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,
Fresenius USA Manufacturing, Inc. and International Brotherhood of
Teamsters Local 445, Petitioner. Case 2–RC–23145
May 30, 2008
DECISION AND DIRECTION OF SECOND ELECTION
By Chairman Schaumber and Member Liebman
The National Labor Relations Board has considered objections to an election held on November 3, 2006, and the attached administrative law judge’s decision recommending disposition of them.[1] The election was held pursuant to a Stipulated Election Agreement. The tally of ballots for unit A shows 9 votes for and 7 against the Petitioner, with no challenged ballots. The tally of ballots for unit B shows 9 votes for and 7 against the Petitioner, with no challenged ballots.
The Board has
reviewed the record in light of the exceptions and briefs and has adopted the
judge’s findings[2]
and recommendations only to the extent consistent with this Decision and
Direction of Second Election.
We find that the
judge erred in overruling the Employer’s Objections 1, 3, 4, and 5.[3] These objections allege, in pertinent part,
that the Board agent in charge of the election improperly denied the Employer
an opportunity to monitor the ballot count and, based on his confusion in
differentiating between ballot colors, may have incorrectly distributed ballots
to voters. For the reasons explained
below, we find that the cumulative effect of the Board agent’s conduct warrants
setting aside the election.
i. facts
Two units of
employees voted in this election: the
Employer’s drivers (unit A), and warehouse employees (unit B). At the preelection conference, the Board
agent explained that unit A would vote with green ballots and unit B with
yellow ballots. During this explanation,
he pulled a yellow ballot from his shirt pocket and stated that it was
green. After one of the representatives
corrected this mistake, the Board agent announced that he was colorblind.
During the
election, the Board agent kept blank ballots rolled together in his left shirt
pocket, with green ballots encircling yellow ballots. Ballots were marked “UNIT A-GREEN” or “UNIT
B-YELLOW.” After the party observers
verified a voter’s eligibility and unit designation, the Board agent asked, “yellow
or green?” The observers responded by
calling out the color ballot a voter should receive. The Board agent then removed a ballot from
his shirt pocket and handed it to each voter.
He required that all voters mark ballots with a number two pencil.
After the first
hour of the 3-hour election, employer observer Janet Buxbaum, unaware that the
Board agent was colorblind, asked why she and the union observer needed to call
out voters’ ballot colors. The Board
agent responded that he was colorblind and asked that the observers continue to
call out ballot colors. Shortly after
this disclosure, he handed a driver a yellow ballot instead of a green one.[4] After Buxbaum corrected the mistake, the
Board agent handed the voter the appropriate green ballot.[5] He then stated that he needed the observers
to call out ballot colors to prevent errors in distribution.
After the polls
closed, the Board agent counted the ballots at a table in the polling
area. The party observers sat at an
adjacent table, four feet from him. The
Board agent instructed the Employer’s representatives to stand 6 to 8 feet away
from him during the count. He first
counted unit A ballots, calling out “yes” or “no” for each ballot. He placed “yes” ballots face up, in one pile,
and “no” ballots face down, in a separate pile, but did not display their
markings to those present for the count.
He then counted the ballots in each pile and announced the results of unit
A. He repeated the same process for unit
B.
After the Board
agent completed both counts, employer representative Kevin King requested a
recount of unit B. During the recount,
the Board agent did not reexamine or display ballot markings. Instead, he recounted the “yes” and “no”
piles by paging through the ballots, with his hand placed over the markings on
the top ballot in each pile. During the
counts and recount, the Employer’s representatives and observer Buxbaum could
not see any ballot markings.
After the
recount, King asked to examine all ballots.
The Board agent denied this request, but stated that King could view the
ballots at the Regional Office on Monday morning (the election was held on a
Friday). The Board agent took the
ballots home during the weekend and deposited them at the Regional Office the
following Monday. There is no evidence
that the Board agent secured the ballots in a way to assure against any
tampering, mishandling, or damage. The
Employer did not examine the ballots at the Regional Office.
ii. judge’s
recommended decision on objections
The judge
acknowledged that the Board agent’s handling of the ballot count did not
comport with Board guidelines. He
nevertheless found that these irregularities were not objectionable absent
evidence that they actually affected the election results. The judge emphasized that his close
examination of ballots showed no questionable markings and revealed that the
number of ballots cast for each unit matched the number of eligible voters in
each unit. He also noted that the
Employer’s representatives failed to contemporaneously object to the Board
agent’s instruction to stand back from the counting table during the count or
inform him at that time that they could not see ballot markings. In addition, the judge determined that any
prejudice to the Employer was cured by the offer to inspect ballots at the Regional
Office the next working day.
The judge
rejected as speculative the possibility that employees may have voted with
incorrect ballots. He found that the
Board agent could have determined which ballot to distribute by reading them,
and that the party observers likely would have noticed and corrected any
errors. Under these circumstances, the
judge found that the Board agent’s conduct did not warrant setting aside the
election.
iii. analysis
When determining
whether to set aside an election on the basis of Board agent conduct, “the
Board goes to great lengths to ensure that the manner in which an election was
conducted raises no reasonable doubt as to the fairness and validity of the
election.” Jakel, Inc., 293 NLRB 615, 616 (1989) (citing Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir.
