Newsport News Shipbuilding and Dry Dock Co.

I)E('ISIONS OF NATIONAL LABOR RELATIONS BOARD Newport News Shipbuilding and Dry Dock Company Rnd United Steelworkers of America, Petitioner. Case 5 R( 10323 October 27, 1978 DECISION ANID C'R'I II(CATIION OF RFI PRESENTA'IlVE BY (C AIR, I MAN I ANNIN(; ANI) Mt 1IB RS P-N l I () \NI) Tio :FS)AI.[ Pursuant to a Stipulation for Certification Utpon (onsenlt Ilection. an election by secret ballot vas c onducled under the supervision of the Regional i)i- lector for Region 5 among the employees in the ap- propriate unit on January 31, 1978K. At the conclu- sion of the election, the parties were furnished a tally of valid ballots which showed that of approximrately '),(kX) eligible voters 17,210 cast valid hallots. 2 of which 9.093 were for the Peltitioner, 7,548 were for intervenor Peninsula Shiphuilders' Association,' 95 ,ecre for Intervenor Marine-lndustrial and Transpor- tatioin IJonon,4 217 were against participating labor orga; ni.atii ,ns. and 2"7 wele challenged. 'Ihe chal- lernged ballots were insufficient in number to affect thie results of the election. On February 6, the Em- ployer and Intervenor PSA filed objections to the election. In accordance with the National labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Direc- tor conducted an investigation of the issues raised by the objections and on May 19 issued and served on the parties his Report on Objections. In his report the Regional Director recommended that the Employer's and Intervenor PSA's (obiections he overruled in their entirety and a certil'ic:tiion of representative be is- sued. Fhercaftcr, the In-mploper and Intervenor PSA filed exceptions to the Regional l)irector's report and suiipporting briefs, and tihe Petitioner filed an answer- ing brief. Pursuant to the provisions of Section 3(b) of the National l abor Relations Act, as amended, the Na- rional abhor Relations Board has delegated its au- thorilt, in this proceeding to a three-member panel. I pton the entire record in this case, the Board finds: 1. lhe Employer is engaged in commerce within the mianing of the Act, and it will effectuate the purposes of the Act to alsert jurisdiction herein. All i.tes unless .ilher, ise spc ified .aic in 1478 I here were s oild ballot:, helrein called Iltcrvenoir PSA licrc!n rIlled Init 'IeIeIri M I L 2. The labor organizations involved claim to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All production and maintenance employees of the Newport News Shipyard including appren- tices (production and maintenance depart- ments), all material men, material support em- plo'ees (material expediters and material supply clerks), toolroom employees, and plant and of- fice clerical employees (drawing clerks, key ma- chine operators, mail carriers, office clerks, re- production clerks, senior office clerks, and senior reproduction clerks), office janitors, tech- nical employees (MT P' Inspectors, Optical Detailers, Radiographic Operators, Ultrasonic Inspectors, and Inspectors). and food service workers, hut excluding 11 employees in Plant Protection Department, including guards, fire prevention employees, plant firemen, rounds- men and fire watchers, all patternmakers (and apprentices), all timekeepers, all salaried em- ployees, all design aides, design apprentices, technical aides, junior designers, designers, se- nior designers and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report, the exceptions and supporting briefs of the Employer and Intervenor PSA, the Petitioner's answering brief, and the entire record in this case5 On August 24, Intersenor PSA moved to reopen the record in order to subnlilt newl) discovered evidence supporting its objections to the conduct of the ele ti ro Specificallr. the motion called for a reopening of the record for the ilnited purpose 'to Iet cive intor evidence the affidavit of the individ- uIal who can testifS as to the doublhle voting apd the affidavit oif the Business Manager of the Peninsula Shipbuilders' Association that the organization suspected that It was a ricl[m of espionage. surveillance, and spying and that Jack I. Howar. a prime tlnited Steelworkers of America organizer, has dmilitted in print that the Steelworkers had 'sources within PSA who were telitig us what was going on in their planned meetings.' " lOn September 8, the Board. bh telegraphic order, granted Intervenor PSA's motion to reopen the record "to receive In evidence the two affidavits described In the motion." On September 15 Intervenor PSA submitted the tw,o affidaits mentioned in the rorder However, Intervenor PSA deviated in mnportant respects from the Board's telegraphic order granting the motion t! reopen the record ( 'ntrrl-t to the iBoard's order. Intervenor PSA did not make complete service on the parties and instead deleted the names of the Individual subscribers from the materials which it served on the parties. (oncernilng the alleged double voting, Inter'enor PSA submitted three affl- dasits and two unsworn statements in addition to the affidavit described in the .original motion With regard toI the alleged surveillance, Intervenor PSA suhnillted two affidaiit, and one unsworn and undated statement in addi- lmn to the ;iffila.sit of the hbsiness mninager described in the original mo- t ion fo hee de ins an pann letter( the tmnl? explanat.iolnl fo r these desal;ttlons wa1s aIn aIccumpanying letter 82 NEWPORT NEWS SHIPBUILDING and hereby adopts the Regional Director's findings, conclusions, and recommendations, with the follow- ing modifications: " dated September 15. which stated "I would ask the Board to consider this letter as an additlonal motion to keep the identity of those Ind ilduals {the subscnhribers to the materials adducedl confidential ' B, telegraphic order dated September 25 the Board denied this September 15 motion an direcl- ed that the names forthwith be served on all the parties subject to the right of Intervenor PSA to withdraw any or all of these materials Also on Sep tember 25, the Petitioner filed a response to Intervenor PSA's motion it, reopen the record and to the evidence submitted. The materials submitted on September 15 which were outside the scope of the original motion to reopen the record, as well as the order granting that motion, will be considered an additional motion to reopen the record for the purpose of admitting more newly discovered evidence We deny this mo tion, since it is axiomatic that it is not enough that the evidence is newly discovered, there must also he a showing that due diligence could tiot have uncovered the evidence previously. At some point finaliht must occur and the record must be closed, otherwise Board proceedings could be prolonged interminably. The matenals submitted reveal that an affiant on Jul) 18 stated that he had voted twice dunng the election and that he knew of another individual who did the same However, the motion of August 24 did not mention or, rels on any other statements of a similar nature In fact, it was not kuntil 5s das', after the affidavit relied upon in making its original motion. 