Affiliated Computer Services

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 899 (N.L.R.B. 2010)

AFFILIATED COMPUTER SERVICES
355 NLRB No. 163
899
Affiliated Computer Services, Inc. and Communica-
tion Workers of America, Petitioner. Case 29–
RC–11709
August 27. 2010
ORDER DENYING REVIEW
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
The National Labor Relations Board, by a three-
member panel, has carefully considered the Employer’s
request for review of the Regional Director’s Supple-
mental Decision on Objections (pertinent portions of
which are attached as an appendix), in which he over-
ruled all of the Employer’s objections to an election and
issued a certification of representative.1 The Petitioner
filed an opposition. The request for review is denied as it
fails to raise substantial issues warranting review.2

1 Pursuant to the Regional Director’s Decision and Direction of
Election, the election was conducted on May 28, 2009. The tally of
ballots showed 144 for and 126 against the Petitioner, with 2 chal-
lenged ballots, a number insufficient to affect the results of the election.
The Employer filed objections to the election. The Regional Director
conducted an investigation of the objections, and overruled them in
their entirety.
2 On June 18, 2009, the two sitting members of the Board issued an
Order denying review of the Regional Director’s Decision and Direc-
tion of Election in this proceeding. On June 17, 2010, the United States
Supreme Court issued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Sec. 3(b) of the Act, in order to
exercise the delegated authority of the Board, a delegee group must
maintain three members. On June 28, 2010, the Employer filed a mo-
tion to vacate the Board’s June 18, 2009 Order. The Petitioner filed an
opposition to the motion, and the Employer filed a response. We have
considered the preelection representation issues raised by the Em-
ployer, and we find them without merit. Accordingly, we affirm the
prior denial of the request for review.
In addition, the Employer also contests the Regional Director’s ac-
tions subsequent to the denial of review, encompassing his tally of
ballots and the issuance of his Supplemental Decision, including a
Certification of Representative. We find that the election was properly
held and the tally of ballots is a reliable expression of the employee’s
free choice.
As an initial matter, had the Board decided not to issue decisions
during the time that the delegee group consisted of two Board mem-
bers, the Regional Director would have conducted the election as
scheduled and impounded the ballots. In this regard, Sec. 102.67(b) of
the Board’s Rules and Regulations states:
The Regional Director shall schedule and conduct any election di-
rected by the [Regional Director’s] decision notwithstanding that a re-
quest for review has been filed with or granted by the Board. The fil-
ing of such a request shall not, unless otherwise ordered by the Board,
operate as a stay of the election or any other action taken or directed
by the Regional Director: Provided, however, That if a pending re-
quest for review has not been ruled upon or has been granted[,] ballots
whose validity might be affected by the final Board decision shall be
segregated in an appropriate manner, and all ballots shall be im-
pounded and remain unopened pending such decision. (Emphasis in
original.)
I.
The Employer's Objections 4 through 6 concern letters
from United States Congressman Michael McMahon and
New York State Senator Diane Savino that were circu-
lated to employees.3 In his letter dated March 17, 2009,4
to the Employer, Congressman McMahon expressed
“concern regarding relations” between the Employer and
its employees “residing within my district.” Noting that
he was on the House of Representatives Transportation
and Infrastructure Committee, the Congressman com-
mended the Employer for its work in operating the EZ-
Pass electronic toll system system. The letter observed
that the Employer had “trimmed [employees’] benefits”
and altered its salary structure, and stated the Congress-
man's concern that the employees were working under
suitable conditions and receiving fair compensation. The
letter concluded with an offer to work with both the Peti-
tioner and the Employer to ensure that its workers were
being treated fairly. Congressman McMahon’s letter was
distributed to the Employer’s employees by unnamed
“union supporters.”
In an undated letter addressed to the Employer’s em-
ployees, State Senator Savino stated that she was aware
that the Employer was planning to impose a new com-
pensation plan “that may result in layoffs in our state and
in the borough that I represent.” Noting her membership
on the State Senate Transportation Committee that over-
sees operations like EZ-Pass, Senator Savino expressed
her desire that employees be treated fairly. This letter,
too, was distributed to the Employer’s employees by
unnamed union supporters a few days after the distribu-
tion of Congressman McMahon’s letter.

See also Casehandling Manual (Representation) Secs. 11274,
11302.1(a) (same). In such a situation, after resolving the representa-
tion issues, we would direct that the impounded ballots be opened and
counted.
Thus, it is clear that the decision of the two sitting Board Members
to continue to issue decisions did not affect the outcome of the election.
With or without a two-member decision on the original request for
review, the election would have been conducted as scheduled. This
result is required by Sec. 102.67(b) of the Board’s Rules, and, under
New Process Steel, the two sitting Board Members did not have the
authority to issue an order directing otherwise. Since the timing of the
election was not affected by the issuance of a two-member decision on
the request for review, we find that the decision of the Regional Direc-
tor to open and count the ballots was, at most, harmless error that did
not affect the tally of ballots. Accordingly, we will rely on the results
of the election. Thus, we deny the Employer’s motion. To the extent
the motion contests the Region’s actions with respect to an unfair labor
practice complaint that has issued, we find that this is not the proper
proceeding in which to raise such issues.
3 The letters are attached to the Regional Director’s Supplemental
Decision.
4 All dates hereafter are in 2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
The Employer responded to both of those letters on
April 6. The Employer defended its conduct, disputed
Savino’s claims about possible layoffs, and indicated that
it considered employee relations to be critical. The Em-
ployer posted its responses at its facility, and held group
meetings with employees on April 8 to discuss the issues
raised by McMahon’s and Savino’s letters. Thereafter,
by letter dated April 22 to the Employer, Senator Savino
offered, among other things, to host an “open forum” for
the parties to discuss the issues “in an atmosphere free
from innuendo or threats.” The Employer declined that
offer.
On those facts, we agree with the Regional Director
that the Employer has failed to establish that the letters
under consideration constitute objectionable conduct.
II.
It is well settled that representation elections are not
lightly set aside. The burden is on the objecting party to
show by specific evidence that there has been prejudice
to the election. See NLRB v. Mattison Machine Works,
365 U.S. 123, 123–124 (1961). The Employer has not
met that burden in this case.
There is no merit to the Employer's argument, taken up
by our dissenting colleague, that the elected officials’
letters would mislead reasonable employees into believ-
ing that the Government supported the Petitioner in the
election. Rather, we find that reasonable employees
would recognize those letters as mere expressions of
opinion by the individual public officials who wrote
them, notwithstanding that they were written on their
official stationery. See Trump Plaza Hotel & Casino,
352 NLRB 628, 629 (2008); see also Chipman Union,
Inc., 316 NLRB 107, 107–108 (1995) (U.S. Representa-
tive's letter written on congressional stationery recogniz-
able as personal opinion). Further, there is no evidence
whatsoever that the employees reasonably would be con-
fused about the Board’s neutrality. See Ursery Cos., 311
NLRB 399, 399 (1993).5

