NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
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Columbine Cable Company, Inc. and International Brotherhood of Electrical Workers, Local 68 Petitioner. Case 27–RC–8467
November 30, 2007
DECISION AND DIRECTION OF SECOND ELECTION
By Chairman Battista and Members Schaumber and Walsh
The National Labor Relations Board, by a three-member panel, has considered objections to an election held November 15, 2006, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 7 for and 6 against the Petitioner, with 1 void ballot.
The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer’s findings and recommendations,[1] and finds that the election must be set aside and a new election held.[2]
The hearing officer determined that two late-arriving voters, Eric Gerwig and Ryan Winter, voted without either the privacy of a voting booth or in a completely private room, and that the Board agent and election observers watched them while they marked their ballots. She accordingly recommended sustaining the Employer’s objection and setting aside the election. We agree with the hearing officer’s recommendations.[3]
The election was held in a multipurpose room at the Employer’s facility. After the polls closed as scheduled, the Board agent disassembled the voting booth, and the parties assembled in the entrance area of the Employer’s facility. Thereafter, but before the ballot box was opened, employees Gerwig and Winter arrived to vote and the parties agreed by written stipulation to allow this.[4] The Board agent and the observers returned to the multipurpose room but the voting booth was not re-assembled. Instead, the Board agent directed first Gerwig, and then Winter, to separately enter the room and to mark his ballot at a counter in the room. During this late voting, the Board agent and the observers were stationed in the multipurpose room, positioned about 15 feet away from Gerwig and Winter, and could see each voter’s back and left shoulder from their vantage point. Moreover, the voters’ arm movements were fully exposed as they voted. Although the hearing officer did not note it, Gerwig also testified that his ballot was “80 percent exposed,” while Winter testified that it was “very possible” that the observers had access to his ballot “if they wanted to.”
The Board has long held that “[i]t is of vital importance to the Board’s effectuation of the policies of the Act that the regularity of its elections be above reproach. And if the integrity of the Board’s election process is to be maintained it is manifestly essential that employees be balloted in a secret election, for the secret ballot is a requisite for a free election.” The Royal Lumber Co., 118 NLRB 1015, 1017 (1957) (internal footnote omitted). Accord: Northwest Packing Co., 65 NLRB 890, 891 (1946) (“The secrecy of the ballot is essential in a Board-conducted election, and it may not be jeopardized”).[5]
As the 10th Circuit has recognized, the Board has consistently
set aside elections where “voting arrangements could have led employees to
believe they were being observed as they voted.” Crown
Cork & Seal Co. v. NLRB, 659 F.2d 127, 131 (10th Cir. 1981), cert.
denied 454
Likewise, in The
Royal Lumber Co., supra, the Board set aside an election where employees
voted in a small lean-to shed on a board placed on top of two oil drums. A nonvoter stood in the open doorway for part
of the election, and the Board found that the nonvoter could have seen how some
employees voted and that the employees could have believed that their votes had
been observed. On these facts, the Board
concluded that “the employees voted under circumstances which at least raise
doubts concerning the integrity and secrecy of the election” and therefore set
it aside.
As in Imperial Reed
& Rattan and The Royal Lumber Co.,
the voting arrangements for Gerwig and Winter were “entirely too open and
too subject to observation to insure secrecy of the ballot and freedom of
choice by the employees in the selection of a bargaining representative.” Imperial
Reed & Rattan, supra, at 913.
Like the employees in those cases, Gerwig and Winter voted without the
privacy and secrecy afforded by a voting booth or a completely private
room. Instead, the Board agent and the
observers for the parties were in the same room as the late voters, positioned
only 15 feet away, and observed their backs and left shoulders while they were
marking their ballots. As the hearing
officer found, “at a minimum, the voters’ arms were fully exposed as they
voted.” These circumstances “raise
doubts concerning the integrity and secrecy of the election.” The Royal Lumber Co., supra at
1017. This is so even though there is no
affirmative proof that any person actually saw how the ballots were
marked.
Our dissenting colleague acknowledges that the circumstances in which Gerwig and Winter cast their ballots “were not ideal.” Nevertheless, he would overrule the hearing officer and certify the Petitioner. He appears to view the failure to insure that the voters marked their ballots in privacy as a mere irregularity, insufficient to warrant setting aside the election because there is no evidence that Gerwig or Winter “were deterred from exercising their free choice.” The dissent’s position is inconsistent with the precedent cited above, which makes clear that election irregularities that “raise doubts concerning the integrity and secrecy of the election” are grounds for setting aside an election. The Royal Lumber Co., supra, at 1017.[6] Unlike the dissent, we adhere to this precedent and to the principles on which it is based. Accordingly, we set aside this election.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the first election and who retained their employee status during the eligibility period and their replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by International Brotherhood of Electrical Workers, Local 68.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses that may be used to communicate with them. Excelsior
Underwear, 156 NLRB 1236 (1966); NLRB
v. Wyman-Gordon Co., 394
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Member Walsh, dissenting.
The goal of the
Board’s election procedures is to effectuate, not frustrate, employees’ desires
regarding union representation. Yet frustration
is all the employees in this case are left with as a result of my colleagues’
decision to set aside the election, which the Petitioner won 7–6, solely
because two late-arriving voters individually cast their ballots at a table in
the voting room instead of in a voting booth.
I dissent.1
Election results
should not lightly be set aside. The
burden is on the objecting party, the Employer here, to show by specific
evidence that there has been prejudice to the election. See NLRB
v. Mattison Machine Works, 365
The Employer has
not established any reasonable doubt about the fairness and validity of the election
in this case. All the evidence shows is
that two eligible voters, employees Eric Gerwig and Ryan Winter, arrived at the
polling place minutes after the Board agent timely closed the polls and
disassembled the voting booth. The
parties agreed to permit Gerwig and Winter to vote, but there was no agreement
to reassemble the voting booth. The
Board agent instructed Gerwig, and then Winter, to enter the voting room and
mark his ballot at the same table where the voting booth had been located. As each marked his ballot, he was more or
less facing away from the observers, who were approximately 15 feet away. There is no evidence that anyone saw, or attempted
to see, how Gerwig or Winter voted. Both
employees testified that they felt they should have been afforded more privacy,
but there is no objective evidence that they were unable to (or did not) freely
vote their choice. In my view, these
facts simply do not establish any reason to question the validity of the election
result.
Certainly, I agree that the circumstances in which Winter and Gerwig cast their ballots were not ideal. But, as described, the standard is not perfection, and for good reasons. Perfect laboratory conditions are frequently not attainable. Moreover, few election results would be certified if losing parties could seize on any perceived defect to garner a second chance. In light of these realities, and in the absence of any evidence that Winter and Gerwig were deterred from exercising their free choice, the Board should overrule the Employer’s objection and certify the Petitioner.
Dated,
Dennis P. Walsh, Member