Kirsch Drapery Hardware

KIRSCH DRAPERY HARDWARE 363 Kirsch Drapery Hardware and General Drivers, Warehousemen and Helpers, Local 745, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CI0, 1 Petitioner. Case 16-RC-9099 August 6, 1990 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT The National Labor Relations Board has consid- ered objections to an election held December 5, 1988, and the hearing officer's report recommend- ing disposition of them The election was conduct- ed pursuant to a Stipulated Election Agreement The revised tally of ballots shows four votes for and four against the Petitioner, with no challenged ballots The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has reviewed the record in light of the exceptions and brief, and, for the reasons set forth below, has decided to adopt the hearing offi- cer's findings and recommendations 2 only to the extent consistent with this decision, and finds that a certification of results of election should issue At the conclusion of the heanng, the heanng of- ficer on his own initiative raised the issue of Board agent misconduct during the election In his report, he concluded that the cumulative effect of the Board agent's conduct was sufficient to interfere with the election The Employer excepts, and we find ment in the Employer's exceptions The election was scheduled to be conducted be- tween 10 and 10 30 a m, with the preelection con- ference scheduled for 9 30 a m The Board agent did not arrive at the election site until 10 15 a m, and the polls did not open until approximately 10 30 a m The Board agent allowed the Employ- er's manager of employee relations and the union organizer to assemble the voting equipment while she gave instructions to the observers 3 During the preelection conference, the parties agreed that Larry T Mariam, the voter whom the Petitioner was challenging, should vote first He was given a On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 In the absence of exceptions, the Board adopts, pro forma, the hear- ing officer's recommendations that the Petitioner's Objections 1 through 5 be overruled 3 It is unclear whether the observers were provided with wntten in- structions as well ballot, which he took into the voting booth and marked 4 He then handed the ballot to the Board agent and left The Board agent placed the ballot in a challenge envelope, sealed the envelope, and placed it in the ballot box When all the votes had been cast and the parties returned to the polling area to witness the count- ing, the Board agent attempted to resolve the chal- lenged ballot The union observer insisted that Mariam was ineligible because he was quitting the next day The Board agent listened to his conten- tion and explained that the contention was insuffi- cient to find Mariam ineligible because Mariam was still employed by the Employer on the day of the election The union organizer suggested that the Board agent first open and count the unchallenged ballots, which she did The tally showed four votes cast for and three against the Petitioner The Board agent again attempted to resolve the challenged ballot The union observer maintained that the voter was ineligible The Board agent again ex- plained that the reasons given for the challenge, namely, that the voter had been "bought" and that the Employer had held discussions with employees the day before the election, might be objectionable conduct, but that they did not pertain to the voter's eligibility After extended discussion, the Board agent announced she was going to open the ballot unless there was further objection When there was no response, she opened the challenged ballot The tally of ballots was revised to reflect four votes cast for and four against the Petitioner The hearing officer found that none of the above incidents, by themselves, were sufficient to iet aside the election We agree with this conclusion However, the hearing officer went on to find that the cumulative effect of the incidents was sufficient to warrant setting aside the election We disagree with this conclusion for the reasons set forth below Although it is certainly desirable for a . Board agent to arrive at the polls at the designated time, this is not always possible Generally, elections will not be set aside when, as here, no voters were dis- enfranchised by the delay See Celotex Corp, 266 NLRB 802, 803 (1983) Further, a Board agent's soliciting the assistance of others to erect voting equipment amounts to nothing more than delegat- ing inconsequential tasks, which is insufficient to destroy the Board's appearance of neutrality See US Ecology Inc v NLRB, 772 F 2d 1478 (9th Cir 1985) 4 The Petitioner's observer testified that he challenged the voter, but could not remember exactly when he did so 299 NLRB No 46 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Similarly, we see no irregularities in the manner in which Mariam cast his ballot which warrant set- ting aside the election. Thus, although Mariam was allowed to vote ahead of the other voters, this pro- cedure was agreed to by both parties and thus did not indicate any partiality by the Board agent. Fur- ther, we agree that the Board agent did not follow the guidelines contained in the Board's Casehan- dling Manual when the Board agent herself took the marked ballot from the voter, sealed it in the challenge envelope, and deposited it in the ballot box, rather than directing the voter to carry out these steps.° We do not find, however, that the Board agent's failure to follow these guidelines sig- nificantly impaired the election in view of the ab- sence of any evidence of ballot tampering or evi- dence that either the Board agent or any potential voter saw how Mariam had voted. The Board agent's clearing the challenge is more troubling, but we nonetheless do not find in this a ground for overturning the election. The guidelines call for the agent's attempting to dispose of the challenge before beginning the count; and while the agent is free to "encourage" parties to dispose of challenges "(i.e., remove or sustain the challenge)," particular actions are not to be "urged if there is re- luctance in any quarter." The matter "should not be allowed to devolve into an argument on the merits or to delay the count unduly." 