18 days after the date of its motion. and 3 days after the motion was granted. that Intervenor PSA secured additional statements concerning alleged voling irregularities. Similarly. even though the August 24 motion claimed that Intervenor PSA now had evidence that it was the victim of surseillhnce, the supplementary statements relating to surveillance are dated September 15, more than 3 weeks after the original motion and I week after it was graniled by the Board In sum, there is no showing that these additlional materials were newly discovered or that the exercise of due diligence coiuld nol haire uncovered the materials sooner Therefore, we shall not receilse them into evidence. We now turn to the evidence properly submitted pursuant to the Board', telegraphic order of September 8. We have concluded that this evidence fails to make a prime facie showing of "substantial and material issues" which would warrant setting aside the election As regards the double-voting incident. Intervenor PS a, submitted one employee's affidavit which, in pertinent part, states, "Just as I was enterine the voting hboth I felt the ballot in m' hand and noticed it was a thick piece of paper and tested the paper between my thumb and finger and discovered I had been given two ballots." The employee further stated that he marked both ballots for the Petitioner. folded the ballots one inside the oither. placed the ballots in the ballot box, and left the soting area Ihe emploece alu, stated that he mentioned that he had received two ballots to) several the, employees, one of whom mentioned that the same thing happened to him Accepting. arguendo. that this incident occurred. it is not evidence of chain voting or any other scheme of widespread vote fraud Although Board agents are expected to be vigilant that only one ballot he handed to each voter, the fact that one voter inadvertently received two ballots and that another voter claims that the same thing happened to him, though certainll improper. is not grounds for overturning the election. The extra hallot cast for the Petitioner was not determinative of the result of this election As regards the allegation that the Petitioner engaged In Improper ursell- lance, Intervenor PSA submitted the affidavit of the business manager. w ho stated that several individuals hald indicated that the, were approiached to be informants ftr the Petitioner in return for positions in the Petitioner Union if the) cooperated The business manager alsol stated that "[w. e knowu the names of two individuals who were offered money" hs the Petlltoner It return for information regarding Intervenor PSA Finalls. the business nln- ager relied on the admission in a magazine article of one of the prime unliol organizers that "[wle had sources within PSA who were telling us what was going on in their planned meetings " In the heat of an election campaign where several labor sorganltitlosns aspire to be the collective-bargaining representative of the employees it does not surprise or shock us that one Organization strives to keep abreast of what is going in in the planned meetings of its opponents It would not he practical for the Board to monitor such conductl absent a showing that there was a tendency to affect voter choice in the election As no such showring was made. Internenor PSA failed to present a prima Jfl, .' case of mrterial and substantial issues which would warrant setting aside the election A. (General Princile/dcs We are faced with the important and recurring question of whether a hearing to develop the facts Is required in order to make the necessar, determina- tions concerning the issues raised bh the objections to this election. It is well settled that parties dot not have an absolute nght to a postelection hearine in .a representation proceeding. 7 In order to be entitled to a hearing, the burden is on the objecting party to make a primal fac(ie showing of "substantial and mate- rial issues" which would warrant setting aside the election." It Is clear that this qualified right to a hear- ing is consistent with all statutory and constitutional requirements.9 Prudential considerations underlie the above rules. The Board is under a duty to allocate its limited re- sources in an efficient manner, and the parties rightly expect that election cases will he handled expedil- tiously. without unnecessary delay. Finality Is a critical consideration il representation elections. and the Board should not undulN delay either the cornm- mencement of collective bargaining on behalf of the employees by the agent they have selected or the sit- naling of the end of a union campaign where the maiority of employees have decided not to select a union as their representative." Nevertheless, where the objecting parts presents ' in the absence of ceceptions thereto. wc adopl I ir, etrnlii the Regionl.[ [)lieio'ts recoimncidlation thai the Employer' O)bjectiuns 21di, IS 1. 213 inid 24 md. Intierenor PSA's Ohlection 11 he ioerruled In .Idopting the Regional I)lreclto,l recoimmendation thl the I itplopser' Objeitions 12lJa, 12th). 12(c), 12l, 13 .atid 14 andi IntcicIao l'SA'sOhljec tliols HI 1 and \ e h, oerriledl Mecrilmber PenIelh fdirdls init l i ll th. misrepreserntation alleglations for the Iei.lsons sel frtil r ihorpr J, Air,. iiood tairA, , Itn . 228 NlRB 1311 1977) ( hairmlan IFannilg wiiould ailout the Rcgiona.l Diretot lrc ectlS ionenu aticull that these obh!etlonih c" .cli ltilcd and wcoutlld ailsoplprs tr,'tl, his recotiicntl.itln that t)b c.tio l nand 2I1 hbe oierrilled without relMing on .'hlppmrr kirlt )led I rAet. Inr, uprr ' bhlr reaching the a.inle resull under heli standards of Ifs11,tv sod ( erarnit * (i lstv nl /,n 1411 I RB 22)1 19 2l Memliber fluesdalc find, [hat Ithe llcged mirepresentA lonTs rc insffictent to i, rrnt setil Sne iside the clecionti il der Irl ts le O( f ile la.w M ember Peni s.grcec isith the Regional i) rc lor that Intcrenor i'S ()hjetitl I S holi td hc se Orluled. bhilut Mclehr Pelilol relhc-, n1 thu dls senting opinion /i )irin sf Ruhher (o, 214 NI RB i114 197vs wherein lie t.te( thiatl he would not direct a hearingo it set in election .asid an the hasms of ci nduct nolt ,peLflclsll aIlleged III .I tiellC flId i tt l See M.sdim tianu turain nI ,mnup in' . 20t NI RB "27 ( 19711 t nfil si I 2d 914 l8th ( ir Iq741 Ste the Boards Rules and Regul.tltrns. S', 102 tril t) ( I R I12 6hdf se c lss S I R / R ' t11 usissI fa * lni, ins .11 16S I S I 2 4hrht! Lashoriatriets ,ahi I -loh,,sortei Iliuiin. 