Hudson Aviation Services, Inc.

870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hudson Aviation Services, Inc. and Teamsters Local #25, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL—CIO,' Petitioner. Case 1— RC-18880 April 29, 1988 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered objections to an election held June 4, 1987, and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement.- The tally of ballots shows 26 for and 5 against the Petitioner, with 5 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 hearing officer's findings2 and recommendations, 3 and finds that the election must be set aside and a new elec- tion held. We adopt the hearing officer's recommendation that the election be set aside based on certain con- duct of the Board agent for the reasons set forth in the attached hearing officer's report. As more fully detailed by the hearing officer, during the first polling session the Board agent was summoned to the dispatcher's office, an enclosed office near the polling area, by the Employer's as- sistant manager and its dispatcher/supervisor, who sought to obtain her consent to post a sign outside the front entrance of the Employer's facility to notify the replacement dispatcher not to enter the polling area. Upon entering the dispatcher's office, where four employees who had voted were also present, the Board agent, at first, cautiously sought to investigate whether the assistant manager was a supervisor and subject to what the Board agent perceived to be a preelection agreement barring ' On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 The Employer has excepted to some of the hearing officer's credibil- ity findings. The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings. In adopting the hearing officer's findings, we do not rely on the state- ments made by the Board agent prior to the second polling session in set- tmg aside the election. 3 In the absence of exceptions, we adopt pro forma the heanng offi- cer's recommendations to overrule the Employer's objections with re- spect to Agent Cole's direction that the dispatch office door remain closed during the election, the allegation of Board solicitation of voters, and Agent Cole's direction to Agent Rothman not to discuss her lunch plans with the Employer's manager. more than one supervisor from being present in the dispatcher's office at any given time during the election. 4 The Board agent, however, became frus- trated and began to raise her voice when the assist- ant manager either failed to answer or, as the Board agent perceived it, evaded her questions, and the conversation almost immediately escalated into a loud argument during which the Board agent threatened to stop the election if the assistant manager remained in the dispatcher's office. The hearing officer concluded, and we agree, that the Board agent's conduct communicated the impres- sion that the Board was displeased with and was criticizing the Employer's assistant manager and, thereby, undermined the indispensable perception of Board neutrality in the election.5 Finally, in light of the hearing officer's findings of fact, the dissent's statement that the argument between the Board agent and the Employer's assist- ant manager was "precipitated by the improper presence of [the Employer's] supervisors within 12 ' feet of the polling area during the election" simply does not reflect the factual record here. Thus, even under the Board agent's own perception of the preelection agreement, the election was to be con- ducted in an area near the enclosed dispatcher's office where at least one supervisor was to be present during the election. In any event, as the hearing officer concluded, even if the Board agent had correctly relied on a preelection agreement to achieve her) goal of removing the assistant manager from the dispatcher's office, her conduct neverthe- less would warrant setting aside the election. Con- trary to the dissent's implication, the issue before us is not whether the Employer engaged in objection- able conduct but, rather, whether the actions of the Board agent reasonably could be interpreted as im- pugning the election standards we seek to maintain. For the reasons set forth by the hearing officer, and by us here, we conclude from the totality of the circumstances that the Board agent's conduct here impermissibly put into question the Board's 4 The hearing officer found that although the Board agent perceived that such a preelection agreement had been reached, there was no meet- ing of the minds by the parties on such an agreement. 