7 Further, if a party representative, after appropriate encourage- ment, agrees to withdraw a challenge and no other party wishes to challenge the voter, the agreement for resolving that challenge is to be noted in writ- ing on the stub of the challenge envelope and ini- tialed by the parties; the stub is then removed and preserved and the ballot is dropped into the ballot box.° Here the agent (1) turned to this challenge after she had tallied the unchallenged ballots, (2) engaged in discussion on the merits of the Petition- er's challenge—a discussion that went beyond "en- couragement" to withdraw the challenge—and, (3) did not, after the Petitioner's representative ap- peared tacitly to acquiesce in the agent's suggested disposition of the challenge, secure an express withdrawal of the challenge, memorialize the dis- position, and have the parties initial that record. We find no basis for the Petitioner's reliance on the first error because the agent's action in first tal- lying the unchallenged ballots before turning to the challenges was done at the suggestion of. the Peti- tioner's representative. We decline to overturn the 5 Sec. 11338.1 of the Board's Casehandlinz Manual (Manual) provides that the challenged voter should place the marked ballot in the envelope, seal the envelope, and drop it in the voting box. 6 Sec. 11340.3 of the Manual (emphasis in original). 7 Ibid. Id. at Sec. 11340.3(b). election on the basis of the agent's unduly pro- longed discussion of the Petitioner's challenge and . the failure to secure a withdrawal and to memorial- ize the disposition of the challenge because we see no prejudice to the Petitioner. The challenge on its face was plainly unmeritorious, so even if the chal- lenge had been left for resolution by the Regional Director (as it should have been, in the absence of the Petitioner's affirmative act of withdrawing it), the result would have been the same.° We decline to set the election aside on the basis of the foregoing deviations from the guidelines contained in the Manual because, for the reasons stated above, we find that, considered separately or cumulatively, they do not raise a "reasonable doubt as to the fairness and validity of the election." Poly- mers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969). The guidelines included in the Manual are not binding procedural rules, but are intended to provide operational guidance in the handling of representation cases. NLRB Casehan- dling Manual (Part Two) Representation Proceed- ing, Introduction and Purpose. See also Patrick (I Co., 277 NLRB 477, 479 (1985) (unfair labor prac- tice case). Although compliance with the guide- lines contained in the Manual is desirable because those guidelines are intended to safeguard a free and fair election, the Board acknowledges the need to "avoid unrealistic standards which insist on im- probable purity of word and deed on the part of the parties or Board agents." Newport News Ship- building, 239 NLRB 82, 91 (1978), remanded for hearing 594 F.2d 8 (4th Cir. 1979).1° 'An allegation that a voter will quit the day after the election is not grounds for declaring the voter ineligible (D. J. W. Cartage, 231 NLRB 1163 (1977)); and the arguments of Petitioner's representative regarding alleged improper actions by the Employer could properly be raised only as objections filed after the final tally of ballots was made available to the parties. We also do not agree that the Board agent's conduct in clearing the challenge showed a partiality that impugned the integrity of the election. This case is clearly distinguishable from Hudson Aviation Services, 288 NLRB 870 (1988), on which the hearing officer relied. In Hudson, a Board agent, mistakenly believing that the parties had agreed that no more than one supervisor could remain in a dispatcher's office near the polling area, engaged in a "loud argument" with the employer's assistant manager, thereby communicating "the impression that the Board was dis- pleased with and was criticizing the Employer's assistant manager." Id. 10 Neither Harry Lunstead Designs, 270 NLRB 1163 (1984), nor Papri- kas Fono, 273 NLRB 1326 (1984), cited by the hearing officer, holds to the contrary. The Board did refer to the Manual guidelines in setting aside elections in those cases, but it did not rely on the mere fact that the guidelines were not adhered to. In Harry Lunstead Designs, various errors of the Board agent effectively denied a party's representative the oppor- tunity to challenge a voter who was in fact ineligible to vote. In the present case, by contrast, the Board agent's clearance of the Petitioner's challenge resulted in counting the vote of an employee found to be eligi- ble. In Paprikas Fono, the Board found that the handling of challenged ballots after the election gave rise to doubts concerning whether they had been adequately protected from tampering, a matter bearing on the elec- tion's validity. Here, the Board agent's conduct in question occurred in the sight of both parties, and there was no indication that the ballot counted after the challenge was cleared could be anything other than the ballot marked by employee Mariam. KIRSCH DRAPERY HARDWARE 365 We therefore find that the effect of the Board agent's conduct was not sufficient to warrant set- ting the election aside Accordingly, we will issue a Certification of Results of the Election CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for General Drivers, Ware- housemen and Helpers, Local 745, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of Amenca, AFL-CIO and that it is not the exclusive repre- sentative of these bargaining unit employees