Bekins Moving & Storage Co.

BEKINS MOVING & STORAGE CO Bekins Moving & Storage Co. and General Team- sters Local Union No. 174 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 19-RC-11254 30 April 1986 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON The National Labor Relations Board, by a three- member panel, has considered objections and deter- minative challenges to an election held 13 August 1985 and the hearing officer's report, the pertinent portions of which are attached hereto, recommend- ing disposition of them. The election was conduct- ed pursuant to a Stipulated Election Agreement. The tally of ballots shows 2 for and 1 against the Petitioner with 13 challenged ballots, a sufficent number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer's findings and recommendations' and finds that an appropriate revised tally of ballots and cer- tification should be issued. DIRECTION IT IS DIRECTED that the Regional Director for Region 19 shall within 10 days from the date of this Decision and Direction open and count the ballots of Phil Wood, Wilson Worthen, Kevin Bur- dick, Mike Saulsman, Norm Sturm, Don Emery, Fred (Eddie) Solak, and Tim Gee and thereafter prepare and cause to be served on the parties a re- vised tally of ballots, upon which he shall issue the appropriate certification. i In the absence of exceptions, we adopt pro forma the hearing offi- cer's recommendations to overrule the challenges to the ballots of Phil Wood, Wilson Worthen, Kevin Burdick, Mike Saulsman , Norm Sturm, Jim Gardner, Don Emery, Fred (Eddie) Solak , and Tim Gee, to sustain the challenges to the ballots of Richard Lindberg, Brandon Pugh, David Clark, and Mike Clark, and to overrule the Petitioner's Objections 5 and 6 We agree with the hearing officer's finding that there is no evidence to suggest that the ballots cast in this election were not secret For this reason we adopt his recommendation to overrule the Petitioner's Objec. tions 3 and 4 However, we stress to the Regional Offices the importance of taking strict care to monitor the polling areas in elections to assure that voters mark their ballots in the appropriate place designated for voting, be it a voting booth or the "three-sided box" used in this election APPENDIX The Objections: Objection No. 3 reads: "voters did not mark their bal- lots in a booth or place suited to the secrecy of the ballot." The polling place was at the Employer's premises in a "warehouse area." Prospective voters approached the 279 NLRB No. 109 823 polling area and faced a table where the seated Employ- er and Petitioner's observer and the Board Agent were situated. Voters variously form a line awaiting to vote or were alone when at the table. Situated behind and to the left of the seated observers were flat, palletized stacks of packing cartons. The two stacks closest to the table were four and five feet high. A "three-sided box" was placed on the stack of the two which was the furthest and ap- proximately 10 to 12 feet, from the table. i 8 The open side of the "three-sided box" was such that voters using it faced at a right angle to the table, i.e., behind and to the left of the seated observers. Any prospective voters lined up awaiting a ballot would have faced the table and viewed a voter's right profile as he or she marked a ballot at the "three-sided box" location. Further, such prospective voters would have been several feet in excess of 10 to 12 distant from a voter marking a ballot at such site When the polls were first opened, between five and seven prospective voters were lined up to iden- tify themselves and receive a ballot. After this initial rush of voters, other voters came in ones and twos. After identifying themselves and receiving a ballot voters were told to the effect of "go over there and mark your ballot." Such remark was accompanied with a jesture toward the stacks of cartons on one of which the "three- sided box" was placed There is some controversy, how- ever, as to where some voters marked their ballots.' 9 The Petitioner observer testified that he marked his ballot at the observer table. Such testimony is unchal- lenged.20 There is no evidence that anyone saw him mark his ballot . Such witnesses' testimony is less clear as to where other voters marked their ballots. On direct ex- amination this witness prepared the drawing which is "Union Exhibit #2" and marked with an "X" the places where voters marked their ballots. He was asked "[w]here did they go to mark their ballots?" He an- swered, "[r]ight here" and when it was observed that he marked the nearest stack of cartons (not the one with the "three-sided box"), and was asked, "[w]ere there any other places they went?" he answered "[w]ell, you know, I can't remember. It seems to me that somebody went right over here once." This is an apparent refer- ence to the furthest of the two stacks and the one where the "three-sided box" was placed. At the same time, this witness here in context had not acknowledged the pres- ence of a "three-sided box" on either of the stacks of cartons. Later, again on direct examination, the Petition- er observer stated, ". . . some of the (voters) .. . went to the wrong stack of cartons." On cross examination, the Petitioner observer persisted in the contention that not all voters marked their ballots at the same place, i.e., that one timely voter marked his or her ballot at the "wrong stack of cartons" and late voter Gee did like- 18 This "three-sided box" is an assembled carrel used by the Agency in lieu of a voting booth See Attachment No 2, a part of this Report, for a graphic of the carrel provided to the Agency by the supplier of the same 19 The Board Agent conducting the election did not testify and Coun- sel for the Regional Office did not participate in the examination of the Petitioner and the Employer observers who testified on the issue of where all voters actually marked their ballots 20 The Employer observer stated she did not observe where the Peti- tioner observer marked his ballot See below 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise. The "wrong stack of cartons came" out to be the one nearest the observer table and the stack that did not have the "three-sided box" on it.2 t This witness also tes- tified at one point that the "majority" of the voters marked their ballots at the correct location. The Employer observer testified on cross-examination that she did not watch every voter mark his or her ballot, and when asked whether she knew whether all voters used the "three-sided box", she replied, "No." On direct examination this witness stated that the voters she did observe marking their ballots all did so at the "three- sided box." Further, on cross-examination, the