Newport News ShipBuilding & Dry Dock Co.

NEWPORI NEWS SHIPBlll.l)lIN(; & I)RY DOCK C(). Newport News Shipbuilding and Dry I)ock Company and United Steelworkers of America. Case 5-CA 10236 June 26, 1979 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND) MIMB!RS P NLI I.() ANI) TRISI)AI I On October 27, 1978, the United Steelworkers of America, herein called Steelworkers, was certified by the National Labor Relations Board as the exclusive representative of the employees of Newport News Shipbuilding and Dry Dock Company, herein called Respondent. The certification followed an election held pursuant to a Stipulation for Certification Upon Consent Election and the subsequent resolution of objections filed by Respondent and Peninsula Ship- builders' Association, herein called PSA, all of which were overruled.' Thereafter, on December 22, 1978, the Board issued a Decision and Order in the instant case,' finding that Respondent had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Steelworkers, and ordering Respondent, upon re- quest, to bargain collectively with the Steelworkers. Respondent refused to comply with that Order on the ground that there was substantial evidence of miscon- duct affecting the results of the election and, thus, that the Board's certification of the Steelworkers was invalid. Thereafter, Respondent filed a petition for review of the Board's Order with the United States Court of Appeals for the Fourth Circuit, and the Board filed a cross-application for enforcement of its Order. On March 2, 1979, the Fourth Circuit issued a decision' in which it denied Respondent's petition to set aside the election as well as the Board's cross-application for enforcement, and instead remanded the case to the Board "for the limited purpose of conducting a hearing to consider whether there is a reasonable like- lihood that the election was corrupted by chain vot- ing."4 On March 6, 1979, the Board issued an order in which it remanded the case for an expedited hearing, to be held before an administrative law judge, for the purpose of taking evidence in accordance with the court's remand. The Board directed that the adminis- trative law judge, upon conclusion of the hearing, was 1239 NLRB 82. 2 239 NLRB 1028. 1 Newport .Ves Shipbuilding and Dr Dock Co v. N L. R B. 594 F.2d 8. ' Id at 12. to prepare and serve on the parties a supplemental decision containing findings of' fhct. conclusions of' law , and recommendations. Pursuant to notice, sup- plementary hearings were held on March 19. 20. 26. 27. 28, and 29. and April 2 3. 4. 5. 6 and 9. before Administrative aw Judge Melvin J. Welles. On May 2, 1979. the Administrative Law Judge issued the attached Supplemental Decision. There- after. Respondent filed exceptions and a supporting brief;s PSA6 filed exceptions and a supporting brief: Steelworkers filed cross-exceptions and a supporting brief';7 and counsel for the Regional Director of' Re- gion 5 filed a memorandum brief in response to the exceptions of Respondent and PSA.i Pursuant to the provisions of Section 3(h) of the National I.abor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions and briefs, and has decided to affirm the rulings. Respondent has requested oral argument. This request is hereby denied. ;as the record. the exceptions, and the briefs adequately present the issues and the posillons of the parties. In 2 of his )ecision. the Adminlstrative Law Judge. after noting the Board's declsion not to appeal the United States district court's 1arch 15 1979, order thai PSA he permitted to participate ;is a flull part) n the hear- ing. concluded that "PSA has been accorded full inlervention rights herein. with the same status is a party as the Steelworkers and the ('ompan)'" Holwever, on April 11). 1979. the L nited States Court of Appeals fi)r the Fourth ('ircuit denied lthe Steelw. orkers petition (joined hb the Board) for a writ of numndamnivl on the ground that "lithe issue whether PSA has a right to intervene as a lull parti In the Bolard hearing. and whether it therefore has a nght to petition tor rexie. I froln an adserse decision. may prlperl be de- cided h this court ireslew is sought from a final decision of the Board." In Re t'mred Streluoirlkrs o/ Ateriua, AFI. CIO CLC. I00 I.RRM 3111. Ac- cordingl. Ihe Xdmminstrative Law Judge's conclusion that PSA has been accorded lull party status herein extends solel) to the hearing on the election objectlion issue aitd should nol e cotnstrued as passing upon the question left open h) the Fourth (Circuit. ' The Steelworkers request for ;in award of liligation expenses is hereby denied as being holly wtllhout merit I In the memorandum brief to the Board. counsel tir the Regional Dlrec- tlr moves the Board Io crrect an error in the unit description conlained in the Regional Director's Report oln Objections the Board's D[ecision certify- ing the Sleelworkers, and the Board's Decision ordering the Respondent to bargain with the Steelworkers. In those Decisions. the exclusion sectin of the unit description begins as follo's: ".. but excluding I I employees n Plant Protection Department . " However. the Stipulation for Certifica- tion Upon Consent Election executed by the parties indicates that the exclu- sion section should begin as follows ". b. ut excluding all employees in Plant Protection Department . " Accordingly, we hereby crrect the unit descriptiin to comptrt with the intent of the parties as revealed b the stipulation In addition. counsel for the Regional Director has filed a motion Io recelse into evidence a dcument cnlaining the names of Board agents assigned tlo each polling site. togelher , ith a numerical breakdown of observers flr each part) and the number of eligible oters by polling site. It is alleged that the document was attached to the brief olf Respondent to the Administrative Law Judge and that Respondent relied on the contents of the document in its argument to the Administratise l.a Judge. although the doculment had not been placed into eidence during the hearing Inasmuch as the proffered evidence would not require a different result in the instant case. the moltion is hereby denied. See Sec 102,48(dX ) of the National Labor Relations Bioard Rules and Regulations and Statements of Procedure. Series 8. as amended 243 NLRB No. 49 99 DE('ISIONS 01: NATIONAL LABOR RELATIONS BOARI) findings, 9 and conclusions of the Administrative aw Judge and to adopt his recommendation. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, New- port News Shipbuilding and Dry Dock Company, Newport News, Virginia, its officers, agents, succes- sors, and assigns, shall take the action set forth in our original Order dated December 22. 1978, reported at 239 NLRB 1028. 9 Respondent, PSA, and Steelworkers have each excepted to certain credi- bility findings made by the Administrative law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the rel- evant evidence convinces us that the resolutions are incorrect. Standard Drv Wall Products., Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Specifically. with regard to the Administrative Law Judge's discred- iting of the testimony of Lucky West because West's testimony was incredi- ble on its face, the Administrative Law Judge noted that West a PSA ob- server at poll 4. testified to seeing a group of 12 voters attempt, all at the same time, to get past the ballot box without depositing their ballots, with a Board agent able to catch only 6 of them. The record indicates that. in addition to the testimony noted by the Administrative Law Judge. West testified that it was actually a total of 12 voters throughout the day who tried to leave polling place 4 without casting their ballots, and that a total o 6 voters were caught by a Board agent. Later. West changed his testimony again, indicating that there was actually a group of six voters who tried to leave without casting their ballots who were not caught by a Board agent. and that there was another group of six voters who tried to leave without casting their ballots and who were caught by a Board agent. In light of the vacillating, inconsistent, and uncorroborated nature of West's testimony. the clear preponderance of all of the relevant evidence does not convince us that the Administrative Law Judge's resolution of West's credibility is incorrect. SUPPLEMENTAL DECISION AND RECOMMENDATION PRELIMINARY STATEMENT MELVIN J. WELLES, Administrative Law Judge: On De- cember 22, 1978, the Board issued a Decision and Order (239 NLRB 1028), finding that Newport News Shipbuilding and Dry Dock Company violated Section 8(a)(5) and (I) of the National Labor Relations Act, as amended, by refusing to bargain with United Steelworkers of America, herein called the Steelworkers or the Union, as the certified repre- sentative of the Company's production and maintenance employees. The certification upon which the Board's order was based was issued by the Board on October 27, 1978 (239 NLRB 82). On March 2, 1979, the Court of Appeals for the Fourth Circuit remanded the case to the Board "for the limited purpose of conducting a hearing to consider whether there is a reasonable likelihood that the election was corrupted by chain voting. If this is shown, the Board should set aside the election."' I The court of appeals denied both the Company's petition to set aside the election and the Board's cross-application for enforcement of its order Thereafter, on March 6. 1979, the Board ordered that "an expedited hearing be held before an Administrative las Judge for the purpose of taking evidence in accord- ance with the court's remand." and that such Administra- tive Lass Judge thereafter "prepare and serve on the parties a Decision containing findings of' fact, conclusions of la,. and recommendations." Pursuant to that Order, a hearing was held before me at Hampton, Virginia, and at Newport News. Virginia. on various dates in March and April. 