Durham School Service

National Labor Relations Board - Board Decisions

Apr 29, 2014

360 N.L.R.B. 708 (N.L.R.B. 2014)

708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 86
Durham School Services, L.P. and Teamsters Local
Union No. 570, a/w International Brotherhood
of Teamsters, Petitioner. Case 05–RC–103218
April 29, 2014
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held May 31, 2013,1 and the administrative law judge’s
report2 recommending disposition of them. The election
was conducted pursuant to a Stipulated Election Agree-
ment. The revised tally of ballots shows 62 ballots for
and 75 against the Petitioner.3
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the judge’s findings
and recommendations4 only to the extent consistent with
this Decision and Direction of Second Election.
The judge found, among other things, that the Em-
ployer did not engage in objectionable conduct when, a
week before the election, it responded to employee com-
plaints about shortfalls in their paychecks by providing
employees with cash payments equal to the amount of
the shortfalls. The Union excepts, contending that the
cash payments constituted an objectionable grant of ben-
efit. Contrary to the judge, and for the reasons set forth
below, we agree with the Union’s contention.
The relevant facts are not in dispute. The Union seeks
to represent a unit of school bus drivers and monitors.
For a number of years prior to the election, the employ-
ees’ weekly paychecks often did not include the full
amount of pay they were owed. The Employer handled
this problem by having employees report their paycheck
shortages to the Employer, and the amount of the report-
ed shortfall would be added into the following week’s
paycheck. The recurring receipt of short paychecks be-
came a central issue in the Union’s organizing campaign,
and also was the subject of pending wage litigation
against the Employer.
On May 24, 1 week before the election, the Employ-
er’s assistant general counsel for labor relations, Gayle
Gray, was on site to prepare for the upcoming representa-

1 All dates are 2013, unless otherwise noted.
2 The judge was sitting as a hearing officer in this proceeding.
3 There were five ballot challenges, all of which were resolved and
withdrawn at the hearing.
4 For the reasons he states, we adopt the judge’s recommendation to
overrule Objection 2. Further, in the absence of exceptions we adopt
pro forma the judge’s recommendations to overrule Objections 1 and 4.
tion election.5 That same day, unit employees received
their weekly paychecks and, as usual, many employees
(in this instance, about 92, well over half) found their
paychecks short and reported the shortages. Upon hear-
ing about the shortfalls, Gray decided to correct them by
giving each affected employee a supplemental cash pay-
ment that same day. Gray directed Regional Manager
Erik Owings to use the company credit card to withdraw
$10,000 cash from the bank. Later that day, Gray, Ow-
ings, and another manager gave each affected employee
an envelope containing supplemental cash in the amount
of the employee’s shortfall and a letter of apology from
Owings. The letter, printed on company letterhead, read:
Please allow me to personally apologize for the error
on your paycheck, today. It is totally frustrating for
you, and I understand that. Trust me, it is totally frus-
trating to me, too. You work hard for your pay and we
should have gotten it right.
Durham is trying to correct this error today, by deter-
mining how much you are owed and issuing cash pay-
ments for the amount missing in this paycheck, only, to
as many folks as we can.
I’m sincerely sorry for this error.
Best safe regards for the Memorial Day weekend.
Erik Owings
Regional Manager
The judge found that the supplemental cash payments
to employees were not a benefit, but rather a permissible
change in the Employer’s paycheck process. Noting that
the payments did not occur within 24 hours of the elec-
tion, the judge found them permissible under Kalin Con-
struction Co., 321 NLRB 649 (1996) (election set aside
where employer changed the paycheck process, on the
day of the election, to show the amount that would be
deducted from the paychecks for union dues). Be-
cause—as in Kalin—the Employer paid employees only
what they were owed, the judge concluded that the cash
payments did not constitute a benefit. The judge further
noted that there is no evidence that these payments creat-
ed ill will toward the Union, and thus distinguished these
circumstances from those in Fred Meyer Stores, Inc., 355
NLRB 541 (2010) (election set aside where employer
doubled up on union deductions in order to correct a pri-
or payroll error, but failed to correct the misperception
that the additional deductions were attributable to the
union).

