughout the voting period. Finally, the lack of dissemination of the Petitioner’s conduct is immaterial. The 15 to 20 employees witnessing the Petitioner’s conduct constituted a significant percent of those casting votes, and were far more than enough to have affected the election, where a swing of only 3–7 votes could have been determinative.3
Accordingly, applying the factors of Phillip Chrysler Plymouth, supra, I find the conduct objectionable.
Dated,
Robert J. Battista, Chairman
(seal) National
Labor Relations Board
Michelle
M. Smith, Esq., for the Regional Director.
Spencer
H. Hipp, Esq. (Littler Mendelson), of
Lisa W.
Pau, Esq. (Beeson, Tayer, & Bodine), of
Oakland, California, and Mr. Stuart
Helfer, Petitioner’s Business Representative, of San Francisco, California, for
the Petitioner.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON CHALLENGES AND OBJECTIONS
Clifford H. Anderson, Administrative Law Judge: I heard the
above-captioned case in
On July 14,
2005, Teamsters Local 853, International Brotherhood of Teamsters (the
Petitioner or the Union) filed a representation petition with Region 32 of the
National Labor Relations Board (the Board), docketed as Case 32–RC–5367, seeking
to represent certain employees of Reliable Trucking, Inc. (the Employer).
On July 22,
2005, the Acting Regional Director for Region 32 approved a Stipulated Election
Agreement directing an election be held in the following unit of the Employer’s
employees (the unit):
All full-time and regular part-time
drivers employed by the Employer at or out of, its Northern California
facilities and other locations of operations, including but not limited to
those located in Stockton, Pleasanton, Redding and Woodland, California;
excluding all managerial and administrative employees, mechanics, salespersons,
office clerical employees, all other employees, guards, and supervisors as defined
in the National Labor Relations Act (the Act).
The agreement
provided: the payroll period for voter eligibility as the payroll period ending
immediately preceding July 20, 2005; that all procedures after the ballots were
counted would conform to the Board’s Rules and Regulations; the agreement
further provided that the election would be by U.S. mail and asserted that
ballots would be mailed by the Region to employees at 5 p.m. Wednesday, August
2005. Ballots were to be returned by
mail to the Board’s Region 32 offices by August 30, 2005. The agreement stated: “Ballots will be co-mingled and counted at
the [Board’s Region 32 offices] at 11:30 a.m., Wednesday,
August 31, 2005.”
The election by
mail ballot was held consistent with the agreement from August 10 to August 30,
2005. The tally of ballots served on the
parties at the conclusion of the August 31, 2005 meeting showed the
following results:
Approximate number of eligible voters
……………….111
Number of void ballots ………………………………….0
Number of votes cast for Petitioner
……………...……43
Number of votes against participating
labor
organization
…………………………………………38
Number of valid votes counted
……………………..…81
Number of challenged ballots …………………………. 6
Valid votes counted plus challenged
ballots ……………87
The challenged ballots were determinative
of the results of the election. Thereafter, both the Petitioner and the
Employer filed timely objections to the election which were served on all parties.
On May 31, 2006,
the Regional Director issued a Report and Recommendations on Objections and
Challenged Ballots, Order Consolidating Cases and Notice of Hearing (the
Director’s Report). The Director’s
Report, inter alia, directed that a hearing be held on the Petitioner’s
challenged ballots of Todd Alan Andreason, Tim Neal, Everett Strahorn,
Ricky Finance, and the challenged “No” vote that was marked on the sample
ballot from the Notice of Election mailed to the voter.[1] Thus, five ballots are under unresolved
challenge. The Regional Director
directed that a hearing be held on these five challenges.[2]
The Director’s
Report directed that a hearing be held on the Employer and the Petitioner’s
objections and, further directs that the hearing officer prepare and cause to
be served upon the parties a report containing resolutions of the credibility
of witnesses, findings of fact, and recommendations to the Board as to the
disposition of the challenges and objections.
On July 26,
2006, the Acting Regional Director for Region 32 issued an Order Severing Cases
and Amending the May 31, 2006, Report and Recommendations on Objections and Challenged
Ballots (the Amending Order). That
Amending Order announced certain matters had been separately dealt with and
were severed from the instant proceeding.
The Amending Order, inter alia, specifically limited the instant hearing
directed in the earlier report to the challenged ballots of Todd Alan Andreason,
Tim Neal, Everett Strahorn, and Ricky Finance, as well as the disputed “NO”
vote marked on a sample ballot from the Notice of Elections as earlier
described and the issues raised by the Employer’s Objections 1 through 9 and
the Petitioner’s Objections 8 and 9.
The matter was
thereafter assigned to me for hearing and was held consistent with the Regional
Director’s Report and Recommendations on Objections and Notice of Hearing. At
the hearing, without objection from any party, the Petitioner, with my
approval, withdrew its Objections 8 and 9.
The merits of those two objections are therefore not further addressed
herein. On brief, the Petitioner withdrew
its challenge to the ballot of Rickey Finance.
I approve the Petitioner’s withdrawal of the challenge. The merits
of that challenge will therefore not be further addressed herein. I find
Finance’s vote eligible. That finding
and conclusion will be reflected in the specific findings and conclusions
below.
