Textile Service Industries, Inc. And Its Employer Members: Exchange Linen Service; Aratex; Northern California Services, Inc. (Hospital Linen); Servisco, Steiner Corp.; Prudential Overall Supply; Calou'S Linen Service; Mission Uniform & Linen Service

1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Textile Service Industries, Inc. and its Employer Members: Exchange Linen Service; Aratex; Northern California Services, Inc. (Hospital Linen); Servisco, Golden State Linen Division; Steiner Corporation; Prudential Overall Supply; Colon's Linen Service; Mission Uniform & Linen Service and Textile Processors, Service Trades, Health Care, Professional and Techni- cal Employees International Union Local 75, Petitioner. Case 32-RC-2347 17 July 1987 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON The National Labor Relations Board, by a three- member panel, has considered objections to an election held 13 and 14 May 1986 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 211 for the Petitioner, 190 for the Intervenor, and 8 against either labor organization. There were no challenged ballots. 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 a certification of representative should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union Local 75 and that it is the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time laundry production workers covered by the current collective-bargaining agreement, including but not necessarily limited to the following classifi- cations: Washroom Department, head washers and utility room employees; Finishing Depart- ment, garment press operators, shirt unit oper- ators, garment folders and tunnel operators; Marking-Distributing Department, head mark- ers and distributors, soil sorter-marker-distribu- tors (including conveyor belt distributors), head route person-stock-supply persons, check- ers or putter uppers; Flatwork Department, continuous towel, route persons, towel counters, folders, ragroom employees, clean sorters, tiers, loaders, shakers, pullers, and feeders; Sewing Department, alterations person, seamstress persons, clean up persons, employed by the following Employer mem- bers of Textile Service Industries, Inc. at the following locations: Exchange Linen Service 527 23rd Avenue Oakland, CA Aratex 330 Chestnut Oakland, CA Northern California Services, Inc. (Hospital Linen) 333 Shore Way Road San Carlos, CA Servisco, Golden State Linen Division 958 28th Street Oakland, CA Steiner Corporation 1377 Lowrie So. San Francisco, CA Prudential Overall Supply 1429 Milpitas Blvd. Milpitas, CA Calou's Linen Service 730 29th Street Oakland, CA Mission Uniform & Linen Service 30305 Union City Blvd. Union City, CA Excluding: All maintenance employees, truck drivers, office clerical employees, professional employees, confidential employees, guards and supervisors as defined in the Act. MEMBER BABSON, dissenting in part. I cannot adopt the hearing officer's recommenda- tion that the "Intervenor's Objection Not Specifi- cally Alleged" be overruled. (See the pertinent portions of the attached hearing officer's report.) The hearing officer failed to make credibility reso- lutions with respect to whether the Petitioner's ob- server only made hash marks on the unofficial tally she maintained during the course of the voting ses- sion, as the Petitioner's observer testified, or whether she wrote "words" in addition to hash marks, as the Intervenor's observer testified. The hearing officer apparently found it critical to this objection to establish that names were recorded and in the absence of such a showing found it un- necessary to resolve the credibility conflict. I do not agree, and I would remand this proceeding to resolve the credibility conflict between the testimo- 284 NLRB No. 134 TEXTILE SERVICE INDUSTRIES 1109 fly of the Petitioner's and the intervenor's observ- ers.1 In my view, the possible absence of names, as opposed to other "words" that may have been uti- lized to describe or otherwise identify voters, is not dispositive of the issue. The unwillingness of the majority to resolve the credibility issue reflects a failure to acknowledge that words of description, other than names, if utilized with hash marks may provide a basis here for setting aside the election. See Masonic Homes of California, 258 NLRB 41 (1981) (observer's keeping a list comprised of voter's names and hash marks warrants setting aside the election). In the present posture of this case, therefore, I find it unnecessary to decide whether the making of hash marks alone consti- tutes a sufficient basis for setting aside the election. Cf. Cerock Wire & Cable Group, 273 NLRB 1041 (1984). Accordingly, I dissent from the issuance of a certification herein. In recommending that this objection be overruled, the hearing officer further relied on the conclusion that the Petitioner's observer made some attempt to conceal her conduct based on the testimony