1979. Briefs were there- after filed by the Company, the Steelworkers. the Regional D)irector. and Peninsula Shipbuilders' Association. herein called PSA.' Upon the entire record in this supplemental hearing. from my observation of the witnesses, and upon consider- ation of the briefs, I make the following:i FINI)INGS ANI) ( ()N(I t1SI()NS Background -- The Election Procedures As noted above, the court remanded the case for a hear- ing to determine whether the election of January 31, 1978. should be set aside. The election was conducted at the ship- yard by some 65 or so Board agents. The polls opened at 5:30 a.m. and closed at 6 p.m.. with a lunch break from noon to I p.m. Voting was at 15 separate polling places throughout the Company's premises. Employees were re- leased in small groups throughout the day, on a schedule. to go to designated polling places, The Company was operating three shifts at the time, so that the polls were open during the entire first (7 a.m. to 4 p.m.) shift, and during portions of the second and third. The immediate supervisor of each group of employees gath- ered the group sufficiently early to permit the employees to reach their designated polling place on schedule.' Upon ar- 2 PSA participated in the election. receiving 7,548 votes, to 9.093 for the Steelworkers. and PSA also filed objections to the election. The Board de- nied PSA's motion for intervention il the ensuing complaint proceeding as having been untimely made. Subsequently, the Fourth Circuit also denied PSA's motion to intervene, hut permitted PSA to file an amicus curiae brief Following the court's remand and the Board's direction that an expedited hearing be held before an administrative law judge. PSA again filed a motion to intervene. On March 13, 1979, the Board denied this motion "insofar as it requests that it 'be allowed to intervene as a party participant so that it has every right and duty imposed upon the other party thereto.''" he Board ordered, however, that PSA be permitted to intervene as amicus curiae "with the right to present evidence at said hearing relevant to the issue remanded by the Court." On March 15, 1979. the United States District Court for the District of Virginia ordered that PSA be permitted full intervention in the instant proceeding. and the Board decided not to appeal that decision. Ac- cordingly, PSA has been accorded full intervention rights herein, with the same status as a party as the Steelworkers and the Company. 3 The Regional Director's motion to correct transcript in four respects is hereby granted. Three of the corrections are ministerial in nature. The fourth involves inserting "not" between the words "was" and "chaotic" in witness Hungerford's testimony. The full sentence as reported reads "as they were lined up certain areas were congested, but it was chaotic." Not only do I remember the testimony as being "not chaotic." but the whole sense of the sentence requires that it be so read. ' Most voters were apparently given cards one or two days earlier indicat- ing at which polling places and at which times they were to vote. The shipyard extends for a number of miles. and polling places for some groups were relatively far from their location on that workday. Some took only a few minutes to reach the polling place: others as much as 15 or 20 minutes. 100o NEWPORI NWS SHIPBLIII.)IN(; & DRY I)(XK (O0. rival outside the polling place, the supervisor would direct his charges to the entrance, wail outside. usually some 20 to 40 yards away, until his group voted and regathered. and then escort the employees back to their workplace. here may have been minor deviations in this procedure. or per- haps some employees' recollections were faulty. hut it is clear that this was the normal procedure. The groups of employees. at least in terms of those employees testifying at the hearing, ranged from a low of about 5 to a high of about 20. The polling places themselves were areas partitioned off (by herculite partitions) at the 15 separate places in every instance here relevant they were areas carved out of a larger, sometimes very much larger (hundreds of feet as against a perhaps 30 feet square area for the polling place itself) working area of the plant. The physical setup inside each polling place varied, depending on the number of vot- ers expected to use the particular area. Assuming that the actuality reflected the expectation. this ranged from a high of about 4,000 voters at polling place number 12 to a low of about 200 at polling place number 14." Each polling place contained at least one check-in table and at least one voting booth. Polling places 8, 13. 14, and 15 had just one of each. Polling place 12 had 4 check-in tables and 6 voting booths. The number of Board agents also paralleled the expected use of the polling places, with 6 agents assigned to polling places 9 and 12; 5 to polling places 1, 2. 4 and I I: down to 2 at polling places 14 and 15. There were also about 5 Board agents at a "Central Control Headquarters." There were some changes during the day in the number of Board agents: apparently busier places received additional help. There were also some relieving and some rotating, some for natural reasons, and some due to extreme cold at some poll- ing places. where agents rotated out to warm up. Each poll- ing place also had two or more observers on behalf of the Company, PSA, and the Steelworkers, and most had at least one observer from MITU.7 Once again, the number of observers depended in part on voter use of the polling place, with polling place 12 having 5 observers each from the Company, PSA. and the Steelworkers. An employee entering a polling place would approach the check-in table or tables, going to the section corre- sponding to his name in those places where the divisions were by sections of the alphabet, such as A-G. H-Q. R-Z. The voter would give his name and the last four digits of his social security number to the observers. When all observers were satisfied with the identity of the would-be voter, and his name appeared on the listing kept at the polling place. he was given a ballot by a Board agent stationed at the end 6 Polling place number 15 apparently had 55 voters on the day of the election, but some 700 or so employees on leave or layoff voted there. These figures are based on a table appeanng In the Regional Director's Report on Objections. Whether or not it is precisely accurate is of no significance. The remaining polling places accommodated the following numbers of voters: polling place I- 1,895: polling place 2 1,720: polling place 3 810; polling place 4--1,410; polling place 5-980; polling place 6 1.005; polling place 7-1,005; polling place 8-335: polling place 9-1.860: polling place 10- 820; polling place 11 -1.790: and polling place 13- 371. Marine-Industrial and Transportation Union, which received 95 votes. 'For convenience's sake, and in the absence of a useful neuter pronoun, I use the masculine pronoun. Although man) of the voters were women. the majority were men. of the table.* Either this Board agent or another Board agent would then direct the voter toward the voting booth or booths. On occasion, there was a short wait. perhaps a line of two or three persons, waiting to get into a oting booth, just as there were at times lines of up to seven or eight in larger polling places waiting to be checked in and cleared to receive a ballot. The voter would enter a booth. presumably mark his ballot.' emerge from the booth, and place his ballot into a ballot box, under the aegis of a Board agent. The voter would then leave the polling place. then the building or area where the polling place was located. and rejoin his supervisor. The group would return to work when fully assembled. A different procedure was followed when a would-be voter was challenged by one of the observers or a Board agent. The challenged voter would be given a ballot and directed to the voting booth, as would all other oters. When he emerged from the booth. however. he would be directed to place his ballot in a challenged ballot envelope and to seal that envelope, at which point it would be depos- ited in a ballot box. Both the Company and PSA adduced testimony from a number of observers and voters to the effect that at some polling places, a different procedure was followed with respect to challenged ballots -the Board agent giving the voter both a ballot and the challenged bal- lot envelope, and the voter presumably sealing the ballot into the envelope in the privacy of the voting booth. from which he would emerge and deposit the envelope in a ballot box. The purpose for which the Company and PSA offered the testimony of their witnesses in this respect was to show an opportunity (among others allegedly existing) for em- ployees to take unmarked ballots away from the polling place. A voter could, under the non-normal procedure. merely seal the challenged ballot envelope with nothing in- side it. and put the ballot given him by the Board agent into his pocket to use for some nefarious purpose, such as a chain-voting scheme. With the agreement of all parties. however. I opened each of the 257 challenged ballot enve- lopes." and each contained a ballot. Accordingly, even if the wrong procedure was utilized by some Board agents in processing ballots of challenged voters, no unmarked (or marked, for that matter) ballot was removed from the poll- ing place as a result thereof' 2 I am inclined to believe that the witnesses for the Company and PSA were, in this re- spect, at the very least mistaken as to the procedure used. As my check of the envelopes was concluded before any Board agents testified. there was no need for them to be questioned about the challenged ballot procedure, and there is also no need for me to make any specific finding in this regard. I Some variations did exist in precisel) how agents handled the unmarked ballots, and how the) gave them to voters. To the extent material. I will advert to these differences later in this decision. 10 A voter inside the booth would be shielded from view from about the knees up by curtains. There was a shelf in each booth containing pencils supplied by the Board for use of the voter in marking his ballot. H Neser opened at the election count as not determinarlse, the Steelwork- ers having received 1.500 more votes than PSA, and far more than a simple majority of all votes cast. 12 One of the envelopes of the 257 examined was open at one end. al- though sealed at the flap. The enselope was ohviousl defective. In an) eent, it contained a ballot. 