Gary Associated Industries, Inc.

GORY ASSOCIATED INDUSTRIESDECISIONS OF NATIONAL LABOR RELATIONS BOARD 1303 Gory Associated Industries, Inc. and United Union of Roofers, Water Proofers & Allied Workers, AFL-CIO; Local Union No. 57, Petitioner. Case 12-RC-6550 31 July 1985 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS. HUNTER AND DENNIS The National Labor Relations Board, by a three- member panel, has considered objections to an election held 21 November 1984 'and the Regional Director's supplemental report recommending dis- position of them. The election was conducted pur- suant to a Stipulated Election Agreement. The tally of ballots shows 73 for and 43 against the Pe- titioner, with 3 challenged ballots; an `insufficient number to affect the results. The Board has reviewed the record in ' light of the exceptions and briefs, has adopted the Regional Director's findings and recommendations, and finds that the election must be set aside and a new elec- tion held.' [Direction of Second Election omitted from pub- lication.] MEMBER DENNIS, dissenting. Relying in part on cases in which I. dissented,' the Regional Director overturned the Union's elec- tion victory because a Haitian Creole , interpreter arrived late for the election. Up to 15 of the 124 eligible voters may have been Haitian Creole speakers. My colleagues adopt 'the Regional Direc- tor's supplemental report (pertinent portions of which are attached hereto as an appendix). - What is missing, however,- is any showing that the translator's lateness affected the conduct of the i The Employer has filed a related request for review of the Regional Director's rejection of an additional allegation of objectionable conduct in the Employer's "amended objections " In light of our finding that the election must be set aside based on a timely, filed objection, we find it unnecessary to pass on the request for review Contrary to our dissenting colleague,' we conclude that the circum- stances of this election raise a substantial doubt as to whether the voters were afforded an effective and informed expression of their preferences Prior to the election, the parties agreed that this electorate required Hat- tian Creole election materials and'a Haitian Creole interpreter The inter- preter-arrived at the voting place approximately 'halfway through 'the election period This evidence is sufficient as prima facie proof of an ob- jectionable failure to assure the effective and informed expression by .all employees of their voting desires The, Petitioner's exceptions 'do not refer to any specific evidence rebutting this proof' Consequently, there are no substantial and material factual issues warranting a hearing and the election must be set aside Our dissenting colleague apparently agrees with us about the existence of a prima facie case. or else she would advo- cate overruling the Employer's objection without any hearing She would hold a hearing, however, based on the unsupported speculation that the translator's absence could be proved inconsequential i Kraft, Inc, 273 NLRB 1484 (1985), Papnkas Fono, 273 NLRB 1326 (1984) ' election. The notice of election ' and the ballots were translated- into Haitian Creole. There is no evidence that any Haitian Creole speaker needed and was deprived of a translator's- assistance in voting. , ' - In Alco Iron & Metal Co.;- • 269 NLRB 590, 592 (1984), upon which the Regional Director relied, the Board agent turned over the- conduct of the election to the Petitioner's Spanish-speaking ob- server, thus creating'the impression that "the Peti- tioner, and not the Board, was responsible for run- ning the election." No similar misconduct -is alleged here. Moreover, the Alco majority 'declined to adopt the suggestion. in Member Hunter's concur- rence that a translator be required as a matter of course when the Regional Office is aware that a substantial percentage of the electorate does not speak English. Accordingly, I. would grant the Petitioner's re- quest for a hearing in order -to determine whether the late arrival of the, Haitian Creole interpreter ac- tually affected the conduct of the election. APPENDIX Objection 1., The original Objection 1 alleges that the Haitian Creole interpreter who was scheduled to assist the Board agent during the election failed to arrive on time at the election held on November 21. The amended Objection 1. further alleges that the Board agent conducting the election did not give instructions to or assist the Haitian Creole-speaking employees who'voted. The investigation krevealed that due to the number of Spanish and French-surnamed 'employees in the 'unit,' and as* agreed'-by the parties, the election materials-," i.e., the notice 'of' election and the `ballots, were printed in three languages: English, Spanish' and Haitian' -Creole. Additionally,•the election was conducted by'a bilingual8 Board agent, and the -Miami 'Resident Office contracted with a translation service to provide -a Haitian Creole in- terpretec.9 The November 21 election was held as sched- uled from 6.00 a.m. to 9:00 a in. The Employer submitted two sworn statements concerning this'-objection: 'The plant manager contends that the Haitian Creole interpret- er did-not arrive at the' E'mployer's facility until-7:45 a.m. to 8:15 a.m.; an employee who' was one-'of -the Employ- ei's observers at the election -contends` that the Haitian Creole interpreter arrived, around 7:30 a.in'. or 8.00' a.m: The' Board agent who. conducted the election states that the Haitian' Creole interpretei• arrived at; the election at 7:35 a.m. The -Petitioner presented no , evidence to the contrary. Thus, it- is : uncontroverted 'that' the Haitian Creole interpreter was- not 'present 'at the election during a substantial 'period "of time ' t ' The election eligibility list shows approximately two Spanish-sur- named employees and 15 French-surnamed employees 8 English and Spanish languages 9 That translation service had been used in the past by the Miami Resi- dent Office and the services it had provided had been satisfactory 275 NLRB No. 179 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, through its entire history, consistently-has gone to great lengths- to assure that its role in the con- duct of election is not subject to question : Board election procedures are designed to 'ensure both 'parties an oppor- tunity