Jakel, Inc.

JAKEL INC 615 Jakel, Incorporated and Glass, Molders, Pottery, Plastics & Allied Workers International Union, AFL-CIO, CIC, Petitioner Case 14-RC-10472 April 3, 1989 ORDER DENYING REVIEW BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, CRACRAFr, HIGGINS, AND DEVANEY On December 5, 1988, the Regional Director issued a Decision and Direction of Election in the above-entitled proceeding The Employer filed a timely request for review On January 3, 1989, a three-member panel of the Board' issued an Order denying the Employer's request for review but per- mitting two data entry clerks to vote subject to challenge The election was conducted on January 6, 1989 The tally of ballots revealed 40 votes cast for the Petitioner, 42 votes cast against the Peti- tioner, and 3 challenged ballots The Petitioner filed timely objections to the election On January 26, 1989, the Regional Director issued a Supple mental Decision, Order Approving Withdrawal of Certain Objections, and Order Setting Aside Elec- tion and Directing Rerun Election, pertinent por- tions attached as an appendix, in which he directed that the election conducted on January 6 be set aside and a rerun election be conducted Thereafter, in accordance with Section 102 67 of the Board's Rules and Regulations, the Employer filed a timely request for review of the Regional Director's supplemental decision The Board has carefully considered the entire matter and, for the reasons set forth in the Region al Director's supplemental decision, has decided to deny the Employer's request for review Background The Employer is an Illinois corporation with its pnnci pal offices and place of business in Highland, Illinois, and satellite production facilities in Ramer, Tennessee and Palestine, Illinois, the facility involved where it is en gaged in the manufacture and sale of small electric motors At the time of the election, there were approxi mately 85 employees included in the above unit, under the direction of Plant Manager Gullett On December 19, the Employer filed a Request for Review of the Regional Directors Decision and Direc tion of Election, as it relates to the exclusion from the collective bargaining unit of two data entry clerks as office clerical employees On January 3, 1989, the Na tional Labor Relations Board ordered that the Employ er s Request for Review raised a substantial issue with respect to the unit placement of the two data entry clerks, and concluded that this issue may best be re solved through the challenge procedure Accordingly, the Decision was amended to permit the data entry clerks to vote by challenged ballot The Objections Objections 1 2 3 4 5 and 6 as to Employer conduct affecting the results of the election and Objection 2 as to conduct of the election On January 18, 1989, the Petitioner submitted a writ ten request to withdraw Objections 1, 2, 3, 4, 5, and 6 as to Employer conduct affecting the results of the election, and Objection 2 as to the conduct of the election The Regional Director, having fully considered the matter and having concluded that the withdrawal of Ob jections 1, 2, 3, 4, 5, and 6 as to Employer conduct of fecting the results of the election, and Objection 2 as to the conduct of the election is not inconsistent with the purposes and policies of the Act IT IS HEREBY ORDERED that the withdrawal request as to Objections 1, 2 3 4, 5, and 6 as to Employer conduct affecting the results of the election, and Objection 2 as to the conduct of the election is approved 1 Chairman Stephens and Members Cracraft and Higgins APPENDIX On January 9, 1989, the Petitioner filed two separate sets of objections, one alleging Employer conduct affect ing the results of the election, and one alleging objec tions to the conduct of the election 2 Pursuant to Section 102 69 of the Board 's Rules and Regulations, Series 8, as amended , the Regional Director has caused a full and complete investigation to be made of the objections All evidence adduced during the inves tigation had been fully and carefully considered by the Regional Director who reports and orders as follows 2 Copies of the Petitioner s objections are attached as Exhibits I and 2 respectively Objection 1 as to conduct of the election In its first objection as to the conduct of the election, the Petitioner alleges that "When Tamara Newlin (one of the data entry clerks whose eligibility was to be deter mined by the challenge procedure) got up to vote, she gave her name, received a ballot from the NLRB agent (without a challenge envelope), entered the voting booth, apparently marked her ballot, exited the voting booth, and put her ballot in the ballot box As she was putting her ballot in the ballot box, the union observer told the NLRB agent that it was to be a challenged ballot The NLRB agent went to the ballot box, opened it, took a ballot from the ballot box, and showed it to Tamara Newlin, asked Ms Newlin if it was her ballot, and destroyed the ballot when Ms Newlin answered that it was her ballot The Board agent gave Ms Newlin a new ballot, accompanied by a