1969), cert. denied 396
The Board’s “election
procedures are designed to ensure both parties an opportunity to monitor the conduct
of the election, ballot count, and determinative challenge procedure.” Paprikas
Fono, 273 NLRB 1326, 1328 (1984). See also Madera
Enterprises, 309 NLRB 774 (1992) (same).8 In this case, the Board agent did not ensure
that all parties had an opportunity to monitor the ballot count. As noted above, the Board agent did not
display the ballots for inspection during the count.9 Indeed, the Board agent denied the Employer’s
specific request to examine the ballots immediately after the count. By these actions, the Board agent prevented
the Employer from verifying the accuracy of his count and interpretation of
voter intent.
Nor was this
irregularity cured by the Board agent’s offer to allow the Employer to inspect
the ballots at the Regional Office at a later date. As described, the Board agent did not
secure the ballots
against tampering or
mishandling before taking them to his home over the weekend. In light of this unsupervised access to
ballots that were marked—at the Board agent’s direction—with an erasable
pencil, we cannot say with confidence that ballots remained in the identical
condition as during the count.10 Thus, subsequent examination of ballots by
the Employer—or by the judge—does not ameliorate this election irregularity.11
The Board agent’s
two mistakes in ballot identification cast additional doubt on the fairness and
validity of the election. Although the
judge found that the Board agent could have independently ensured proper
distribution by reading the ballots, the Board agent incorrectly identified a
ballot during the preelection conference and during the election. Even after the observers called out the
correct ballot color, the Board agent nevertheless failed to correctly identify
the ballot on at least one occasion.
That error would have resulted in an employee voting with the wrong
ballot absent observer Buxbaum’s action to correct the mistake. These errors in ballot identification further
contribute to doubt as to the election’s fairness and validity.
We find it unnecessary to pass on whether the irregularities in this election, considered separately or in various combinations, would warrant setting aside the election. Rather, reviewing all the facts in this case, we find that the cumulative effect of these irregularities, particularly those during the ballot count, raises a reasonable doubt as to the fairness and validity of the election. This is especially so considering the closeness of the election, where even one mistake in the distribution or counting of the ballots could have altered the election outcome. Accordingly, we sustain the Employer’s Objections 1, 3, 4, and 5, set aside the election, and direct a second election.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in the units 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 Teamsters Local 445.
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,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
Susannah
Z. Ringel, Esq., of
Thomas G.
Servodidio, Esq. and Brian Crowner,
Esq., of
Donald L.
Sapir, Esq. and Cristina Fahrbach, Esq.,
of
RECOMMENDED DECISION ON OBJECTIONS
Statement of the Case
Steven Fish, Administrative Law Judge. On September 5, 2006,1 International Brotherhood of Teamsters
Local 445 (the Union or the Petitioner) filed a Petition seeking to represent
certain employees employed by Fresenius USA Manufacturing, Inc. (the Employer
or Fresenius) at its facility located in
On November 13,
the Employer filed timely objections to the election. On December 18, the Regional
Director issued her report, recommending that all of the Employer’s objections
be overruled, and recommending that the Petitioner be certified.
On January 12,
2007, the Employer filed timely exceptions to the Regional Director’s Report
and Recommendations. On February 28,
2007, the Board issued an Order, in which it adopted the Regional Director’s
findings and recommendations to dismiss Objections 7 through 10 filed by the
Employer, but concluded that Objections 1–6 regarding the Board agent’s conduct
raised “substantial and material factual issues warranting a hearing.” On March 13, 2007, the Regional Director
issued a Notice of Hearing on Objections, ordering a hearing before an administrative
law judge for the purposes of receiving testimony with respect to the issues
raised by Objections 1 through 6 in the Employers objections. The hearing was
conducted before me on April 10, 2007, in
Findings of Fact
i. the objections
Objections 1
through 6, filed by the Employer, alleges as follows:
Fresenius USA
Manufacturing, Inc. (Fresenius) hereby objects, for the reasons set forth
below, to the conduct of the representation election held on November 3, 2006,
and to certain conduct affecting the results of the election.
ii. background
A representation
election was held at Fresenius’s
iii. objections to the conduct of the election
1. Fresenius
objects to the confusion and potential miscast ballots caused by the Board
agent’s inability to differentiate between the colors of the ballots, and the
failure of the Board agent to use two separate ballot boxes for the two separate
voting units. During the election
polling time, the Board agent stated to the party observers that he was
colorblind, that he could not differentiate between yellow and green—the colors
of the ballots for the two voting units, and that when he was diagnosed as
colorblind around the age of 35 years old, he was unable to identify marks in
colored boxes in a vision test. In addition,
rather than adding a level of protection from miscast ballots, the Board agent
used only one ballot box to collect the ballots from the separate voting
units. During the election, the Board
agent erroneously provided an incorrect colored ballot to one or more employees
(i.e., he initially handed an employee a yellow ballot, when the employee
should have received a green ballot and thereby required the assistance of the
party observers to distribute the ballots).
The confusion caused by the Board agent’s inability to differentiate
colors may have undermined an employee’s ability to vote in the correct bargaining
unit, or to exercise an uncoerced and reasoned choice in the election.
2. Fresenius
objects to the reliance of the Board agent on the party observers to conduct
the election. The Board agent ceded his
authority to conduct the election to the party observers during the election
time period by, in part, requiring the party observers to determine which
colored ballot each employee received after they were identified as eligible
voters. Furthermore, the Board agent required the party observers to assist or
help the voters obtain their ballots indirect contravention of the Board’s
instructions to the party observers which stated, in part, “DO NOT give
any help to any voter. Only a Board
agent can assist a voter.” Form NLRB-722. (Emphasis in original.) The Board has long held that it must maintain
and protect the integrity and neutrality of its election procedures and the
Board agent failed to do so in this election.