5 The Employer’s outside labor counsel, Dean Kpere-Daibo, was al-
so on site to help prepare for the election.
DURHAM SCHOOL SERVICES, L.P. 709
Contrary to the judge, we find that the Employer’s
supplemental cash payments were a benefit and, as such,
constituted objectionable conduct warranting setting
aside the election.
An employer’s change in payroll procedures during the
critical period is an objectionable grant of benefit when it
responds to a request made by employees well before the
organizing campaign. See, e.g., R. Dakin & Co., 284
NLRB 98 (1987) (employer’s change from biweekly to
weekly payroll clearly linked to employees’ previously
expressed concerns); see also Wis-Pak Foods, Inc., 319
NLRB 933, 938 (1995), enfd. 125 F.3d 518 (7th Cir.
1997) (finding an objectionable grant of benefit when the
“departure from . . . past practice [is] clearly . . . for the
purpose of appeasing employees”). The benefit need not
have any quantifiable value; “the relevant inquiry is
whether the employees reasonably would view [it] as a
benefit to them.” Sun Mart Foods, 341 NLRB 161, 163
(2004).
Here, the unprecedented correction of the paycheck
shortages occurred a week before the election, was paid
in cash for the first time,6 and provided employees with
the corrected amounts a week earlier than employees
expected to receive them under the Employer’s past prac-
tice. This same-day cash payment and accompanying
letter of apology evinced an attempt to fix a longstanding
problem of great concern to the employees, one that the
Employer had not addressed prior to the organizing cam-
paign. As such, it conveyed the implicit message—and
one that would not be lost on the employees—that a un-
ion was unnecessary. See Comcast Cablevision of Phil-
adelphia, L.P., 313 NLRB 220, 251 (1993) (finding that
an employer’s preelection announcement instituting a
direct deposit option for employee paychecks was “in the
nature of a satisfaction of a grievance” and therefore ob-
jectionable).
The judge’s reliance on Kalin Construction, supra, is
misplaced. In Kalin, the conduct at issue was not alleged
to be a grant (or loss) of benefit. Rather, it involved a
change in the manner in which employees received their
pay. Instead of receiving it in a single check from the
employer’s foreman at the construction site (as they had
under the employer’s past practice), on election day each
employee received (on the way to vote) two checks from
the company secretary totaling the amount owing—one
that represented the amount to be deducted for union
dues and the other representing the balance. Employees
also received a note from the employer explaining what
each check represented. The Board held that this was an

6 See generally ARA Food Services, 285 NLRB 221, 222 (1987)
(objectionable cash payment of vacation pay).
objectionable change in the paycheck process because it
occurred within 24 hours of the election. There was no
argument or even consideration of whether a benefit had
been conveyed by the employer’s conduct.7
By contrast, we find Comcast Cablevision, supra, is
more instructive. In Comcast, the employees had long
requested (without a response) that the employer provide
them with a direct deposit option for their paychecks, and
the employer announced the availability of such an op-
tion 7 days before the election. The Board found that
providing for direct deposit was a benefit because it
could save employees “the time and expense that it takes
to get their paychecks to the bank” and afford them secu-
rity “in these times of ever-rising crime rates.” Id. at
251. The Board further found this conduct “standing
alone . . . would invalidate any election” because the
connection between the request and the employer’s reso-
lution without a union on the scene would not be lost on
employees. Id. at 251, 257.
Here, and like the benefit afforded in Comcast Ca-
blevision, the supplemental cash payments responded to
a previously unaddressed matter of concern. Significant-
ly, this concern was a core issue in the organizing cam-
paign. The employees would therefore reasonably view
the Employer’s action to address their concern as a grant
of a benefit. Indeed, the letter of apology underscored
that the Employer understood the employees’ frustration,
and conveyed that it was addressing that concern by pay-
ing the employees the amount of the shortfall that day, as
they left for the holiday weekend, rather than a week
later, as usual.
For these reasons, we find, contrary to the judge, that
the Employer’s supplemental cash payments were a grant
of benefit. We therefore sustain the Union’s objection,
and shall set aside the election, and direct a second elec-
tion.
[Direction of Second Election omitted from publica-
tion.]
Brendan Keough, Esq., for the Regional Director.
Charles P. Roberts III, Esq. (Constangy, Brooks & Smith,
LLP), of Winston-Salem, North Carolina, for the Employer.
James R. Rosenberg, Esq. (Abato, Rubenstein & Abato, P.A.),
of Baltimore, Maryland, for the Petitioner.