5 Contrary to his colleagues, Member Babson additionally agrees with the hearing officer's conclusion that the Board agent's remark prior to the reopening of the polls for the second polling session also was objec- tionable. Thus, within 10 minutes of the reopening of the polls, the Peti- tioner's representative stated to the Employer's manager that if the dis- patcher left the dispatcher's office, the Board agent would know what to do, to which the Board agent responded, "Yes I do" Considering this remark together with the earlier incident, Member Babson agrees with the hearing officer that the Board agent's remark further suggested that the Board's neutrality in the election was in issue 288 NLRB No. 94 HUDSON AVIATION SERVICES 871 neutrality in the election and, therefore, the elec- tion must be set aside.6 [Direction of Second Election omitted from pub- lication.] MEMBER JOHANSEN, dissenting. According to the hearing officer's report, the election was conducted in the breakroom of the Employer's facility, which is reached primarily via a hallway. On this hallway, "within twelve feet of the breakroom entrance," is the dispatcher's office. It is undisputed that the parties agreed at a preelec- tion conference that the dispatcher's door would remain closed throughout the polling period. Su- pervisor Diane Limoli was to be inside dispensing paychecks and driver's assignments. The first shift of the election ran from 12 to 3 p.m. Potential voters were required to wait in the hallway, not in the polling area, while waiting to vote. At 12:30 p.m., the Employer's assistant man- ager, Arico, also entered the dispatcher's office where there were four employees who had already voted. Later, Arico signaled for the Board agent. The Board agent then proceeded to the dispatch- er's office. When the Board agent began investigat- ing Arico's supervisory status, a confrontation oc- curred. From these facts, the majority concludes that the Board agent's conduct "undermined the in- dispensable perception of the Board's neutrality in the election," and sets aside the election. In reaching this conclusion, my colleagues adopt the hearing officer's reliance on Glacier Packing Co., 210 NLRB 571 (1974). Such reliance is mis- placed. In Glacier Packing, the Board agent told 6 We furthei agree with the hearing officer's reliance on Athbm Engi- neering Corp., 166 NLRB 966 (1967), and Glacier Packing Co., 210, NLRB 571 (1974). As noted by the hearing officer, the Board in Athbro aban- doned a standard of assessing only whether Board agent conduct affected the votes of employees. Thus, the Board there set aside the election be- cause the Board agent's conduct in fraternizing with a representative of one of the parties between voting sessions tended to destroy confielence in the Board's election process or reasonably could have been interpreted as impugning the standards of integrity and neutrality which the Board seeks to maintain in elections. Significantly, the Board set aside the elec- tion where the Board agent's conduct was observed only by one employ- ee who had already voted and who, in turn, had reported the incident to the employer, and notwithstanding the fact that the Board agent's con- duct did not affect the votes of employees. Furthermore, we find unpersuasive the dissent's attempt to distinguish the present case from Glacier. As the dissent points out, the Board there found that the Board agent's remarks and conduct in removing a "Vote Neither" button from the employer's observer and in attempting to pro- hibit an employer's official from distributing campaign hterature reason- ably could have been interpreted by the employees who were present, at least some of whom had not yet voted, as indicating that the Board was opposed to the employer's position in the election. But, as the Board's discussion in Athbro and Glacier make clear, the Board's concern in main- taining its election standards is not limited to the particular circumstances presented in Glacier. Finally, and in any event, the dissent's reliance on the fact that in Glacier the Board agent's conduct occurred in the pres- ence of employees who may not have yet voted is unavailing, since, as found by the hearing officer here, two employees were informed of the incident involving the Board agent in the dispatcher's office prior to the time they voted. the employer's observers in the voting area that they "weren't supposed to be wearing that [small cards pinned to their lapels which read 'Vote NEI- THER']." Then "[h]e just pulled it off," without asking permission Secondly, Glacier Packing's di- rector of personnel was standing about 200 feet from the building whe,re the election was being conducted and was distributing literature to em- ployees. The Board agent told him "in a loud voice in the presence of some 15 or 20 employees who actually ended up being [the Board agent's] cheer- ing section. . . . Get out of here. Stop this. You have no business and no right to be here handing out anything." The director of personnel told the Board agent that "he was not talking to any dog. He was talking to a human being." The employees who observed the discussion clapped, laughed, and made catcalls while pointing their fingers at the di- rector of personnel. The director of personnel then walked approximately 200 feet away from where he was initially standing and the Board agent re- mained with him In setting aside that election, the Board held that employees witnessing the two incidents in- volved could reasonably have interpreted [the Board agent's] remarks and actions as indica- tive that the Board was opposed to the Em- ployer's position in the election. . . . [T]he elec- tion was one in which the Employer had cam- paigned vigorously against the participating labor organizations and [the Board concluded that] the manner in which the Board agent conducted himself in the presence of employ- ees who had not yet voted may have had a sub- stantial impact on the results of the election. [Emphasis added.] The critical conduct in Glacier Packing was direct- ly focused at 'the employer's position in the election (as evidenced through the campaign buttons being worn and the literature being distributed) and took place in front of employees who had not yet voted. Neither factor is present here. Accordingly, I dis- agree with my colleagues' disposition of this case. Further, with the benefits of hindsight, it appears that the Board agent should have tempered her conduct in policing the polling area and adjacent hallways. However, in these circumstances, I would overrule the Employer's objections based on her conduct, finding rather that the Employer cannot benefit from an argument with the Board agent which was precipitated by the improper pres- ence of its supervisor within 12 feet of the polling area during the election. 