to monitor the - conduct of the election, ballot count, and determinative challenge procedure . Paprikas Fono, 273 NLRB No. 86 (1984), slip op. at 7 and cases cited therein. - There is well-established precedent that , the Board in conducting elections must maintain and protect the integ- rity and neutrality of its procedures. See e.g., Glacier Packing Co., 210 NLRB 571 (1974); Kerona Plastics, 196 NLRB - 1120 (1972). * Election conditions * must approach, as nearly as possible, ideal "laboratory" conditions so as to facilitate expression of the uninhibited - desires of the employees . General Shoe Corp., •77 NLRB 124, '127 (1948). Thus, the commission of an act by a agent of the Board conducting an election -which tends to destroy confidence in the Board's election process, or which could reasonably be interpreted as impugning the elec- tion standards we seeks to maintain , is a sufficient basis for setting aside the election . Glacier Packing, supra. The conduct of elections with- due regard to the needs of employee's who speak a language other than English has been the subject of several Board decisions. In Rattan Art Gallery, Ltd., _260 NLRB 255 (1982), an elec- tion was set aside because the translation of the Board's notice of election into another language was confusing and incomplete . In Flo-tronic Metal Mfg., Inc., 251 NLRB 1546 ( 1980), an election was set aside on the grounds - that the. Board's notice',to employees - failed to include a full statement of-rights of employees in both English and Spanish, as agreed by the parties. And in Fibre Leather Mfg. Corp., 267 NLRB 393 (1967), the election was set aside' as a result of the failure of the Board's notice of election and ballots to be also in the language of 15 to 20 of the 86 employees in the unit, and because not all of the . Portuguese-speaking employees were. advised of the purpose of additional bilingual ob- servers. - = More recently, t ° the Board set. aside an election be- cause it found that the election therein was not conduct- ed in accord with its 'principles. The Board found that the Board agent, who spoke no Spanish,. merely instruct- ed the union's observer to "translate the procedure of voting to these employees [the non-English speaking voters]." Further, the Board agent provided no addition- alinstruction or guidance, and did not participate further in the conduct of the election, except for handing ballots to employees,, until the employer's observer complained. Even after- that. complaint, the Board agent merely in- structed the union observer to repeat the instructions in Spanish . Alco Iron, slip op. at 6. The Board held that under those circumstances , the atmosphere of impartial- ity in which the election should have been held was not present. Further, .the Board expressed its concern that elections be conducted in a manner which inspires confi- dence in the impartiality of the Board and its agents, Alco Iron, at fn. 2. 10 Alco Iron & Metal Co, 269 NLRB No 87 (1984) Lastly, .in a decision issued subsequent to the Decem- ber 18 Order directing Hearing, Kraft, Inc.-Retail Food Group, 273 NLRB No . 184 (1985), the Board set aside an election because the ballot was facially defective since the four languages which appeared on the ballot were laid out in a fashion which made for difficult reading for all voters Significantly, the Board found irrelevant the Acting Regional Director's conclusion that the eligible voters were presented with sufficient information prior to the election to enable them to intelligently cast their ballots. Based on the foregoing , I find merit in the Employer's contention that the election herein was not conducted with due regard to the needs of Haitian Creole-speaking employees for the following reasons. First, a person used by a principal at the principal 's request to interpret on behalf of the principal is an agent of the principal. See Local 300, Cosmetic and Novelties Workers' Union (Cos- metic Components Corp.), 257 NLRB 1335 ( 1981) Thus, the interpreter obtained by the Miami Resident Office through a translation service to provide assistance to the Board -agent conducting the election in communicating with Haitian Creole-speaking employees was an agent of the Board . Therefore, the misconduct of the Haitian Creole interpreter in failing to be present during 'a sub- stantial part of the election is an act attributable to an agent of the Board . Second, in the circumstances herein, the undersigned is not satisfied that the conditions under which the election was conducted were such as to assure the effective and informed expression by all employees of their true desires. Fibre Leather Mfg. Corp, supra. There- fore, the undersigned finds that the failure to have a Hai- tian Crole interpreter during a substantial portion of the election , constitutes interference with the election which requires that the election be set aside. Flo-Tronic Metal Mfg., Inc., supra. Third, such conduct by the Haitian Creole . interpreter is incompatible with the Board's re- sponsibility for assuring properly conducted elections. Alco Iron & Metal Co., supra. Fourth, the misconduct of the Haitian Creole interpreter raises a reasonable doubt as to the fairness and validity of the election . Papnkas Fono, supra. '' Fifth, even if the Haitian Creole-speaking employees were presented with sufficient information prior to the election to enable them to intelligently cast their ballots, that factor is irrelevant since the requisite laboratory conditions for free expression of voter prefer- ence were not present here. Kraft, Inc., supra, slip op at 3. Accordingly , it is recommended that the portion of Employer's Objection 1 which alleges that the failure of the Haitian Creole interpreter to be present during a sub- stantial portion of the election be sustained. Because I am recommending a second election, the un- dersigned finds it unnecessary to pass on the Employer's other objections. 11 It is indeed unfortunate that due to the misconduct of a person not regularly employed by the Board, this election must be set aside Nothing herein ii to be construed as being critical of the Board agent who con- ducted the election , the staff of the Miami Resident Office who obtained the services of a translation service which had previously been reliable, or any officer or agent of the Petitioner