Findings of Fact
Upon the entire
record herein, including scholarly and helpful briefs from the Employer and the
Petitioner submitted on August 29, 2006, I make the following findings of fact.[3]
i. the challenged ballots
The Regional
Director in his report charged me with resolving five challenged ballots which
had not as of the time of its issuance been resolved. Rickey Finance’s challenge was withdrawn with
my approval as discussed supra. Thus,
four challenges remain for resolution. Those challenges were made by the
Petitioner to the following individuals:
Todd Alan Andreason, Tim Neal, Everett Strathorn, and to a sample
ballot. The challenges are best
addressed separately save for the circumstances of Neal and Strathorn who are
considered jointly.
A. The Challenge to the Ballot of Todd
Alan Andreason
The Petitioner
challenged the vote of Andreason on the basis that he was not in the bargaining
unit. The record establishes that Andreason worked for the Employer as a
mechanic or mechanic’s helper through the payroll period ending on August 4,
2005, at which time he became a driver.
The Employer’s records establish unambiguously that Andreason did not
work as a driver until after July 20, 2005.
As noted supra, the payroll period for voter eligibility was the payroll
period ending immediately preceding July 20, 2005. It is therefore clear and I find that, while
Andreason may have been a driver during the period of the voting, he was not
during the payroll period for voting eligibility. Rather, I find he was a mechanic or mechanic’s
helper during the eligibility period, a nonunit position.
The Employer, on
brief, does not dispute the above facts but rather argues that since Andreason
has become a driver and became one before the election balloting began, his
vote should be found eligible and counted.
The Petitioner argues Andreason is simply ineligible by virtue of his
eligibility period nonunit employment under the terms of the Stipulated Election
Agreement and longstanding Board law.
The Board has
long maintained a voter eligibility requirement or “prework” rule requiring
unit employment during the established eligibility period in addition to
requiring unit employment during the voting period. As the Board explained in CWM, Inc., 306 NLRB 495, 495–496 (1992):
It is settled that, to be eligible to
vote in a Board-conducted election, the employee must be employed and working
on the eligibility date . . . . The Board’s so-called prework rule has two
purposes: it operates as a prophylactic against an employer’s manipulation of
an election by hiring employees favorable to its position just prior to the election,
and it provides a simple and fair means of determining whether newly hired
employees are part of the bargaining unit. Tom
Wood Datsun, [767 F.2d 350 (7th Cir. 1985),] at 352.
The Employer has not been able to marshal
any recognized exception to this rule which fits Andreason. I therefore find he was ineligible to vote
based on his nonunit employment in the eligibility period. The challenge to his ballot is therefore sustained.
B. The Challenge to the Ballots of Neal
and Strathorn
The Petitioner
challenged the ballots of Neal and Strathorn as not being in the bargaining
unit. The two individuals do not have
the title of driver but rather are referred to by the Employer as “yard loader”
or “load out” person and by drivers as yard employees. The record establishes
that the Employer receives product by rail to its yards where that product is
unloaded by Neal and Strathorn. Each
also loads the trailers with product that the drivers then haul. Drivers are compensated based on a percentage
of the designated load values of the products they haul. Neal and Strathorn are hourly paid. Neither Neal nor Strathorn haul product in
company vehicles to other locations.
The Employer
argues that the two employees have a community of interest with the
drivers. The Petitioner argues that
community of interest is irrelevant because the two were specifically excluded
from the bargaining unit which includes all drivers and excludes all other
employees.
As noted supra,
the unit herein was established based on the parties’ agreed upon unit. That unit is:
All full-time and regular part-time
drivers employed by the Employer at or out of, its Northern California
facilities and other locations of operations, including by not limited to those
located in Stockton, Pleasanton, Redding and Woodland, California; excluding
all managerial and administrative employees, mechanics, salespersons, office
clerical employees, all other employees, guards, and supervisors as defined in
the National Labor Relations Act (the Act).
There was no evidence offered by the
parties respecting their intentions in agreeing the specific unit language involved
herein.
The Petitioner’s
challenge to the ballots of Neil and Strathorn is premised on the argument that
he is not a member of the stipulated bargaining unit. The Board has very recently restated from Caesar’s Tahoe, 337 NLRB 1096, 1097
(2002), the correct analytical approach to challenges respecting unit placement
in stipulated bargaining units in Halsted
Communications, 347 NLRB No. 20,
slip op. at 1 (2006):
When resolving determinative challenged
ballots in cases involving stipulated bargaining units, the Board’s function is
to ascertain and enforce the parties’ intent, provided that it is not contrary
to any statutory provision or established Board policy. Caesar’s Tahoe, 337 NLRB 1096, 1097
(2002). To determine whether an individual is included in the stipulated
bargaining unit, the Board applies a three-step test. First, the Board
must determine whether the stipulation is ambiguous. If the stipulation
clearly expresses the objective intent of the parties in unambiguous terms, the
Board simply enforces the agreement. If the stipulation is ambiguous, the
Board continues to step two and seeks to determine the parties’ intent through
usual methods of contract interpretation, including the examination of
extrinsic evidence. If the parties’ intent still remains unclear, the
Board will reach step three and employ its standard community-of-interest test
to determine the bargaining unit.