1)1 I)l(ISIONS Of NAIIO()NAl L.ABOR RI-.AlIO()NS BOARI) The Aftermath of' the Election As noted above, the Steelworkers received 9,093 votes and PSA 7,54S votes in the election conducted as described above." AFter the election, and in timely fashion, the C(om- pany and PSA filed objections to the conduct of' the elec- tion. On May 19. 1978. the Regional Director, in a lcngth Report on Objections. recommended that the objections be overruled in their entirety and the Steelworkers he certified. On October 27. 1978, the Board affirmed the Regional l)i- rector and on December 22. 1978. issued a Decision and Order. Finally. on March 2. 1979. the Court of Appeals for the Fourth Circuit issued its "limited purpose" remand. As the meaning and precise scope of the court's remand was and is the focal point of both the hearing and the decision in this case. I set forth below the critical language. contain- ing the definition of "Chain voting" from pages 8 and 9 of the court's slip opinion: It has long been recognized that the use of pper ballots presents special risks of'election fraud. Se. S', .g,, Hackett v. Pre.videnl f tfhe ('it ('ounil of' Prillde/lria. 298 R.Supp, 1021. 1028 (E.Dl). Pa. 1969). In particular. it creates the possibility of chain voting.' Chain voting is a major threat to the secrecy-- and therefor to the integrity-of a democratic election. Laxity in handling extra supplies of blank ballots, or in allowing voters to leave the polls without depositing their ballots in the ballot boxes, multiplies the risk. The presence of blank ballots outside the polling place establishes that there was an opportunity for chain voting. but it alone does not necessarily suffice to set aside an election. tFirrell-('heck Steel ('o,. 115 NLRB 926. 927 28 (1956); see also Pride Made Prod- irts. Inc.. 233 NLRB No. 34 (1977); Swii & ('reoptl ',l 88 NLRB 1021, 1023 24 (1950). However, when this irregularity is combined with objections suggesting that a substantial number of blank ballots were left in voting booths. and that the Board could not account for all ballots. we think a hearing is essential. The Company's petition to set aside the election and the Board's cross-application or enforcement of its or- der are denied. We remand the case to the Board for the limited purpose of' conducting a hearing to con- sider whether there is a reasonable likelihood that the election was corrupted by chain voting. If this is shown, the Board should set aside the election. 4 n Farrell.( heek Steel (orpumir. 15 NLRB 926. 927. In 3 195). the Board defined "chain voting" as follows: By "chain voting." a voter secretes a ballot upon his person without having placed it in the ballot box and takes it rom the voting room to a place where it is marked by someone, who, in turn, gives Ihe ballot to the second person in the chain who then goes into the polling room. picks up a blank ballot. goes to the polling booth. deposits the ballot marked outside the polling room and secretes the blank ballot on his person and by this means takes the blank rom the oting room. This is repeated again and again until all of those voters wsho take part in the "chain voting" have voted. At the hearing, I rejected, for the purpose of' ruling on whether or not proffered evidence should be received. the n1 MITU received 95 votes. and there were 217 votes against the partici- paling labor organizations. 257 challenged ballots. and 35 void ballots Steelworkers' claims that (I) the ('toimpan and PSA ere limited h the remand to pesentalio only of evidence of actual "chain voting," and (2) only evidence that had been before the Regional D[irector, hb way of affidavits, and proffers froml the (ompany and SA, should he received. I adhere to those rulings, both for evidentiary and decisional purposes. Indeed, the Steelworkers' two contentions c;innot stand together. As no evidence o chain g actually oc- curring was ever offered to the Regional l)irector. the sec- ond contention must tall] iI the irst pre ails and vice ser- Si. 14 Ihe testimony took 12 dalss of hearing to preselt. and encompassed close to 9() witnesses, about 60 called by the ('ompilny and SA aind nearl\ 30 by the Steelworkers and the Regional l)irector the latter calling 7 Board agents who hald worked the election. A majority o the witnesses called by the (Company were employees who voted in the election and who testified to having seen one ocr more ballots (other than the one given each by the Board agent. o course), in the voting booth he elitered. PSA also adduced testimnon from it number of voters. as well as some oi' its observers at the election. con- cerning unmiarked ballots being lound in ballot booths. I he (ornpan, through various witnesses. introduced into evi- dence torn pieces of ballots found in trash receptacles at some of the polling places the das after the election. Obh- servers for both the ompany and PSA testified to the chal- lenged hallot procedure, as alre;ad indicated. Several wit- nesses testified to having seen hallots utside the polling place during the election. Others testified to hav;ing been given two ballots bh the Board agent after clearing the check-in ables. A number olf itnesses, again primlarily ob- servers. testified to varOtius incidents occurring during the election, such as a voter going toward the ter booth be- lore being checked in: :oters passing the ballot box without depositing their ballots and having to be called bhack by a Board agent: Bard agents leaving the polling areas, one with ballots in his pocket hballots being "stuck" in a portion oft' the voting booth. or being iound by a Board agent or one of the ohbsersers there: and similar bits of testimonv. The C(ompany also adduced testimony tending to show that em- ployees are often away rorm their immediate supervisors in terms of the physical setup at the work locations. The Company initiated the search for ballots the day af- ter the election. Thus, William Thomas, a section superin- tendent in the maintenance department, as told by his superior, Bob Dame, to take two of his salaried people and "go see it' there was an' ballots, or anything that appeared to be unusual pertaining to the election." After searching at polling places I through 4 Thomas and his helpers found pieces of ballots in a trash can at polling place three. Michael Brookman, an investigator with the ('ompany, was told to look for "any signs of ballot material" after the election. He and another investigator searched at polling places I through 4, and fund pieces of ballots at polling place 4. Brookman testified that during the same day (the day after the election) he was also sent "to look for any- 14 The Steelsworkers argue igorously in their hriel thal mn ruling was erroneous The quesion of the scpe iI the court', rema;nd sill he discussed t'ull) belos 10n2 NEWPORT NEWS SIMPBl II.DIN( & I)RY DOCK CO. thing that could he contributed sic) to the election . . . anything out of the ordinary." Daniel Bacchus, a foreman in the machine shop. was asked by his supervisor the day after the election to look for ballots. He and his crew found pieces of ballots in a dump- ster where the trash receptacles are dumped, just outside polling place 4, after having examined the contents of some 55 trash cans (55-gallon drums) and not finding anything. Robert Godfrey. a senior safety engineer for the Com- pany, was directed to search the vicinity of polling place number 12 to see "if we found any, you know, loose ballots laying around, or anything else that might represent a bal- lot," and found a portion of a ballot in a trash receptacle. All witnesses for the Company who testified as to when and where they found pieces of Board ballots were completely credible: indeed, the pieces of ballots found by' them are in evidence. I conclude, accordingly, that there were torn up ballots found in the trash receptacles, and in one dumpster, on the day following the January 31 election. The fact that the Company set in motion a diligent search for anything that might be helpful in objecting to the election does not alter the fact that the results of the search showed up these pieces of Board ballots. With respect to whole ballots being found outside the polling places on the day of the election, the Company pre- sented two witnesses. One. Anthony Groh. testified that he saw "some papers laying around the trash can," outside the door of polling place 12 as he was leaving that polling place early on the morning of January 31. just having voted. Groh said that he "picked one up and it was the same thing that I had just filled out, so I wadded it up and threw it in the trash can." Groh. who had also testified to seeing "some papers over to the side" inside a voting booth at polling place 12. and that he "picked one up and turned they were faced down: I turned one upside down to see what it was and it was identical to the election ballot that they gave me." said nothing at all about either of these occurrences until about 2 weeks before the instant hearing. At that time. he came forward when a general foreman asked a group of employees "if we had seen any irregularities." He did not say anything to any Board agent, or, indeed, to anyone else, about what he saw on the day of the election, even though he testified that he thought "there was something wrong. It struck me as wrong because when I picked it up I was wondering to myself, 'why did they give me one if they had them already there?'" Polling place number 12 was the busiest location of all, with close to 4000 voters using it. It is inconceivable to me that only' one person. Groh. would have observed the ballots outside the polling place (by' Groh's own testimony. he picked up only one of the papers outside the polling place) had they been there. Yet no other testimony was adduced along these lines throughout the hearing. I am inclined to believe that Groh was confused and made two "cvents" out of what was just one at the time. Donald Bartley was the other company witness who tes- tified to seeing unmarked ballots away from any polling place the day of the election. According to him, while work- ing overtime on that day (He was on the first shift, ending at 4:00 p.m., and worked, he said, 4 hours of overtime.). shortly before 6:00 p.m.. he was walking along a road alongside the ship where he was working at the time. on his way to the bathroom for a cigarette. He looked along the side of the road and "saw a stack of rectangular green cards laying there. I picked up one of them and happened to obsere it. It was identical to the ballot which I had voted on earlier that day." Bartley estimated the number of bal- lots he saw at fifteen. Bartley first mentioned this 4 days before he testified at the hearing, when he was approached by a foreman and asked if he had seen irregularities at the election. The Steelworkers adduced testimony from em- ployee Waymon Free that there were approximately 250 employees on the ship Bartley was presumably working on that evening. Free also testified that on a normal working day, it was virtually impossible to walk along the route allegedly taken by Bartley at about 6:00 in the evening without meeting other employees. Later in the hearing, the Company stipulated that its personnel records showed that Bartley did no! work overtime on January 31. 