See, e.g., Alco Iron & Metal
Co., 269 NLRB 590, 591 (1984); Glacier
Packing Co., 210 NLRB 571 (1974).
3. Fresenius
objects to the Board agent’s decision to prohibit employees from using any
writing instrument except for an erasable pencil in marking their ballots. The use of an erasable pencil permits the
potential tampering with the markings on the ballots both before and after the
election.
4. Fresenius
objects to the Board agent’s failure to permit the parties to see or review the
marked ballots at any time after he removed them from the ballot box. The Board agent required the party observers
and all other party officials to stand or sit a substantial distance from him
as he reviewed and counted the ballots, such that Fresenius’s representatives
were unable to see clearly, if at all, the markings on all of the ballots. In addition, the Board agent turned the ballots
face down and/or covered with his hand(s) the markings on any ballots that he
placed on the table face up. Pursuant to
Section 11340.5 and/or Section 11340.6 of the Casehandling Manual, the Board
agent was required to “call [] out and display [] the preference expressed and
place [] them, face up, in piles according to the preferences expressed.” The Board agent, however, did not “display”
or otherwise show Fresenius’s representatives the markings on the ballots. In addition, pursuant to Section 11340.7(a)
of the Casehandling Manual, the parties are entitled to object to the Board
agent’s interpretation of any marks made on the ballots. Fresenius, however, was precluded from
considering the Board agent’s interpretation of any marks on the ballots
because the Board agent did not show the ballots to any Fresenius representatives.
5. Fresenius
objects to the conduct of the election as set forth above to the extent that
the abnormalities and significant deviations from Board-recommended procedures
contained in the Casehandling Manual cast doubt on the fairness and impartiality
of the process. Employees were required to write in erasable pencil, and the
Board agent (who was the only person to actually see and interpret the markings
made on the ballots and count the ballots) admitted to the party observers that
he was colorblind, could not differentiate between yellow and green (the color
of the ballots), and that he could not differentiate letters or numbers placed
in a colored box in a vision test due to his colorblindness. “[T]he commission of an act by a Board agent
conducting an election which tends to destroy confidence in the Board’s
election process or which could reasonably be interpreted as impugning the
election standards we seek to maintain, is a sufficient basis for setting aside
that election.” Alco Iron & Metal Co., 269 NLRB at 591.
6. Fresenius
objects to the conduct of the election whereby the Board agent interfered with,
coerced, and restrained employees in the exercise of their Section 7 rights,
and interfered with their ability to exercise an uncoerced and reasoned choice
in the election.
Wherefore, Fresenius respectfully requests that the election
conducted on November 3, 2006, be set aside, and a new election be scheduled by
the Regional Director.
lv. facts
A. The Preelection Conference
The election was
held on November 3, from 1 to 4 p.m. in the back of the Employer’s warehouse. At 12:30 p.m., the Board agent, Howard
Shapiro, met with representatives of the Employer and the
Shapiro
indicated that the area selected by the Employer to conduct the election was
satisfactory, and he proceeded to set up the ballot booth and the ballot
box. Shapiro showed the parties that the
box was empty and taped and sealed the box.
He explained that there would be one ballot box for both units and that
the employees in unit A (drivers) would be given green ballots and that
employees in unit B (warehouse employees) would be voting on yellow ballots. At
about that time, Bob Bonds, a driver, entered the warehouse from the side
entrance, and approached the conference, apparently thinking that the election
had started and he could vote. Kevin King stepped away from the conference, and
instructed Bonds that it was too early to vote, and asked Bands to go to the
breakroom, until the election was ready to begin. King escorted Bonds out of the warehouse
area.
While King was
dealing with Bonds, the conference continued.
Shapiro after discussing the different color ballots that would be used,
pulled a yellow ballot out of his shirt pocket, and stated that it was
green. One of the representatives corrected
Shapiro, and told him that the ballot was yellow. Shapiro then informed
everyone that he was colorblind. No one made any response to Shapiro’s disclosure,
nor made any objection to Shapiro conducting the election, in 20 view of his
colorblindness.
At about 12:45
p.m., the two observers, Janet Buxbaum (the Employer) and Kevin Farrell (the Petitioner)
joined the conference. Shapiro
distributed written instructions to the observers, and discussed these
instructions with them. He told them
that they were to verify the identity of the voters and check off names on the Excelsior list.
The instructions
to observers contain the following language:
PRINCIPAL FUNCTIONS:
• Monitor
the election process
• Help
identify voters
• Challenge
voters and ballots
• Assist
Board agent in the conduct of the election
Shapiro did not
mention to the observers that he was colorblind, nor did he tell them that he
needed assistance from them in determining the color of the ballots.
Although several
representatives of the Employer testified that they were shocked or surprised
at the revelation that Shapiro was colorblind, none of them informed the Employer’s
observer of this fact, nor instruct her to make sure that the employees
received the correct color ballots.
Additionally, there was no discussion between the officials of the Employer,
after the disclosure of Shapiro’s colorblindness, until after the election was
over, and the ballots counted.