5 The dissent states that none of the correspondence indicated that
“employees have freedom of choice under Federal law to vote as they
choose either for or against the Union.” In fact, Senator Savino’s first
letter observed “that [employees] will soon decide whether or not to
join the [Union].” In her second letter, Senator Savino noted that the
“ongoing issue of unionization” was “an important one,” agreed with
the Employer that “all employees should have the right to hear both
sides of the issue,” and offered to host an open forum to discuss that
“important issue.” These appear to be neutral remarks truthfully setting
out the contours of the election process. Similarly, Congressman
McMahon’s letter recognized that the employees themselves would
decide whether to unionize. The fact that he effectively endorsed the
Petitioner by discouraging the Employer from attempting to dissuade
employees from unionizing was not objectionable. See Saint-Gobain
Abrasives, Inc., 337 NLRB 82, 82 (2001). Moreover, as shown above,
the Employer met with its employees in groups after Congressman
We also reject the Employer’s argument, again taken
up by the dissent, that the elected officials’letters threat-
ened adverse economic consequences if the Petitioner
lost the election. As the Regional Director explained, the
Board’s standard for evaluating alleged third-party
threats is whether they created among voters a general
atmosphere of fear and reprisal. See Westwood Horizons
Hotel, 270 NLRB 802, 803 (1984). None of the letters
here, however, contains any threat, express or implied, to
punish the Employer or the employees, or to treat them
differently, based on the outcome of the election.
The dissent states that it is myopic to “ignore the influ-
ence” that the public officials’ letters may have had on
employees choice and that “reasonable employees” could
not “interpret the message conveyed as a neutral one
merely advocating their exercise of free choice.” But
public officials, even public officials involved in the
regulation of the employer’s industry, like other third
parties, are not required to remain neutral and may prop-
erly seek to persuade employees. The only question here
is whether the letters went beyond persuasion to create “a
general atmosphere of fear and reprisal.”6
The dissent focuses on the fact that the elected officials
in this case sit on committees that oversee the industry in
which the Employer operates its business. In the dis-
sent's view, the officials “prominently trumpeted” their
memberships on those committees to intimate that they
could and would adversely affect the Employer's busi-
ness if the Petitioner lost the election. But, in fact, Con-
gressman McMahon's letter notes his committee mem-
bership only in the context of establishing his under-
standing of the importance of electronic toll collection
and commending the Employer's work. Similarly, Sena-
tor Savino noted her committee membership to explain
her concern over transportation matters and her desire
that EZ-Pass workers, including the Employer's employ-
ees, be treated fairly. Nothing in their letters can rea-
sonably be construed as a “veiled threat” of adverse con-
sequences to the Employer’s business or to the employ-
ees’ job security if the Petitioner were not selected as the

McMahon’s and State Senator Savino’s initial letters were distributed,
and it had ample opportunity to correct any misperceptions they might
have created.
6 Although the dissent claims to have “no quarrel” with elected offi-
cials expressing their personal opinions, our colleague nonetheless
objects to the fact that these officials “interject[ed] themselves directly
into the campaign.” However, the Board has long held that public
officials’ involvement in union election campaigns is not objectionable,
see, e.g., Micronesian Telecommunications Corp. v. NLRB, 820 F.2d
1097, 1102 (9th Cir. 1987) (government officials’ active campaigning
not objectionable in the absence of evidence that it caused confusion
regarding the Board’s impartiality or interfered with employee free
choice), and the Board, of course, lacks authority to control the expres-
sive activity of other public officials.
AFFILIATED COMPUTER SERVICES 901
employees' representative as the dissent contends.7 In-
deed, as noted, both officials' letters recognized that it
was the employees' choice whether to unionize.
For those reasons, we find no merit to the Employer's
Objections 4-6.8 Accordingly, we deny review.

MEMBER SCHAUMBER, dissenting in part.
Unlike my colleagues I would grant review and re-
mand for hearing on the Employer’s Objections 4-6 in-
volving letters from public officials distributed to unit
employees during the critical period.
The Employer performs services for various govern-
mental entities, including the New York State Thruway
Authority, for which it administers the state E-Z Pass
program. The objections at issue involve three letters
predating the May 28, 2010 election. The first is a letter
dated March 17 from U.S. Congressman McMahon. The
second two, one undated and an April 22 follow up to
that, are from New York State Senator Savino. 1 The
letters are written on official stationery and include
statements that both elected officials are members of
their respective Congressional and state transportation
committees, which, it is clear, regulate various transpor-
tation services such as those provided by the Employer.
Most pertinently, State Senator Savino’s initial letter
explicitly notes that, through her committee membership,
she oversees transportation operations such as E-Z Pass.
As the majority sets out in some detail, the letters gener-
ally express support for the Union and concerns that the
Employer is not treating its employees fairly, that the
Employer is in the process of changing its employees’
compensation system so that layoffs are possible, and

7 A consistent application of the dissent’s position would require that
the Board find that any written communication from an employer on its
letterhead, emphasizing the reasons for its interest in the election out-
come, and expressing concern about the union campaign (or opposing a
vote for the union) contains a “veiled threat” and is objectionable as an
as employer surely poses a more direct threat to employees’ livelihoods
that the individual public officials at issue here.
8 We also disagree with our dissenting colleague that those objec-
tions warrant a hearing. See Park Chevrolet-Geo,, 308 NLRB 1010 fn.
1 (1992) (to warrant a hearing, the objecting party’s evidence must
raise "substantial and material" issues that, if proved, would warrant
setting aside the election). The dissent points to no evidence that might
be relevant here beyond the letters themselves. The suggestion that the
elected public officials here, a United States Congressman and a New
York State Senator, were acting as agents of the Union (and thus that a
hearing is needed to determine if the Regional Director properly ap-
plied the third-party standard) lacks any foundation in the objections
and is highly implausible.
1 Two additional letters postdating the three discussed above were
also submitted by the Employer in support of this group of objections.
The Regional Director, however, determined that there was no evidence
that these letters were distributed to employees before the election.
Because the Employer does not dispute the Regional Director’s deter-
mination that these letters were not disseminated during the critical
period, I will not consider them further.
that the Employer opposes the Union. Two of the three
letters were appended to undisputed union campaign
propaganda.
In my view, these letters upset the requisite laboratory
conditions necessary for a fair election. The majority
overstates my position–to be clear, I have no quarrel with
elected officials, like any other members of the public,
expressing personal views for or against unionization
during the course of an election campaign. I question,
however, the manner in which those views were ex-
pressed by the public officials who interjected them-
selves into the organizing campaign in this case.
Initially, I believe it is myopic to ignore the influence
that correspondence, such as the letters at issue, may
have on voters’ exercise of their free choice. Although
this correspondence is couched as expressing only per-
sonal views, the letterhead and references to official du-
ties as a member of Congress and a state legislature con-
vey the impression of high-level governmental support
for the Union and governmental scrutiny of the Em-
ployer, its business and employment practices, and its
contractual relations with public sector clients vital to the
Company’s survival. A more than cursory reading of the
letters reflects the underlying message that important
government representatives stand behind the Union, that
these officials lack confidence in the Employer’s fair
treatment of its employees, and that the weight of the
government could be brought to bear should the union
lose.
Additionally, both officials sought to interject them-
selves directly into the campaign. Congressman McMa-
hon’s letter suggests that he could work personally with
the parties to ensure fair treatment of the Employer’s
employees. In the second of State Senator Savino’s let-
ters, she specifically offers to conduct a meeting “jn an
atmosphere free from innuendo and threats.” Clearly,
these are thinly veiled allusions to the officials’ negative
perception of the Employer’s conduct during the cam-
paign as interfering with employees’ free choice. And
despite perfunctory references in the letters to the em-
ployees’ important decision whether or not to unionize,
noted by the majority, nowhere in any of the correspon-
dence do these government officials mention that em-
ployees have freedom of choice under Federal law to
vote as they choose either for or against the Union.
Given the overwhelming tone of the letters, I do not be-
lieve that reasonable employees confronted with this
important choice would focus on isolated statements and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
interpret the message conveyed as a neutral one merely
advocating their exercise of free choice.2
Most significantly, and it is the factor that distin-
guishes this case from others involving mere letters of
support,3 the government officials here prominently
trumpeted their memberships on transportation commit-
tees that support and oversee the Employer’s operations.
In so doing, the officials inappropriately interjected
themselves in this election by intimating that, through the
exercise of their substantial political power, they could
and would impact the Employer’s business depending on
the outcome of the election. The majority’s reliance on
the fact that the letters contain no explicit threats to the
Employer’s business ignores the reality of how these
letters would likely affect potential voters and interfere
with laboratory conditions necessary for a fair election.
In my view, the Board cannot cast a blind eye on the
coercive effect on voters of elected officials’ veiled
threats to withdraw public funding essential to the con-
tinuation of the employer’s operations and hence the em-
ployees’ job security.4
I would therefore find that the Employer has estab-
lished a prima facie case that these letters destroyed labo-
ratory conditions necessary for a fair election. Thus, I
would remand these objections for a hearing. At such
time, and contrary to the majority’s summary rejection of
the Employer’s argument that the officials here were
acting on the Union’s behalf, I would permit the Em-
ployer to litigate its allegations that the Union itself was
responsible for preparing and distributing the letters at
issue (the Regional Director assumed the latter for pur-
poses of his decision), and that an agency relationship
existed between the Union and the elected officials who
signed the letters. If these allegations were established at
hearing, it would mandate analysis of the objections un-
der the Board’s more stringent standard for evaluating
whether party conduct interfered with employees’ free
and uncoerced choice sufficient to materially affect the