7 Similarly misplaced is the judge’s consideration of whether, as in
Fred Meyer, supra, there was evidence that the Employer’s action
caused ill will toward the Union. A grant of benefit during the critical
period is objectionable regardless: the Board has long held that the
subjective reactions of employees are irrelevant to the question of
whether there was objectionable conduct. E.g., Hopkins Nursing Care
Center, 309 NLRB 958, 958 fn. 4 (1992).
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
RECOMMENDED DECISION ON OBJECTIONS
MICHAEL A. ROSAS, Administrative Law Judge. Upon a pe-
tition filed on April 19, 2013, by Teamsters Local Union No.
570, a/w International Brotherhood of Teamsters (the Union),
and pursuant to a Stipulated Election Agreement, an election
was held on May 31 in the following unit:
All full-time and regular part-time school bus drivers and
monitors employed by the Employer at its Rosedale, Mar-
yland facility; but excluding all maintenance employees,
mechanics, dispatchers, safety coordinator, office clerical
employees, managerial employees, professional employees,
guards and supervisors as defined in the Act.
The tally of ballots showed that of 149 eligible voters, 62
votes were cast for the Union, 75 votes were cast against the
Union.1 The Union filed five timely objections to conduct af-
fecting the results of the election.2
On June 26, 2013, the Regional Director issued a Report on
Objections and Notice of Hearing in which he found that the
Union’s Objections raised substantial and material issues which
could best be resolved on the basis of record testimony at a
hearing.
A hearing was held before me in Baltimore, Maryland, on
July 18–19, 2013. Based upon the record and my observation
of the demeanor of the witness and the briefs submitted by the
Petitioner and the Employer on August 23, 2013, I make the
following Recommended Decision.
FINDINGS OF FACT
Objection 1
During the critical period, the Employer, by its supervisors
and agents, threatened employees in order to dissuade them
from supporting the Petitioner. Specifically, on or about
May 22, 2013, Employer supervisors and agents told em-
ployees that they would lose their routes if the Union were
elected to represent them.
On the morning of May 30, the day prior to the election,
LaVern Harris, a school bus monitor, approached a picnic table
outside the Employer’s Rosedale facility. At the time, Gen-
eral Manager Daryl Owens was speaking about employee bus
routes for the upcoming school year with five employees: Eric
Cherry, Rhonda Budd, Stephanie Howard, Br ian Hurd, and
Clarence Marshall. The conversation began a few minutes
earlier with Owens explaining the uncertainty of upcoming
assignments due to a loss of bus routes resulting from
changes in the Employer’s contract with the City of Baltimore.
Cherry interjected at one point, commenting that the route
reassignments were one reason why employees would be vot-
ing in favor of the Union. Owens acknowledged the role that
would be played by the Union if it came in, but preferred that
employees vote in favor of the Employer. He added, however,

1 Board Exh. 3.
2 Five ballots were initially challenged, but were resolved at the
hearing and withdrawn. (Board Exhs. 1(h) and (m).)
that it did not matter, as assignments would now be based on
performance, as well seniority.3
The Union contends that Owens conveyed an impermissible
prediction about the effect of unionization on employee bus
routes and this prediction implicitly threatened employees with
a loss of a benefit—their preferred bus routes. The Employer
argues that Owens’ comments were too vague to constitute
threats or promises, and that Board law permits the type of
comment Owen made.
An employer may communicate his views on union affilia-
tion, provided the comments do not contain threats of reprisal
or force, or promises of benefits. NLRB v. Gissle Packing Co.,
395 U.S. 575, 618 (1969). Further, an employer can make
predictions about the precise effects of unionization if based on
reasonably probable consequences beyond the employer’s con-
trol. Id.
Owens communicated to the six employees present on May
30, that recent changes to the Employer’s contract with the City
of Baltimore might have effects on the employees’ bus routes.
While he also advocated for employees to vote against the Un-
ion in the upcoming election, his comments did not rise to the
level of an implicit threat or a promise of benefit; Owens
acknowledged the role of the Union in the process, but stated
that shift assignments would be affected by the reduced shifts
resulting from the new contract with the City of Baltimore.
Under the circumstances, Owens did not engage in objectiona-
ble conduct which was likely to affect the election outcome.
See Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995). Ob-
jection 1 is overruled.
Objection 2
During the critical period, the Employer, by its supervisors
and agents, appealed to racial prejudice in order to dissuade
groups of employees from supporting the Petitioner. Spe-
cifically, on or about May 21, 2013, the Employer counte-
nanced, through inaction, racist name-calling by employees
towards other employees who supported the Union. By this
conduct, the Employer improperly affected the free choice
of the employees in voting for or against representation by
the Petitioner.
On May 21, the Employer convened a meeting to discuss the
upcoming representation election. About 85 to 100 employees
were packed into a room measuring about 25’ by 45’ in dimen-
sion. At the meeting, Human Resource Manager John Kem-
blowski told the employees that he was surprised and disap-
pointed that they would reach out to the Union to address their
workplace issues. Kemblowski explained that, while his family
benefited from union affiliation when he was younger, unions
no longer served the interests of their members; he asserted that