To determine whether the stipulation is clear or ambiguous,
the Board will compare the express language of the stipulated bargaining unit
with the disputed classification. Bell
Convalescent Hospital, 337 NLRB 191 (2001) (citing Viacom Cablevision, 268 NLRB 633 (1984)). The Board will find
a clear intent to include those classifications that match the express language,
and will find a clear intent to exclude those classifications not matching the
stipulated bargaining unit description. Bell Convalescent Hospital, supra at 191. If the
classification is not included, and there is an exclusion for “all other employees,”
the stipulation will be read to clearly exclude that classification.
Following the
Board’s analytical framework, it is relevant to note that the agreed-upon unit
herein expressly includes all drivers and specifically excludes all other
employees. From that fact, applying the
above quoted instruction, I find the parties had a clear intent to exclude Neal
and Strathorn who were employed as yard and not driver employees. The Respondent’s
arguments respecting community of interest do not apply for the reasons
explained by the Board above. Having
found that Neal and Strathorn were not in the bargaining unit at relevant
times, it follows they were not eligible to vote and I shall therefore sustain
the challenge to each of their ballots.
C. The Challenge to the Sample Ballot
1. Events
The circumstances
relevant to the merits of the challenge to the sample ballot are set forth at
some length in my discussion of the Employer’s “Board Conduct” objections,
infra. In order to avoid needless duplication
of that discussion, they will not be set forth here. The findings therein are
relied upon here to resolve the challenge to the sample ballot.
2. Analysis and Conclusion
The Petitioner
challenged the sample ballot as not complying with Board requirements. The Employer argues the Board has made it
clear in its recent decision in Aesthetic
Designs, LLC, 339 NLRB 395 (2003), that a sample ballot in a mail-ballot
context is not rendered uncountable or subject to meritorious challenge for
that reason alone and will be found eligible and counted unless other disabling
factors control.
The Petitioner
does not argue that the ballot is per se invalid as a sample ballot. Rather, the Petitioner argues that Aesthetic Designs does not apply here
initially because the instant sample ballot was not anonymous, it was a different
and unique color and form and was marked in a manner that distinguished it from
all other ballots. While I find this is
true, I do not find the unique nature—i.e., color, shape, and size—of the
sample ballot associates the ballot with a particular voter, and I further find
that that was the type of voter identifying marks that the Board was concerned
with in Aesthetic Designs. Were it otherwise, contrary to Aesthetic Designs, sample ballots would
be found invalid in virtually all situations by virtue of their unique physical
description, essentially a per se ineligibility.
The Petitioner
argues further that the instant ballot is at the heart of the “ballot box
stuffing” and election count irregularities that occurred at the election voter
count, as discussed infra, which, it argues, require that the sample ballot
under the totality of the circumstances should not be counted. The Employer
argues the ballot should be found eligible in effect in spite of those circumstances
which, in its objections, it argues requires a new election.
The Board agent
conduct and the objections based thereon are discussed infra. In addition to
its unusual and irregular use as a ballot in a Board election, the main
argument raised in the instant case to the eligibility of the ballot is the
irregularity and suspicion of the sample ballot’s discovery by the Board agent
reputedly as under the ballot box flap at a time after the ballot count was
thought to have been concluded and, after the ballot box had been shown to be
empty by the Board agent to the parties at the end of the counting
process. It was at least suspicious and
unexplained how the ballot came to properly be placed in the ballot box since
it is so significantly and noticeably differently colored and larger than the
standard Board ballots and because the Board agent had opened ballot envelopes
and extracted ballots placing all the ballots into the empty ballot box in the
presence of the parties during the tally process.
It is also true
that although the Board held that sample ballots not be found per se
ineligible, it has not found that sample ballots mistakenly used as ballots are
free from difficulty. The Board in Aesthetic
Designs, supra, specifically noted in its decision that in that case there
was generally no concern respecting ballot stuffing in the mail ballot process
due to the key number addressee-voter designations on ballots and none was
present on the facts before it. The
appearance of the sample ballot in the ballot box in a manner free from doubt
or suspicion is very much not the case here and the obvious irregularity of the
belated appearance of the ballot distinguishes the instant case from Aesthetic Design. There are important unanswered questions
respecting the sample ballot herein.
Considering all
the circumstances and on the basis of the record as a whole, I find the
question of the sample ballot’s eligibility is a close one. The parties have marshaled the Board’s many
relevant cases dealing with the twin goals of counting voter ballots and of preserving
the fairness and regularity of the Board’s election processes. These cases are fact specific and
postelection determinations must focus on the facts in each particular case.
The issue of the sample ballot’s eligibility, herein, involves yet another
balancing of the important need that the Board’s processes both be honest, fair
and open and be seen to be honest, fair and open against the important
obligation to allow voter intentions to be considered wherever possible.
On the facts of
this case I am persuaded that the twin unusual if not suspicious circumstances—the
unusual coincidence of the rare casting of a sample ballot with the even more
rare unexplained discovery of such a ballot belatedly discovered by a Board agent
away from the counting area in a ballot box already determined and shown to the
parties to be empty, requires that the ballot be held improper based on those
suspicious and hence not be counted. Coincidences involving events as rare and
infrequent as those involved herein are not to be ignored or minimized. Perhaps
if either oddity occurred alone, the ballot might properly be found eligible. I
find herein, however, there was simply too much irregularity in the process to
allow the ballot to be found regular and tallied with the other ballots.