2 I am also not persuaded by the majority’s suggestion that the Em-
ployer had “ample opportunity” to ameliorate any possible mispercep-
tions in the public officials’ letters. There is simply nothing the Em-
ployer could have done here to assure its employees that these influen-
tial public officials’ support for the Union would not translate into
adverse consequences for the Employer and its employees if the voters
had not chosen representation.
3 See, e.g., Chipman Union, Inc., 316 NLRB 107 (1995).
4 Public officials, unlike others and, pertinently, unlike employers,
have unique power over government resources and can use that power
to influence funding and policy decisions that broadly impact the eco-
nomic landscape. They are not analogous to consumers. Thus, I would
not compare this case to those in which the Board found permissible
under Sec. 8(c) an employer’s truthfully publicizing its private custom-
ers’ statements that they would withdraw their business if or because
the employer’s employees became unionized.
outcome of the election.5 In any event, I would permit
the Employer to pursue at hearing its assertion that these
officials’ letters warranted setting aside the election un-
der the Board’s non-party standard.6
In short, while I do not question the right of public of-
ficials to express their personal views either in support of
or against unionization, it is the Board’s province to
safeguard the laboratory conditions of elections con-
ducted under its auspices. Accordingly, I respectfully
dissent from my colleagues’ denial of review.7
APPENDIX
REGIONAL DIRECTOR’S SUPPLEMENTAL
DECISION ON OBJECTIONS
. . . .
OBJECTIONS. 1, 2, 3, AND 7
In its first objection, the Employer alleges that during
the critical period prior to the election, the Petitioner
physically and verbally intimidated, coerced, and threat-
ened bargaining unit employees with injury and other acts
of retribution, if they voted for the Employer in the elec-
tion. In its second objection, the Employer alleges that
during the critical period prior to the election, the Peti-
tioner offered bargaining unit employees unlawful in-
ducements to vote for the Petitioner. In its third objection,
the Employer alleges that during the critical period, the
Petitioner destroyed campaign literature prepared by the
Employer before the Employer could distribute it to em-
ployees. In its seventh objection, the Employer alleges
that during the critical period before the election, “just
prior to the election,” the Petitioner trespassed on the Em-
ployer’s facility and disrupted an Employer-sponsored
captive audience meeting for the purpose of coercing bar-
gaining unit employees into voting for the Petitioner. The
Petitioner asserts that these objections lack merit.
In support of its first objection, the Employer provided
an affidavit from a unit employee employed at the Em-
ployer’s Staten Island facility. According to this em-

5 See Baja’s Place, 268 NLRB 868 (1984).
6 The Board’s standard for evaluating third-party conduct is whether
it created among voters a general atmosphere of fear and reprisal. See
Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). However, I
have stated that I would set aside an election in circumstances where
misconduct by a nonparty during the critical period affects a determina-
tive number of voters, even if that conduct does not create a general
atmosphere of fear and reprisal. See my dissent in Accubuilt, 340
NLRB 1337, 1339 fn. 6 (2003). Under my view, if the Employer dem-
onstrates at hearing that these letters were objectionable and dissemi-
nated to a determinative number of voters, I would set aside the elec-
tion, without application of the nonparty standard.
7 I reject the majority’s interpretation of precedent suggesting that
the Board’s inquiry is appropriately focused solely on whether public
officials’ endorsements would raise confusion among voters with re-
spect to the Board’s neutrality. Simply that employees would not be
confused regarding the Board’s impartiality does not resolve whether
the compromised position of public officials with the power to affect
the employees’ livelihoods interferes with employees’ free choice.
AFFILIATED COMPUTER SERVICES 903
ployee’s affidavit, about one week prior to the election,
s/he was wearing a “Vote No” button on the work floor.
According to the affidavit, two “Union supporters verbally
intimidated” the employee about the button. The affidavit
continues, stating that the “Union supporters” were trying
to draw the employee into an argument, and that the em-
ployee “ultimately had to walk away to avoid their contin-
ued intimidating behavior.” The affidavit does not iden-
tify the Union supporters or provide any specific informa-
tion regarding their “intimidating” behavior.
The Board has held that an objecting party must provide
probative evidence in support of its objections; it is not
sufficient to rely on mere allegation or suspicion. See
Allen Tyler & Son, Inc., 234 NLRB 212, 212 (1978) (“In
the absence of any probative evidence, [the Board] shall
not require or insist that the Regional Director conduct a
further investigation simply on the basis of a ‘suspicious
set of circumstances’”). In Audubon Cabinet Co., 119
NLRB 349 (1957), the employer filed objections alleging,
inter alia, that the union had “threatened, intimidated, and
coerced” employees. In its offer of proof, the Employer
identified witnesses but did not provide any specific evi-
dence about what would be their testimony. The Board
found that this offer of proof was not sufficient to warrant
further investigation: “Objections, to merit investigation
by a Regional Director, must be reasonably specific in
alleging facts which prima facie would warrant setting
aside an election. . . . In our opinion, the mere allegation
that the Petitioner threatened, intimidated, and coerced
employees constitutes a general conclusion devoid of any
specific content or substance, which fails to satisfy the
Board’s requirement of reasonable specificity in the filing
of objections.” Audubon Cabinet, 119 NLRB at 350–351.
Here, the Employer has not provided any evidence that the
conduct in question is attributable to the Petitioner, as the
affidavit fails to identify the “Union supporters.”16 Fur-
ther, the Employer has offered no evidence beyond its
mere conclusory allegations that these unidentified indi-
viduals “verbally intimidated” an employee. Such evi-
dence, lacking any specificity, is not sufficient to establish
a prima facie case supporting an objection, and does not
warrant further investigation under Board law.
With regard to its second, third, and seventh objections,
the Employer has not produced any evidence showing that
the Petitioner engaged in the conduct alleged therein. It is
incumbent on the party filing objections to provide evi-
dence sufficient to prove a prima facie case within seven