217 N LRB 8S9 i19-. enfd '40 F 2d 6t42 t41 ('lr 1I7) 'r * I R. H t Hau Sh,, ( unlpsn . Int 1 -7 F 2d 521 4th ( ir 19' i cerlt dcll ded 9 18 IS 917 IOnc signlfltcant haciiir ioltuselinh ua.iinst Sa cisual or oveirea.s. sp proa:lch In er.arling hlerines is the f.lct th:t, In electlons Inovlsbltng iare. numbers (f coters lld a Illhard-fIuhl Calipalcni. prtetcectltl pilsceedlnln s often tiake i seaTr lo hInfer to cimplete See fIlifhn* Sinulat rurmni (, umhj ni 20t3 NI RB It Slo 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prima facie evidence demonstrating that the election was not fairly conducted, we do not hesitate to make the necessary investments of time and money, nor can we then avoid the concomitant delay in making our procedures effective. On the other hand, where there has been no prima facie showing of misconduct which would warrant setting aside the election, and there are no additional facts which need to be devel- oped, the overruling of objections on the basis of an administrative investigation is "not only proper but necessary to prevent dilatory tactics by employers or unions disappointed in the election returns." " We agree with the Regional Director's conclusions that a hearing is not warranted with regard to the issues raised by the plethora of objections to this election and that they should be overruled. However, we do not adopt the Regional Director's entire ratio- nale and do not rely on certain findings made in the report. In discussing several objections, the Regional Director found that "no credible evidence was pre- sented" in support of the alleged misconduct, relied on the fact that certain statements by employees con- cerning misconduct were "uncorroborated," and concluded that the "preponderance of evidence fails to establish" certain misconduct. The Regional Di- rector also stated that he attached the "appropriate weight" to all the evidence submitted by the parties and that 'the supplemental statements submitted by the Employer from its witnesses seeking to discredit the affidavits they gave to the Board Agents investi- gating the objections, have only been accorded nomi- nal consideration." Statements of this kind are per- missible from a trier of fact, whose responsibility is to resolve conflicting testimony and to weigh the evi- dence, but they are improper in the context of the determination of whether "substantial and material factual issues" have been raised by the objections.'2 In denying a hearing on an issue, it is necessary to assume the truth of the factual assertions of the ob- jecting party relating to specific evidence concerning specific events and specific individuals. However, after considering the evidence presented by the objecting parties and accepting it as true, we agree with the Regional Director's conclusion that no substantial or material factual issues have been raised regarding these objections sufficient to over- turn the election. As regards those objections where Ii N. ..R.B v. Joelin Manufacturing ( orpanv. 314 :.2d 627, 631 632 32d (Cir. 1963); see also Sdlon Manufacturing ( ornpaon v. N I. R B.. 544 F.2d I 108 (I st ( ir 1976): Iniertpe (Compan;', a Divilion of Ilarrs i nlerlipye ( orpo ration v. N.L.R.B., 401 F.2d 41 (4th COir 1968). cert denied 393 t.S 1049 (1969); Sonoco Products (Compan v. N I .R B. 399 F.2d 835 (9th ( ir 1968): N.lR.B v. Sun Drug (o., Inc., 359 1.2d 408 13d (ir 1966): Vr R B O A. Van Storage, Inc. 297 F 2d 74 (5th C(ir 1961). 1 See Firesltone Steel Proidue t (C onp ) I lon a; Pire'tonc Itre and Rubber ('ompanv, 235 NlRB 548 (1978). improper credibility resolutions were made or where the Regional Director improperly weighed the evi- dence, the record reveals the following: B. Employer's Objection 8 In support of its Objection 8, the Employer claims that more ballots were cast than there were voters in the January 31 election. Specifically, the Employer contends that the maximum number of individuals the Employer can account for having on its property on January 31, and thereby being in a position to vote, is 17,066, or 179 individuals less than the ballots cast. The Regional Director's investigation "did disclose a discrepancy between the overall number of names checked off by the observers and the overall number of ballots cast in the election." The tally of ballots shows that the total number of ballots cast was 17,245, a figure which includes valid votes and void and challenged ballots. From this figure, the Region- al Director subtracted 121 ballots on the ground that they represent challenges made by the Board agents to ballots of voters whose names did not appear on the eligibility list. The remaining figure of 17,124 was further reduced by removing 3 ballots challenged by union observers on the basis that they were cast by supervisors or guards whose names did not appear on the voter eligibility list. Thus, the Regional Direc- tor concluded that there were 17,121 valid votes, void ballots, and "on list" challenged ballots cast during the election. On the basis of a "review of the voting lists," the Regional Director indicated that 17,137 names were checked off by election observers. The Regional Di- rector reduced this figure to 17,130 on the grounds that 7 voters had their names marked off the voting eligibility list prior to the election but nonetheless appeared on election day and voted subject to chal- lenge. The Regional Director concluded that "sub- tracting the number of valid votes, void ballots and "on list" challenged ballots, i.e., 17,121, from the names checked on the voter list, i.e., 17,130, leaves nine names checked off who apparently did not place their ballot in the box." The Employer was furnished a copy of the master voting list used in the election, along with a list of those challenged in the election. Equipped with these lists, the Employer excepted to the Regional Direc- tor's report, contending that discrepancies in the lists exist which call into question the accuracy of the tal- ly of ballots. The Employer cited instances where in- dividuals were challenged because their names had already been marked off the voting list. According to the Employer, this is suggestive of a scheme of at- 84 NEWPORT NEWS SHIPBUILDING tempted double voting by these individuals or the possibility that some employees voted under some- one else's name and also voted under their own names. In addition, the Employer contends that there are 26 individuals who appear on the chal- lenged voter list but are shown on the voting list as having voted without being subject to any challenge. Finally, as evidence that employees were checked off who did not vote, the Employer furnished the Re- gional Director with an affidavit of counsel for the Employer in which it is stated that one employee con- tacted a shipyard official and indicated that he had been informed that his name was checked off on the voting list even though he did not vote. The Regional Director's investigation revealed no specific evidence that any employee cast more than one unchallenged ballot. In one instance, however, one employee unsuccessfully attempted to vote twice but cast only one valid ballot, and the second ballot was cast subject to challenge. As further evidence of voting irregularity which al- legedly cast doubt on the tally of ballots, the Em- ployer provided the Regional Director with the names of 89 employees who were checked off as hav- ing voted but were absent from work on the day of the election.' An additional 48 employees, according to the Employer's records, were checked off as hav- ing voted but had ceased working by the designated time they were scheduled to vote. According to the Employer, records of entry were maintained and the Regional Director was provided lists of employees who were not at work but were given access passes for voting purposes and employees who were not at work but were issued no-pay timecards for voting purposes. The Employer makes no representation, and the Regional Director's investigation did not find, that the shipyard security precautions wvere reliable indic- es of who entered the Employer's facilities on the day of the election. The Regional Director's investigation revealed that the security system at the shipyard was altered on the day of voting in order to provide full access for voting and that