Polymers, Inc.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Polymers, Inc. and Teamsters, Chauffeurs and Warehousemen Local No. 579, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 1-CA-5866 and 1-RC-9190 January 31, 1969 DECISION GRANTING MOTION IN PART AND DENYING MOTION IN PART On November 5, 1968, the Respondent-Employer in the above-captioned cases filed a motion entitled "Motion to reopen records, receive additional evidence, reconsider decisions, rescind order and certification, and sustain objections to conduct of election or grant hearing on said objections." The motion is addressed to both the complaint proceeding, in which the National Labor Relations Board held that Polymers had violated Section 8(a)(5) of the National Labor Relations Act, as amended, by refusing to bargain with the Union,' and the earlier representation proceeding, in which the Board had ruled valid the election in which the employees of Polymers had selected the Union as its bargaining representative.2 In the course of these proceedings, Polymers has filed three requests with the Board for access to various documents pertaining to election procedures. One of these requests, relating to a pamphlet entitled "A Guide To The Conduct Of Elections," was denied.' The other two requests, for a now-obsolete set of instructions entitled "NLRB Case Handling Manual" and for a memorandum issued by the Regional Director for Region 1 to his professional staff, were substantially granted.4 The motion before us, which basically seeks a reconsideration of the Board's decisions in both the representation and complaint proceedings, is predicated upon the information made available to Polymers pursuant to its latter two requests. Polymers contends that these documents constitute "newly discovered" or "previously unavailable" evidence; that they contain rules and regulations which were binding upon the Board agent at the time of the representation election in November 1966; that the Board agent did not fully comply with these procedures in the conduct of that election; and that any significant deviation from these rules and procedures requires the invalidation of the election, either because such rules are an official embodiment of what constitutes "appropriate standards" or 1170 NLRB No 33. 'Decision and Certification of Representative in Case 1-RC-9190, March 22, 1967. '170 NLRB No 33. 'Order Granting Motion In Part, October 28, 1968; telegraphic order granting request, October 28, 1968. because adherence to said rules is "required." Certain of Polymers' premises are open to question. It is debatable, for example, whether a Regional Director's instructions to his staff concerning methods of sealing a ballot box may be considered, for all purposes, to act as a restraint upon the Board's exercise of discretion. It might also be contended that the instructions contained in the NLRB Case Handling Manual were promulgated by the General Counsel of the Board pursuant to his statutory duty under Section 3(d) of the Act to ". . . exercise general supervision over ... the officers and employees in the` regional offices," and therefore cannot be considered to impose limitations upon the standards by which the Board may adjudge the integrity of a particular election. However, these issues would be disposed of in other contexts in which their determination might be necessary, we see little profit in pursuing them to resolution in the present case. For, assuming that the Board is fully accountable for all of the rules pertaining to the sealing and security of ballot boxes to which Polymers refers, it is nonetheless clear that the Board and its agents cannot be considered "bound" by them in the sense that any deviation from these rules by a Board agent would require nullification of an election. Election procedures prescribed by the General Counsel or a Regional Director are obviously intended to indicate to field personnel those safeguards of accuracy and security thought to be optimal in typical election situations.' These desired practices may not always be met to the letter, sometimes through neglect, sometimes because of the exigencies of circumstance. 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.6 It might well be that, in a given case, even literal compliance with all of the rules, regulations, and guidelines would not satisfy the Board that the integrity of the election was not compromised. Conversely, the failure to achieve absolute compliance with these rules does not necessarily require that a new election be ordered, although, of 'The introductory paragraph to the Case Handling Manual stated, "Adherence to [the contents of the Manual] is required." This was, of course, an instruction by the General Counsel to his subordinates relating to the performance of their duties, and not a declaration by the Board as to the standards to be applied in appraising the validity of an election. 'Heretofore in these proceedings, Polymers has relied upon prior decisions in which the Board has referred to the "possibility of irregularity" as the appropriate touchstone in this kind of case See Hook Drugs, Inc, 117 NLRB 846 We do not think, however, that the word "possibility" could ever be construed in this context to have the connotation of "conceivable." The concept of the reasonableness of the possibility must be imported into this text in order for it to have meaning We have no doubt that the Regional Director , who concluded in his original Report on the representation case that "desirable election standards" were met, was making the same sort of practical judgment of the facts that we make here 174 NLRB No. 42 POLYMERS, INC. course, deviation from standards formulated by experts for the guidance of those conducting elections will be given appropriate weight in our determinations. In considering whether there has been a breach of security in an election, or a reasonable possibility of such a breach, we are examining into questions of fact and inference. To answer these questions, we look at all the facts. We hold to our original decisions in these cases. We recognize that the manner in which the ballot box was sealed in this election could have been improved upon; still, both masking tape and scotch tape were affixed to the box in a manner which makes it quite improbable that any tampering with the box would not have left suspicious traces. Furthermore, although the Board agent in charge of the election did not retain personal physical custody 283 of the sealed box and the blank ballots at all times, the security afforded these items was such that there was only the most remote possibility that anything untoward occurred. In view of the extreme improbability of any violation of the ballot box, and in the absence of any affirmative indication of tampering, we again conclude that desirable election standards were met and that no reasonable possibility of irregularity inhered in the conduct of the election. As the discussion above indicates, we have granted Polymers' motion insofar as it requests the Board to reopen the records in these cases, to receive the evidence contained in appendices A and B of the motion, and to reconsider the decisions in these cases in the light of said evidence. In all other respects, the motion is denied.