16 The Employer’s evidence does not establish that these alleged in-
timidating comments were made by actual agents of the Union and not
prounion employees. Conduct of employees is generally not attribut-
able to a party and must be evaluated under the Board’s standard for
third-party conduct. See Cornell Forge Co., 339 NLRB 733 (2003);
Associated Rubber Co., 332 NLRB 1588 (2000). Third-party conduct
may serve as a basis on which to set aside an election if that conduct is
“so aggravated as to create a general atmosphere of fear and reprisal
rendering a free election impossible.” Westwood Horizons Hotel, 270
NLRB 802, 803 (1984). The Employer has presented no evidence that
the conduct alleged in this objection created such an atmosphere.
days of the date for filing objections. See Craftmatic
Comfort Mfg. Corp., 299 NLRB 514 (1990). If the Re-
gional Director does not receive timely evidence in sup-
port of objections, those objections should be overruled.
See Star Video Entertainment L.P., 290 NLRB 1010
(1988). In order to support objections adequately, a party
must do more than “rely on its bare allegations.” The
Daily Grind, 337 NLRB 655, 656 (2002). A party must at
least identify its witnesses and provide a description of the
evidence the named witnesses could provide. See id. In
this case, the Employer has not provided any information
in support of its second, third, and seventh objections.
The Employer has failed to provide sufficient evidence
in support of its first, second, third, and seventh objec-
tions. Accordingly, I overrule these objections.
Objections 4, 5, and 6
In its fourth objection, the Employer alleges that during
the critical period, the Petitioner disseminated prounion
correspondence from state and federal elected officials
which mislead employees into believing that the govern-
ment encouraged employees to vote for the Petitioner. In
its fifth objection, the Employer alleges that these elected
officials coerced employees’ exercise of free choice in the
election by suggesting that they would use their authority
to influence the flow of public funds for projects favorable
to employees if they voted for the Petitioner or divert
funds from such projects if employees voted against the
Petitioner. In its sixth objection, the Employer alleges that
these elected officials “insinuated” that the employees
would be threatened with layoff if the Employer continued
implementation of its “activity-based” compensation sys-
tem. The Petitioner asserts that these objections lack me-
rit.
The Employer provided affidavits from four employees.
These employees testified that they received copies of
letters from two elected officials during the campaign.
They also testified that, in mid-March, “union supporters”
distributed copies of a letter from United States Con-
gressman Michael McMahon, dated March 17, which was
addressed to Lynn Blodgett, the Employer’s CEO. In this
letter, McMahon stated that he was concerned about the
“relations” between the Employer and its employees.
McMahon further stated that “it has come to my attention
that ACS has recently trimmed the benefits you provide to
this workforce and that salary structures have been altered.
Additionally, I have been informed that management is
attempting to dissuade workers from joining the [Union.]
This is discouraging news and I hope that it is not accu-
rate.” A copy of this letter is attached hereto as Exhibit B.
The four employees further testified that a few days lat-
er, “union supporters” distributed an undated letter from
New York State Senator Diane Savino addressed to ACS
employees. In this letter, Savino expressed concern that
the Employer was introducing a new compensation plan
which could result in layoffs. She stated that she would
work to make sure that ACS employees were treated fair-
ly. She also stated that she knew that employees would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904
soon decide whether they wanted to be represented by the
Petitioner. This letter continued, “I have worked closely
with the CWA for years, and have known them to be a
union that fights each and every day for their members.”
A copy of this letter is attached hereto as Exhibit C.
On the back of this letter was a union flyer entitled
“Multiple Test” telling employees that the Union expected
a decision from the Labor Board shortly and that employ-
ees would be voting in a matter of weeks. A copy of this
flyer is attached hereto as Exhibit D. [Omitted from publi-
cation.]
The Employer also provided an affidavit from Margaret
Cino, its Vice President and a Senior Corporate Counsel.
According to Cino, in late March and early April, manag-
ers at the Employer’s Staten Island facility found copies of
these two letters in the break room and around the Staten
Island facility. Cino notes that although McMahon’s letter
was addressed to Blodgett, the Employer never received a
copy of this letter directly from McMahon. This led her to
contact McMahon’s office in order to ascertain whether
McMahon’s letter was genuine. Cino states that on April
14, a member of McMahon’s staff confirmed that the letter
was genuine and that it had been sent to the Employer by
mail.
On April 6, Ken Philmus, the Employer’s vice president
and managing director, sent responses to McMahon and
Savino in which he stated that ACS considered employee
relations critical. He specifically disputed Savino’s asser-
tions about possible layoffs. These letters were also
posted at the Employer’s facility. Copies of these letters
are attached hereto as Exhibit E.
In addition, on April 8, Cino held group meetings with
bargaining unit members in order to address issues that
had been raised by McMahon and Savino’s letters.
On April 22, Savino responded to Philmus’ letter. She
disputed Philmus’ assertions regarding possible layoffs at
ACS. In addition, she stated that she agreed with Phil-
mus’s assertion that unionization was an important issue
and that employees had the right to hear both sides. To
that end, she invited the Employer to participate in an open
meeting with representatives of the Petitioner to discuss
the issues of the campaign. A copy of this letter is at-
tached hereto as Exhibit F.
The four employees testified that in mid-April, “union
supporters” distributed a copy of this April 22 letter from
Savino. Cino states that she received reports that union
representatives and off-duty employees were distributing
this letter. On the back of this letter was a flyer from the
Petitioner accepting Savino’s invitation to an open meet-
ing with the Employer. A copy of this flyer is attached
hereto as Exhibit G. [Omitted from publication.]
According to Cino, on May 1, the Employer posted a
response to Savino’s letter in which it declined Savino’s
invitation to the meet with the Petitioner. The Employer
did not provide a copy of this posting.
According to Cino, the Employer subsequently received
a second letter from Congressman McMahon in which he
stated that he had heard that the Employer has conducted
many mandatory meetings with employees regarding the
election. He urged the Employer to maintain a balanced
approach and not to prejudice employees. The Employer
does not assert and has presented no evidence that this
letter was distributed to employees. A copy of this letter is
attached hereto as Exhibit H.
Finally, the Employer submitted a letter addressed to
Blodgett from New York City Council Member Kenneth
Mitchell dated May 22. In this letter, Mitchell expressed
his concern that the Employer had reduced employees’
benefits and discouraged employees from joining the Un-
ion. According to Cino, the Employer only received a
copy of this letter after the election. The Employer does
not allege and has presented no evidence that this letter
was distributed to employees. A copy of this letter is at-
tached hereto as Exhibit I.
Discussion
In its fourth objection, the Employer alleges that the Pe-
titioner distributed prounion correspondence from elected
representatives that mislead employees into believing that
the government actively encouraged a vote in favor of
union representation.
According to the four employee witnesses who pro-
vided affidavits, they received the March 17 letter from
McMahon and two letters from Savino with union flyers
copied on the backs of these letters. None of these em-
ployees identified the person or persons who gave them
these letters, stating only that they had received these let-
ters from “union supporters.”17 In her affidavit, Cino
states that she received reports that union representatives
and off-duty employees were distributing the second letter
from Savino dated April 22: however, the Employer pro-
vides no direct evidence that union representatives did so.
In fact, Cino does not identify the source of these reports.
However, Petitioner campaign flyers were printed on the
reverse sides of Exhibits C and F.
Assuming the Petitioner distributed all these letters, the
Employer has not established that the Petitioner engaged
in objectionable conduct. Although the Employer alleges
that the distribution of these letters misled employees into
believing that McMahon and Savino favored the Petitioner
in this election, in my view such claims are, at most, mis-
representations contained in campaign propaganda. The
Board has long held that such misrepresentations do not
constitute grounds for setting aside an election. See Mid-
land National Life Insurance Co., 263 NLRB 127 (1982);
see also TEG/LVI Environmental Services, 326 NLRB
1469 (1998). In such cases, the Board will not consider
the accuracy of campaign claims, but will allow employ-
ees to evaluate such claims for themselves. Midland Na-
tional Life Insurance Co., 263 NLRB at 130, 133. The