B. The Polling Period
On two occasions
during the voting, employees were told by Shapiro that they could not use a pen
to mark their ballots, but they must use a pencil, provided by the Board agent. During the first hour of voting, an employee
would come to vote, the observers would ask the employee his name. After the observers would agree as to the
identity of the person, Shapiro asked “yellow or green,” and the observers
would respond which color ballot the employee should receive, depending on
whether they were in unit A (drivers) or unit B (warehouse employees).2
After being so
informed, Shapiro would remove a ballot from his shirt pocket, and hand the
ballot to the voter.3 The voter would then take his ballot to the
booth, fill out the ballot, and then place it into the ballot box, which was
situated next to Shapiro.
Buxbaum
testified that she wasn’t paying close attention for the first hour to the
color of the ballot that Shapiro actually gave to the voters, so she did not
notice whether Shapiro read or looked at the ballot before handing it to the
voter. Buxbaum also testified that at
times during this period, she could see some of the ballots being carried by
the voter to and from the booth, as well as at times see the a ballot before or
while the voter placed the ballot into the box. However, Buxbaum also testified
that at times she did not see some ballots, because it was dark, the voters
folded the ballot so she could not see it, or she was looking at the Excelsior list and not paying
attention. Thus, Buxbaum contends that
Shapiro could have given the incorrect color ballot to at least some voters,
and she would not have noticed the error.
Buxbaum also testified that there were “a lot” of people who came to
vote at the beginning of the election.
She did not testify as to how many employees voted during the first
hour, but did indicate that several employees, i.e., more than four voted in
the initial rush of voters, immediately after the polls opened.
At about 2 p.m.,
Buxbaum asked Shapiro why the observers had to continue to say green or yellow
ballot. Shapiro responded that he was colorblind and that he has been since he
was 35 years old. Buxbaum asked, “You’re
colorblind? How could you, like, distinguish between green and yellow?” Shapiro answered that he could see shades.4
At that point, Farrell and Shapiro had a discussion about colorblindness
and the Lchihara colorblind test.5
After that
discussion was completed, Shapiro asked the observers to continue to call out
the colors. At that point, Buxbaum began
to more carefully watch the colors of the ballots that Shapiro gave to the
voters. Shortly thereafter, Shapiro
handed a yellow ballot to a driver who was supposed to receive a green
ballot. Both Buxbaum and Farrell
corrected Shapiro and told him that he had given a yellow ballot to a driver, instead
of a green ballot. Shapiro corrected the
error, gave the voter the appropriate green ballot, which the voter used. Shapiro then stated to the observers, “This
is the reason why I need you to call out the colors. This way, I don’t make a mistake.”
After this
incident, Buxbaum asserts that she began to watch more carefully what color
ballots were actually given to the voter by Shapiro. She did not notice any other errors. Indeed, except for the one mistake that was
corrected, Buxbaum testified that she was unaware of any other mistakes by
Shapiro, and could not testify that any employee voted with an incorrect color
ballot.
C. The Count
After the poll
was closed, Shapiro counted the ballots. Present were King, Dopheide, Sereno,
Frank Petliski (warehouse supervisor), Tom Engel (transportation supervisor),
Ebert, Buxbaum, and Farrell. Shapiro sat
at one of two circular tables in the area. Buxbaum and Farrell sat at the other
table approximately 4 feet away from Shapiro.
The Board agent directed Ebert and the Employer’s representatives to
stand back from the table, approximately 6 to 8 feet away from Shapiro.
Shapiro removed
all the ballots from the box, and separated the ballots into green and
yellow. Shapiro had no difficulty in
determining which ballots were green and which were yellow, and was able to
separate them without any assistance, and without making any errors. He then first counted the green ballots, by
calling out “yes” or “no,” and placing the “yes” ballots face up and the “no”
ballots face down. Shapiro did not hold
up or display the ballots for anyone to see. He then repeated the same process
for the yellow ballots. Shapiro then
counted the ballots in each pile and announced the count for each unit. As noted, the counts were nine “YES” and seven
“NO” in each unit. None of the
representatives present could see the markings on the ballots during the count,
and no one asked to see them while Shapiro was separating and or counting.
After Shapiro
announced the results, King requested a recount in the warehouse unit. Shapiro
complied with this request, by placing his hand over the markings on the top
ballot in each pile, and counting the piles by paging through the pile,
touching only the upper corner of each. During the recount, Shapiro did not
review the markings on any of the ballots to make sure that only the correct
ballots were in the correct piles.
After the recount
was completed, King asked if the Employer could see the ballots. Shapiro
replied that the ballots could be seen at the Regional Office on Monday
morning.6 Buxbaum asked Shapiro
what he was going to do with the ballots until Monday. Shapiro responded that he would be taking
them home with him. Buxbaum asked where he lived? Shapiro replied, “
Shapiro did not
allow the Employer’s representatives to view the ballots as requested on
November 3. The Employer did not accept Shapiro’s offer to view the ballots at
the NLRB office on Monday morning.
The ballots have
been introduced into evidence. I have
carefully examined them, and conclude that the count was correct, and that each
ballot was clearly marked in the “yes” or “no” box, with no identifying marks,
or any other grounds for voiding any of the ballots. Further, the total number
of ballots cast in each unit, exactly matches the number of eligible voters on
the Excelsior list.