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX HEARING OFFICERS REPORT AND RECOMMENDATIONS ON OBJECTIONS BACKGROUND3 The election was conducted at the employer's prem- ises in the employee break area on two shifts; the first from noon to 3:00 p.m. and the second from 5:15 p.m. to 5:45 p.m. The break room is primarily reached via a hall- way that leads directly to it from the main entrance. The dispatcher's office is located on this hallway within twelve feet of the break room entrance. It is undisputed that the parties agreed at a pre-election conference that contrary to normal practice, the dispatcher's door would remain closed throughout the polling periods. In addi- tion, the employer agreed to post a sign on the dispatch- er's door stating that a supervisor was inside. This super- visor was Diane Limoli. The election was conducted on a Thursday which was a payday. Paychecks are dis- pensed from dispatcher's office. Drivers without regular daily routes receive their assignments in the dispatchers office. THE INCIDENT IN THE DISPATCHER'S OFFICE During the first polling period, at about 12:30 p.m., Arico, the assistant manager entered the dispatcher's office. Limoli, the dispatcher/supervisor was present in her office with employees David Brown, Kenneth Col- lins, Jose Grenadas and Therese Sloan. All four of these employees had already cast their ballots. Limoli and Arico decided that the dispatcher who would replace Limoli at 2:30 p.m., William Hoff, might be unaware of a pre-election agreement and might enter the polling area, adjacent to which are located the man- ager's and assistant manager's offices. 4 As a result, they prepared a sign to post outside the front entrance of the employer's facility. However, before posting the sign, they decided to obtain the consent of a Board agent. To this end, Arico opened the dispatcher's door and signaled - Board agent Howard Diener. Diener notified Board Agent Cole who went to Limoli's office where a discus- sion ensued. According to Arico and Limoli, Cole slammed the door as she entered the dispatcher's office and in a raised voice which became progressively louder demanded to know who Arico was and what her position was with the employer. )Despite Arico's repeated efforts to re- spond to Cole's questions, Cole repeatedly cut Arico off. She told Arico accusatorily that a pre-election agreement provided only for Limoli's presence in the dispatcher's office and that if she did not leave the office, Cole would stop the election. 5 By this point, Cole and Arico were 3 The Employer by Murray testified in a conclusory fashion that the Employer engaged in a vigorous campaign against the Petitioner and In- tervenor. Since their was no factual or documentary support for this con- clusion, I make no fmding regarding the intensity of the campaign effort. 4 The parties pre-election agreement provided that both the assistant manager and manager would vacate their offices during the voting shifts 5 Petitioner witness Grenadas confirms the fact that Cole repeatedly told Arico she did not belong in the dispatch office and notified her she both speaking loudly with Cole's the louder of the two voices. 6 One of the employees who was present, David Brown became agitated at Cole's conduct and told Arico that Cole was "fucking rude" and Arico did not have to "answer any of her fucking questions." 7 At this point Limoli jumped up from her seat and said "Jesus Christ." According to Limoli, the intensity of the exchange be- tween Cole and Arico made her fear a physical alterca- tion might develop between them. At About the time of Brown's remark, Arico offered to leave, but Cole would not allow her to leave until she had checked the hallway to see if any voters were wait- ing outside. 8 This further upset Arico. Cole told her at this point that "I'm here with the NLRB and here to see this is a fair election." Two minutes later, Cole allowed Arico to leave the office. Shortly thereafter, Cole re- turned to the room, apologized to Limoli for the incident that had occurred and asked her to extend her apologies to Arico. Union witness Grenadas corroborates that Cole apologized and stated she was just doing her job. According to Cole, she spoke in a deep professional voice and never raised her volume, notwithstanding the fact that Arico raised her voice. Cole testified that her conversation with Arico began in the hallway in the presence of a voter nearby. The Board Agent was con- cerned with the effect Arico's presence in the hallway would have on the voter. She was also motivated by her opinion that Arico's presence in the dispatch office vio- lated a pre-election agreement which allowed only one supervisor to be present therein. Cole asked Arico if she