1978, work- ing just his regular 7:00 a.m. to 4:00 p.m. shift. Manifestly, Bartley's testimony cannot be credited. Not only was he specific about the time, and that it was during "overtime"- reference as made to the fact that it was dark and that spotlights were lit to illuminate the road and protect employees from walking into the water." PSA as- serts that Bartley "may have been mistaken as to exact times." but that "no evidence was produced that contra- dicted the fact that Bartley did find some fifteen ballots ..." And the C(ompany argues that "the time that he saw the ballots is irrelevant," going on to point out that, in the words of the Second Circuit in N'... R. B. v. U'nmierva/ (Cam- era (orporatio, 179 F.2d 749, 754 (2d Cir. 1950). remanded on other grounds. 340 U.S. 474 (1951). "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it.... In this instance. for the reasons sated. the mistake cannot be a mere error in time: it establishes, in connection with all the other circumstances showing the ulhAclihood of Bartley alone having "seen" those 15 ballots, that lie uwas falbricating the story. Perhaps he had deluded hinsell into believing that he saw ballots that evening, and was not deliberately concocting his story. However. this is not a question of disbelieving part of what a witness sas., but accepting other portions of his testi- niony. PSA also presented a witness. Roxanna Davis. who testi- fied to seeing unmarked ballots outside polling areas. Davis had voted about 10 a.m., and also testified about seeing ballots in a voting booth at polling place 12. She claimed that she saw "some" ballots lying on the ground "after lunch between 12 and 4 p.m.." later narrowing the time down to 4 p.m.. when she was leaving the yard for the day. There ere, she said. "dozens" of other employees in the area at the time, and the ballots were "there on the ground."', She "glanced down at them as I walked over them." I agree with the Steelworkers' contention that Davis cannot be credited in this respect. Despite her insistence that she saw "ballots." her "glancing down" is not enough " I take notice that at about 6 pm on JanuarN 31, it is dark n Newport News, Virginia. 16 This latter phrase was used in response to the question. "These hallots were in plain iew lior every dl) to see, right?"' 103 I)EC.ISIONS ()F NA IONAI ILABOR RELATIONS BOARD) to satisfy me that she saw what no one else did, near polling place 12. during the heaviest period of voting there, and at a time when shifts were changing. It is also inconceivable to me that someone could have left a stack of ballots there as part of a chain-voting scheme, a stack thus put there, hypo- thetically, just before Davis' passing, and picked up by a co-conspirator just after. Accordingly, I cannot conclude that any ballots were found outside polling places on the day of the election. I do find, however, that some unmarked Board ballots were found in some of the voting booths at some of the polling places during the course of the election. As noted above, the testimony took various forms and the Steelwork- ers attempted to show that the witnesses who so tesified were mistaken, or deliberately lying, or testified as they did because they were "suggestible." So to demonstrate, the Steelworkers sought to elicit from these company and PSA witnesses their prejudices and biases against the Steelwork- ers, such as their having worked during the Steelworkers strike that was still going on at the time of the hearing, their PSA leanings, affiliations, offices, friendships, and the like. The Steelworkers also sought to, and did, bring out that the witnesses for the most part had not come forward to the Company or to PSA officials, despite efforts by both to col- lect evidence of irregularities, until after the court remand on March 2, 1979, when company supervisors asked for "irregularities." And none of these witnesses said anything to Board agents or observers at the time they assertedly saw the ballots. The Steelworkers argue that an employee who never came forward at the time the objections were originally in- vestigated must not have regarded seeing ballots in the vot- ing booths as an irregularity then. They would thus not be likely to regard it as an irregularity now, and come forward in response to supervisors' requests phrased in terms of "ir- regularity." Rather, the Steelworkers argue, these employ- ees' testimony regarding seeing the ballots was "suggested" to them, with a kind of mass psychology operating. The most glaring example of this, assert the Steelworkers, in- volves a group of five employees who voted at the same time, and who testified to seeing ballots in a voting booth at polling place 10. All five were among a group interviewed by General Foreman Radcliff, who asked them "[Wlho seen anything?" Each of them then wrote on a sheet of paper with names of the 14 people at the meeting already on it, and each wrote essentially the same thing, except that employee Greg Hansen wrote "Blank Ballets (sic) in Booth" next to his own name and next to the name of Mike Davis, Nancy Wade wrote "Blank ballots in Booth," Rich- ard Bowen wrote "Empty Ballets (sic) in Booth," and Alton Cagle wrote "Blank Ballets (sic) in Booth & out of booth." Interestingly, Hansen's misspelling of "ballots" was re- peated by Bowen and Cagle. And the Steelworkers point to the use of particular "un- usual phrases," such as "the same as what I held in my hand," or "some minor variant" of that phrase, in describ- ing the ballots purportedly seen in the voting booths by some 10 different witnesses as leading to "the inescapable conclusion . . . that all have been prompted and none is credible." The Steelworkers also view as "suspicious" that "most of the testimony concerning stacks of ballots in booths . . . emanated from sessions with a .ingle general foremlIan, Rad- cliff." The Steelworkers also advance many other and more specific bases for discrediting various witnesses. Before turning to them I will briefly summarize the testimony of the other witnesses, not in specific detail, but by category. Approximately a dozen witnesses testified to seeing one or more ballots in voting booths at polling place 12. Their testimony was much more varied than that of the polling place 10 voters. Their times of voting were spread through- out the day: the number of' ballots seen by them ranged from "a ballot sitting down on the floor . . . face down" (employee Frank Kelsey). a ballot marked for MITl (Sar- ah Walker), and a "half dozen or so" ballots (Roxanna Da- vis), to "15, maybe more, maybe less: I'm not sure" (An- thony Groh). Some of the witnesses testified that thev had "mentioned" seeing ballots at various times prior to the Fourth Circuit's decision. Most witnesses said nothing until after being questioned by company supervisors after the court's decision. James Ferebee, tfor example. was asked by his supervisor if he saw any blank ballots at the voting polls. There was no testimony at all as to how any ballots got into the voting booths, or how they left it. Voting booths at all locations as to which there was any tesltinony at all were regularly inspected by Board agents and, in most instances, by observers as well." Other testimony relating to ballots found in voting booths involved incidents where either an observer or Board agent found ballots or portions of ballots, which were then removed. Thus, employee Richard VanDyke tes- tified that after he was handed a ballot, a Board agent opened the curtain of the voting booth for him to enter. There was a piece of paper on the voting stand, which the Board agent "reached and grabbed . . . and when she flipped it up it was a ballot," PSA observer Christopher Lynch testified that he found a blank ballot in one of the voting booths at polling place 7. and gave it to Board agent Depenbrock. [)epenbrock testified that to the "best of his memory," the incident described by Lynch never happened. I credit Lynch that he found a ballot, but believe he was probably mistaken as to which Board agent he gave it to, as there is no reason at all to discredit Depenbrock."' A group of about a dozen witnesses testified to seeing ballots in voting booths at 7 of the remaining 13 polling places. I do not credit the single witnesses who testified to seeing one or more ballots at polling places 1, 4, 6, 7, and 9. That there was no corroboration is itself not a conclusive basis for not finding that unmarked ballots were seen in these five booths. All five of these witnesses, however, did not impress me. Walter Wilson, at polling place one, kept changing his testimony while being questioned on cross- "* The Board agent in charge at polling place 12 testified that she did not permit observers to inspect the soting booths after the election started. At all other polling places the practice was apparently to permit inspection by observers. At polling place 7, fbr example, the Board agent in charge in- structed the observer to "regularly check the voting booths." and he testified that both he, other Board agents, and the observers "inspected the voting booths continuously throughout the day." Company. PSA, and Steelworkers observers confirmed that these inspections took place. Iu Mr. Depenbr(c:k is no longer with the Nt.RB He is an attorney with the Airline Pilots Association. 