individuals were permitted to enter any gate as long as they presented employee identification. The Employer did not challenge any' voter on the grounds that the person's presence at the plant was unaccounted for by company records. On these facts the Regional Director concluded that "the disparity between the number of names 13 By agreement of the parties, on the 2 workdays preceding the election the Employer distributed information which notified employees of their as- signed polling places and the designated time they were to vote. Employees were normally escorted to their polling areas in groups by their respective supervisors. Employees on leave and layoff were sent individual notices of election from the Regional Office. checked off and the number of ballots does not by itself, or in conjunction with any or all the other evi- dence presented warrant setting aside the election." The Regional Director noted that the discrepancy was small and that it reflects a greater number of employees checked off as voting than the number of actual ballots counted, rather than vice versa. The Regional Director also relied on the fact that the ac- tual specific evidence of voting irregularity was limit- ed to one voter who maintained that his name was checked off as having voted even though he did not vote. The Regional Director concluded that the fact that one employee out of an aggregate of more than 17,000 voters may have been inadvertently checked off by an observer is not sufficient grounds for set- ting aside the election. In addition, the Regional Di- rector noted that the failure of the Employer to ac- count for the presence of 89 employees on the day of the election does not call into question the basic in- tegrity of the election. In agreeing with the result reached by the Regional Director in overruling Objection 8 without a hearing, we note that slight discrepancies between the number of voters checked off as having voted and the actual number of ballots cast is insufficient by itself to war- rant setting aside an election. Absent specific evi- dence relating to such discrepancies, it is reasonable to assume that they result either from human error on the part of observers who keep track of who has voted or because certain voters checked off as having voted did not in fact cast their ballots upon leaving the voting booth. We think it is important to keep in mind the realities of the voting process. If an election could be set aside or a hearing ordered on the basis that more voters were checked off than votes cast, then any large election could be easily sabotaged either by observers who by subterfuge or inadver- tence check off more names than the numbr of per- sons who picked up ballots or by a small number of voters whose failure to cast their ballots upon leaving the voting booth escaped detection by observers or Board agents. 1The Employer's effort to cast doubt on the validity of the tally of ballots does not raise substantial and material issues requiring a hearing. Congress has "entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards neces- sary to fair and free choice of bargaining representa- tives by' employees." "4 The Board's policy is to make full use of observers who aid Board agents in the efficient processing of voters. The observers not only represent their principals but also are endowed by the Board with quasi-official status and with the re- sponsibility to watch the ballot box, identify and 14 V L R B s. A J Tower Co. 329 I.S. 324, 330 (1946). 85 D[)E(ISIONS OF NATIONAL LABOR RELATIONS BOARD check off voters on the eligibilitv list. and mark as challenged those who vote subject to challenge. Ac- cordingly, the voting list and the list of challenges are compiled by the observers, who are, of course, under the direction and supervision of the Board agent in charge of the voting area. F rrors in the important task of monitoring who votes and who votes subject ,to challenge arc mirninized by the fact that normally observers from each party in the election are given the responsibility for checking off voters. Thus, inad- vertence or misconduct which inav not be noticed by the Board agent is often brought to his or her atten- tion by an alert observer In addition, any discrepan- cy discovered by an observer may lead to a voter being challenged by either an observer or a Board agent. The Board has found the assistance of observers to be virtually indispensable to the administration of many elections. However, it must be kept in mind that in a large election, such as the instant case, where there were 133 observers, the maintenance of the voting and challenge lists cannot be expected to he completely error free. Where errors or discrepan- cies do occur, a voter challenge will often follow. In this election, the challenges were not determinative of the result. In sum, accepting, arguendo, that minor discrepancies in the compilation of the master voting list and the challenge list were present, this along, or in conjunction with any other evidence presented. is insufficient grounds for setting aside the election. The sole evidence of actual misconduct concerns one voter who reported to the Company that his name was checked off as having voted even though he did not in fact vote. We note that such an occur- rence is not necessarily indicative of vote fraud, since an observer may have inadvertently checked off the wrong name. In addition, even assuming that this is a case of double voting, an isolated occurrence of dou- ble voting in an election involving over 17,00C voters is not indicative of a general scheme of chain voting or vote fraud and is not by itself sufficient to warrant overturning the election.' The remaining allegations of irregularities lack specificity. The Employer's records concerning which employees entered the shipyard on election day were not shown to be reliable enough for ascer- taining with any degree of certainty which employees 5 As discussed in fn 5 supra. Intervenor i'SA made a motion on August 24 to reopen the record for the admlissimOll :f nelel discovered evidence Ithe motion was subsequently granted, and Intrer enlr PSA submitted an affidl;- vit of one employee who stated that he voted tw ice after a Board agent inadvertently handed him two ballots wtich c,,ere stuck together ilowseel, there Is no evidence that this was part 1f ,t geclicla s ihecnil , fIrlil :r id, although double voting is highly impriper, t1:i ,ingle o, le tid T1 i ffc l the results of the el.. tion ;ad did not in;,,l d l c i i..r . th, i ld's election standards requiring a new election took steps to travel to the shipyard for the purpose of exercising their franchise even though they did not report for work on the day in question. Similarly, the fact that a number of employees listed as voting had, according to the Employer's records, ceased working prior to their scheduled voting time is not specific evidence that they did not vote before leaving the plant for the day. On the contrary, the fact that their names were checked off as having voted leads us to conclude, absent evidence to the contrary, that they did vote on the day of the election. Thus, except for the aforementioned single voter, no specific evidence was presented or discovered that employees listed as having voted did not