After the count,
Buxbaum informed the Employer’s representatives what had gone on during the
election, particularly Shapiro making a mistake in handling one ballot, and
that the observers were required to call out the colors. Buxbaum added that she was confused about the
process, since when the Board agent counted the ballots, he never asked for
help and was able to determine the colors.
Buxbaum was “taken back by it.”
She also felt confused by the fact that Shapiro did not show the ballots
to the Employer, so they could see the “Yes’” and “No’s.”
My factual
findings above are based on a compilation of the credited portions of the
testimony of Buxbaum, King, Dopheide, Sereno, Maloney, Petliski, Engel, and
Ebert. While much of the facts detailed
are undisputed, there are several significant areas of dispute. More specifically, Ebert testified that at
the preelection conference, when Shapiro disclosed that he was colorblind, he
also said that he had no problem distinguishing between yellow and green
ballots. Ebert also contends that
Shapiro asked if anyone had a problem with him conducting the election because
of his condition, and that King replied, “As long as the count comes out right,
no problem.” Ebert adds that the other
officials of the Employer nodded their head in approval of King’s remark. Ebert also testified that at the count, he
was standing behind Farrell about 5 feet away from the ballots, and he could
see the markings on each ballot clearly as Shapiro was announcing whether it
was “Yes” or “No.” Ebert adds that Kevin
King was standing in a counter position to Ebert, the same distance from the
ballots. Ebert also denied that King or
anyone else from the Employer asked to see the ballots, and did not recall the
Board agent stating that he would be taking the ballots home with him over the weekend. I do not credit Ebert as to any of these
areas, and credit the mutually corroborative, consistent, and believable
testimony of the Employer’s witness, as detailed in the above statement of
facts. I did not find Ebert to be a
particularly impressive witness. He was
often vague, at times flip, inconsistent with his affidavit, and inconsistent
between direct and cross-examination.
Most
importantly, the Union failed to call Kevin Farrell, the
Since Farrell
was the lead organizer and observer for the Union, there is a presumption that
his testimony would be favorable to the
In this regard, the
Petitioner in its brief, made several references to the statement allegedly
given by Farrell, and allegedly (“attached as tab 3 to Appendix of Record
Evidence in Support of Local 445’s Objections, part of Board Hearing Exhibit 1”),
and relied on this alleged statement.
Petitioner is incorrect, as the document referred to is not included in
Board Exhibit 1, and Farrell’s statement is not in the record. Moreover, even if the document had been in
the record, I would not rely on Farrell’s statement, inasmuch as he was
available to testify, and should have been called by the Union as witness, and
be subject to cross examination, if the Union wished to have Farrell’s version
of events be considered.
Analysis
Although the
Employer has filed six separate objections, which were found by the Board to
require a hearing, all the objections overlap and all rely on Athbro Precision Engineering Corp., 166
NLRB 966 (1967), vacated IUE v. NLRB,
67 LRRM 2361 (D.D.C., 1968), acquiesced in, 171 NLRB 21, (1968), enf. 423 F.2d
573 (1st Cir. 1970), and its progeny.8
Therefore, I
shall consider all the objections together. In Athbro, the Board agent in charge of the election was seen drinking
beer with a union representative in a cafe by an employee who had already
voted, in between polling periods. The Board observed as follows:
The Employer does not claim any violation of the integrity of the ballot box, nor does it claim that the conduct of the Board agent had any effect upon the four employees who later voted. Rather, it objects that the behavior of the Board agent gave an appearance of irregularity to the conduct of the election, thus departing from the standards of integrity which the Board seeks to maintain.
The Regional Director, while observing that a Board agent in charge of an election should not fraternize with a representative of one of the parties in the interim between two balloting periods, nevertheless did not recommend setting aside the election. Although the Board agent’s conduct did not affect the votes of employees, we do not agree that this is the only test to apply.
The Board in conducting representation elections must maintain and protect the integrity and neutrality of its procedures. The commission of an act by a Board agent conducting an election which tends to destroy confidence in the Board’s election process, or which could reasonably be interpreted as impugning the election standards we seek to maintain, is a sufficient basis for setting aside that election.
In the circumstances of this case we hereby sustain the Employer’s objections. Accordingly, we shall set aside the election and direct that a second election be held.
The Employer
contends that the conduct of the Board agent here, in various respects, falls
within the proscriptions detailed in Athbro,
and requires that the election be set aside. My review of Athbro, as well as subsequent Board and court precedent
interpreting and analyzing that case and its principles, leads me to conclude
that the Employer has not met its burden of establishing that the election
should be set aside.
I note initially
that Athbro, as well as every other
case cited by the Employer,9 involve
facts that attack the neutrality of the Board or the Board agent. Thus cases where the Board has set aside elections
based on Board agent neutrality misconduct under an Athbro analysis include: Renco,
supra (Board interpreter asked voter, while explaining the election
procedure, “Do you know where to put your “Yes” vote?”); Hudson Aviation, supra (Board agent, in the presence of voters, had
a loud argument with employer’s supervisor, which “impermissibly put into a
question the Board’s neutrality in the election.”); Alco Iron, supra (Board agent instructed union’s observer to “translate
the procedure of voting to employees.”
Board finds contrary to hearing officer, that the “atmosphere of
impartiality in which the election should have been held was not present.”); Glacier Packing, supra (Board agent in
the presence of voters, ripped off cards pinned to lapels of Employer’s and observers,
which stated “vote neither,” tore badges into pieces, and stated to observers, “Shame
on you.” Board agent also yelled at supervisor
for distributing literature outside the building, and said, “get out of here,
stop this. You have no business and no
right to be here handing out anything.”