104 NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. examination about asking for a raise. And his testimony about the ballots he saw ("looked like somebody marked them," and "in that little cubbyhole there") appeared quite vague and uncertain. Lucky West, the only witness who saw unmarked ballots in booths at polling place 4. was a completely incredible witness, for reasons discussed below in another connection. Ronnie Whitmore, although a PSA delegate, said nothing to anyone either right after the elec- tion or in response to PSA's leaflet seeking this sort of infor- mation back in September of 1978. William Smith. at poll- ing place 9. demonstrated an impossibly poor memory on the witness stand, and was completely confused about the voting procedures. And Billy Hinton was not a witness whose testimony I could conceivably rel5 upon. In addi- tion, the testimony (some of it by stipulation) of 6 other witnesses who voted at the same time as Ilinton goes far to demonstrate that there were no ballots in any voting booths at polling place 6 when Hinton voted.' Two witnesses testified to seeing unmarked ballots at vot- ing booths at polling place 2.2' and three witnesses testified to seeing such ballots at polling place I1.'1 Finally, a group of witnesses, some voters but primarily observers, testified to other incidents involving ballots. For example, two voters put their ballots into a sort of tra5 in a voting booth at polling place 9. and the ballots got stuck and ultimately had to be pulled out by Board agents. These incidents happened late in the afternoon, about 20 minutes apart. Various Board agents agree with a number of observ- ers that this occurred. There is a mild disagreement as to whether both voters then voted subject to challenge. only one did so, or one voted a new ballot without being chal- lenged with the second being challenged. Two voters at polling place 12 testified to receiving hal- lots stuck together from the Board agent. Jesse Powell saw that he had two ballots when he got into the booth, and that he voted both of them for PSA. and managed to put them into the ballot box. Kathy Beeler found she had three ballots, voted one of them, and took the other two home in her coat pocket. Several observers testified to Board agents tearing up ballots that were "spoiled." There was also a considerable amount of testimony concerning voters leav- ing the voting booths without immediately depositing their ballots in the ballot boxes, but in all but two instances being stopped by the Board agent and placing their ballots in the appropriate place in the box. 2 Witness Clarence Felton tes- tified that he saw two voters receive their ballots from a Board agent at polling place 12 before they had been checked off on the voting lists, although both were checked 1* It is conceivable that none of the 6 voted in the same booth as Hinton. but not likely. 20 Robert Purdue ("other papers laying in the booth that were the same color"), and Willie Bivens ("5 or 6 ballots spread out in the first xith"). 1" Gary Blake ("five ballots laying there on the table"): Virginia Johnston ("some ballots in the bt)th ... stacked together"); and Kenneth Odom ("10 to 15 ... stacked in the right-hand corner"). 2 One of these two, involving Lucky West, is discussed later. The other involved Gary Oaks. who, according to witness Dorothy McDutfie. came through the exit with his ballot in his shirt pocket. When his fellow workers laughed, and asked him if he was going to vote, he said "Oh, yeah," and went back into the polling area. Although there is no further testimon as to whether he did in fact deposit his ballot when he returned, t seems highls probable that he did so. off when an observer brought the matter to the attention of the Board agent involved. One Board agent, (regory Lew- is, confirmed testimony that he left the polling area with unmarked ballots in his pocket. Observers fotr PSA testified to seeing other Board agents with ballots in their hands leave the polling areas for short periods of' time. In one instance, the Board agent involved. Thomas Lucas. took the stand and denied having done so. As noted, the Steelworkers ask that most of the PSA and company witnesses be discredited, advancing reasons that. they contend, apply virtualil across the board. In addition, the Steelworkers advance particular reasons for discrediting particular witnesses or groups of witnesses. For example, the Steelworkers claim that both James Ferebee and David Spruill should be discredited as to their testimon's of seeing ballots at polling place 12 at 1:30 p.m. in part because "their accounts cannot be regarded as corrohorati e since Ferebee's description of the ballots as stacked is inconsis- tent with Spruill's testimony that the hballots were spread out', with one ballot face up and three ballots face down." Yet, as noted above, the Steelworkers ould dis- credit the "earls morning" polling place 1(0 witnesses in part because they in effect corroborated each other too much: i.e.. they almost all used "like in mns hand," in de- scribing what they saw. These two examples present an in- teresting contrast. Had Ferebee and Spruill both said "spread out." the Steelworkers sould undoubtedls be argu- ing that their use of identical language casts doubt on their testimony. To me. the different words used hb IFerebee and Spruill, words that are not that vastly dissimilar in meaning, is not in and of' itself a basis for concluding that "their accounts cannot be regarded as corrohorative." The testimon of the polling place 10 witnesses is. of course. "corroborative.'"' And I do not vie> the "in nms hand" argument as a discrediting factor. About 10. onl about a third of the w itnesses testit ing to seeing ballots in booths, used an' ariant of that expression, the uses them- selves varied. and thes were often elicited b questions as to which the answer was a ,er natural one. I'hus. to the ques- tion "Hovw do sou know the> were ballots?" Blake replied. "They was just exactly what I had in m) hand that the 5 give me to mark on." Johnston replied. "Thes were the same as the paper that wvas handed to me." Bowen replied. "Because theN looked just like what I had in mn hand." and Hanson said. "The same thing I had in m) hand." But Roxanna Davis used three different variants: "I sas ballots other than the one I had in my hand:" "The were dupli- cates of the one I had been handed:" and "The same color as what I had been handed." Neither Robinson nor Groh used the word "hand" at all. The former said. "he top one was like the one which I was given to mark." and the latter said. "It was identical to the election ballot that the had given me." The final three. Cagle Jenison, and Bisens. gave answers quite similar to that of Blake. In no instance does the phrase used hb the witnesses at issue seem an unnatural way to respond to the questions asked. After all, the ballots "i The fact that other emplo>ees who voted it the same ime as these did not come forward when G(eneral FI reman Radcfl asked the groulp whether they had seen any irregularities is not evidence tha.t hes diel not see hallo,i in the ,oiing hbosths 105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given to the voters were presumably not in their feet or their mouths. The Steelworkers state that witness Parker's "amenability to suggestion might well emanate from the fact that he was overdue for a wage increase." They also state that witness Strickland's telling a company foreman a few weeks before the hearing about seeing ballots in the booth, and doing so at about the same time as he was promoted, "leaves some- thing of a sour taste." It might, with at least equal validity, be argued that an employee who was overdue for a wage increase would be resentful of that fact, that he would have the "sour taste." To argue that those who have received raises will testify favorably to the Company out of grati- tude. and those who have not will do so out of hope, really leaves nobody at all for the Company to call who could be credited. The Steelworkers also assert that witness Roger Armstrong. called to corroborate that Strickland told him on the day of the election about seeing ballots in a voting booth, actually "refuted" Strickland's testimony. In fact, Strickland on the stand described the ballots as being "not in a neat pile ... like you might lay a deck of cards, a hand of poker, or something like that." His testimony about tell- ing Armstrong. elicited on cross-examination, was merely "I told him about it." And Armstrong testified that Strick- land told him "there was a stack of blank ballots sitting there. He said he saw them in the booths he went in." The "difference." in my view, is not significant. The corrobora- tion really lies in thefici of a conversation about ballots in a booth on the day of the election, not in the precise lan- guage used, and not in whether Armstrong's 14-month-old recollection of the conversation squares precisely with Strickland's description on the stand as to precise details. Here, too, had Armstrong's testimony been that Strickland said to him 14 months earlier exactly the words Strickland used on the stand at this hearing, the Steelworkers could rightly be much more suspicious. Armstrong's testimony, in short, is not by any stretch of the imagination the "death knell" to that of Strickland. It would serve no useful purpose to go over each and every witness in this fashion. It suffices for present purposes to say that there were enough witnesses who impressed me as credible, and who survived most of the Steelworkers' suggested tests,"4 to establish, as noted above, that there were some ballots found in some voting booths at some polling places during the course of the election. In sum, based on all the credible testimony at the hear- ing, I find that unmarked ballots were found in voting booths 5 at polling place 2 (about five or six ballots), polling place 10 (from about 5 to 10 ballots), polling place 11 (from 5 to 20 ballots) and polling place 12 (from 5 to 20 ballots). It is difficult, if not impossible, to be any more precise, and to put an exact figure on the number of separate ballots seen in the voting booths. I cannot and do not, however, accept PSA's "count" that there were "a total of at least ninety and probably more than one hundred thirty ballots in the voting booths at eight different polling places." Apart 24 Rigid application of all these tests would have stopped Diogenes dead in his tracks. 