was a supervisor. Arico said she did not have to respond to Cole. Cole then asked Arico to step inside the dispatcher's office which she did. 8 Cole told Arico she had to know if she was a su- pervisor, because Limoli was the only supervisor al- lowed in the area. Arico told Cole that she was not acting as a supervisor that day and refused to answer Cole when she sought to investigate whether she was "normally a supervisor." In fact, Arico turned to the em- ployees, pointed at Cole and said, "You see, is this what you want here? You want to have these people coming on the premises here?" 1° In response, Cole said that she was not with the union or the company, but with the government. She then suggested that the problem could be solved if the employees left the room which proved impractical, because it was raining. Thereafter, Arico had to leave No employee witness testified that the Board Agent threat- ened to stop the election. 6 One wall of the dispatchers office shares a common wall with the break room where the election was being conducted. Murray testified without contradiction that this common wall is very thin and that he has on several occasions her sound transmitted from the dispatcher's office into the break room. 7 Grenadas agreed that Brown encouraged Arico not to cooperate with Cole. He went on to state in his affidavit which I credit that Cole directed Brown to "stay out of it" 8 Cole testified that she required potential voters to wait in the hall- way, not in the polling area while they waited to vote. 9 Union witness Grenadas testified that Cole knocked at the dispatch- er's door, entered and then began to question Arico. 10 Neither Petitioner employee witness Grenadas nor the Region's em- ployee witness Collins nor Employer employee witness Sloan testified to hearing Arico make this statement HUDSON AVIATION SERVICES, 873 ' volunteered to leave the room. Cole permitted this after checking that no employees were lined up to vote in the hallway. Cole could not recall any remarks made by the four employees, except one employee's observation that it was raining. She denied threatening to stop the elec- tion.11 According to Cole, she returned to the dispatcher's office after she received a call from Limoli. Limoli tried to explain to Cole that Arico was assistant manager, but that on that day, she was driving a bus. Cole said she had understood Arico, but she was a supervisor and su- pervisors are not allowed in the voting area." She asked Limoli to tell Arico that she was sorry to upset her, but those are the rules. I am convinced that Board Agent Cole's intent in her first visit to the dispatch office was to maintain laborato- ry conditions and preserve the integrity of the election process. She also intended to purge any objectionable conduct in which the Employer may have been engaged such as surveillance or electioneering by supervisors in the vicinity of the polling area. n3 Unfortunately, Cole, in the presence of four unit em- ployees, became enmeshed in a conversation with assist- ant manager Arico which almost immediately escalated into an argument during which both women spoke loudly." At first, Cole cautiously sought to investigate whether Arico was a supervisor and subject to what Cole per- ceived to be a pre-election agreement barring more than one supervisor at any given time from being present in the dispatch office. I find that there was no meeting of the minds among the parties to such an agreement." Cole became frustrated and began to raise her voice when Arica either failed to answer or as Cole perceived evaded her questions. Cole decided that based upon the facts available to her, Cole decided that Arico did not belong in the dispatch office as per the pre-election agreement. My observation of Cole's testimony persuades me that she genuinely believed that she did not threaten to stop the election if Arico remained in the dispatch office. I nonetheless credit the testimony of Limoli and Arico that she did make such a threat. I conclude that Cole was so clearly convinced that Arico's presence violated a pre-election agreement and constituted objectionable conduct that she made this threat to persuade Arico to leave the dispatch office. 11 Cole failed to take notes of this or any other election incident. She denied on cross-examination any knowledge of the case handling manual requirement, Section 11326 that such events occurring in the course of an election should be recorded 12 Cole never explained why she considered the dispatch office part of the polling area. She also never explained why if Anco had remained in the dispatch office with the door closed, it would have potentially inter- fered with the election 13 Electric Hose & Rubber Co, 262 NLRB 186 (1982), Bally Park Place, Inc. 265 NLRB 703 (1982) 14 I do not credit Grenadas' testimony that Cole never raised her voice. The substantial weight of other employee witnesses' testimony and the dictates of logic convince me that Arico was not the only one to raise her voice during this incident. 