vote on the day of the election. The speculation of the Employer concerning the ac- curacy or legitimacy of the tally of ballots is no sub- stitute for specific evidence relating to actual conduct or events which raises material issues that the Board's election standards have been impugned.' C. Intervenor PSA' S Ohjectionr I L and I D In support of its Objections I 1. and I D, Interve- nor PSA claims that Board surveillance of voting booths was not rigorous and that blank ballots were allowed to be left in voting booths. Intervenor PSA presented one employee who voted at polling place 6 who stated that upon entering the voting booth he observed a 1 2-inch stack of unused ballots on the metal writing table in the booth. This employee stat- ed that the top ballot on the stack looked identical to the ballot which had been given to him by the Board agent after he was checked in by the observers. Ac- cording to the employee, he marked his ballot and exited from the voting booth, leaving the stack of blank ballots undisturbed. The employee did not in- form any Board agents or observers that a stack of blank ballots remained in the voting booth. He stated that he did not discuss this incident with anyone un- til several weeks after the election. The recollection of the employee was that there were voters in front of and behind him and that there was only one voting booth in the polling area. The investigation revealed that three Board agents were assigned to polling place 6 and that there were two voting booths located there. The Petitioner and the two objecting parties each had two observers at this polling area. The Board agent in charge of the poll stated that during the course of the election the two boting booths were periodically checked by Board agents and observers. The only item discov- ered during these inspections was a piece of religious literature. The Regional Director interviewed several voters who voted in the same voting group as the 1- sce I'rdmd ' Wla,fi Pr uillr. In . 233 Nl.RB 182 (1977) X6 NEWPORT NEWS SHIPBUILDING employee who allegedly discovered the ballots. These voters, some of whom were among the first to vote and others among the last to vote, had no recollec- tion of a stack of blank ballots in a voting booth and stated that they heard of no employees who did. On these facts the Regional Director recom- mended that these objections be overruled. The Re- gional Director noted that the employee presented by Intervenor PSA had voted in two prior Board elec- tions and yet found the existence of a stack of blank ballots so unremarkable that he did not mention it to either Board agents or observers on election day and also did not discuss it with his fellow employees until weeks after the election. The Regional Director also relied, in part, on the fact that no other witness pre- sented evidence relating to the alleged incident or to any other occurrence which would reflect unfavor- ably on the monitoring of the polling booths in ques- tion. Finally, the Regional Director noted that his investigation had revealed no allegation or evidence that Board agents either deposited balnk ballots in the voting booth or removed a stack of ballots at any time during the election. We are in agreement that these objections do not raise substantial and material issues which would ne- cessitate a new election. However, in reaching this conclusion, we have accepted as true that an employ- ee observed what he thought were blank ballots in the voting booth at polling place 6. It is clear that this small number of ballots, even if they later found their way into a ballot box as votes for the Petitioner,' 7 could not have had a determinative effect on the election result, which showed a 1,500-vote margin of victory for the Petitioner. It is significant that this incident was isolated and involved only I of the 15 polling areas. There is no evidence that the incident occurred as the result of misconduct on the part of Board agents, observers, or the Petitioner. Further, there was absolutely no discussion of the incident by the employee during the day of the election, and ac- cordingly there was no opportunity for other voters to be influenced by such knowledge. The Board is vigilant that its election processes are not abused, and it is determined that no party have reason to question its dedication to the goal of fair and free elections. On the other hand, the integrity of the Board's processes will not be fostered by an unrealis- tic insistence that every irregularity, even if isolated and not determinative of the results of the election, 17 The ballots would still have to be spirited from the polling booth to the ballot box, which was in the custody of a Board agent and in full view of observers. Moreover, it should be noted that if these ballots were cast. the tally of ballots should have revealed that more votes were cast than voters checked off the master voting list. The Regional Director did not find this to be the case. will be grounds for a new election and the delay which this entails. D. Intervenor PSA 's Objection VI In support of Objection VI, Intervenor PSA claims that Board agents acted in a manner which com- promised their appearance of neutrality. Thus, an observer for Intervenor PSA stated that during slack periods of voting at polling place II, he observed that a female Board agent routinely conversed with one of the Petitioner's observers. The PSA observer claims that he overheard this observer for the Peti- tioner ask the Board agent where she was staying. When the Board agent replied, this petitioner ob- server asked her if he could get a bottle of liquor and bring it up to the Board agent's room on the night of the election. According to the PSA observer, the Board agent replied in the affirmative. In concluding that this alleged incident at polling place II did not entail objectionable conduct, the Regional Director noted that the conversation was denied by the Petitioner observer and the Board agent involved and was not corroborated by any other witnesses. The Regional Director also stated that even if the remarks were made there was no demonstration of an effect on voters since they would have occurred when no voters were present. Without relying on considerations of corrobora- tion or denial of the remarks, we agree that they were not sufficient grounds for overturning the election. Board agents must be careful not to overstep the thin line between harmless banter and remarks which can be construed as evidencing a preference of a Board agent for one of the parties. However, as pointed out by the Regional Director, any improper remarks which might have been made were not prejudicial, since no voters were present at the time the conversa- tion is said to have occurred. We also do not believe that this alleged conversation by I of the 65 Board agents assigned to this election would have been so inherently prejudicial that it would have destroyed the appearance of the Board's neutrality." Is In further support of its Objection VI, a PSA observer stated that at polling place 13 a Board agent included in his instructions to each group of new voters who arrived at the polling area that they should make an "X" in the box of their choice. According to the PSA observer, the agent would then