of the Petitioner's observer that ,he had a paper on the table m front of her dunng the voting but that she kept the paper folded so that no one could see what she was doing. The hearing officer, however, faded to mention and re- solve the conflict between this testimony and the additional testimony of the Petitioner's observer that "anybody who came by to pick up a ballot saw the paper" and that "they could see the marks." This unresolved issue of whether the Petitioner's observer effectively concealed her con- duct also requires a remand for further findings by the hearing officer. APPENDIX Objection Not Specifically Alleged in the Intervenor's Objections This objection alleges that Petitioner's observer at the Aratex polling site kept a piece of paper in her lap and made notes or marks on the paper as the voters came to vote, thus appearing to keep a list of those who cast a ballot. Elizabeth Sousa, Petitioner's observer testified that she did have a paper and pen on the table in front of her during the voting. She stated that she made a mark for each employee who voted. (This amounted to more than 100 employees.) She also stated that she kept the paper folded over so that no one could see what she was doing and that she only made lines on the paper and did not write any words. Annie McNeill, Intervenor's observer testified that she saw Sousa with a pad and pencil during the voting and that Sousa made marks on the paper as each employee voted, and then wrote underneath the marks. McNeil could not read the words as they were in a language she identified as Spanish. (Sousa testified that she is Portuguese and cannot write in Spanish.) The Board Agent apparently was unaware of Sousa's conduct and McNeil did not bring it to his attention. It is well settled that election observers are not permit- ted to make any tally or check list of employees who have or have not voted. This policy has been strictly en- forced without any showing of actual interference with the voting. International Stamping Co. 97 NLRB 921 (1951); Piggly-Wiggly 168 NLRB 792 (1967). In Sound Refining, Inc. 267 NLRB 1301 (1983) an election observ- er made a notation next to the name of each voter as he/she approached to vote. The Board held that the ob- server was a conspicuous presence at the polls and there was no evidence of any indication of an attempt by him to conceal his conduct. This conduct violated the Board's prohibition against the keeping of any list by election ob- servers. In fmding that this conduct was not de minimus the Board noted that the fact that there was no evidence that any employee witnessed the observer's list keeping did not detract from its finding a meritorious objection to the election. An earlier case, Masonic Homes of California, Inc. 258 NLRB 41 (1981), found that the keeping of a list by an observer comprised of hash marks and voter's names during the election warranted setting the election aside. The Board noted that the list-keeping was done continu- ously through the morning session and that several em- ployees observed the list. Most recently in Cerock Wire & Cable Group, Inc. 273 NLRB 1041 (1984) an election observer had a list of six names of employees she was to challenge. On the back of that list the observer kept a tally which bore no names but consisted solely of hash marks arranged in two un- identified columns. The observer attempted to conceal her activity by keeping her arm over the paper. The Board held that even assuming some voters were aware of the observer's conduct, the absence of names to which the hash marks could be related and the failure to label the columns under which the hash marks were recorded would make it impossible for them to ascertain the nature of the tally. The Board held that any breach of its rules which may have occurred did not constitute grounds for aside setting the election. Here as set forth above Sousa undisputably maintained a count of the voters. She states she counted them by making lines on the paper. McNeil states Sousa also wrote words under the lines. However McNeill could not read the words and there is no evidence that the words were in fact names. Since Portuguese uses the English alphabet, if Sousa were writing names and since McNeill is an employee at the facility it could be as- sumed that she would recognize some of the names. Fur- thermore Sousa's tmcontradicted testimony shows that she made some attempt to conceal from the voters what she was doing. Thus, based on the fact that there is no evidence that Sousa's list contained both marks and names and also that she made an attempt to conceal her conduct from the voters, I find Petitioner's conduct even though it is a breach of Board rules, does not warrant setting aside the election. Cerock Wire & Cable Group, Inc. supra. Accordingly, I recommend that Intervenor's Objection Not Specifically Alleged in the Intervenor's Objections be overruled.