25This does not include ballots "found" by, or turned over to, a Board agent, or ballots stuck in trays. from the fact that I have not credited all testimony concern- ing ballots in voting booths, PSA's mathematics is errone- ous, for PSA counts the same ballots seen by different wit- nesses at the same time in the same polling place as separate sightings. Furthermore, many witnesses testified to examining only the top ballot in a "stack." Conceivably, the other papers in the stack could have been something other than ballots, and clearly any exact count based on this kind of testimony is sheer speculation. I further find that there is no credible evidence that un- marked ballots were seen outside the polling places, or any- where on company property, during the election. There were, however, pieces of ballots found in trash receptacles at or near various polling places the day after the election. I find also that there is no evidence of any voter leaving the polling place without depositing the ballot given to him," but that one voter, Powell, did deposit two ballots. and another voter, Beeler, received three ballots from the Board agent, and took two home with her after voting one. And I find, based on my in canera opening and inspection of the 257 challenged ballot envelopes, that each contained a ballot. Discussion A. The Scope of the C(ourl's Remand Before determining whether the facts emerging from the hearing require that the election be set aside, it is necessary to resolve the dispute between the Company and PSA, on the one hand, and the Steelworkers and the Regional Direc- tor, on the other, as to the precise meaning and scope of the court's decision. The Steelworkers27 argue that the critical language of the court's remand, "for the limited purpose of conducting a hearing to consider whether there is a reason- able likelihood that the election was corrupted by chain voting," must be read as requiring proof by the objecting parties, the Company and PSA. that chain voting occurred. and that the Steelworkers perpetrated the chain voting. Only then is the question whether such proven chain voting in fact corrupted the election brought into play. The words "reasonable likelihood," assert the Steelwork- ers, are grammatically linked not to "chain voting" but to "election was corrupted." Therefore, to read the sentence as requiring only proof supporting a reasonable likelihood that chain voting occurred would be to "read the key phrase 'election was corrupted' right out of the Court's standard." Illustrative of the validity of its reading of the critical language would be a situation where the Company proved a chain voting scheme existed masterminded by a company official, with ballots premarked for PSA, and with the final unmarked ballot thrown into a trash barrel. Obvi- ously, assert the Steelworkers, no court and no board would even consider setting aside an election won by the Steel- 26 Dorothy McDuffie testified that employee Gary Oaks walked out of the polling area at polling place one with a ballot in his breast pocket The employees in his group "all laughed" and asked him if he was going to vote. At that point, he went back "behind the curtains." Although there is no evidence beyond that, I infer that Oaks did in fact cast his ballot upon returning to the polling area. 27 For the sake of brevity. I refer to all contentions advanced jointly by the Steelworkers and the Regional Director as "Steelworkers' " contentions. 106 NEWPORT NEWS SHIPBUJIIDIN(i & I)RY )DOCK (() workers because of proven misconduct hby the C(ompan designed to defeat the Steelworkers. The Steelworkers also contend that the scope of the re- mand is essentially limited to matters previously submitted to the Regional Director or discovered by the Regional Di- rector in the course of his investigation of the objections. that no evidence should have been received, or should now be considered, "beyond the borders charted bh the Re- gional Director's investigation and report." Citing Board and court law to this effect generally, the Steelworkers also assert that nothing in the court's decision here contemplates anything other than the usual rule limiting the scope of evidence, for the court in its decision "ignored 'new' evi- dence of ballots in the booth and relied only on such evi- dence as was presented to the Regional Director." Thus, the Steelworkers assert, since the Court "confined itself to three matters as the factual underpinning for its direction of a hearing, . . . the presence of ballots in the trash, the alleged discovery of blank ballots in a booth at Poll 6 and the discrepancy in count fewer ballots cast than persons voting ... evidence going to those three mat- ters was within the contemplated scope of the hearing." The Steelworkers brief goes on to state, "Evidence of actual chain voting and its impact on the election also no doubt would have been admissible. So, too, would evidence which went to show a reasonable probability-as contrasted to possibility-of such a scheme." Because I fully agree with what the Steelworkers submit is admissible, I necessarily disagree with much of what the Steelworkers assert is not. The Steelworkers' agreement, in other words, that some evidence not presented to the Re- gional Director is within the scope of the hearing is conced- ing that the Fourth Circuit must have contemplated some- thing "other than the usual rule limiting the scope of the evidence." Had proof at a hearing of the facts earlier prof- fered to the Regional Director been sufficient to establish a "reasonable likelihood . . . of chain voting," it would have been easy for the court to say just that. Indeed, the Steel- workers' argument that proof of actual chain voting is re- quired is predicated on its view that the facts before the Regional Director would not, if shown at the hearing, suf- fice to set aside the election. In an attempt to reconcile these seemingly contradictory positions, the Steelworkers reason that the "facts" proffered to the Regional Director were enough to "open the door to a hearing." but not enough to warrant setting aside the election. Thus, the Company and the PSA had the burden of proving the "threshold" facts, and only if that threshold was "cleared" could other evidence of "reasonable likeli- hood" be presented. This somewhat imaginative construc- tion does not do violence to the reading of the court's opin- ion I have embraced. Where the Steelworkers' reading and mine part company is with what kind of evidence the court felt was relevant and germane to the "reasonable likeli- hood" test. For reasons set forth immediately hereafter. I reject the Steelworkers' view that only evidence of actual chain voting so qualifies. The Company and PSA. quite naturally, argue for a reading of the court's remand that would virtually require that the election be set aside upon proof of ballots being found in the voting booths and away from the polling places, and the Regional )lirector heing unable to accotunt tor all ballots brought to the election site on Januar 31. 1978. heN argue that chain voting corrupts an election per se, and that the court was so holding. with the proof of chain oting demonstrable by circumstantial eidence. 13 keying the words "reasonable likelihood" to "chain voting," the ('ompany and PSA do read the words "the election was corrupted by" out of the sentence, but only if those words are the essence of' the sentence. I agree with the Compa;ln and PSA that the: are not. I believe that everything in the sentence following the words "reasonable likelihood that" must be read as a single phrase. and that the court did not intend to leave open to the Board, or to me. anv discretion to refrain from setting the election aside if chain voting were in fact shown to have been reasonably likely. Although the Steelworkers correctly state that chain vot- ing actually proven to have taken place and sponsored hb the Company or PSA would not be a basis for setting aside an election won by the Steelworkers. it does not follows that a reasonable likelihood of' chain voting, not attributable to either party, must be treated the same. The latter sittuatin is much more akin to the kind of irregularities. such as leaving hallot boxes unattended, that normall5 require that an election be set aside wholly apart from the question whether any particular parts profited from the irregularit. I agree, however, that "reasonable likelihood" must mean something more than "reasonable opportlrii. " 'Fhls, the court did not mandate that the election be set aside because of. for example, "the presence of blank ballots out- side the polling place." even though the court said that such evidence "establishes that there was an opportui(tl for chain voting" (emphasis supplied), for the Court went on to add that this does "not necessarily suffice to set aside al election." Neither "possibility' nor "opportunity," which are largely synonsmous being sufficient to set aside the election, "reasonable likelihood" must be read. as the Steel- workers assert, as virtually synonymous with "reasonable probahilia." I, therefore, reject the company and PSA read- ing of the court's remand as requiring that the election be set aside on what amounts to proof of ample opporttinit%. in terms of available unmarked ballots, for chain voting.2' Surely the court did not intend that the case be decided in an automatic or mechanistic manner. The words "rea- sonable likelihood" themselves strongly suggest an in- formed and reasoned judgment, not merely a count of miss- ing unmarked ballots, and clearly imply that all the circumstances of the election and its environment be taken into account. Otherwise, as I stated earlier, opportunitv alone would suffice to set aside the election. Finally. I agree now, as I did at the hearing. that the court, which went on to state unequivocally that the Board "need not conduct an evidentiary hearing on any of the other objections to the election." has eliminated from con- sideration here what the Company and the PSA urge as alternative bases for setting aside the election: "a violation of the integrity of the Board's election processes" (Com- pany brief ); "the Board failed to follow established proce- s PSA in particular emphasizes that a single aailable unmarked hallot presents the opportunity for chain voting. .4 ibriori, two such ballots present twice the opportunity and 50 such ballots 50 times the pportunits. 