Concrete Express of NY, LLC

National Labor Relations Board - Board Decisions

Dec 10, 2019

368 N.L.R.B. 135 (N.L.R.B. 2019)

368 NLRB No. 135
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Concrete Express of NY, LLC and Teamsters &
Chauffeurs Local Union 456, IBT, Petitioner.
Case 02–RC–218783
December 10, 2019
ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
The Employer’s request for review of the Regional Di-
rector’s Corrected Decision on Challenges and Objections
and Notice of Hearing raises substantial issues with re-
spect to Employer’s objections 4, 5, 6, 7, and 8 that can
best be resolved after a hearing. Accordingly, the request
for review is granted with respect to objections 4, 5, 6, 7,
and 8, and the case is remanded to the Regional Director
for consideration of objections 4, 5, 6, 7, and 8, along with
the other issues already scheduled for hearing.1
Contrary to the argument of our dissenting colleague,
the Board is neither overturning an election based on spec-
ulation nor is it permitting the Employer to “benefit.” The
Board is merely remanding the case to the Regional Di-
rector to resolve the issues of fact associated with objec-
tions 4, 5, 6, 7, and 8. A hearing is necessary to determine
whether the alleged conduct occurred, and, if so, whether
the Board agent’s actions compromised the integrity of the
election.2
Additionally, these objections do not “stem from a situ-
ation of the Employer’s own making.” In the relevant ob-
jections, the Employer alleges that the Board agent failed
to secure a potentially determinative challenged ballot in
accordance with the Board’s Case Handling Manual, and
then, while in possession of the unsealed challenged bal-
lot, accepted a ride from the polling location with union
officials. If these facts are established at a hearing, they
could, in our view, “tend[] to destroy confidence in the
Board’s election process, or . . . reasonably be interpreted
as impugning the election standards . . . .” Athbro Preci-
sion Engineering Corp., 166 NLRB 966, 966 (1967). The
opportunity for the Employer, later in the day at the
Board’s regional office, to observe the envelope being

1 The Regional Director has directed for hearing the Petitioner’s chal-
lenge to Rafael Valencia’s ballot, Petitioner’s objections 1, 3, and 4, and
an allegation not raised by either party regarding potential Employer in-
terrogation. These issues have been consolidated for hearing with certain
unfair labor practice allegations.
2 Specifically, a hearing would allow the Employer to present its wit-
nesses and would also give the Petitioner an opportunity to respond to
the allegations.
3 St. Vincent Hospital, 344 NLRB 586, 587 (2005).
sealed and to sign across the flap does not defeat the sub-
stantial issue regarding the integrity of the election. Ac-
cordingly, we grant review on these objections and re-
mand them for a hearing. In all other respects, the request
for review is denied.
Dated, Washington, D.C. December 10, 2019
______________________________________
John F. Ring, Chairman
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
I would deny the Employer’s request for review in its
entirety. “There is no per se rule that representation elec-
tions must be set aside following any procedural irregular-
ity.”3 The Board “requires more than mere speculative
harm to overturn an election.”4 It will set aside an election
only if the irregularity is serious enough to raise “a rea-
sonable doubt as to the fairness and validity of the elec-
tion”; perfect compliance with the Board’s election proce-
dures is not required.5
Applying these standards, the Employer’s objections 4,
5, 6, 7, and 8 are speculative, at best, and further they stem
from a situation of the Employer’s own making, which it
should not be permitted to benefit from now. These ob-
jections flow from a single event: the fact that the Board
agent did not immediately seal the cover envelope con-
taining the challenged ballot envelope and did not have the
observers sign the cover envelope. However, as soon as
the Region recognized the error, it promptly asked both
parties to come to the Regional Office for the sealing of
the cover envelope containing the challenged ballot—
which was itself already in a sealed envelope. The Em-
ployer’s legal counsel chose to decline the invitation. The
Petitioner’s legal counsel and the Board agent sealed the
cover envelope and signed it.
4 J.C. Brock Corp., 318 NLRB 403, 404 (1995).
5 Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir.
1969), cert. denied 396 U.S. 1010 (1970) (“While the manner in which
the ballot box could have been sealed could have been improved upon
. . . [and] although the Board agent did not retain personal physical cus-
tody of the sealed box and the blank ballots at all times, the security af-
forded these items was such that there was only the remotest possibility
that anything untoward occurred.”)
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Employer now speculates as to a list of possible
harms that could have come from the fact that the chal-
lenged ballot in the sealed envelope was not immediately
placed in the cover envelope. But the Employer has not
offered any facts to support its speculation, and there is no
basis to believe it would establish sufficient supporting
facts at a hearing. Moreover, the Employer chose not to
attend the cover sealing when invited to do so. It should
not now be allowed to use that absence to create a chain
of objections without supporting evidence.6 There is no
actual evidence of tampering or fraud and the challenged
ballot was already in a sealed envelope, albeit not the
cover envelope. Nor, contrary to the majority’s argument,
does the fact that the Board agent accepted a ride from the
polling location with the Union’s representatives indicate
that the Board agent tampered with the ballot or otherwise
favored either the Union or the Employer.7
Because the Employer’s request raises no substantial is-
sues warranting review, it should be denied.
Dated, Washington, D.C. December 10, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

6 Farrell-Cheek Steel Co., 115 NLRB 926, 928 (1956) (in the absence
of specific evidence of actual fraud, speculation of the opportunity for
fraud by chain voting was not enough to set aside the election). See also
Parkview Community Hospital, 2015 WL 413882, fn. 3 (2015) (noting
employer failed to meet its burden of proof regarding alleged fraud).
7 See Rheem Mfg. Co. 309 NLRB 459, 462 (1992) (Board agent walk-
ing through the plant with the union representatives did not warrant set-
ting aside the election); Securitas Security Services, 2014 WL 534920,
fn. 1 (2014) (Board agent talking and laughing with two union
representatives while the representatives were distributing possible pro-
union literature was not enough to show objectionable fraternization).
See also NLRB v. Michigan Rubber Products, 738 F.2d 111 (6th Cir.
1984), enfg. 251 NLRB 74 (1980) (Board agent allowing the union’s
representative to carry the voting booth to the agent’s car while the agent
carried the ballot box and election kit was imprudent but did not give the
appearance of fraternization and could not have affected the outcome of
the election; the incident was based on “practical, physical logistics.”)