3 Harris and Owens provided fairly consistent testimony about much
of this conversation, especially the lack of guarantee as to assigned
routes, as well as Owens’s preference that employees vote against the
Union in the upcoming election. However, Harris conceded on cross-
examination that she arrived on the scene while the discussion was
underway and I did not find credible her statement that Owens said that
routes would be lost “due to the Teamsters.” (Tr. 113–117.) Owens
provided a more specifically detailed and credible version of the con-
versation. (Tr. 274–282, 286–288.)
DURHAM SCHOOL SERVICES, L.P. 711
Unions spent members’ dues on questionable expenditures and
referred to a book detailing the connection of Unions to orga-
nized crime.
At one point, Elabas Abdelnaby, an employee seated in the
front row, rose and asked Kemblowski why he had not ad-
dressed employees’ concerns after they were previously raised
in December 2011. He also questioned why Kemblowski was
denigrating unions if they were good enough to help his family
when he was growing up. At that point, a coworker, Frank
McNeil, seated nearby in the fourth row, hurled a vicious racial
epithet, called Abdelnaby stupid and told him to learn English
or return to Africa. Kemblowski looked at McNeil, but did not
respond. Martin Fox, a coworker and union supporter also
seated in the first row next to Manager Eric Owings, was about
to stand and respond. Owings, however, placed his hand on
Fox’s leg and told him that he would be ejected from the meet-
ing if he said anything. Abdelnaby, a dark-complexioned man
with an accent from his native Egypt, replied that he spoke
three languages. The statements by Abdelnaby and McNeil
were loud enough to be heard by all present, including Kem-
blowski and Owings. Some in the audience laughed at the
exchange, causing Kemblowski to tell everyone to calm down
and the meeting continued without Kemblowski or Owings
addressing McNeil’s comments.4
On May 31, after the election, Abdelnaby called in a com-
plaint to the Employer’s hotline about McNeil’s racist remarks
at the May 21 meeting. Shortly thereafter, in accordance with
the Employer’s policy prohibiting discrimination based on na-
tional original, the Employer issued McNeil written discipline
for his remarks on May 21.5
The Union contends that McNeil’s comments created an at-
mosphere fear and likely dissuaded foreign-born employees
from speaking out about the election or from voting for the
union. The Employer argues that McNeil’s comments did not
create such an atmosphere of fear and reprisal to justify a new
election.
Appeals to racial prejudices are not tolerated in Board elec-
tions. Sewell Mfg. Co., 138 NLRB 66, 71 (1962). However,
not all inappropriate expressions of racial prejudice rise to the
level required to mandate a new election. Id. To determine
whether an election is void due to improper racial prejudice, the
Board’s ultimate consideration is whether the action “lowered
the standards of campaigning to the point where it may be said