10)7 I)1('ISIONS O NAI IONAL ABOR RELATIONS BOARD dures for election conduct" (('ompany brief): "the integrity of the election process was totally and prejudicially com- promised and .. . the procedures and safeguards designed to insure a fair and impartial election were likewise violated and compromised" (PSA brief). As I indicated, and as both the Company and PSA recog- nize,.' allegations of' this nature are beyond the scope of the court's remand. 'This type of allegation by the Company and PSA was specifically rejected by the Regional Director in his Report on Objections, by the Board in its Decision and Certification, and by the court in unequivocally affirm- ing the Board in this respect. In any event, the view that the "integrity of the process has been seriously and irreconcil- ably compromised" is not borne out by the facts. The Board agents, as I have already found, were doing their jobs diligently and properly. Not every Board agent was experi- enced (some apparently had no experience at all) in con- ducting elections. But the Board agents in charge of the polling places were all experienced field personnel. And, as Board agent Depenbrock testified, when he discovered one who had no experience, he had her perform the routine and simple task of staying at the entrance of the polling area and letting three or four people in at a time. The testimony shows that Board agents were in fact vigi- lant, and where their attentions may have lapsed, or lack of eyes in the backs of their heads or lack of X-ray vision may have caused momentary failures to see everything going on, they were quick to correct irregularities as their attention was called to them. For example. a number of company and PSA observers testified to people emerging from the voting booths and getting past the ballot box without de- positing their ballots therein. In every instance save one, the Board agent "caught" the person and had him deposit his ballot. The exception, according to witness Lucky West, in- volved a group of 12 voters apparently attempting all at the same time to get past the ballot box without depositing their ballots, and with the Board agent able to catch only 6 of them. West's testimony was incredible on its face, for 12 voters could not conceivably emerge from the voting booths at one time, let alone rush pellmell to the exit in an attempt to avoid depositing their ballots. Had such an incident oc- curred it would have been in the presence of Board agents, observers from all parties, and the voters themselves. Yet there was no corroboration of West's remarkable story, and there was testimony from company observer Major and Steelworkers observer Holland regarding polling place 4, with neither of these witnesses ever seeing more than a sin- gle voter at a time, and only 2 of those, getting by the ballot box. As mentioned above, both of these were brought nThey argue that the court's language "The Board need not" scarcely prohibits the taking of evidence with respect to such matters. But the Board in its brief to the court was resisting holding a hearing with respect to pre- cisely this kind of allegation, and the "need not" is clearly not intended to be read as "We won't require it, but it would nevertheless be a good idea for you to do so." 30 George Major also testified that he saw a Board agent at polling place 4 take some ballots out of the box where unmarked ballots were kept which seemed to have a "rip down the side." The Board agent asked Major i the ballots "looked marked," and when Major said they did, the agent "tore them up and put them in a brown envelope the) had on the table." Major also testified that a Board agent found a ballot on the tray in a voting booth back to deposit their ballots. Accordingly, the "exception" is no exception at all. And there is thus no credible testi- mony that any voter actually got away from the polling place without depositing a ballot in the ballot box. 'Ihe very paucity of evidence at the hearing, or proffered to the Regional Director, at the time of the objections con- cerning Board agents' presumed derelictions in an election of this magnitude-with more than 17.000 voters-is itself. to me, rather remarkable. Were the few that may have oc- curred to require that the election be set aside, I would doubt that the Board could ever conduct a valid election with a large electorate. As the Second Circuit said in Polymers. Inc. v. N.I..R.B., 414 F.2d 999 (2d Cir. 1969). "A per se rule of possibility would impose an overwhelming burden in a representation case. If speculation on conceivable irregularities were unfet- tered, few election results would be certified, since ideal standards cannot always be attained." B. Was There a "Reaonale Likelihood" of ('hain Voting? To the extent that unmarked ballots were in the voting booths, of course. a voter seeing them could have put one or more in his pocket and have had no difficulty in leaving the polling place after depositing his ballot in the ballot box. Based on my findings above, therefore, the opportunity for chain balloting did exist. The opportunity thus created, however, is more theoretical than practical on the /wts. of this case, including the lack of any testimony as to certain critical matters, and in light of the logistics of such a voting scheme. As the definition quoted by the Fourth Circuit shows, a chain-voting scheme needs some sort of "control station," and some sort of controller, or leader, or mastermind, in order to operate. The leader starts the chain by giving a ballot already marked with the leader's selection to a voter, who then proceeds to the polling place, is checked in, gets a ballot from a Board agent, and proceeds into the voting booth. Inside the booth, the voter takes the marked ballot out of his pocket, puts the unmarked ballot in its place, leaves the booth, deposits the marked ballot in the ballot box, and leaves the polling place. This first link in the chain would then need to rendezvous with the leader to give him the unmarked ballot. The next prearranged link in the chain must then get this ballot, now marked by the leader, from him, and repeat the procedure. The chain goes on in this manner-voter to leader to new voter to leader ad infinitum, or at least until the end of the election or until the chain is broken or fin- ished, whichever comes sooner. The entire setup of the plant, the polling places, and the logistics and schedule and procedures used in voting at this election make the likelihood that chain voting resulted from the presence of unmarked ballots in voting booths virtually nonexistent. Suppose, for example, a proponent of one of the unions involved in the election, or a "company" sup- while checking the booth immediately after a voter had left and placed it in the ballot box. And. as noted, he testified that a voter on one occasion went by the ballot box, after leaving the voting booth, without depositing a ballot, but that the Board agent stopped the voter before he reached the exit, and his ballot was deposited in the box. 108 NEVPOR I NI.W'S SIPBLUILI)ING & I)RY I)(X'K (O. port, decided to use a chain-soting scheme. he purpose of such a scheme is, of course, to insure that voters whose preference was in doubt voted ftor the choice of the master- mind, or leader. No useful purpose is served by having the chain comprised of known-to-be ardent supporters.' So the supporter, who would have to be a company employee or official entitled to be on the premises (no outside organizer or official of any of the three participating unions. for exam- ple, could have served as leader)., would have to prearrange a list forming the chain. and these voters would have to have been bribed or coerced to vote a certain waN. Then the leader would need to be able to start the chain, bh\ the fortuity of a blank ballot being available at the precise time when a henchman, in on the chain voting scheme, hap- pened to be in that particular ballot booth out of the more than 35 used at the election in 15 polling places, and then able to take the ballot to the leader at a prearranged place. The leader would then have to be in a position to coordi- nate the continuation of the chain. The chain could not consist of a group of voters going to the polls at the same time and place. for emplo\ees so vot- ing came to the polling places with their supers isors and left with them. unless someone inside the polling place was the mastermind-one of the observers or Board agents. This would be a practical impossibility in view of the voters' method of progressing through the polling place and the virtual impossibility of an observer or Board agent being able to get a blank ballot from a voter leaving the ballot box, mark it, and get it unseen to a new voter prior to that one going into the voting booth. all this with at least fur other observers and two Board agents