I am reluctant
to disenfranchise any voter and do not do so here because of the fact the
ballot was a sample ballot. I and the parties
have read and understand the Board’s teaching in Aesthetic Designs, supra. Rather, I do so because the entire context of
events and circumstances respecting the ballot makes it, in my view, simply too
unreliable to be fairly included with the remainder of the properly-poled
ballots which reflect employee sentiments.
The Board’s historic and continuing efforts to keep any fraud or even
the appearance of fraud from undermining confidence in the Agency must take
priority here. Suspicion and reluctant
exclusion in this unusual set of circumstances must take preference over a trusting
inclusion. I simply cannot find this
ballot reliable. I shall therefore sustain the challenge of the Petition to
this ballot.
D.
Summary and Conclusions Respecting
Challenged Ballots
Two earlier
challenged votes were resolved and are simply noted here. Ricky Finance has
been found eligible to vote in the election and it is appropriate that his
ballot be opened, counted, and included in the final tally of ballots. Robert Campbell has earlier been found by the
Regional Director to be an eligible voter and the Regional Director further
found it appropriate that his ballot be opened, counted, and included in the
tally of ballots.
I have found
Andreason, Neil, and Strathorn not to be eligible voters. I have therefore sustained the challenges to
their ballots. The ballots of these individuals
should not under any circumstances be opened or counted in the instant
election. Finally, I have sustained the
challenge to the “sample ballot vote” as described above. That ballot is not sufficiently reliable to
be included in the tally of ballots herein.
The findings and
conclusions set forth above reduce the valid challenged ballots to two, i.e.,
the ballots of Finance and
I find and
conclude that a majority of valid ballots has been cast for the Petitioner.
ii. the employers objections
The Employer’s
Objections 1 through 9 are as follows:
1. Board Agent Conduct [all bolding in original]
The Board Agents assigned to this case
made the conduct of an open and fair election impossible, and/or gave the image
of tainted, if not illicit, election proceedings by failing to maintain the
integrity of the ballot box, by conducting the tally of ballots in a manner
that allowed additional ballots to be inserted in the ballot box, and in a
manner that did not account for all ballots or otherwise explain additional
extraneous ballots.
2. Board Agent Conduct
The Board Agents assigned to this case
destroyed the integrity of the NLRB’s election proceedings and compromised the
laboratory conditions for an NLRB election by not accounting for all ballots
cast by eligible voters and received by the Region
3. Board Agent Conduct
The Board Agents assigned to this case
destroyed the integrity of the NLRB’s election proceedings and compromised the
laboratory conditions for an NLRB election by leaving the Region’s election
files in this case unattended, and by allowing Union representatives to rummage
through the Region’s election files in this case and then extract from those
files numerous ballot envelopes containing ballots.
4. Board Agent Conduct
The Board Agents assigned to this case
destroyed the integrity of the NLRB’s election proceedings and compromised the
laboratory conditions for an NLRB election by not counting and/or accounting
for all ballots mailed out and received back by the Region.
5. Board Agent Conduct
The Board Agents assigned to this case
destroyed the integrity of the NLRB’s election proceedings and compromised the
laboratory conditions for an NLRB election by losing or misplacing one or more
ballots, and conducting the election, ballot count accumulation, and ballot count in a manner that it was
unclear just one or another 20 ballots had been misplaced.
6. Petitioning Union
Conduct
Teamsters Union Local No. 853, by and through its representatives, agents
and supporters, rendered the conduct of
a free and fair and uncoerced representation election impossible, and otherwise
destroyed the laboratory conditions for an NLRB election, by threatening eligible voters that if they
did not vote for the Union, they would not have a job anymore.
7. Petitioning Union
Conduct
Teamsters Union Local No. 853, by and
through its representatives, agents and supporters, rendered the conduct of a free and fair and
uncoerced representation election impossible, and otherwise destroyed the
laboratory conditions for an NLRB election,
by barging into Company campaign meetings, threatening and intimidating company campaign
organizers in from of the eligible voters,
and then threatening eligible voters.
8. Petitioning Union
Conduct
Teamsters Union Local No. 853, by and
through its representatives, agents and supporters, rendered the conduct of a
free and fair and uncoerced representation election impossible, and otherwise
destroyed the laboratory conditions for an NLRB election, by threatening
eligible voters with physical violence, such as we’re going to break you in
half next time we see you if you don’t support the Union.
9. Petitioning Union
Conduct
Teamsters Union Local No. 853, by and
through its representatives, agents and supporters, rendered the conduct of a
free and fair and uncoerced representation election impossible, and otherwise
destroyed the laboratory conditions for an NLRB election, by threatening
eligible voters with job loss through pressure on third party suppliers that
would adversely impact the eligible voters’ job performance.
While
voluminous, the Employer’s Objections 1 through 9 deal—at least to the extent
that evidence was offered in support thereof—with two episodes, each occurring
on separate dates in August 2005.
Thus, Objections 1 through 5, each sub-captioned “Board Agent Conduct,”
complain of the conduct of the Board agent at the August 31, 2005 mail-ballot
opening and counting process held at the offices of Region 32. No other
evidence or argument on these objections was directed to any other event. The Employer’s Objections 6 through 9, each
sub-captioned “Petitioning Union Conduct,” complain of the Petitioner’s agents
conduct respecting an employer campaign meeting for employees held on August 9,
2005. No other evidence or argument on these objections was directed to any
other event. It is appropriate to deal
separately with the two events.