Employees were present, began clapping, made “cat calls,” and pointed
fingers at supervisor. Board finds that “Employees
witnessing the two incidents involved could reasonably have interpreted Board
agent’s remarks and actions as indicative that the Board was opposed to the Employer’s
position in the election.”).
See also several
court cases, reversing Board decisions which had concluded that Athbro neutrality principles had not
been violated. North of Market Senior Services, 163 LRRM 271 (D.C. Cir. 2000)
(Board agent delegated to union officials the task of going through the plant,
and telling employees what time they could vote. Union agents, wearing union insignia, told
employees that they had been sent by the NLRB to tell employees when they could
vote, and openly disagreed with management’s view as to whether they had to
vote on their lunch hour. Court finds
that Board erred in not granting hearing to employer, concluding that Board
agent gave impression that the “Board had ceded significant authority to the
Union over the conduct of the election.”), NLRB
v. State Plating & Finishing, 738 F.2d 753, 742 (6th Cir. 1984), (court
disagrees with Board, and concludes that statement made by Board agent to employees
concerning raises that could or could not be granted by employer, “destroyed
the Board’s neutrality,” and tainted the election); Provincial House, Inc. v. NLRB, 568 F.2d 8, 11 (6th Cir. 1978) (Ten
days prior to election, while investigating ULP charges, Board agent was introduced
by union official to employees at an organizing meeting at a hotel, as an NLRB
agent. Court finds that when NLRB representative allowed himself to be
introduced to the union organizational meeting, the appearance of NLRB
neutrality was compromised, warranting setting aside the election.).
Athbro and its
principles have been applied in numerous Board and court cases where the
standards of Board neutrality were found not to have been violated, and the elections
were not overturned. Sonoma Health Care, supra, cited by the
Employer (Board agent answered questions of union observer why companies do not
like unions, by stating “companies don’t like unions because they cannot fire
or hire anyone, and they cannot take benefits from the staff.” Later observer
said to Board agent that employer hired a consultant and paid $60,000. Board agent replied, “Whoa!, $60,000.” Board majority concludes that the comments of
the Board agent “while intemperate and inappropriate,” “do not reflect such a
level of bias or impropriety that they tend to destroy confidence in Board’s
election process.”). Indeck Energy Services, 316 NLRB 300, 301 (1995) (Board finds
fraternization between the Board agent and petitioner’s observer, insufficient
to reasonably cause a witness to question the Board neutrality, thereby distinguishing
Athbro and Hudson); Rheem Mfg. Co.,
309 NLRB 459, 462 (1992) (Comments by Board agent to observers about his possible
need to file a petition on his own, and complaints about heat in the plant, and
his conduct in walking through the plant and taking and laughing with union
observer, found by Board, contrary to hearing officer, insufficient to impugn
Board’s neutrality or give appearance of fraternization); NLRB v. Duriron Co., 978 F.2d 254, 258 (6th Cir. 1992) (Court assessed
conversations between Board agent and voters wearing union insignia, when agent
inquired if voters were related to Gwen West, and Board agent telling voter
that he had taken affidavit from Gwen West in another case. Court agrees with
Board that conversationsfailed to compromise the integrity of the election, and
distinguishing Athbro, as to the
level of fraternization.). San Francisco Sausage Co., 291 NLRB 384
(1988) (Board agent allowed petitioner in RD case to summon voters over the employer’s
intercom system. Board finds delegation of a minor task, did not impugn “atmosphere
of impartiality,” as contended by dissent); Rochester
Joint Board Clothing & Textile Workers v. NLRB, 896 F.2d 24 (2d Cir.
1990) (Premature disclosure of Decision and Direction of Election by Region on
phone to
As can be seen
from my description of the above precedent dealing with Athbro issues, the primary thrust of these cases was an examination
of whether the Board’s neutrality was compromised sufficient to destroy
confidence in the Board’s election process.
Here, there is no contention by the Employer that any of the various
alleged transgressions of the Board agent had any affect on the Board’s
neutrality. Thus, neither Shapiro’s
colorblindness and its potential affect on the election, nor his alleged
problems in conducting the count, nor his decision to require pencils to be
used, impacted the neutrality of the Board, since he treated both sides equally
in these areas. Thus, the primary
rationale for Athbro is not present
here.
In this regard,
the Employer alleges as a separate objection, that the Board agent ceded his authority
to conduct the election to the observers, by requesting that they assist him in
determining which color ballots to be given to the voters. Alco
Iron & Metal, supra. I disagree.
The crucial factor in Alco that warranted
a finding of objectionable conduct was the fact that the Board agent ceded his
authority to the union observer (emphasis
supplied) to translate voting instructions.
The Board emphasized the fact that the employer’s observer has complained
about the conduct, and the Board agent continued to have the union observer
repeat instructions in Spanish. The
Board concluded that “under these circumstances, we find the atmosphere of
impartiality in which the election should have been held was not present. The delegation of an important part of the
election process to the Petitioner’s observer conveyed the impression that the
Petitioner, and not the Board, was responsible for running the election.” 269
NLRB at 591–592. Here, the Board agent
requested the assistance of both observers in helping him insure the correct
colored ballots, so there can be no finding, as in Alco that the impartiality of the election was not present.