4 Notwithstanding Abdelnaby’s omission of the vilest part of
McNeil’s remarks in his written complaint filed 10 days later, his cred-
ible testimony was corroborated by Fox, as well as the Employer’s
subsequent disciplinary action against McNeil. Moreover, considering
that Abdelnaby’s reply was followed by laughter in the audience, as
well as the proximity of the managers to Abdelnaby and McNeil, it is
quite clear that McNeil’s remarks were heard by Kemblowski and
Owings. (Tr. 125–131, 133–135, 139, 141–143.) Under the circum-
stances, I do not credit Kemblowski’s testimony that he only heard that
portion of McNeil’s remarks urging Abdelnaby to return to Africa (Tr.
229–231, 236–237), or Owings’s testimony that he only heard Ab-
delnaby’s reply that he was fluent in several languages. (Tr. 304–308.)
5 Abdelnaby’s credible testimony is corroborated by the Employer’s
record of the complaint and the subsequent discipline issued by the
Employer. (Tr. 135, 229–232, 237; Emp. Exh. 5.)
that the uninhibited desires of the employees cannot be deter-
mined in an election,” id. For such conduct to warrant setting
aside an election it must be shown that it created “an atmos-
phere of fear and reprisal such as to render a free expression of
choice impossible.” Crosse Pointe Paper Corp., 330 NLRB
658, 660 (2000).
McNeil’s remark was a derogatory racial slur that had no
place in society, especially the workplace. Nevertheless, the
Union failed to demonstrate that McNeil’s expression of racial
hatred created an atmosphere of fear and reprisal such that it
rendered impossible the employees’ free choice in the election.
Although extremely offensive, his remarks were not demon-
strably inflammatory to the point that they created an atmos-
phere of fear and reprisal. Crosse Pointe, 330 NLRB at 659
(rumor involving a derogatory racial remark did not amount to
a threat and did not relate to a core issue in the campaign, thus
did not render free choice impossible). Nor was any evidence
presented that McNeil’s remarks engendered discussion or
consternation among other employees.
McNeil’s racist diatribe, standing alone, falls short of the
kind of aggravated threats by employees that the Board has on
occasion found objectionable. Cf. PPG Industries, Inc., 350
NLRB 225 (2007) (multiple threats of physical harm and prop-
erty damage if employees crossed picket line); Westwood Hori-
zons, supra (multiple threats of physical harm if employees did
not vote for union, as well as physical intimidation and force
directed at employees seeking to vote).
Moreover, the Employer’s failure to repudiate McNeil’s
racist remarks, coming 10 days before the election, is insuffi-
cient to set aside the election. For example, in Shawnee Man-
or, 321 NLRB 1320 (1996), the Board concluded that even
assuming, arguendo, the applicability of Sewell to third-party
racial remarks, isolated racial remarks by a pro-union employee
did not warrant setting aside the election since they “did not so
inflame and taint the atmosphere in which the election was held
that a reasoned basis for choosing or rejecting a bargaining
representative was an impossibility.” Id. at 1320–1321 (quot-
ing Sewell). Similarly, in Catherine’s, Inc., 316 NLRB 186
(1995), the Board, in refusing to set aside an election, held that
a union’s references to the employer’s “Jewish law firm,” while
irrelevant to the campaign, “were not inflammatory in nature
and did not occur on the election eve, they were not part of a
recurrent or persistent campaign appeal to the religious or racial
prejudice of the eligible voters, and the Union did not reiterate
the subject in campaign literature.” The Board has adhered to
the distinction between Sewell’s condemnation of a “sustained
course of conduct, deliberate and calculated in intensity, to
appeal to racial prejudice” and “isolated, casual, prejudicial
remarks.” Beatrice Grocery Products, 287 NLRB 302, 302
(1987), enfd. mem. 872 F.2d 1026 (6th Cir. 1989). See also
Seda Specialty Packaging Corp., 324 NLRB 350, 352 fn. 5
(1997) (employer’s comments in single meeting that union
agent was racially prejudiced did not warrant overturning elec-
tion). Here, there was no demonstration of a sustained appeal
to racial prejudice. Objection 2 is overruled.
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Objection 3
During the critical period, the Employer, by its supervisors
and agents, granted employees benefits in order to dissuade
them from supporting the Petitioner. Specifically, on or
about May 24, 2013, Employer supervisors and agents pro-
vided supplemental cash payments to selected employees.
By this conduct, the Employer improperly affected the free
choice of the employees in voting for or against representa-
tion by the Petitioner.
On May 24, Gayle Gray, the Employer’s assistant general
counsel for labor relations, and Dean Kpere-Daibo, the Em-
ployer’s outside labor counsel, arrived at the Rosedale facility
in preparation for the upcoming representation election. It was
also Friday, the day when employees collected their weekly pay
checks at the dispatcher’s office. A recurring problem was
shortages in the pay checks, which was the subject of pending
wage litigation. The Employer’s customary practice was to
have employees submit notes listing their pay shortages and
then distribute the amounts owed in the following week’s
paycheck. This date was no exception, as numerous employees
filed into the dispatcher’s office to collect their paychecks and,
once again, found them short. On this occasion, however, the
Employer responded to the paycheck complaints with unchar-
acteristic speed and attention. Working out of the dispatcher’s
office, Gray, Kpere-Daibo, Kemblowski, and Owings stepped
up and expedited the processing of 92 wage claims over the
next 2 days. Gray and Kpere-Daibo initially advised employ-
ees that the Employer would send their checks by overnight
mail or process direct deposits as soon as possible. However,
a few hours later, Gray decided to process the wage claims that
same day and directed Owings to use his company credit card
to obtain $10,000 in cash. Later that afternoon through the next
day, Gray, Owings, and Pat Healey, the Employer’s Regional
safety manager, distributed the supplemental cash payments
along with an apology letter.6 The apology letter was signed by
Owings and stated:
Please allow me to personally apologize for the error on your
paycheck, today. It is totally frustrating for you, and I under-
stand that. Trust me, it is totally frustrating to me, too. You
work hard for your pay and we should have gotten it right.
Durham is trying to correct this error today, by determining
how much you are owed and issuing cash payments for the
amount missing in this paycheck, only, to as many folks as we
can.
I’m sincerely sorry for this error.
Best safe regards for the Memorial Day weekend.7
The Union contends that the Employer’s action of departing
from past practice and giving employees cash for the shortages
in their paychecks conferred an impermissible benefit and was
calculated to affect the outcome of the election. In response,