15 This was readily apparent in the conversation which occurred be- tween Cole and employer manager Murray prior to the opening of the reopening of the polls at 5.15 p.m. See infra. I credit Cole's undisputed testimony that Arico made a derogatory statement about Cole to employees which served to inflame an already delicate situation. I find that such statement encouraged employee David Brown's ac- tions of accusing the Board Agent of rudeness towards Arico and urging Arico not to cooperate with the Board Agent. This obviously prompted Cole's attempt to ex- clude Brown from the conversation and Cole's explana- tion that she represented only the National Labor Rela- tions Board and was attempting to insure that there was a fair election. She reiterated this position by ultimately explaining to Arico when Arico decided to depart that she wanted to check that the hallway was free of voters before she allowed Arico to leave. Notwithstanding these efforts to assure the four employees as to her neu- trality, employee Therese Sloan clearly was left with an impression that the Board Agent was hostile to the Em- ployer and Sloan communicated this fact to one employ- ee, Kerry, who had not yet voted.16 THE DISPATCH OFFICE DOOR Limoli testified without contradiction that she sought to keep the door to her office shut at all times during the election in accordance with a pre-election agreement. Each time an employee entered the office, she notified them to close the door. She was not always successful in getting employee cooperation. About four times after the incident in her office between Arico and the Board Agent, Cole returned and in a sharp tone of voice direct- ed that the door be closed. One such employee was Ed Friend. Before he voted, he was taken aback when he was the subject of one of these remarks from Cole. At that point Limoli explained to Friend Cole's earlier inci- dent with Arico in the dispatch room. No other employ- ees testified to such an experience and Cole could not re- member any such incidents. SOLICITING VOTERS Respondent presented hearsay testimony through Limoli to the effect that employee Blanche Catana told her that the Board Agent had required her to vote before she could visit the dispatch office. Board Agent Cole testified that she assigned Board Agent Diener to the entrance of the break room where he followed her direction to ask voters as they appeared in the en- tranceway, "Are you here to vote?" If the employee an- swered affirmatively, Diener told them "Step right up or this is the area, this is the place." I credit Cole's version of Diener's conduct. There was no credible testimony that the Board Agent encouraged anyone to vote or con- ditioned their receipt of their paychecks on voting. VOTING HIATUS The first polling session closed at 3:00 p.m. As the three Board agents were preparing to leave the break 15 I find that Sloan did not on the date of the election clearly notify employee Ed Friend of what had occurred in the dispatch office. How- ever, it is clear from his testimony that before he voted, Limoli notified him that the Board agent and Anco had a heated argument half an hour earlier. See infra. 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD room, one of them, Beryl Rothman, asked Ed Murray, the Employer's manager to suggest a place to eat. As he began to answer, Cole cut him off by sternly telling Rothman that she knew a place to eat. Murray testified to seeing at least one bargaining unit employee in the break room during this exchange. Murray could not identify the voter and was not aware if the employee had voted or subsequently voted. Cole could not recall if an employee was present. The Employer contends that this remark humiliated Murray in front of a voter. I conclude that it is quite clear that Cole's remarks were directed solely to agent Rothman and that any employee present would have so evaluated them. The second polling session commenced at 5:15 p.m. Employees were lined up outside the break room with the door open. Employee Frank Caprio was at the head of the line. Within ten minutes of the polls reopening, Cole asked Murray that the new dispatcher, William Hoff, be directed to stay in his office throughout the thirty (30) minute session as per their pre-election agree- ment. Murray denied such an agreement existed and re- fused to agree to this condition. According to Cole, she said, "that's your choice." and the conversation ended. According to Murray, the Petitioner's representative stated that if the dispatcher left the office, the agent would know what to do. Cole responded, "Yes I do." and the conversation ended. The Petitioner failed to present their agent Reardon or their observer Flynn who witnessed the conversation. Cole failed to specifically deny such an exchange occurred. In view of the earlier incident in the dispatch office, I conclude that it is logi- cal that such statements were made by Reardon and Cole. Therefore, I credit Murray's version. CONCLUSION First, I recommend that the Employer's objection re- garding the Board Agent's direction to dispatcher Limoli and employees to keep the dispatch office closed be dis- missed. The Board Agent was acting consistent with an agreement to keep the door closed which Limoli herself was attempting to police. Furthermore, given the close proximity of the door to the voting area, it was impor- tant to keep that door closed so potential voters would not have the impression that they were being kept under surveillance by Limoli. Second I recommend that the Employer's objection al- leging Board solicitation of voters be overruled. There is no credible evidence that the Board Agent did more than give neutral assistance to voters who already in- tended