The Employer
also argues that the Board agent’s conduct violates the instructions given to
observers which states, “Do Not . . . give any help to any voter.” I again, do not agree. Indeed, the same list of instructions to
observers, states as among the principal functions of the observer as “help
identify voters,” and “assist Board agent in the conduct of election.” In my view, the observers were in fact “assisting
the Board agent in the conduct of the election”, by helping him to insure the
voter receives the proper ballot, as well as helping to identify voters. It is clear that the observers were using the
color of the ballot, as a shorthand way of determining the proper placement of
the voter into either unit A or unit B.
I find nothing even remotely objectionable for the observers to assist
the Board agent in these minor tasks, particularly as detailed above, both observers
participated in these functions. NLRB v. Michigan Rubber Products, 738
F.2d 111, 114–115 (6th Cir. 1984) (Following morning polling session, Board
agent allowed union representative to carry metal voting booth to her car. Court finds, in agreement with the Board,
that while Board’s agent conduct may have been imprudent, it did not give appearance
of fraternization, sufficient to warrant setting aside election.); San Francisco Sausage Co., 291 NLRB 384
(1988) (Board agent allowing petitioner’s observer to use the intercom system
to announce that employees could vote, was the delegation of a minor task,
insufficient to require a new election.); U.S.
Ecology v. NLRB, 772 F.2d 1428, 1482–1484 (9th Cir 1985) (Board agent
allowed union observers to read the poll opening announcement, over the objection
of employer. Choice of union observer
was made after a coin toss. Board agent
also allowed the union observer to signal the first voter to come into
vote. Court concludes in agreement with
Board, that these delegations of minor tasks to union observer did not compromise
the Board’s appearance of neutrality.).
Based upon the
above analysis and precedent, I recommend that Objection 2, be dismissed.
While the
remaining objections, as I have detailed above, do not raise any issue of lack
of neutrality, which substantially detracts from the Employer’s reliance on Athbro and its progeny,10 this finding does not fully dispose of
the Employer’s objections.
Thus, there is
another line of cases, which analyzes Board agent conduct, under a slightly
modified version of the second sentence of
Athbro. These cases generally
involve conduct which deal with the sanctity of the ballots and or the ballot
box, and the appropriate standard is set forth in Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir.
1969), cert. denied 346
In this regard,
elections have been set aside, based on violations of the Polymers standards, in a number of cases. Board agent failed to keep a list of challenged
voters, placed all ballots both challenged and unchallenged into an envelope,
and sealed the envelope. When the employer
asked for a list of challenged voters, Regional personnel broke the seal, and
opened the ballots, removed the challenged ballots envelopes, and a prepared of
challenged voters, and returned the challenged ballots to the envelope, which
still contained the unchallenged ballots.
Board concludes that the Board agent’s conduct in breaking the seal, and
opening the envelope outside presence of the parties, constituted conduct which
reasonably would destroy confidence in the election process.
On the other
hand there are numerous Board and court decisions, applying the Polymers standard, and finding that the
conduct did not raise a reasonable doubt as to the fairness and validity of the
election.
Enloe Medical Center, 345 NLRB 874, 891 (2005), enfd. 219 Fed. Appx.
6 (D.C. Cir. 2007) (Board agent, in election involving multicolor ballots and
several units, gave all challenged voters white ballots, even though some of
them should have received green or pink ballots. However, since the name and job of voter was
on the envelope, when challenges were resolved, the ballots were placed in the
correct unit. Thus, the ALJ found,
supported by the Board and the court, that the error of Board agent could have
had no effect on the results.); St.
Vincent’s Hospital, LLC, 344 NLRB 586, 587 (2005) (Two voters were allowed
to enter the voting booth at the same time.); Cedars-Sinai Medical Center, 342 NLRB 396, 608–609 (2004) (Blank
ballots left unattended, and observers did not initial seal in ballot box.); Robert Orr-Sysco Food Services, 338 NLRB
614, 623 (2002) (Board agent failed to detail reasons for the challenge,
contrary to Casehandling Manual.); J. C.
Brock Co., 318 NLRB 403, 404 (1995) (Region’s error in using separate
language ballots, requiring Board agent to ask if voter needed Vietnamese ballot.);
T. K. Harvin & Sons, 316 NLRB
510, 537 (1995) (Two ballots taken from ballot box, one inside the other.); Rheem Mfg., supra, 309 NLRB at 459–461)
(Board agent allowed three employees to vote while polls were closed between
sessions. Board agent put ballots in
shirt pocket, and told observers that he would deposit ballots in box when
polls reopened. When other Board agent
returned, he put ballots in briefcase, and when polls reopened, explained to
parties what had occurred. The employer
challenged ballots, which were never counted.
Board, reversing hearing officer, finds that although proper procedures
were not followed, facts did not cause reasonable doubt as to validity of election.);
Dunham’s Athleisure Corp., 315 NLRB
689 (1994) (Observers could not see the ballot box for substantial periods of time
during election.); Allied Acoustics,
300 NLRB 1181 (1996) (Board agent miscounted ballots. An hour after tally was
served, employer notified Region that he believed 24 employees had voted. [tally
showed 23]. Board agent recounted the
ballots in private, and recount disclosed an additional vote for union, and 24
votes cast. He prepared a corrected
tally of ballots.); Newport News Ship
Building, 239 NLRB 82, 90 (1978) (Ballot box not sealed, union representative
carried ballot box from one to another polling place, and company representative
was denied permission to inspect ballot boxes.); Kirsch Drapery, 299 NLRB 363, 364 (1990) (Board agent opened polls
a half hour late, allowed parties to assemble voting equipment, placed challenged
ballot in box, rather than instructing voter to place it in box, and violated
Casehandling guidelines in resolving challenge.