Employer observer stated "No" to the question of whether she ob- served where the Petitioner observer marked his ballot. Related to the literal language of the objection, and in general to the existence of laboratory conditions at the polling site, there was testimony about certain incursions into the polling place by representatives of the parties and another nonvoter. An Employer salesman ap- proached the observer table during the 9:30 to 10:00 a.m. polling period In addition, Petitioner representatives were asked to leave and did so immediately. The Peti- tioner observer also testified that an employee (on the Excelsior list and unchallenged) approached the observer table and that he too was "run of" In regard to these incursions, there is no evidence that any prospective voters were in the polling area either awaiting receipt of a ballot or in the process of marking a ballot. In fact, tes- timony is that there was not. Finally, there is no testimony or evidence that anyone, observer, other voters or the "intruders" in the polling area, could see how an employee marked his or her ballot.22 Objection No. 4 reads: "Voters were accepted after the closing of the polls and marked their ballots in the pres- ence of company and union officials." First, it is clear that the late voters cast challenged bal- lots. The mere acceptance of late voters and permitting them to cast a challenged ballot cannot arguably consti- tute conduct affecting the result of an election. The Peti- tioner made no such contention on the record that this was part of this objection, so it will not be dealt with here. Of more potential significance, and presumably what this objection does raise, is the propriety or secrecy of ballots marked by the late voters in the presence of company and union offfcials.23 The parties stipulated 21 Petitioner representative, Business Agent Barry Phillips, also attest- ed that he observed Gee "take a piece of paper, and walk a few feet away, place it on the top of a cardboard box and make a mark with a writing instrument, and return it to the NLRB agent " From his testimo- ny, there is no indication that the piece of paper, obviously the ballot, was shielded by the three-sided box Accordingly, this testimony is con- sistent with that of the Petitioner observer 22 As indicated above, the Petitioner observer states he marked his ballot at the observer table where it is plausible that the Employer ob- server and anyone else present, could have seen the markings However, the Employer observer stated she did not observe such occurrence and there is no contradictory evidence on this issue Neither is there any evi- dence that anyone else was present at the observer table when the ballot was marked 22 Inasmuch as it has been stipulated that one of the late voters (Lind- berg) was not employed during the pay period ending August 15, in fact that at the time the late voter(s) was (were) given and marked a ballot that Rorvick, Phillips and Thompson were present in the voting area.24 There is no evidence that any of the persons present in and around the voting area at this time were in a position to observe how the ballots of the late voter(s) was (were) marked. The Objection:32 Objections Nos. 3 and 4 raise essentially the same issues, i.e., were the election facilities and conditions such that the election was conducted under sufficiently proper lab- oratory conditions to insure the secrecy of the ballot? Despite contentions and evidence that all voters did not, or may not have, marked their ballots at the appointed location of the "three-sided box," there is no evidence to suggest, let alone conclude that the ballots cast were not secret.3 3 Board Regional Offices are advised that they should maintain, among other supplies, portable voting booths for use in eletions. Further in regard to situations when such booths are not used, Regional Offices are advised that "[w]hat is required is a compartment or cubicle which not only provides privacy but which also denom- strates the appearance of providing privacy."34 However one reads that passagge, the "three-sided box" used in the election was provided by the Agency and is pre- sumed to fulfill the advice or guidance.35 In regard to momentary incursions of nonvoters into the polling area again not only is there no evidence or suggestion that the ballots cast were not secret, in fact no voter was even present at the times involved. In regard to the Petitioner observer's marking his ballot at the observer table, there is no evidence that the Employer observer or anyone else saw how he marked his ballot. The Employer observer stated she did not even observe where the Petitioner observer marked his ballot. there is but one late voter to be concerned with and that is Gee See challenges part above and conclusions below 2' Recall the testimony of Phillips and the Petitioner observer above about the physical location where Gee marked his ballot 32 It is a well-settled general principle that even though a hearing on objections is investigative in nature rather than advisoral , the objecting party nevertheless has the burden to bring forth evidence which will sus- tain the allegations Absent the meeting of such burden, the objections are to be overruled See Campbell Products Department, Harry T Camp- bell Sons Company, Division ofFlintkote Company, 260 NLRB 1247 (1982) and N.L.R.B. v Mattison Machine Works, 365 U S 123, 124 (1961) 47 LRRM 2437 33 Although not regarded as critical to resolving these objections, it is concluded that at least two voters (the Petitioner's observer and Gee), and perhaps another (unidentified), voted at the wrong stack of cartons The testimony of the Petitioner's observer and Phillips is uncontroverted in this regard 94 See the "National Labor Relations Board Casehandlmg Manual (Part two) Representation Proceedings" April 1984, Sections 11304 2 and 11304 3, pp 113-114 Note should be made, however, that such manual is "intended to provide procedural and operational guidance and should not be viewed as binding procedural rules " See statement of pur- pose of Manual at p 1 ss See Fotomat Corporation Y NL R B, 634 F 2d 320 (C A 6, 1980), 105 LRRM 3138, 3141, enfg 233 NLRB 56 (1977), for comments about a three-sided box used to shield a voters' ballot not affecting election BEKINS MOVING & STORAGE CO. 825 Finally, in regard to the casting of Gee 's late ballot, Based on the above, it seems clear that the votes cast again there is no evidence or suggestion that those were by secret ballot and without more, I conclude that present in and around the polling area saw or could have Objection Nos. 3 and 4 are without merit and should be seen how the ballot was marked. overruled.