17 As discussed above in connection with the Employer’s first objec-
tion, the Employer’s evidence does not establish that union agents
distributed these letters as opposed to prounion employees, which is not
attributable to a party and must be evaluated under the Board’s standard
for third-party conduct. See In re Cornell Forge Co., 339 NLRB 733
(2003); Associated Rubber Co., 332 NLRB 1588 (2000), supra.
AFFILIATED COMPUTER SERVICES 905
Board will intervene only in cases where voters could not
recognize the material as propaganda, such as in the case
of forgery. The Board has specifically declined to find as
objectionable allegations that a party has created an im-
pression that the Government favors one party in an elec-
tion. See Lance Investigation Service, Inc., 257 NLRB
135 (1981); Filmlab Services, 232 NLRB 339 (1977);
Rabco Metal Products, 225 NLRB 236 (1976). The Board
has held that misrepresentations about the neutrality of the
Board itself are not objectionable. Riveredge Hospital,
264 NLRB 1094 (1982); see also TEG/LVI Environmental
Services, 326 NLRB 1469, supra.
In this case, it is clear that these letters were easily un-
derstood by employees as campaign propaganda. In fact,
the two letters from Savino were accompanied by Union
flyers. There is no evidence that these letters were forger-
ies. In fact, Cino admits that the Employer confirmed that
McMahon’s March 17 letter was genuine. Additionally,
the Employer had ample opportunity to respond to the
assertions contained in these letters, as evidenced by the
fact that the Employer responded to McMahon and Sav-
ino, posted its written responses for employees to read,
and held group meetings with employees to address issues
raised by these letters.
As for the May 12 letter from McMahon and the May
22 letter from Mitchell, there is no evidence that these
letters were ever distributed to unit employees. Absent
such evidence, the Employer has not met its evidentiary
burden with regard to this correspondence. Again, even
assuming that the Employer could establish that these
letters were distributed to employees by the Petitioner,
these letters constitute campaign misrepresentations which
will not serve as grounds for setting aside this election.
See Midland National Life Insurance Co., 263 NLRB 127,
supra.
For the reasons explained above, I overrule the Em-
ployer’s fourth objection.
In its fifth objection, the Employer alleges that these
elected officials coerced employees’ exercise of free
choice in the election by suggesting that they would use
their authority to influence the flow of public funds for
projects favorable to employees if they voted for the Peti-
tioner or divert funds from such projects if employees
voted against the Petitioner. In its sixth objection, the
Employer alleges that these elected officials “insinuated”
that the employees would be threatened with layoff if the
Employer continued implementation of its “activity-
based” compensation system.
In these objections, the Employer alleges that the con-
duct of elected representatives affected the election.
Third-party conduct may serve as a basis on which to set
aside an election, but only if that conduct is “so aggravated
as to create a general atmosphere of fear and reprisal ren-
dering a free election impossible.” Westwood Horizons
Hotel, 270 NLRB 802, 803 (1984); see also Phoenix Me-
chanical, 303 NLRB 888 (1991); PPG Industries, Inc.,
350 NLRB 225 (2007). In evaluating whether threats
made by third parties are objectionable under this stan-
dard, the Board will consider whether the threat encom-
passed the entire bargaining unit, whether the threat was
disseminated widely within the unit, whether the person
making the threat was capable of carrying it out, whether it
is likely that employees acted in fear of this party’s capac-
ity to carry out the threat, and whether the threat was “re-
juvenated” close in time to the election. Westwood Hori-
zons Hotel, 270 NLRB at 803. The Employer has not
established a prima facie case that the letters from the
elected officials created such a general atmosphere of fear
and reprisal.
The Employer presents no evidence that McMahon or
Savino’s letters created any fear or concern of reprisal
among employees in the bargaining unit. Neither official
suggested that he or she would attempt to divert public
funds based on the outcome of this election. While Savino
expressed concern that the Employer might lay off em-
ployees, this is clearly not a threat that Savino is attempt-
ing to carry out, or would be able to carry out, should em-
ployees vote against the Petitioner. There is no evidence
that any employee acted in fear due to these letters from
McMahon and Savino. For these reasons, I overrule the
Employer’s fifth and sixth objections.
Objection 8
In its eighth objection, the Employer alleges that just
prior to the election, the Petitioner contacted employees at
their homes and misled them about the impact of im-
pounding the ballots in this election in order to deter em-
ployees from voting. The Petitioner asserts that this objec-
tion lacks merit.
In support of this objection, the Employer provided an
affidavit from a unit employee. This employee stated that
the day before the election, s/he received a telephone call
at home from a union representative who told him/her that
since the ballots were going to be impounded, it did not
matter who s/he voted for or even if s/he voted at all. The
employee stated that s/he believes this union representa-
tive contacted other unit employees, but had not asked any
other employees if they were contacted by the Union.
The alleged statement to a unit employee that his or her
vote did not matter because the ballots would be im-
pounded is a misrepresentation regarding the election
process. As explained above, misrepresentations during
campaigns are not objectionable. Midland National Life
Insurance Co, 263 NLRB 127 (1982); see also TEG/LVI
Environmental Services, 326 NLRB 1469, supra. The
Board has specifically found that misrepresentations about
the impact of an employee’s particular vote are not objec-
tionable. For example, in Community Hospital Inc. of
East St. Louis, 251 NLRB 1080 (1980), the Board found
that it was not objectionable for an employer to urge em-
ployees to vote no and advise employees that “failure to
vote is an automatic yes vote.” See also County Line
Cheese Co., 265 NLRB 1519, 1519 (1982) (in which the
Board found that it was not objectionable for an employer
to tell employees that if the union got a majority of the
votes in the election, it would be “extremely difficult, if
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
not impossible, to ever get the union out of their plant”).
Further, the Employer’s evidence in support of this ob-
jection establishes only that the Petitioner misrepresented
the impact of impounding the ballots in this election to one
bargaining unit employee. For the reasons discussed
above, I overrule this objection.
Objections 9, 10, and 11
In its ninth objection, the Employer alleges that the Re-
gional Office failed to maintain the proper chain of cus-
tody procedures with regard to the impounded ballots cast
in this election, providing a reasonable basis for conclud-
ing that the election process itself was flawed. In its tenth
objection, the Employer alleges that the Regional Office
failed to preserve evidence, thereby creating an inference
that this evidence, if properly preserved, would have es-
tablished that the election process itself was flawed. In its
eleventh objection, the Employer alleges that during the
ballot count on June 26, the tape securing the seal on two
of the envelopes containing impounded ballots was loose,
which compromised the integrity of the seal on these enve-
lopes and created a reasonable inference that the ballots
were not properly sealed and that they were not properly
safeguarded by the Board. The Petitioner asserts that
these objections.l
The Employer offered an affidavit and an attorney dec-
laration in support of these objections. Scott Ryan, the
Employer’s vice president of human resources for its
Transportation Solutions Group, who was present at the
election and at the ballot count, testified by affidavit that
he attended the preelection and postelection conferences
for the two polling sessions of the May 28 election.18
Ryan stated that at the end of the first polling session, he
observed the Board agents conducting the election sealing
the ballot box with tape and he signed his name over the
tape on the box. Before the beginning of the second poll-
ing period, Ryan states that he observed his signature
across the tape sealing the ballot box before that tape was
removed. At the close of the election, the Board agents
conducting the election took the ballots out of the ballot
box and placed the ballots into impounded ballot enve-
lopes.19 Once the ballots were in the envelopes, the Board
Agents sealed the envelopes with tape. Ryan states that he
signed over the tape. The Board agents left the facility
with the impounded ballot envelopes. He could not recall
what the Board agents did with the empty ballot box.
Ryan was also present at the June 26 ballot count at the
Regional Office, as was Nancy Morrison O’Connor, an
attorney for the Employer who provided a declaration in
support of these objections. According to Ryan, at the
count, the Board agent conducting the count removed the
nine impounded ballot envelopes from a larger envelope.
Ryan stated that he had not seen the larger envelope before
and he noted that the date on the larger envelope was May