Board reverses hearing officer, and finds separately or collectively,
their misconduct do not raise a reasonable doubt as to fairness and validity of
election.); Trico Products, 238 NLRB
380, 381 (1978) (Board agent left envelope with blank ballots unattended for 5
minutes while erecting voting booth.
When Board agent retrieved ballots, she noticed a small tear in envelope.);
Niagara Wires, 237 NLRB 1347 (1978)
(Portion of initials of company representative was under the tape rather than
over it.); Keystone Metal Moulding,
236 NLRB 697 (1978) (Board agent did not request that observers inspect the
seal, before opening the box, and observers could not see or confirm that box
had not been tampered with. Further,
Board agent failed to have observers sign certification of conduct at end of
first voting session.); Pride Made
Products, 233 NLRB 182 (1970) (Voter left polling area with marked ballot,
spoke to some employees who had voted, and returned to voting area to cast her
vote. Board agent challenged her ballot.); Benavent
& Fourmier, 208 NLRB 636 (1974) (Board agent left voting area for 2–5
minutes, and left ballots on table and box unsealed.); People’s Drug Stores, 202 NLRB 1145 (1973) (In multistore election,
ballot boxes were left in trunk of escort vehicles [driven by employees], and
Board agent took the trunk key for the day.); Polymers, supra (Ballot box was left unguarded in locked car of
Board agent between sessions. Box not
sealed properly, since easily removable masking tape was used.); Nabisco Inc. v. NLRB, 738 F.2d 955, 958 (1984)
(Union observers failed to give identification badges, as required in Casehandling
Manual.); Skyline Corp. v. NLRB, 613
F.2d 1328, 1332–1333 (5th Cir. 1980) (Envelopes containing ballots were not
sealed with tape, no label with name of person who sealed envelope, and no memo
in file stating where challenged ballots were stored, all in violation of Casehandling
Manual.); Bell Foundary Co. v. NLRB,
827 F.2d 1340,1346–1347 (9th Cir. 1987) (Board agent left ballot box unattended
for 5 minutes before start of afternoon session.); NLRB v. Capitan Drilling Co., 408 F.2d 676, 677 (5th Cir. 1968)
(One seam on ballot box was not sealed with tape.).
It is therefore
appropriate and necessary to evaluate the conduct of the Board agent here,
under the analysis of Polymers, and
determine if it creates a “reasonable doubt as to the fairness and the validity
of the election.”11 Polymers,
supra, 174 NLRB at 282;
In Objection 1,
the Employer asserts that the Board agent’s colorblindness rendered him unable
to differentiate between the colors of the ballots for the two separate units,
and the failure to use a separate ballot box for each unit, caused confusion
and potential for miscast ballots.
Taking the
Employer’s latter contention first, I find nothing inappropriate or confusing
in using a single ballot box for both units.
Indeed this is the normal procedure in Board elections, and nothing in
the Casehandling Manual indicates or requires separate boxes. In my view, the use of different color ballots
and voting lists ensured that each ballot was recorded, and counted
accurately. Further, the Employer
introduced no evidence of confusion amongst eligible voters as a result of
using one, rather than two boxes. I
therefore conclude that the use of one ballot box did not create a reasonable
doubt as to the fairness and validity of the election. Polymers,
supra.
The Employer’s
contentions with respect to the Board agent’s colorblindness is more
troublesome. The Employer argues that
his admitted colorblindness caused him to confuse the color of the ballots
twice, once at the preelection conference, and once during the election. While conceding that neither of these errors
caused a wrong ballot to be voted,12
the Employer asserts that since the Employer’s observer could not be certain
that the correct color ballots were distributed to all voters, since she was
not paying close attention for the first hour of the election, that “no one
will ever know how many other wrong colored ballots were distributed by the
Board agent, or how many voters cast ballots with the wrong colored ballots. It is for this reason that there cannot be
confidence in the results of this election.”
However, it is well settled that the Board will not set aside elections based upon speculation that its election standards have been impugned or violated. “It requires more than mere speculation to overturn an election.” J. C. Brock, supra, 318 NLRB at 404, Sawyer Lumber, supra at 1332 (“Speculation about the possibility of irregularity . . . does not raise a reasonable doubt as to the fairness and validity of the election.); Newport News, supra, 239 NLRB at 86 (“The speculation of the Employer concerning the accuracy or legitimacy of the ballots is no substitute for specific evidence relating to actual conduct or events which raises material issues that the Board’s election standard have been impugned.). Pride Motor Products, 233 NLRB 182 (1977) (The Board “does not set aside an election based on mere speculation that election standards have been impugned.”); Bell Foundry v. NLRB, supra, 827 F.2d at 1346 (“The mere possibility of irregularity of representation election does not preclude certification.”), NLRB v. Capitan Drilling, 408 F.2d at 677 (Uncorroborated speculation that ballot box could have been tampered with, insufficient to necessitate an evidentiary hearing or the setting aside of the election.). Trico Produces, supra, 238 NLRB at 381 (“It is not every conceivable possibility of irregularity which requires setting an election