A. The Objections Addressed to the Board
Agent’s
Conduct—Objections 1–5
1. A brief review
of NLRB mail-ballot
election procedures
The Board’s Casehandling
Manual—Representation Proceedings, Section 11336.2 directs the following
regarding mail ballots:
11336.2 Notification and Distribution
Procedures:
The mail ballot process involves the following steps:
. . . .
(b) Notification
Written notification is sent to the parties at least 24 hours before the time and date on which mail ballots will be dispatched to the voters, informing the parties of the dispatch time and thus the time of the “start” of the election for application of the Peerless Plywood rule. Oregon Washington Telephone Co., 123 NLRB 339 (1959); Peerless Plywood, 107 NLRB 427 (1953). The notification should also set forth a terminal time and date by which the ballots should be returned to the Regional Office, as well as the date and time of the ballot count.
For the information of the parties, a copy of Form NLRB-4175 Instructions to Eligible Employees Voting by United States Mail, which will be sent to the voters, should also be enclosed with the notification.
A kit is mailed to each voter, not only to those agreed to be eligible, but also to those alleged to be eligible by any party.
The kit contains Form NLRB-4175 Instructions to Eligible Employees
Voting by
Also included in the kit is a ballot. Note that the instructions to voters that appear on the ballot used in a mail ballot election are unique to that election. Sec. 11306.6.
The kit further contains a blue mail-ballot envelope and a yellow postage-paid return envelope addressed to the Regional Office. The key number of the addressee should be inserted on the yellow return envelope in each case. (Pursuant to Postal Service regulations, the yellow return envelopes should be stamped by the Regional Office postage meter, with the date left blank.)
. . . .
Returned envelopes are treated as prospective voters for purposes of identification, challenges, etc.
The Manual
states further:
11336.5 Check and Count of Ballots:
(a) Parties ‘s Observers
The parties may select observers for purposes of identification, checkoff, challenges, etc. Since the ballots have already been marked at the time of receipt, the employer may designate supervisory employees as observers and the labor organization may designate union officials.
(b) Count
At the time scheduled for the count, the returned envelopes are treated as “voters’’ approaching the checking table. The observers at the table make their marks alongside the respective names on the list. The observers may, if they wish, challenge ballots. Challenged ballots should not be opened, but simply labeled “challenged” on the yellow outer return envelope. Sec. 11338.9.
After the yellow outer return envelopes have been checked against the list, all should be opened at once. Next, the blue ballot envelopes should be mixed thoroughly before the envelopes are opened and ballots are extracted. The ballots should be mixed again before being counted.
2. The events of August 31, 2005
a. A brief overview of the uncontested elements
of the meeting
Pursuant to the
election agreement, the tally of ballots was conducted at 11:30 a.m.,
Wednesday, August 31, 2005, the Board’s Region 32 offices in a hearing room,
likely the room in which the instant hearing was conducted. The Board agent stood at the front of the
room with a table behind him where he placed the materials to be used. In front of the Board agent was a counsel
table at which the two Employer’s representatives sat facing the Board agent. At the other counsel table, facing the Board agent
but further to the Board agent’s left, sat the two Petitioner’s representatives.
Two
representatives of the Petitioner, Helfer and Casqueiro, and two
representatives of the Employer, Brown and Askham, were present. The process was conducted by a single Board
agent, Nick Tsiliacos.[4] The representatives of the Employer and the Petitioner
all testified to the events in contest.
No party called or indicated it had attempted to call or intended to
call as a witness, any Board agent participant in the events.
There was no
dispute that the parties gathered, Board Agent Tsiliacos made introductory
remarks, the envelopes mailed to the Board office were set out and the names on
the envelopes were checked off by the parties on the voter eligibility
list. The parties were not sure if envelopes
submitted by individuals who had become ineligible or envelopes otherwise
deficient were discovered and resolved, but they agreed that challenged voter’s
envelopes were identified and those envelopes were segregated from the others.
The nonchallenged
ballot envelopes were then each opened by the Board agent who extracted the colored
ballots contained and placed them in a standard Board ballot box which had
first been shown to the parties to confirm it was empty when the process
began. The Board agent engaged in a
disputed ballot extracting style in several instances which is discussed
below. The ballots were then taken from
the ballot box which, was thereafter again shown by the Board agent to the
parties as now empty of ballots, and the Board agent showed each ballot to the
parties and separated them into two piles of “yes” and “no” votes. No unusual, spoilt, or blank ballots were
discovered. The two stacks of ballots
were then counted. The parties paid
close attention and it soon was discovered and discussed that the number of
envelopes opened and from which the ballots had been extracted exceeded by one
the number of ballots counted.
The discrepancy
upset and confused all present. Ballot
counts are important matters, not only to the parties but also to Board agents
who desire that regularity should always obtain and the process go
smoothly. Recounting occurred of both
the ballots and the envelopes from which the ballots had been removed with the
same inconsistent result—one more ballot than envelope.