all in the small voting area. Therefore, again as a practical matter, the first voter in a chain voting scheme (following the one who brings out the first unmarked ballot) would have to give his unmarked ballot to the leader back at or near his work station after returning in a group with his supervisor. The leader would then have to be in a position to get this ballot, now suitably marked by him, to the next man. somewhere in the area - an employee whose schedule of voting was such that he voted not only after the first link in the chain, but suffi- ciently after so as to permit the first man to get back from the polling place to his work area, itself an unpredictable period of time. Even assuming everything running as smoothly as possible, the time consumed in forging a single link in this chain would seem to have made the use of this procedure an exercise in futility. A chain started immedi- ately after the polls opened at 5:30 a.m., in view of the testimony that shows about 1/2 hour as perhaps the mini- mum time for the round trip from work station to polling place and back for any particular group. could only em- l' In the thousands of election conducted b the NLRB since 1935, with more than 50 million voters, there has never been an evidence, or even ans hint, of chain voting. The use ofr chain voting land there is very little ritten on the subject) seems to have been in conjunction with big ct? machines. such as Tammany Hall in New York, Boss Crump in Memphis. and Frank Hague in Jersey Cit.y in the days prior to machine voting. The boss or bosses (wardheelers and the like), would pa) hundreds of people to vote for their candidates, and would use the chain procedure to make sure the voter "de- livered." The leader would be a short distance from the polling place. and receive and dispense ballots with expedition as well as with mpunity. brace perhaps two dozen voters during the voting day even with clock-like split-second timing at each stage. All this would have to be accomplished without anyone witnessing any of the exchanges. There is no evidence at all in this case. none proflered by PSA or the Compans, not even a hint or suggestion. of anyone witnessing a single ballot being passed from one voter to another, or even a piece of paper looking like (or not looking like, for that matter) a ballot being passed. The initial fot malion of such a chain would also seem to have presented almost insuperable difficulties. As noted. the chain could not consist of a group of employees who worked together under one supervisor, for they would vote together and be escorted to and from the polls hb their supervisor. So the chain would of necessity consist of em- ployees from as many different groups as there were em- ployees in the chain. And, given the assumption that em- ployees in such a chain would not be the most ardent supporters of the choice they were to vote for. the risk of just one recalcitrant member or sought-to-be member of a chain refusing to go along, and spilling the beans, would surely be high. A project of such doubtful utility, fraught with such danger of exposure,': requiring great effort for such minuscule returns, and dependent fbr its success on the fortuity, hardly a foreseeable matter in terms of time and place. of unmarked loose ballots being in the voting booths and the right man being there at the right time to start the chain, does not suggest a "reasonable likelihood" that chain voting occurred.i With respect to ballots outside the polling places. most. if not all, the same logistical problems present themselves in terms of their establishing a reasonable likelihood of chain voting having corrupted the election. Whole ballots fund outside during election day would have provided an oppor- tunity for chain balloting to begin, in the same way that extra ballots inside the voting booths would, but their use for that nefarious purpose would still depend on the acci- dent of someone on the lookout foIbr a way to set the chain in motion finding one. and then following through in the man- ner outlined above. As to the pieces of ballots found the next day in trash areas near a number of polling places. there are sufficient legitimate explanations for their presence so as to render the conclusion that they were the end product of a chain- 1 As the Steelworkers point out in their brief some 8000 voters at the election did not select the Steelworkers Ans one of these. or any Steelwork- ers supporter who would not "have countenanced deliberate fraud on its behalf." (a number, I would guess. that would include almost all of them who witnessed part of the process of a chain-voting bngade) could he its "death knell." " The Compan 5 and PSA argue that supervision at work was not so con- stant as to preclude the passing of ballots. The, point to the fact that em- ployees were free to go to rest rooms and on smoke breaks. and to make work-related trips to places such as a tool room. Thes also argue that oppor- tunity existed "during the shift change and even outside the shipyard itself' to pass ballots. The utility of any of these methods is highly questionable. Passing of ballots as part of a chain voting scheme at shift changes would not provide many links to a chain. And the other methods would all depend on no one witnessing the transaction who might thereafter expose the scheme t4 As found above, there is no credible evidence of any ballots being seen outside the polling places during the election. There were, however. the torn pieces found by the company search the next das. And. because of the discrepanc in the count between number who voted and number of ballots cast, I will assume for decisional purposes that some whole unmarked ballots got awa 5 from the polling places during the election. 109 DECISIONS O1: NATIONA. IABOR RELATIONS BOARI) voting scheme or schemes at the very bottom of the list of probable sources. I agree, indeed, with the Steelworkers' suggestion that someone clever enough to carry out a chain- voting scheme in the circumstances of this election without anyone having detected it would hardly he likely to leave the last unmarked ballot in a trash can near a polling place, or anywhere else where it might be found 5 As noted above, the Company and PSA attempted to show that some Board agents used a challenged ballot pro- cedure that differed from the one normally used, in that they permitted challenged voters to seal their ballots into challenged ballot envelopes in the privacy of the voting booths. This procedure would, of course, permit such a voter to take his unmarked ballot away from the polling place, as he deposited only an empty envelope in the ballot box, and this opportunity would be a much likelier way to start a chain than the fortuity of finding a ballot inside a voting booth or outside a polling place. For, assuming fore- knowledge of this deviant procedure, a supporter of one of the unions could arrange to be challenged by an observer of the same persuasion, or be someone in fact not eligible to vote and sure to be challenged, and thus predictably rather than by accident procure a ballot to start the chain. But, as set forth above, every single challenged ballot envelope con- tained a ballot. And all the other difficulties in the way of implementing a chain voting scheme would be the same as they would be in the case of the initial ballot being found in the voting booth. PSA and the Company both argue for a somewhat less stringent test than the court's stated "reasonable likeli- hood." As PSA puts it in its brief. ". . . the integrity of the election process requires that the showing of 'reasonable likelihood of chain balloting' be satisfied by the showing of 'some' likelihood that chain balloting had occurred." Both J" The vote count discrepancy of nine (nine more voters than votes, that is) would, on the assumption that nine voters left the polling areas with unde- posited unmarked ballots, add these nine to the number of available un- marked ballots providing an opportunity for chain voting. This additional number in no way increases the likelihood that chain balloting occurred. As with the pieces of ballots, there are many explanations for the discrepancy that are completely benign. PSA and the Company bolster this argument by pointing to the "difficulty" and "impossibility" of actually proving chain balloting. "It is not likely that one could present evi- dence of a chain balloting scheme which would make the participants. if disclosed, guilty of a felony" (PSA brief). Quite to the contrary, if chain voting is in fact a felony, it is even less likely that it would be undertaken in a milieu where detection would be highly probable, and for a gain that would be problematical at best (all or most of the vot- ers in the chain might have voted the "right" way in any event), and minimal in terms of numbers. To sum up, the evidence at the hearing establishes, in my view, that a chain balloting scheme was unlikely to have occurred. And the chances of such a scheme being arranged on the spur of the moment when a supporter of one of the parties found an available unmarked ballot would appear even less likely, if possible, than a prearranged scheme, in view of the logistical difficulties already set forth. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CON( SIONS O(I LAW 1. There is no reasonable likelihood that the January 31, 1978 election was corrupted by chain voting. 2. The objections to that election should therefore be overruled. Accordingly, I hereby issue the following: RECOMMENDATION1 6 It is accordingly recommended that the Board reaffirm its previous conclusion that the Steelworkers was properly cer- tified, overruling the objections to the conduct of the eiec- tion filed by the Company and by PSA, and that it also reaffirm its September 22. 1978, order that the Company bargain with the Steelworkers. 36 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions and recommendation herein shall, as provided in Sec. 102.48 of' the Rules and Regulations, be adopted by the Board, and all objections thereto shall be deemed waived for all purposes. 110