18 The election was scheduled to take place from 7 a.m. to 10:30 a.m.
and again from 1 to 4 p.m. at the Employer’s Staten Island, New York
facility.
19 Form NLRB-5126.
29, yet the election date was May 28. Before the im-
pounded ballot envelopes were opened, the parties were
given an opportunity to inspect the nine impounded ballot
envelopes. According to Ryan’s affidavit, the tape on two
of the impounded ballot envelopes had loosened. Ryan
stated that the tape looked as if it could have been re-
moved and reaffixed. Ryan does not indicate whether the
envelopes themselves remained sealed, how much of the
tape was loosened, whether his and other signatures over
the seals on these envelopes had been disturbed, or
whether the envelopes contained any other irregularities.
In her declaration, O’Connor stated that the tape on two of
the impounded ballot envelopes had “loosened.” How-
ever, O’Connor did not provide any additional information
about the seals on the envelopes, the signatures over the
seals, or the envelopes themselves.
O’Connor further states that at the June 26 count, she
requested to videotape the count, requested copies of the
impounded ballot envelopes, a copy of the larger envelope
in which the impounded ballot envelopes had been sealed,
a copy of the case file, a copy of the safe’s log, to view the
Region’s safe, and the original ballot box used during the
election. According to O’Connor, the Regional Director
denied these requests.
The Petitioner provided two affidavits in support of its
position that these objections lack merit. Ed Luster, the
Petitioner’s president, who was present at the May 28
election, provided an affidavit in which he testified that
when the ballots were impounded, the Board agents con-
ducting the election emptied the ballot box and distributed
the ballots into impounded ballot envelopes. The Board
agents then sealed the flaps on the envelopes with glue and
asked the parties to sign the envelopes over the seals. The
Board Agents then sealed the envelopes with tape. Luster
stated that the Employer did not object to the manner in
which the ballots were impounded.
Atul Talwar, an attorney for the Petitioner who was pre-
sent at the June 26 count, also provided an affidavit. Ac-
cording to Talwar, he had an opportunity to inspect the
impounded ballot envelopes before they were opened, and
the nine envelopes were all sealed. The tape covered the
signatures over the seals on these envelopes. The signa-
tures were properly aligned on each of the envelopes.
According to Talwar, the tape on two of the envelopes had
“wrinkled” and lifted off the surface of those two enve-
lopes. Talwar states that this occurred on only two enve-
lopes. According to Talwar’s affidavit, the area of tape
that had loosened from these two envelopes did not exceed
more than one centimeter20 in length on either envelope.
Talwar stated that the ballots were on 8.5-by-11” paper,
and the vast majority of the ballots were folded in fourths.
He explained that no ballot this size could have fit through
the opening in the tape on either envelope. Talwar also
stated that the remaining tape on these two envelopes “was
clearly undisturbed and showed no indication of having
been unsealed at any time” prior to the count.

20 0.3937 inch.
AFFILIATED COMPUTER SERVICES 907
The independent investigation established that at the
conclusion of the election on May 28, the Board agent in
charge of the election took possession of the impounded
ballots envelopes and returned to the Regional Office the
following day, May 29. The Region’s records show that
upon returning to the Regional Office, this Board agent
gave the nine impounded ballot envelopes to the Region’s
election clerk who placed all nine of the impounded ballot
envelopes into a larger envelope. The election clerk wrote
the case name, the case number, the words “impounded”
and “9 envelopes” and the date, May 29, on the larger
envelope and placed the ballots in the top drawer of a
locked file cabinet.21 There was no seal on the larger en-
velope. A copy of this larger envelope, showing the case
name, case number, and date, is attached hereto as Exhibit
J. [Omitted from publication.]The election clerk placed a
memorandum in the case file stating that the impounded
ballots in this case had been safely stored in this file cabi-
net. A copy of this memorandum is attached hereto as
Exhibit K.22
The independent investigation also established that all
nine of the impounded ballot envelopes that were placed in
the safe were sealed and secured with transparent tape.
Copies of the front and back of each impounded ballot
envelope that were made by the election clerk before se-
curing them in the safe, in accordance with routine office
procedure, are attached hereto as Exhibit L. [Omitted from
publication.]
The independent investigation also established that on
the morning of the count, the Assistant Regional Director
authorized the removal of the ballots from the safe for the
count. A copy of the Regional safe log, indicating that the
ballots could be removed on June 26, is attached hereto as
Exhibit M. [Omitted from publication.]
On June 26, the ballots were opened and counted at the
Regional office. Both parties were present during the
count. The independent investigation established that the
number of ballots counted was equal to the number of
check marks on the Excelsior list marked by the parties
during the election.
On June 26, the Region received a letter from O’Connor
in which she requested that “all documents and evidence
concerning the conduct of the election . . . be preserved in
order to enable the employer . . . the opportunity to review
the conduct of the election.” In this letter, O’Connor spe-
cifically requested that the ballot box used during the elec-
tion be preserved. A copy of this letter is attached hereto
as Exhibit N. [Omitted from publication.]
On June 29, the Region received a second letter from
O’Connor that included a five-page attachment requesting
various information relating to the election and agency

21 The envelope also contained the words “& all counted ballots.”
This notation was made by the election clerk after the count when the
ballots, the impounded ballot envelopes, and the larger envelope were
returned to the locked file cabinet.
22 Obviously, the May 27, 2009 date on this memorandum is incor-
rect.
procedures. A copy of this letter is attached hereto as
Exhibit O. [Omitted from publication.]
On July 1, I responded to O’Connor’s letters, stating, in
part:

As noted to you previously, all existing materials re-
lated to the election are being preserved in accordance
with routine Agency case handling procedures. As for the
ballot box, pursuant to normal procedures, after the clos-
ing of the polls, the parties were given an opportunity to
observe the box being opened, emptied of all ballots and
the ballots then transferred into impounded ballot enve-
lopes. The empty box was then discarded at your client’s
premises. At the time, [the Employer’s attorney] raised no
problem with the ballot box or the seal.

This letter also advised O’Connor that with regard to the
information she requested, under Section 102.118 of the
Board’s Rules and Regulations, such request must to be
made to the General Counsel. The Region is not aware
that the Employer has made any request to the General
Counsel pursuant to this provision of the Board’s Rules
and Regulations. A copy of the undersigned’s letter is
attached hereto as Exhibit P. [Omitted from publication.]
On July 1, the Employer commenced an action in fed-
eral district court seeking a temporary restraining order
against the Region seeking to restrain the Region from
destroying or damaging any materials related to this elec-
tion. On that date, I sent a letter to the Employer stating
that the Region would not destroy, damage, alter, supple-
ment, or fail to safeguard any materials used in this elec-
tion. A copy of this letter was also sent to the district
court. A copy of this letter is attached hereto as Exhibit Q.
[Omitted from publication.]
The Region is aware of no further action in this matter.
Discussion
The Employer’s ninth objection alleges that the Region
failed to adhere to the proper chain of custody procedures
with regard to the ballots that were cast in this election.
Section 11340.9(b) of the Board’s Casehandling Man-
ual provides that when ballots are impounded, those bal-
lots

should be removed from the ballot box in the presence of
the parties’ representatives. The impounded ballots
should then be placed into one or more of the Form
NLRB-5126 envelopes. After sealing the Form NLRB-
5126 envelope(s), the Board agent and the parties repre-
sentatives should sign their names across the flap. The
flap should then be secured with transparent tape in such
a manner as to ensure against accidental opening.

Sections 11344.1 and 11344.2 of the Manual further pro-
vide:

11344.1 Determinative Challenged and Questioned In-
terpretation Ballots

Upon the Board agent’s return to the Regional, Resident,
or Subregional office, the envelope(s) Form NLRB-5126
containing determinative challenged ballots and/or ques-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
tioned interpretation ballots must be stored promptly.
Sec. 11340.9(a) describes the procedure for preparing
these envelopes after the ballot count.

A photocopy of the face of the envelope(s) and a memo-
randum stating where the ballots have been stored
should be placed in the case file. The envelope(s) must
then be stored in the office safe.

The Regional Director, officer-in-charge, or resident of-
ficer is the custodian of the safe. The Regional Director
may designate others as agents for this purpose, but the
ultimate responsibility remains with the Regional Direc-
tor, officer-in-charge, or resident officer.

A log should be maintained by the Regional Director,
officer-in-charge, resident officer or the duly designated
agent concerning the challenged ballots that are stored in
the safe. If a designated agent is appointed, the Regional
Director should set forth the name of the designated
agent in this log and this designation should be signed by
the Regional Director.