hold a ballot up and, using his finger, make an imaginary 'X" over the Petitioner's box. In concluding that this allegation was without merit, the Regional Direc- tor noted that it was not corroborated by any other observer or by the Board agent. However. without regard to corroboration, the Regional Di- rector stated: "It is difficult to conclude that voters were given the impres- sion that the Board agent favored the USW when the witness stated that the Board Agent's instructions included a directive that the voters should make an X in the box of their choice." We agree that these instructions, if true, were not prejudicial and were not of the kind which would reasonably lead to loss of confidence in the Board's impartiality. See NL.R.B. v. Dobbs Contlmed 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Employer's Objections 1(h) and l(d); Intervenor PSA's Objection I-H In support of the Employer's Objections 1(b) and l(d) and Intervenor PSA's Objection I -H, the object- ing parties claim that, contrary to the agreement of the parties at the preelection conference, Board agents refused to allow observers to ascertain the identity of prospective voters through the utilization of company security clearance badges. Evidence was presented that an observer for the Employer at poll- ing place 9 was instructed not to check company badges after a Borad agent "stated very emphatically that the Board was running the election and that ob- servers were there to only observe and not interfere with the Board." This same observer also stated that he was later told "that the Board was conducting the election and the agents would take care of any prob- lems." The Regional Director's investigation revealed that voters at some polling sites were asked only their names and the last four digits of their social security numbers. At polling site 7, on two occasions when voting was very heavy, the Board agents instructed the observers to ask only for voters' names. However, the observers followed this directive for only a few minutes, and once the lines of voters diminished they resumed asking for the last four digits of the employ- ees' social security numbers. The Regional Director's investigation found no instances where observers at any polling sites were precluded from requesting ad- ditional identification from voters or from challeng- ing the votes of any employees whose identity they questioned. Thus, at polling places 3, 6, 9, and 12, observers or Board agents in some instances asked to see identification badges, and at polling place 2 one observer for the Employer exercised a challenge to a voter whose identity was not verified by a company identification badge. On these facts the Regional Director recom- mended that these objections be overruled. Since ob- servers not satisfied with the identity of a particular voter could request further identification or utilize the challenge procedure, the Regional Director found that the objecting parties were not prejudiced by the identification system used. The Regional Di- rector concluded that the Board agents did not abuse their discretion by deviating from the preelection agreement in order to expedite the efficient pro- cessing of voters. We agree that no substantial and material issues Houses, Inc., Division of Beech-Nut Life Savers, Inc., 435 F.2d 704 (5th Cir. 1970); Wabash Transformer Corporation. 205 NLRB 148 (1973), enfd. 509 F.2d 647 (8th Cir. 1975); Wald Sound. Inc.. 203 NLRB 366 (1973) have been raised by these objections. Except for sev- eral occasions of extremely heavy voting at polling place 7, identification was made by voters' stating their last names and the last four digits of their social security numbers. Such an identification procedure is certainly consistent with established Board prac- tices.'9 Although Board agents were determined that the normal flow of voters not be impeded by cumber- some identification procedures, there is no evidence that observers were told they could not ask for fur- ther identification where there was doubt concerning the identity of a prospective voter. Accepting, ar- guendo, that certain observers were under the impres- sion that they were precluded from asking for com- pany identification badges even when they were not satisfied as to the identity of a voter, these observers still had the option to utilize the challenge procedure. The Regional Director's investigation revealed that on at least one occasion such a challenge occurred. We conclude that the deviation from the preelection agreement of the parties was not an abuse of discre- tion on the part of Board agents who acted to exped- ite the voting and to avoid an undesirable backup of prospective voters waiting to vote. Inflexible adher- ence to preelection agreements of the parties is to be shunned when the exercise of reasonable discretion on the part of Board agents will better achieve the goal of an untrammeled election.2 0 F. Employer's Objections 2(c) and 6 In support of its Objections 2(c) and 6, the Em- ployer claims that Board agents at polling places 5, 7, 9, and 10, contrary to the preelection agreement of the parties, left their polling areas and moved to poll- ing place 8. Specifically, the Employer claims that blank ballot boxes were moved without the boxes being sealed and that at polling place 10 the move was made in the absence of the Employer's ob- servers, who had left after being told they could do so by a Board agent shortly after the closing of the polls. In addition, once the polling teams from the other areas arrived at polling place 8, it is contended that ballot baxes were placed at random, which ena- bled access to them without the knowledge of Board agents. The Regional Director's investigation revealed that the polling areas closed at 6 p.m. Shortly there- after, at each of the polling areas, the ballot boxes were securely sealed in the presence of the observers, ,0 See Sec. 11322. 1 of the NLRB Casehandling Manual. 21 The Board has discretion as to "whether or not the election should be set aside for irregularities in procedure." N.L.R. B v. Naional Plastic Prod- ucts (o. 175 F.2d 755. 758 (4th Cir. 1949): see also N.L.R. B. v Jesse Jones Sausage Compani, 309 F 2d 664 (4th Cir. 1962). 88 NEWPORT NEWS SHIPBUILDING who signed across the seals on the boxes.2" All ob- servers remained during the sealing of the ballot box- es. Observers and Board agents at each polling site then waited, per election agreement, for a bus to reach them for the purpose of transporting blank bal- lots and sealed ballot boxes to the shipyard's appren- tice school, where the vote count was to take place. The investigation further disclosed that the bus ran into unanticipated delays. In most instances, Board agents and observers had no idea why the bus was tardy or how much longer they would have to wait. Many of the polling areas were unheated despite sub- freezing temperatures and a proximity to the water- front. After enduring the cold for approximately an hour, several of the teams at the unheated polling areas decided to move to polling place 8 in order that their vigil for the bus could continue in a heated en- vironment. Employer observers at polling places 5, 7, and 9 indicated that they accompanied the Board agents and petitioner observers to the heated area and that they witnessed no tampering with the sealed ballot boxes or the blank ballot boxes. Observers for In- tervenor PSA at polling places 5. 