to vote. Third, I recommend that the Employer's objection re- garding Board Agent Cole's implicit direction to Board Agent Rothman not to discuss her lunch plans with the employer's manager was not objectionable. I find that her remarks were not intended to disparage the manager. Rather, I find that Cole was acting cautiously to protect the agents against being the subject of an objection by the Petitioner or Intervenor. Such an objection challeng- ing the Board's neutrality was reasonably foreseeable and not without precedent. Athbro Precision Engineering Corp., 166 NLRB 966 (1968), vacated 67 LRRM 2361 (D.C. Cir. 1968), acquiesced in 171 NLRB 21 (1968), enfd. 423 F.2d 573 (1st Cit. 1970). Fourth, I turn to the incident in the dispatch office in- volving the Board Agent and the Employer's assistant manager. This conduct must be evaluated by judging the degree of impact the conduct had on the bargaining unit and how the conduct affected the integrity of the elec- tion process and the Board's neutrality. Athbro. The credible evidence shows that two out of thirty-eight (38) voters learned of the incident before they voted. The Pe- titioner received 26 votes. Even if these two voters were presumed to have voted for the Petitioner and their votes are substracted, the Union still received a majority of valid votes cast and would deserve to be certified as the collective bargaining representative of unit employ- ees. In Athbro, the Board abandoned the pure impact stand- ard in evaluating objections which alleged Board Agent misconduct. That election was set aside even though the misconduct was not communicated to a single employee. The central issue in alleged Board Agent misconduct cases is whether the agent's conduct undermined the in- tegrity of the election process and/or the indispensible perception of Board neutrality. It is self-evident that the perception of Board neutrality and the integrity of the election process must be preserved. In this case, the Board Agent's conduct in the dis- patcher's office communicated the perception that the Board was displeased with the Employer's assistant man- ager. It is undeniable that Cole communicated the im- pression that the Board considered that the Employer was guilty of breaking its word. The Board agent then placed the assistant manager in the highly embarrassing position of having to leave the dispatch office or being responsible for the cancellation of the election. The as- sistant manager credibly testified that she felt humiliated by the entire incident. The reactions of employees Brown and Sloan confirm this perception. I conclude even if the Board Agent had correctly relied on a pre- election agreement to achieve her goal of removing the assistant manager that the impact on the election would have been the same. It is reasonable to conclude that the totality of the Board Agent's conduct communicated a criticism of the Employer and thereby encouraged voters to believe that the Board was encouraging them to vote against the Employer's position in the election. I am not convinced that the Board agent dissipated the cloud that had been created over the question of the Board's neu- trality by her statements which sought to assure voters that her only goal was to assure a fair election. For that reason, I do not agree with Petitioner's assertion that this case is controlled by Fenway Cambridge Motor Hotel, 237 NLRB 1540 (1978), enfd. 601 F.2d 33 (1st Cir. 1979). Rather I find controlling, the Board's decision in Gla- cier Packing Co., Inc., 210 NLRB 571, 573 (1974): Board Agents in conducting themselves in behalf of the Board must endeavor to maintain and protect the integrity and neutrality of its procedures. There- fore, while taking all practicable measures to imple- ment the prohibition against electioneering at or near the polls, they must take care that their actions HUDSON AVIATION SERVICES do not tend to foster in the minds of the voters the impression that the Board is not neutral with regard to the choices on the ballot. For the Board's role in conducting elections must not be open to question. Thus, actions by a Board Agent conducting an elec- tion, which could reasonably be interpreted as im- pugning the election standards we seek to maintain, are sufficient grounds for setting aside the election. In Glacier, the Board Agent's conduct occurred in the presence of at most 20 employees who had not yet voted in an election in which 476 votes were cast. In this case 2 out of 38 voters, a higher percentage of voters than in Glacier were aware of the Board Agent's conduct before they voted. In both cases the Employer campaigned against union representation. See also Brinks Armored 875 Car, Inc., 278 NLRB 141 (1986). Accordingly, I recom- mend that this objection be sustained. Finally, I recommend that the Board Agent's remarks prior to the reopening of the poll be found objectionable, because they further suggest that the Board's neutrality is in issue and that the agent might further impugn the Employer or stop the election if her conditions were not met. SUMMARY AND RECOMMENDATIONS Based upon the foregoing findings of fact and conclu- sions of law I have recommended that the Employer's objections be overruled in part, and sustained in part. Accordingly, it is further recommended that the Board election conducted on June 4, 1987 be set aside and a second election held.