When the large envelope(s) containing ballots is to be
removed from the safe, the following procedure must be
followed. The parties should be advised and provided an
opportunity to be present at the opening of the large en-
velope(s). Paprikas Fono, 273 NLRB 1326 (1984). The
Regional Director, officer-in-charge, resident officer, or
designated agent will make an entry in the log showing
the removal from the safe and this removal entry will be
signed by one of the aforementioned persons. The log
should indicate the reason for the removal, the date of
the removal, the Board agent to whom the envelope is
released, and the nature of the contents authorized to be
removed (e.g., all determinative challenged ballots or the
identity, as shown on the large envelope, of the chal-
lenged ballots that are authorized to be removed).

As indicated above, the large envelope(s) should not be
opened unless the parties have been allowed the oppor-
tunity to be present. In addition, when some, but not all,
of the challenged ballots are removed from the large en-
velope for the purpose of counting, such removal shall
be done at the count in the presence of the parties’ repre-
sentatives who choose to be present.

The Board agent should put a memorandum in the case
file recording the number of ballots removed, their iden-
tity, their disposition, and the number of ballots remain-
ing in the large envelope. A copy of the memorandum is
to be placed in the large envelope, which should again
be secured in the manner described above by the Board
agent and the parties’ representatives at the count and
placed in the safe.

11344.2 Impounded Ballots

Impounded ballots (Sec. 11340.9(b)) are to be secured in
the same manner as determinative challenged ballots.
Sec. 11344.1.

The Region’s records establish that the Board agents
conducting the election did not deviate from these proce-
dures. The Board agents removed the ballots from the
ballot box, placed them into impounded ballot envelopes,
sealed the envelopes, had the parties sign over the seal,
and taped the envelopes over the signatures. A Board
agent took possession of the impounded ballots and upon
returning to the Regional Office on May 29, gave the en-
velopes to the election clerk who placed the nine im-
pounded ballot envelopes into a larger envelope and se-
cured them in the Regional Office safe (a locked filing
cabinet), where they remained until the count on June 26.
The Employer has presented no evidence that the Re-
gion deviated from these procedures prescribed in the
Board’s Casehandling Manual. As explained above, it is
incumbent on the party filing objections to provide evi-
dence sufficient to prove a prima facie case within seven
days of the date for filing objections. See Craftmatic
Comfort Mfg. Corp., 299 NLRB 514 (1990); Star Video
Entertainment L.P., supra. An objecting party must pro-
vide probative evidence in support of its objections; it is
not sufficient to rely on mere allegation or suspicion. See
Allen Tyler & Son, Inc., supra.
The Employer argues that the Region did not follow the
proper chain of custody procedures because the im-
pounded ballot envelopes were stored in a larger envelope
in the Region’s safe. Ryan noted that he had never seen
the larger envelope before the count on June 26 and that it
bore the date May 29 instead of May 28. The fact that the
nine impounded ballot envelopes were kept together in a
larger envelope in the Regional safe does not establish that
the Region failed to follow the Casehandling Manual’s
procedures with regard to custody of the ballots.
The independent investigation revealed that Regional
personnel closely followed the procedures set out in the
Casehandling Manual. The Board agents conducting the
election correctly impounded the ballots, sealing the im-
pounded ballot envelopes, having the parties sign over the
seal, and then securing the seals with tape. Upon the lead
Board agent’s return to the office, the election clerk made
copies of the impounded ballot envelopes, placed the im-
pounded ballot envelopes into a larger envelope and se-
cured them in the Regional safe, and prepared a memoran-
dum stating that the ballots had been stored in the safe.
Prior to the count of the ballots, the Assistant Regional
Director made an entry in this log authorizing and stating
the reasons for removing the ballots from the safe. The
Employer’s attempt to create a “suspicious set of circum-
stances” is not sufficient to support this objection. See
Allen Tyler & Son, Inc., 234 NLRB at 212. For these rea-
sons, I recommend overruling the Employer’s ninth objec-
tion.
In its 10th objection, the Employer alleges that the Re-
gion failed to preserve evidence by which the Employer
can raise and support its objections, thus creating an im-
pression that this evidence would establish that the Region
failed to follow proper procedures. The Employer argues
that the Region failed to preserve crucial evidence to the
extent that it failed to maintain the ballot box used during
AFFILIATED COMPUTER SERVICES 909
the election and that the Region has not produced the
documents requested by O’Connor.
With regard to the ballot box, the independent investi-
gation revealed that the ballot box was emptied and dis-
carded at the Employer’s facility on May 28 after the bal-
lots were transferred into impounded ballot envelopes.
Thus, the empty box was in the Employer’s control to
preserve or discard. The Employer does not explain why
an empty ballot box, which contained no ballots after the
election, and which Ryan inspected before being dis-
carded, would establish a breach of election procedures or
have an impact on the election results. Again, the Em-
ployer attempts to raise an objection by implying that there
was a “suspicious set of circumstances.” As explained
above, such inference and conclusory allegations are not
sufficient to support valid objections. Allen Tyler & Son,
Inc., supra at 212, see also The Daily Grind, 337 NLRB
655, 656 (2002) (requiring a party to present more evi-
dence than “its bare allegations”), supra; Craftmatic Com-
fort Mfg. Corp., supra.
With regard to the Region’s failure to produce the in-
formation requested by O’Connor, the Employer presents
no evidence that the Region destroyed or discarded any
evidence in this case. To the contrary, the Region assured
the Employer and the court that it has preserved, and will
continue to preserve, all materials related to this election.
Moreover, despite having been advised of the proper pro-
cedure under the Board’s Rules and Regulations for ob-
taining Board testimony or documents, it has not availed
itself of this procedure. Because the Employer has pre-
sented no evidence in support of this objection, I overrule
the Employer’s tenth objection.
In its 11th objection, the Employer alleges that the tape
covering the seal on two of the impounded ballot enve-
lopes had loosened, giving rise to the inference that the
envelopes were not properly sealed or safeguarded by the
Region between the election and the count.
As noted above, Ryan, O’Connor, and Talwar all stated
that the tape on two of the impounded ballot envelopes
had become “loosened” from the envelopes themselves.
Ryan stated that it looked as if the tape “could have been
completely detached from the envelopes and then slightly
reaffixed.” O’Connor provided no specifics other than
that the tape on two envelopes had become loosened.
Talwar, however, testified that the tape had become loos-
ened on only a small part of each envelope, measuring no
more than a centimeter, or less than half an inch, on either
envelope. In addition, Talwar noted that the signatures
across the seals on each envelope had not been disturbed.
Further, Talwar noted that given the size of the ballots, a
ballot could not have fit through the area where the tape
had become loose. In addition, Talwar observed that on
both envelopes, the remaining tape had remained sealed
and that the envelopes showed no indication of having
been opened. It is also noteworthy that no evidence was
presented suggesting that any of the ballots were tampered
with, and the number of ballots counted equaled the record
of those cast.
The Board’s election procedures are intended to provide
“those safeguards of accuracy and security thought to be
optimal in typical election situations.” Polymers, Inc., 174
NLRB 282, 282 (1969). These procedures “are designed
to ensure both parties an opportunity to monitor the con-
duct of the election, ballot count, and determinative ballot
procedure.” Paprikas Fono, 273 NLRB 1326, 1328
(1984). The Board recognizes that strict compliance with
its election procedures does not guarantee the validity of
an election; similarly, deviation from these procedures
does not necessarily require setting aside an election. See
St. Vincent’s Hospital, LLC, 344 NLRB 586, 587 (2005)
(stating that there is no “per se rule that . . . elections must
be set aside following any procedural irregularity.). “The
question which the Board must decide in each case in
which there is a challenge to the conduct of the election is
whether the manner in which the election was conducted
raises a reasonable doubt as to the fairness and validity of
the election.” Polymers, 174 NLRB at 282. When con-
ducting such an inquiry, the Board “requires more than
mere speculative harm to overturn an election.” Transpor-
tation Unlimited, 312 NLRB 1162 (1993); see also J.C.
Brock Corp., 318 NLRB 403, 404 (1995).
The Board has upheld elections in which election pro-
cedures were not strictly followed, but in which there was
no reason to doubt the validity of the elections themselves.
For example, in Sawyer Lumber, LLC, 326 NLRB 1331
(1998), the employer filed objections alleging, inter alia,
that the integrity of the election was compromised because
during the election, the observers and the Board agent
conducting the election took breaks and left the polling
area, leaving the open ballot box in the polling area.23 The
Board found that these allegations “amount to little more
than speculation about the possibility of irregularity and,
thus, do not raise a reasonable doubt as to the fairness and
validity of the election.” Id. at 1332. While the Board
noted that it did not take lightly the importance of safe-
guarding the ballot box and the ballots, absent evidence
“of any security breach involving the ballot box or the
ballots, [or] evidence that the integrity of the election was
compromised in any way,” the Board upheld the election.
Id. The Board also noted that, as in the instant case, the
number of ballots counted equaled the number of names
checked by the observers on the Excelsior list. Id.; see
also Queen Kapiolani Hotel, 316 NLRB 655 (1995) (find-
ing that a ballot box had been adequately sealed during a
split session election, that the box was sealed in the pres-
ence of the parties, that there was no allegation or evi-
dence that the box had been tampered with, and, as here,
that the number of ballots counted equaled the number of
names the election observers checked off on the Excelsior
list).
Polymers also involved the securing of ballots between
a split session election. In that case, the Board agent con-
ducting the election sealed the opening of the ballot box