challenge envelope Ms Newlin then cast her vote on the second ballot The Employer contends that the conduct alleged in this ob 293 NLRB No 72 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jection does not provide a basis upon which the election may be set aside In support of its objection, the Petitioner presented its observer who was present in the polling place during the conduct of the election The Board agent assigned to in vestigate the objections also interviewed the Employer s observer and the Board agent who were present in the polling place during the conduct of the election The investigation disclosed that Tamara Newlin is em ployed as a data entry clerk and, as noted, her eligibility to vote was left to resolution through the challenge pro cedure Newlin also served as an Employer observer in the polling place during the conduct of the election At a time when no other voters were present in the polling place, Newlin asked the Board agent conducting the election if she could vote, and the Board agent stated that she could Newlin stated her name, the Petitioner s observer and Newlin marked off her name from the eligi bility list, and the Board agent gave Newlin a ballot and instructed her to cast her ballot As Newlin was deposit ing her ballot in the ballot bag, the Petitioners observer advised the Board agent that Newlin was to vote by challenged ballot The Board agent, in Newlin s pres ence, observed a ballot which was believed to be New lin s at the top of the ballot bag The ballot had not fallen completely through the opening in the ballot bag and the Board agent attempted to retrieve the ballot by pulling it through the slot on top of the bag The Pets tioner s observer and Board agent state that the Board agent was unable to retrieve the ballot through the slot, and opened the ballot bag and reached into the ballot bag to remove the ballot which was believed to be the ballot cast by Newlin Newlin advises that she does not recall whether the ballot was removed through the slot or by opening the ballot bag After removing the ballot, the Board agent showed the ballot to Newlin who iden tified the ballot as the ballot which she cast The Board agent tore the ballot into pieces, and the pieces were placed in a challenged ballot envelope and marked spoiled Newlin was given a second ballot and in structed as to the procedure to follow in casting a chal lenged ballot After marking her ballot, Newlin exited the voting booth and placed this ballot in a challenged ballot envelope provided by the Board agent Newlin then deposited the envelope in the ballot bag Newlin s challenged ballot was one of three challenges which were sufficient in number to affect the results of the elec tion In these circumstances the undersigned concludes that the conduct considered here provides a basis upon which the election may be set aside In assuring the integrity of the election process, the Board goes to great lengths to ensure that the manner in which an election was con ducted raises no reasonable doubt as to the fairness and validity of the election Peoples Drug Stores Inc, 202 NLRB 1145 (1973) Polymers Inc, 174 NLRB 282 (1969) In Athbro Precision Engineering Corp 166 NLRB 966 (1967), the Board set forth the following standard for conduct by its agents The Board in conducting representation elections must maintain and protect the integrity and neutrals ty of its procedures The commission of an act by a Board Agent conducting an election which tends to destroy confidence in the Board s election process, or which could reasonably be interpreted as im pugning the election standards we seek to maintain, is a sufficient basis for setting aside the election Based on the foregoing, I conclude that the removal of a ballot from the ballot bag by the Board agent compro mised the integrity of the election process and constitut ed conduct which would destroy confidence in the Board s election process Moreover, it cannot be deter mined with reasonable accuracy whose ballot was ex tracted from the ballot bag Further Newlin was one of three voters whose challenged ballots were sufficient in number to affect the results of the election, and the de sires of the employees in the election can be accurately ascertained only by setting the election aside and direct ing a new one F N Joslin Co 79 NLRB 1048 (1948) Accordingly, the objection is sustained Conclusion and Order The undersigned Regional Director, having approved the Petitioners request to withdraw Objections 1 2 3 4 5, and 6 as to Employer conduct affecting the results of the election and Objection 2 as to the conduct of the election, having concluded that Objection 1 as to con duct of the election provides a basis on which the elec tion should be set aside the undersigned further orders that the election be set aside and that a rerun election be conducted 3 3 Where it has been ordered that the election be set aside to preserve the integrity of the Board s election process without regard to the out come of the election it is not necessary to rule concerning the challenged ballots