At this point
the Board agent announced to the parties that he was going to take advice and
left the room. He took the ballot box
and the counted envelopes. He was
specifically observed by the Petitioner’s agent, Helfer, to have taken the challenged
ballots with him on each occasion he left the room. In time, the Board agent returned and
announced that he was instructed to recount and that process was again
undertaken with the same result. He left
again bearing the materials as before. The number of times he left and returned
is in dispute, two or perhaps three or four times total. The parties also dispute the Petitioner’s agent’s
conduct during one of Tsiliacos’ absences from the room.
Also contested
by the parties, but of no direct consequence to the objection matters in
dispute, is the precise timing and means that the late arriving ballot envelope
of Campbell was delivered into the room—by another Board agent or by Tsiliacos—and
precisely when another Board agent briefly arrived, consoled the parties, and
left thereafter.
After Tsiliacos’
final absence from the room, he returned to the room with a sample ballot
marked “no” in pencil, which he announced to the parties that he had discovered
under a flap in the ballot box. This
announcement apparently produced disbelief and skepticism on the part of the
parties who could not understand how a sample ballot—different in appearance
from the normal ballots—could have been discovered in a ballot box after the
box had been shown by the Board agent to the parties to be empty after all the
ballots had been removed. And they
wondered aloud how a sample ballot so different from the other ballots could
have managed to get into the ballot box in the first place. The Board agent was not able to provide further
answers or explanations. The sample
ballot was challenged—see my resolution of that challenge, supra. The tally of ballots completed and the
meeting concluded.
b. The disputed elements of themMeeting
and the
positions of the Parties[5]
The Employer,
based primarily on the testimony of consultant Ronald Brown, an experienced
participant in ballot counts including mail-ballot counts, argues several
irregularities tainted the entire tally process and require a new
election. His colleague, Ronald Askham,
the Petitioner’s vice president and a first-time observer of the tally process,
was present for all events but was admittedly overwhelmed by the entire process
and could not supply the informed detail of Brown. The Petitioner’s witnesses contested the
Employer’s contentions. The disputed elements are initially discussed
separately below.
While all agreed
that the tally meeting started off conventionally and without apparent
irregularity, when Board Agent Tsiliacos was extracting the ballots from their envelopes
and inserting the ballots into the ballot box, on numerous occasions he turned
his back on the parties while he was apparently extracting a ballot out of the
parties’ direct line of sight, then placed it in the ballot box he had carried
with him as he turned his back. There is
no dispute that this occurred perhaps half a dozen times. There is also no dispute that no party said
anything about it during the process and that the Board agent never made
comment on his behavior. Further,
insofar as the parties could observe, there was nothing untoward done by the
Board agent during these events. His conduct
was limited to and directed toward ballot extraction from election envelopes
and the ballots’ introduction into the ballot box.
The Employer argues
such secretive behavior destroys the confidence of the parties and undermines
the election tally process to such an extent that a new election is
needed. The Petitioner’s witness Helfer
with the Petitioner’s adoption of the argument on brief, suggested that since
he noticed that during the ballot extraction process by the Board agent, in
some cases, ballot markings were viewable on the ballot before it was inserted
into the ballot box, the Board agent was probably simply trying to avoid
disclosing such marks to the parties before the comingling occurred within the
ballot box by turning his back. The
Employer argues this is simple speculation by the Petitioner. The Petitioner argues that the Employer’s
agents never questioned or commented on the process at the time and, thus, did
not afford the Board agent an opportunity to provide a simple answer and
explanation of a procedure he did not know had confused any party or otherwise
warranted explanation.
The Employer
again, based on the testimony of Brown and Askham, argues that at all times
during this process there appeared to be a stack of perhaps 15 to 20 unopened
voter envelopes sitting on the Board agent’s table, which Brown suspected might
be seemingly ignored ballots submitted by other voters. The Employer offered evidence that the names
and addresses of the approximately 111 eligible voters were reliable and had
been computer printed by the Employer for the Board so that ballot envelopes
should not have been lost in the mail.
Since there were fewer than 90 ballots under discussion at the tally,
that stack of ballots might well account for the “missing” voters. Ignoring those ballots requires a new election
argues the Employer.
The Petitioner’s
witnesses deny that any unopened collection of ballot envelopes as described by
the Employer’s witnesses ever existed. Stuart Helfer testified that as the
parties came together in the Board’s hearing room, he asked Board Agent Tsiliacos how many
ballots the Region had received and that Tsiliacos responded “86.” Thus, argues the Petitioner, the Board made
it clear it did not have a larger group of envelopes to address at the
tally. The Petitioner argues there
simply was never a large bundle of ballot envelopes received and carried into
the hearing room by the Board agent only to be ignored thereafter. The Petitioner argues further that Brown in
his testimony was not able to testify to his observations as creating more than
a doubt in his mind as to what the stack of documents comprised. And Brown never directly raised the matter
with the Board agent, a simple matter of Brown asking Tsiliacos something like:
“Are the envelopes in that stack there, ballot envelopes in this matter that
need to be addressed?” The Petitioner
concludes the Employer’s agents were simply mistaken or confused other
envelopes—perhaps the challenged envelopes—or other papers into the described
perception of an impossible and improbable bundle many of unaddressed, unopened,
eligible voter ballot envelopes.