6 The facts relating to this objection are undisputed. (Tr. 56–57, 60–
62, 71–78, 83–88, 95–96, 100–106, 140–146, 253, 290–291, 293–295,
315, 319–330, 332–333, 335–340, 342–343; Emp. Exh. 6 at 27.)
7 U. Exh. 1.
the Employer denies that it actions constituted an employee
benefit and that it merely corrected a payroll error and no em-
ployee received anything more than what they were legally
owed.
The Board has held that benefits granted during an election
campaign are not unlawful if the employer shows that its action
was governed by factors other than the pending election. Waste
Management of Palm Beach, 329 NLRB 198, 198 (1999).
Here, it is not disputed that the Employer departed from its
established policy of reimbursing shortfalls in employee future
paychecks and, instead, handed out cash on the same day.
However, while such a departure from past practice occurred
shortly before the election, the reimbursement of wages owed is
not actually a “benefit” but rather, a transaction falling into the
category of the “paycheck process.” Employers are only pro-
hibited from making changes in the “paycheck process” 24
hours before an election. In the instant case, the Employer
made the change in how it distributed payment for shortages in
paychecks a week before the election, thus complying with the
Board’s rule stated in Kalin Construction Co., 321 NLRB 649,
652 (1996).
Moreover, the Employer’s change in the paycheck process
did not destroy the requisite laboratory conditions by impeding
the implementation of a fair election. See Fred Myer Stores
Inc., 355 NLRB 529 (2010) (employer corrected a payroll error
from previous week by doubling up on union payments deduct-
ed from employees’ paychecks but never informed employees).
Contrary to Fred Myer Stores, where deductions from employ-
ees’ paychecks were attributed to the union, and this misper-
ception was never corrected, in the instant case, the Employer
reimbursed employees what they were owed and there is no
evidence that the Employer’s actions created ill will toward the
Union. Thus, although the employer departed from past prac-
tice, the reimbursement of funds falls into the category of the
paycheck process, and, thus, within the permissible range of
conduct outlined by the Board in Kalin Construction. In sum,
there is no showing by the Union that this preelection change in
payroll practice impacted the election. Objection 3 is over-
ruled.
Objection 4
During the critical period, on the day of the election, the
Board Agent was significantly late for the pre-election con-
ference. As a result, (a) the polls opened late,8 (b) the polls
opened without the Board Agent having instructed the ob-
servers, (c) the polls opened without the Board Agent having
posted signs directing voters and banning electioneering in the
polling place, (d) the polls opened without the Board Agent
having made arrangements for the proper flow of voters into
and out of the polling place and in regards to the distribution
of employee paychecks, (e) the polls were open for a period
of time during which the Employer’s and the Petitioner’s rep-
resentatives were present in the polling place, (f) there was in-
sufficient time for the parties to review the Excelsior list and
determine who would be challenged and (g) the polling place