23 The ballot box was never left unattended or in the exclusive pos-
session of the employer or the union in that case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
with tape and had the parties sign over the tape. The par-
ties’ signatures did not extend onto the box itself, but re-
mained only on the tape. The Board agent then left the
ballot box in his locked car, along with unmarked ballots,
during the breaks between sessions. The employer filed
objections alleging that the tape could have been removed
from the ballot box and reaffixed without disturbing the
signatures since the signatures were only on the tape.
Polymers, 170 NLRB at 339–340. The Board found that
this evidence was not sufficient to raise a reasonable doubt
as to the fairness and validity of the election. The Board
stated that although “the manner in which the ballot box
was sealed in this election could have been improved upon
[the tape was] affixed to the box in a manner which makes
it quite improbable that any tampering with the box would
not have left suspicious traces. . . . In view of the extreme
improbability of any violation of the ballot box, and in the
absence of any affirmative indication of tampering, we
again conclude that desirable election standards were met
and that no reasonable possibility of irregularity inhered
the conduct of the election.” Polymers, 174 NLRB at 283.
The cases in which the Board has set aside elections due
to a breach of election protocol with regard to impounded
ballots involve substantial deviation from the Board’s
election procedures creating reasonable doubt about the
validity of the election. For example, in Madera Enter-
prises, 309 NLRB 774 (1992), the Board agent properly
impounded the ballots at the end of the election and placed
ballots in the Region’s safe. However, the Region later
discovered that the Board agent had failed to keep a list of
voters whose ballots had been challenged. In the absence
of the parties, the Region’s election specialist and a super-
visor retrieved the ballots from safe, opened the im-
pounded ballot envelopes, prepared a list of challenged
ballots, and returned the ballots to the safe. The Board set
aside the election noting that the Casehandling Manual
requires that impounded ballots be opened and counted in
the presence of the parties.
Similarly, in Paprikas Fono, 273 NLRB 1326, supra,
the Board set aside an election in which there was exten-
sive handling of impounded determinative challenge bal-
lots outside the presence of the parties. In that case, the
Board agent conducting the election did not impound the
determinative challenge ballots at the conclusion of the
election, but instead placed the ballots in the case file and
took them to his office. The following day, he deposited
the ballots into a large envelope, sealed the envelope with
tape, signed his name across the seal, and placed the enve-
lope in the Region’s safe. The employer subsequently
filed an objection alleging that the challenged ballot enve-
lopes had not been properly sealed. The Regional attorney
and counsel for the Region retrieved the impounded ballot
envelope from the safe and opened it to inspect the chal-
lenged ballot envelopes before returning the ballots to the
safe. The parties were not given an opportunity to be pre-
sent for this inspection.
In both of these cases, the Board relied on specific evi-
dence which showed that the parties were denied opportu-
nities to observe the handling and safeguarding of im-
pounded ballots. The Board found that when the “normal
procedures for handling [impounded ballots] were not
followed and the procedures followed did not permit the
parties to assure themselves that the [impounded ballot
envelopes] were secure,” it created a reasonable doubt
regarding the validity and the fairness of the elections.
Paprikas Fono, 273 NLRB at 1328.24
In this case, the Employer has not established that there
is any reasonable doubt as to the fairness or the validity of
this election. The only evidence of any irregularity the
Employer can identify is that the transparent tape on two
of the impounded ballot envelopes had become loosened
after the ballots were impounded. The Employer offers no
evidence that Ryan’s signatures across the envelope flaps
were in any way disturbed or that the envelope flaps were
loose or open or that the envelopes were in any way tam-
pered with or mishandled. Indeed, the Petitioner’s evi-
dence establishes that the signatures on the envelopes had
not been disturbed and the area of tape that had loosened
on two of the envelopes was about one centimeter, smaller
than an area through which a folded ballot could pass.
The Employer does not dispute these details. As Sawyer
Lumber and Polymers make clear, the speculative nature
of the Employer’s evidence that the "tape looked as if it
could have been removed and reaffixed," is not sufficient
to raise a reasonable doubt as to the validity and fairness
of the election.
There is no evidence that the Region deviated from the
election procedures or that the impounded ballot envelopes
had been opened or disturbed at any time outside of the
parties’ presence as in Madera Enterprises or Paprikas
Fono, discussed above. Absent evidence that the integrity
of the impounded ballots or impounded ballot envelopes in
this case was compromised, the Employer’s mere specula-
tion does not raise a reasonable doubt about the validity of
this election.
Based on the foregoing, I overrule the Employer’s 11th
objection.
Objections. 12 and 13
In its twelfth objection, the Employer alleges that by the
conduct described in the above objections, the Petitioner
has interfered with, coerced, and restrained employees in
the exercise of their Section 7 rights and has interfered
with employees’ ability to exercise a free and reasoned
choice in the election. In its thirteenth objection, the Em-

24 Similarly, in Fresenius USA Mfg., 352 NLRB 679 (2008), the Board
set aside an election after the Board agent conducting the election failed
to display the marked ballots during the count and denied the parties an
opportunity to review the “yes” and “no” piles of ballots following the
count. Although the Board Agent told the parties they could review the
ballots at the Regional Office the following week, the Board agent did
not take any steps to secure the ballots against tampering or mishan-
dling during the interim. In the present case, however, the evidence
demonstrates that the parties were given ample opportunity to observe
the ballots during the count and that the Region followed the proper
procedures for securing the impounded ballots.
AFFILIATED COMPUTER SERVICES 911
ployer alleges that by the conduct described in the above
objections, the Petitioner has destroyed the conditions
necessary for a valid election and therefore the election
results are invalid. The Petitioner asserts that these objec-
tions are without merit.
The Employer did not produce any evidence in support
of these objections that had not been submitted and con-
sidered in regard to the other objections. Accordingly, I
overrule the Employer’s 12th and 13th objections.
SUMMARY AND DETERMINATIONS
In summary, I have overruled the Employer’s objec-
tions in their entirety. Accordingly, I hereby issue the
following Certification of Representative certifying the
Petitioner as the exclusive collective bargaining agent for
the employees in the unit.

Exhibit B
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912

Exhibit C

AFFILIATED COMPUTER SERVICES 913
Exhibit E