7, 9, and 10 also stayed with the ballot boxes until they were safely picked up by the bus, and they witnessed no tamper- ing with these boxes. At polling place 10, an Em- ployer observer stated that "[s]hortly after the polls closed, Board Agent Korch told all of us that the voting was over for all intents and purposes and that we could leave if we wanted to." All observers at polling place 10 remained until the ballot box was sealed, but both observers for the Employer and one Petitioner observer left the polling area prior to the removal of ballot boxes to polling place 8. The investigation also revealed that when the bus finally arrived it was discovered that the four addi- tional polling area teams had congregated at polling place 8. Thereupon, a Board agent requested that each polling area gather its own sealed ballot box(es), blank ballot box, voting list, and observers. In his report, the Regional Director stated that: "Appar- ently, the ballot boxes were scrutinized by represen- tatives for the parties for signs of tampering and no such evidence was discovered." In addition, before the ballots were counted a representative for each party checked the seals on the ballot boxes, and all representatives were satisfied that the boxes had not been tampered with. On these facts the Regional Director concluded that although the consolidation of waiting polling teams was not countenanced by the preelection 21 The Regional Director noted that at some polling areas observers for the Employer refused to sign across the seals on the ballot boxes. Hlowever. it is uncontested that the observers witnessed the sealing of the boxes agreement of the parties, it resulted in no prejudice to the objecting parties. The ballot boxes were securely sealed in the presence of the observers prior to the movement of the boxes, and an inspection by repre- sentatives of each party prior to the counting of the ballots revealed no evidence and resulted in no alle- gation of tampering. Thus, the Regional Director concluded that it was of no consequence that blank ballot boxes were not sealed during the move. Final- ly, the Regional Director found no prejudice from the fact that observers for the Employer left polling place 10 before the ballot boxes were transferred to the heated area for eventual pickup. These observers left of their own free will after the ballot box was securely sealed. Furthermore, observers for Interve- nor PSA and Petitioner remained with the ballot box until the final pickup and witnessed no evidence of tampenng. The Employer excepts, contending that the move- ment from the unheated polling sites to polling place 8 resulted in a compromising of the Board's election process. The Employer relies primarily on the follow- ing evidence. First, an observer for the Employer stated that during the move from polling place 5 to polling place 8 a union "representative carried a bal- lot box." Second, the Employer's observers stated that the additional polling teams at polling place 8 caused confusion and congestion. Third, according to Company Official Vogel, the unexpected arrival of the personnel from other polling areas caused the Board agent in charge to be "visibly shaken," and this Board agent commented that "she could not un- derstand how such a problem had arisen." Finally, Vogel stated that "when the ballots were collected, the Company made a request to inspect the ballot boxes to ascertain whether any of them had been tampered with. This request was denied." After carefully considering the evidence relied upon in the Employer's exception, and accepting it as true, we adopt the Regional Director's recommenda- tion that these objections be overruled. These objec- tions illustrate the unanticipated problems which of- ten arise in the conduct of large elections. The polling areas closed at 6 p.m., and the Board agents in charge of their respective polling areas properly sealed the ballot boxes in the presence of the ob- servers. Several polling areas, unheated and close to the waterfront, offered little protection from the se- vere weather conditions of that day. A long wait for the bus to pick up the ballot boxes. along with no information as to the reason for the wait or when it would end, led several Board agents in charge of their respective polling areas to conclude that a movement to a heated waiting area was necessary. Although reasonable people can differ whether the 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision of those Board agents was the best one, our task is to decide whether it amounted to an abuse of discretion. We think not. Extreme temperatures are sometimes impossible to avoid when conducting a Board election in an indus- trial setting, but once the balloting is over and the ballot boxes are securely sealed, Board agents do not abuse their discretion when, faced with an unex- plained departure from the agreed-upon collection procedures, they seek shelter from these harsh condi- tions in a manner which does not jeopardize the in- tegrity of the election. It was perhaps inevitable, and certainly unfortunate, that the congregation of these five polling teams resulted in confusion and frayed nerves. However, the close proximity of numerous observers from each party and 18 Board agents mili- tated against any reasonable opportunity arising for the integrity of the ballot boxes to be violated.22 This is confirmed by the fact that the ballot boxes were inspected by a representative for each party prior to the final tally of ballots and there was no evidence or allegation that they had been tampered with. Simi- larly, the fact that the blank ballot boxes were not sealed and that a union representative carried a bal- lot box from polling place 5 to polling place 8 are not in accordance with usual Board procedures, but, un- der the circumstances, we cannot conclude that these actions "raise a reasonable doubt as to the fairness and validity of the election." 23 The blank ballots were not unattended, and even if individuals bent on fraud had gained access to blank ballots the ballot boxes themselves were safely and securely sealed. There is no evidence that any observer, at the time, objected to the movement en masse to more comfort- able environs. At polling place 5, the six observers assisted the three Board agents in the actual move, making it extremely unlikely that any observer as- signed the task of transporting the ballot box could accomplish an untoward act without detection. Again, the fact that there was no evidence of tamper- ing confirms our conclusion that no reasonable pos- sibility of irregularity existed. Finally, the fact that Vogel, a company representative, was denied permis- sion to inspect the ballot boxes when the bus arrived at polling place 8 is unfortunate. However, a compa- ny representative did inspect the ballot boxes before the final tally at the shipyard's apprentice shool and found no evidence of tampering. In sum, a careful review of the evidence regarding the move from sev- 22 See Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969). where the Board set forth the appropriate touchstone for this kind of objection: "The question which the Board must decide in each case in which there is a challenge to conduct of the election is whether the manner in which the election was conducted raises a reasonable doubt as to the fairness and validity of the election." 