Brown admitted
he had never directly asked questions of the Board agent about the mysterious
stack of envelopes. Brown explained that
this failure to do so was in part because of a desire to preserve the decorum
of the process, to avoid embarrassing a Board agent employed in a position he
had at one time held, to avoid providing the Petitioner’s agents ammunition
which might be used against the Employer’s election interests and, finally,
because he asked the questions indirectly by repeatedly asking the Board agent
if all the ballots have been addressed and there were no others to be found.
The Employer
argues that during one of the Board agent’s absences from the room, Petitioner’s
agent, Jesse Casqueiro, left his place seated at the table and wandered over to
the Board agent’s materials and briefly picked up a stack of envelopes and then
dropped them back in place. The
The Employer
argues this misconduct and the fact of the Board agent’s absence and inability
to protect Board materials commands a new election be directed. The Petitioner challenges the employer
witnesses’ testimony and suggests there is no true dispute that anything more
was involved than at most a momentary picking up and dropping of the already
many times counted empty ballot envelopes the ballots from which had been taken
from the room by the Board agent.
Further, the Petitioner notes that no complaint was made by the
Petitioner’s agents to the Board agent upon his return so that the Board agent
could address any concerns.
Finally, the
Employer argues the unusual and highly suspect appearance of the sample ballot,
discovered outside the counting room by the Board agent and asserted by him to
have been discovered under a flap in the ballot box provides the final consummating
irregularity which requires a new election.
The Petitioner argues that the sample ballot itself is under challenge
and will be resolved independently, but the process was otherwise sufficient
and a new election should not be lightly be directed and employees sentiments
in the election set aside based on an odd result in the tally process—a process
which occurred significantly after the employees had cast their ballots and
which only involved a single ballot which was challenged and found ineligible
and invalid, supra.
3. Analysis and conclusions respecting the Employer’s Board agent conduct objections
Initially
certain evidentiary conflicts must be resolved.
There was an important conflict in the testimony regarding whether or
not the Board agent had stacked on a table, in plain sight but not otherwise
addressed nor spoken about, a group of unopened mail-ballot envelopes of
perhaps some 15 to 20 in number.
Considering the record as a whole including not only the witnesses and
their demeanor but the probabilities of the scenarios described, I find there
was no large group of unaccounted for unopened employee ballot envelopes in the
hearing room that day. It is not
necessary to find the Employer’s witnesses were other than honest in their
testimony. Rather, I find they were
simply mistaken. I find that any such
stack or gathering of what was perceived to be unopened ballot envelopes were
not unopened ballots but rather were the already opened envelopes from which
ballots had been extracted. There is
simply no other plausible explanation given the testimony and the fact that no
evidence was offered to suggest that—other than the sample ballot discussed
earlier—voters had mailed ballots to the Regional Office which had not been addressed
in the process that day.
There is also a
conflict regarding the extent of the Petitioner’s agent, Casqueiro’s, rummage
in Board materials. I find that he did
in fact momentarily pick up and then immediately drop back in position a group
of already opened envelopes. In making
this finding, I credit the Union’s
agents as to what material were involved but favor the testimony of Askham
respecting the extent of the contact with materials. I specifically find that no materials were
otherwise handled and that no substitution or other slight of hand occurred
respecting the materials.
Turning to the
specific employer complaints, it is well to consider them initially separately. First, there is the matter of the Board agent’s
turning of his back during the process of removing the ballot from its
envelope. I agree with the Petitioner
that the conduct has a benign explanation and that he was seeking to protect
the confidentiality of certain apparently vulnerable ballots as he removed them
from their envelopes. I also find there
was simply no credible evidence of irregular handling of the envelope and
ballot handling process by the Board agent other than in his turning away as
described. Importantly the Employer’s
agents made no complaint and asked for no explanation at the time. I simply find nothing improper in the Board agent’s
conduct in this regard and, even were it irregular, the Employer in such a
marginal matter should have raised the matter at the time and sought
explanation or cessation of the activity.
The Employer’s
complaint about the apparent stack of 15 to 20 unopened, unit employee ballot
envelopes is disposed of by my findings, supra, that there was no such group
and the Employer’s agents were mistaken.
Again, the Employer’s case was further weakened by the fact that no comment,
complaint, or question was raised at the time of its occurrence. I do not find
Brown’s indirect questions directed to the Board agent fairly raised the issue
of an apparent stack of uncounted ballots.
The Petitioner’s
handling of the Board agent’s materials was wrong but not a basis for setting
the election aside because of the Petitioner’s conduct during the tally
process. Since the materials touched
were, as I found supra, already opened and repeatedly counted empty ballot
envelopes, I do not find that the argued misconduct by the Board agent in
leaving them out on the table when he left the area after the ballot count
where they might be touched by a party rises to Board agent misconduct such
that a new election is needed.
Finally turning
to the sample ballot issue, in many ways I agree with the Employer that this
aspect of the ballot tally was unusual, suspicious, and regrettable. Clearly, the Board agent, if he felt it
necessary to inspect the ballot box a final time, should have returned to the
tally room and done so in the presence of the agents of the Employer and the Petitioner. I do not find that the conduct by the Board agent
requires a new election. There is simply
no evidence of slight-of-hand, corruption or other misconduct on the part of
the Board agent regarding the ballot box discovery. The sample ballot’s appearance on the scene
was indeed irregular and even suspicious, but that ballot has been considered
in the section on challenged ballots, supra, and found not a valid or countable
ballot.
