Keystone Metal Moulding Co.

KEYSTONE METAL MOULDING COMPANY Keystone Metal Moulding Company and Aluminum Workers International Union, AFL-CIO, Peti- tioner. Case 26-RC-5619 June 2, 1978 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELI.O On December 14, 1977, the Regional Director for Region 26 issued a report on the objections in the above-entitled proceeding in which he recommended sustaining Employer's Objections 1 and 2, setting aside the election held November 17, 1977,1 and con- ducting a second election. Thereafter, on January 6, 1978, the Petitioner timely filed exceptions to the Re- gional Director's report on the objections. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Employer's objections allege improper con- duct of the election based on the failure of the Board agent at the start of the afternoon balloting session to permit the observers to inspect the ballot box before he removed the seal affixed on the box at the close of the morning balloting session. The polls were open on November 17, 1977, from 6:15 to 8:30 a.m., and again from 3:30 to 5 p.m. At the close of the morn- ing session, the Board agent covered the slot in the ballot box with masking tape and instructed the two company and two union observers to mark or write across the tape which they did. When the Board agent returned with the ballot box at 3:20 p.m., for the afternoon balloting session, the four observers were waiting outside the polling area. The union observers entered the polls almost immediately after the Board agent arrived. All the observers had entered the polling area within I or 2 minutes after the Board agent. The Board agent placed the ballot box either on the observers' check- ing table or on a table which was about 14 feet across the room from the observers' checking table. The J The election was conducted pursuant to a Stipulation for Certification Upon Consent Election The tally was 169 for and 145 against the Petitioner with 2 challenged ballots. The parties stipulated that the appropriate unit was: All production and maintenance employees including leadmen and truckdrivers employed at the Employer's plant located on the east side of Stafford Boulevard, Pontotoc. Mississippi, excluding all office cleri- cal employees, anodizing technicians, E.P.A. technicians. laboratory technicians, technical and professional employees, guards and supervi- sors as defined in the Act. Board agent did not, however, request the observers to inspect the box before he removed the seal, and none of the observers made an independent effort to examine the box after they entered the polling area. The Employer's observers stated that the box was not unsealed in their presence. One union observer saw him do something to the top of the ballot box but could not tell what he was doing. The other stated she observed him remove the tape from the top of the box. Based on these facts, the Regional Director con- cluded that although "there is no evidence of any violation of the integrity of the ballot box," the Board agent's failure to have the observers inspect the box prior to its being opened for the afternoon session gave an appearance of irregularity to the con- duct of the election which required that the election be set aside. We disagree. The guiding principle in situations such as this was set forth in Polymers, Inc., 174 NLRB 282 (1969), where we held that deviation from normal Board procedures in the conduct of an election does not automatically nullify the election and stated that the question is "whether the manner in which the elec- tion was conducted raises a reasonable doubt as to the fairness and validity of the election." It does not appear that the Regional Director applied this stan- dard. In our opinion, the factual situation here does not raise a reasonable doubt as to the fairness and validity of the election. Significant is the absence of any claim by any of the observers that, apart from his inadvertent omission to request the observers to witness the removal of the seal, the Board agent act- ed in an improper manner. The four observers were waiting at the entrance to the polling area when the Board agent arrived with the ballot box. They en- tered the polling area within a minute or two after the Board agent. The Board agent set the ballot box on a table in full view of the observers. Thus the observers had an opportunity to observe the ballot box when the Board agent carried it into the polling area and when it was resting on the table in the poll- ing area. None of the observers complained that the ballot box had been tampered with by removal of the seal before it was returned to the polling area. One of the observers stated he saw the Board agent remove the tape from the top of the box while seated at the checking table. The Regional Director found "there is no evidence of any violation of the integrity of the ballot box." In these circumstances we find that no "reasonable doubt" has been raised "as to the fair- ness and validity of the election." Accordingly, the Employer's objections to the election are overruled. As the tally of ballots shows that the Petitioner received a majority of the valid ballots cast, we shall 236 NLRB No. 74 697 698 certify it as the exclusive 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 Aluminum Workers Inter- national Union, AFL-CIO, and that, pursuant to Section 9(a) of the Act, the foregoing labor organiza- tion is the exclusive representative of all the employ- ees in the following appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees in- cluding leadmen and truckdrivers employed at the Employer's plant located on the east side of Stafford Boulevard, Pontotoc, Mississippi, ex- cluding all office clerical employees, anodizing technicians, E.P.A. technicians, laboratory tech- nicians, technical and professional employees, guards and supervisors as defined in the Act. DECISIONS OF NATIONAL LABOR RELATIONS BOARD