23 174 NLRB at 282. eral polling places to a centrally heated area reveals no abuse of discretion on the part of Board agents. The attendant confusion is to be avoided in Board elections, but the presence of 18 Board agents and numerous observers insured that no reasonable pos- sibility of irregularity resulted therefrom. G. Concluding Findings on Objections to the Election Considered as a Whole The objecting parties contend that the Regional Director failed to consider the evidence as a whole and instead isolated each objection and considered it in a vacuum. It is further contended that the cumula- tive effect of the various alleged irregularities in this election destroyed the "laboratory conditions" neces- sary for the holding of a valid election. The Board exercises vigilance in maintaining the high standards of its election processes. However, al- though the Board aspires to laboratory conditions in election,2 4 it is recognized that "clinical asepsis is an unobtainable goal in the real world of union organi- zational efforts." 25 It cannot be said that this election was routine. The logistical obstacles to conducting an election of this magnitude should not be underesti- mated. In order to accommodate the approximately 19,000 eligible voters, 65 Board agents manned 15 different polling stations and were aided by well over 100 observers representing 4 different parties. On the day of the election, the temperature ranged from a high of 34 degrees to a low of 22 degrees. Most poll- ing areas were by necessity close to the waterfront 26 and were poorly heated. In addition, the Regional Director's investigation revealed that the election campaign was hard fought and intense. Intervenor PSA, an independent labor organization, which has represented the unit in- volved herein for over 25 years, faced the determined challenge of Intervenor MITU, which began organiz- ing in August 1976, and the Petitioner, whose efforts formally commenced in August 1977. It is obvious that this election was not error free. However, in our judgment the free choice of these voters was not thwarted. Whether or not a valid elec- tion has been conducted can be answered only in light of the context in which the question is posed. Thus, conduct which might be determinative in a small unit may very well be isolated in a large unit of close to 20,000 voters. Time, place, and circumstanc- es are critical factors, and we are mindful that "what 24 General Shoe Corporation, 77 NLRB 124 11948). 2 NL.R.B v Sumter PlyIwood Corporation, 535 F.2d 917 (5th (ir. 1976). cert. denied 429 U.S. 1092 (1977). 6The Employer's shipyard facilities are over 2 miles in length and are contiguous to the James River. 90 NEWPORT NEWS SHIPBUILDING is unfair in one situation may be fair in another." 27 We embrace the test set forth in The Liberal Mar- ket, Inc.: 28 In deciding whether the registration of a free choice is shown to have been unlikely, the Board must recognize that Board elections do not oc- cur in a laboratory where controlled or artificial conditions may be established. We seek to es- tablish ideal conditions insofar as possible, but we appraise the actual facts in the light of realis- tic standards of human conduct. It follows that elections must be appraised realistically and practically, and should not be judged against theoretically ideal, but nevertheless artificial, standards. In this connection, we note that a re- alistic appraisal of the effect of antecedent con- duct upon a Board election must, of course, be concerned with particular acts and their effect upon those of the voters who are directly in- volved; it must also be concerned, however, with the overall picture of how the totality of the con- duct affects not only the voters directly in- volved, but any others who may or may not be indirectly affected because they are within the voting unit. In some cases, a nice balancing of these considerations may be required. Basically, we feel that the results of a secret ballot, con- ducted under Government sponsorship and with all the safeguards which have been developed throughout the years, should not be lightly set aside. Like any other contest in which the stakes are high, the losing party is likely to protest the result, but this Board cannot be influenced by any subjective considerations. Our job is to make reasonably certain that the election re- flected the true sentiments of the voters. An ev- enhanded application of an objective test is the best protection against arbitrary administrative action. Although Liberal Market involved the effect of an- tecedent conduct upon a Board election, this stan- dard is equally applicable to the alleged wrongful conduct herein.29 We must avoid unrealistic stan- dards which insist on improbable purity of word and deed on the part of the parties or Board agents. Otherwise, in any hard-fought campaign involving a 27 See Joint Anti-Fascisl Refugee Committee v. McGrath. 341 U.S. 123. 162. 163 (1951) (Mr. Justice Frankfurter concurnng). 2s 108 NLRB 1481. 1482 (1954). 2'See Hotel Equities. d/b/a The Regency Hyatt House, 180 NLRB 489, 501 (1969). large number of voters, it would be impossible to conduct an election which could not be invalidated by a party disappointed in the election results. 0 Applying the above standards, we have considered the objections individually and as a whole, and, after accepting as true the specific evidence adduced, we have concluded that the objecting parties have failed to establish a prima facie case that their objections warrant setting aside the election herein. Since no substantial and material issues have been raised re- quiring a hearing, we adopt the Regional Director's recommendation that the objections be overruled in their entirety. Accordingly, as the Petitioner has re- ceived a majority of the valid votes cast, we shall certify it as the collective-bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for United Steelworkers of America and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: All production and maintenance employees of the Newport News Shipyard including appren- tices (production and maintenance depart- ments), all material men, material support em- ployees (material expediters and material supply clerks), toolroom employees, and plant and of- fice clerical employees (drawing clerks, key ma- chine operators, mail carriers, office clerks, re- production clerks, senior office clerks, and senior reproduction clerks), office janitors, tech- nical employees (MT-PT Inspectors, Optical Detailers, Radiographic Operators, Ultrasonic Inspectors, and Inspectors), and food service workers, but excluding I 1 employees in Plant Protection Department, including guards, fire prevention employees, plant firemen, rounds- men and fire watchers, all patternmakers (and apprentices), all timekeepers, all salaried em- ployees, all design aides, design apprentices, technical aides, junior designers, designers, se- nior designers and supervisors as defined in the Act. 3o See Mdinm e Manufacturing Company. 203 NLRB at 530 91