Having
considered the various elements of the Board agent misconduct allegations
above: Are they sufficient in their totality to require a new election? I have reconsidered these events based on the
record as a whole and the detailed argument and legal analysis of the
parties. I find the whole of the Employer’s
complaint in these regards does not rise to a situation requiring a new
election.
My earlier
analysis of the parts remains valid. Further,
it is important to keep in mind that the issues here arose in the context of a
mail-ballot tally process which occurs well after the employees have submitted
their ballots. The burden of proof lies
with the objecting party, the Employer here.
In the cases of the suspicions and doubts respecting the process testified
to by Brown and discredited supra, the Employer is hard put to suggest that
activity was seemingly suspicious when nothing was said, no questions asked, no
complaints directed at the Board agent during the process now complained
about. Thus, the mysterious back-turning
of the Board agent, the stack of ballots which the Employer argues may have
been unconsidered eligible votes in these situations are not objectively Board agent
misconduct requiring a new election. The
Employer’s arguments are met with plausible alternatives which I have credited. The Employer did not attempt to elicit
testimony from the Board agent. All of
the Employer’s evidence in this regard is in my view insufficient surmise and
does not meet its burden of proof.
In summary, I
find that no Board agent misconduct requiring a new election occurred. The Board agent probably should not have left
the room; perhaps he could have had other agents relieve him in that duty. He should not have examined the ballot box
anew outside the tally area. In the
entire context of events, those were his failings. They are not enough to justify setting aside
the expressed election sentiments of a unit of over 100 employees.[6] I therefore find the Employer’s Objections
1–5 without merit and shall recommend they be overruled.
B. The Objections Addressed to the
Petitioner’s
Conduct—Objections 6–9
1. The events of August 9, 2005
a. The Employer’s version of events
With the ballots
to be mailed to employees by the Board on August 10, 2005, the Employer
conducted a union election campaign meeting on August 9, 2005, in the
midafternoon at an area hotel in the community of
Ronald Brown
testified the meeting was attended by 15 to 20 unit employees and perhaps 3
consultants to the Employer respecting the election campaign. Brown testified that as the meeting had
begun, he was in the hotel hallway in front of the meeting room with the
meeting room doors closed. He testified:
[Mr. Rome Aloise] came down the hall with
I’d say about seven union reps down the hallway, and I said, what are you doing
here, and he said I want to come and address the group. I says, well, we don’t come to your meetings—. . . . He
said, well, you know, I don’t like what’s being said about the union, and I
want to come in. I said, well, it’s a private
meeting, and you can’t. He said, well,
who’s going to stop us. He said just
try, and he proceeded to enter the room and went into the meeting.
Q. What about the other union reps that were with him?
A. They went in also.
Brown testified
he left the area and managed to obtain the service of two hotel security
personnel who came with him to the meeting room where the union agents, the
Employer’s consultants and the employees were all arguing and shouting at one
another. Brown testified:
I went and got security, brought security
back, entered the room with two security officers, and . . .
Brown testified
that no arrests occurred and that the union agents left when the police
requested they do so. At that point, he recalled the meeting simply broke
up. Neither the hotel security staff nor
the police were called to testify by any party.
Tony Fuller, a
sales representative of the Employer, testified he attended the August 9
campaign meeting to set up the conference room and to provide food for the
participants. He testified he left the
meeting and observed the conversation between Brown and Aloise, essentially
corroborating Brown. When Brown left and
the union agents entered the meeting room, Fuller followed them in. He described the events:
There was a film or slide presentation going on, I’m not sure which. The lights came on, there was a lot of yelling and screaming back and forth between union representatives—
Q. If you know, who turned on the lights?
A. I’m not for certain because I came in afterwards. From where the light switch was and the way the union reps had entered, I believe they did, but I’m not for certain.
Q. That’s okay. When you said there is a lot of screaming going on, can you describe that, what you heard and saw?
A. Yes. The reps
came in and they lined up along the wall closest to the doorway.
Q. What did he say when he introduced himself?
A. He said my name is
Q. What happened then?
A. They declined. There was a lot of yelling and profanities back and forth. A driver stood up and said, Reliable is paying us to be at this meeting, pay us or get out. They said we’re not leaving this meeting.
Q. What happened then?
A. Lots of yelling back and forth, debating about wages.
. . . .
Mr. Brown came back into the room with security guards.
Q. How many?
A. Two.
Q. What happened then?
A. They still refused to leave.
Q. Why do you—what happened that makes you believe that the union reps refused to leave?
A. Because security asked them to leave.
Q. You heard that?
A. Yes.
Q. What was their response if any from the union reps?
A. We are not leaving until the police come.
. . . .
Q. Did the
A. Yes, they did. . . . One of the police officers came and spoke with myself and the management. The rest of them went down the hallway some short time later, I seen the union reps, the police officers, and Mr. Brown exiting the hotel area.
b. The Petitioner’s version of events
Jesse Casqueiro, organizer for the Petitioner, testified he was with the group of the Petitioner’s agents and supporters that entered the Employer’s meeting room. While he did not hear the earlier conversations in the hallway, he testified that he was present in the meeting room during the entire period.