8 At the hearing, following the issuance of a final tally of ballots, the
parties stipulated that subparagraph (a) of Objection 4 regarding the
late opening of the polls was no longer in issue. (Board Exh. 2.)
DURHAM SCHOOL SERVICES, L.P. 713
was left unattended by the Board Agent while she moved her
vehicle to a proper parking space. This conduct spoiled the
laboratory conditions under which NLRB election must be
run.
Prior to the election on May 31, a preelection conference was
scheduled to be held at 7:15 a.m., but the Board agent did not
arrive until 7:50 a.m. Richard Brown, Moses Jackson, Sean
Cedeño, Christopher Price, and Stephen Hanson were present
on behalf of the Union; Kpere-Daibo and Kemblowski were
present on behalf of the Employer. As the Board agent hurried-
ly prepared the polling location and constructed the ballot box,
she and the parties’ representatives discussed and amended the
Excelsior list. Between 8:03 and 8:05 a.m., the Board agent
announced the opening of the polls. At that time, representa-
tives of both parties went outside to the hallways area to jointly
delineate the route voters would take to the polls, post signs,
and block off the polling site from the remainder of the facility.
Around 8:15 a.m., the Board agent left the voting area for about
a minute, while holding the ballot box in plain view, in order to
properly park her car. After she returned to the voting room,
the parties’ representatives left around 8:20 a.m. No voters
were in the hallway or near the voting room prior to 8:20 a.m.,
as drivers and aides were out on their morning routes and did
not normally return until after 9 a.m.9
The Union alleges that the Board agent’s actions caused the
election to be “chaotic” and, thus, breached the “laboratory
conditions” required for representation elections. The Employ-
er disputes that assertion, insisting that the election was con-
ducted without any significant irregularities.
There is no per se rule requiring that an election be set aside
following any procedural irregularity. Fresenius USA Mfg.,
352 NLRB 679, 680 (2008). The Board requires more than
speculation of harm and will set aside an election only if the
irregularity is sufficient to raise a reasonable doubt as to its
fairness and validity. Id. Further, the burden is on the object-
ing party to show specific evidence of prejudice to an election.
Affiliated Computer Services, 355 NLRB 899 (2010).
It is not disputed that the Board agent arrived later than
scheduled, preparations for the election were rushed, the Board
agent briefly left the polling location to move her vehicle and
the election began a few minutes late. However, there is no
evidence that these irregularities prejudiced the conduct of the
election or somehow affected its results. Moreover, even if the

9 The credible evidence suggests that the parties expected the Board
rgent to arrive by 7:15 a.m., but she did not arrive until 7:50 a.m., hur-
riedly prepared the polling site while instructing the participants and
announced the opening of the polls between 8:03 and 8:05 a.m. To the
extent that testimony diverges over timing of events or instructions by
the Board agent, however, I credit the credible testimony of Kpere-
Daibo over the sometimes contradictory and inconsistent testimony of
Brown, Jackson, and Gregory. (Tr. 15–27, 31–39, 47–50, 189, 204–
212, 248–252, 259–260, 268), as well as Kemblowski. (Tr. 225–227.)
preelection instructions were rushed or somehow insufficient,
there was no evidence that observers, voters, or anyone else
engaged in improper conduct. See Laidlaw Transit, 322 NLRB
895, 896 (1997); Convalescent Hospital, 252 NLRB 274, 274–
275 (1980); Worcester Woolen Mills Corp., 69 NLRB 425, 428
(1946).
The Union’s reliance on Fresenius USA, 352 NLRB at 680,
is unavailing. In Fresenius USA, the cumulative effect of ir-
regularities was sufficient to overturn an election. The Board
agent was color blind and there was a serious question as to
whether the employees were properly instructed on how to vote
and whether the votes were counted properly. Moreover, the
Board agent took the ballot box home over the weekend and the
possibility of tampering could not be excluded. Serious allega-
tions of that magnitude are nonexistent here. Objection 4 is
overruled.
CONCLUSIONS AND RECOMMENDED ORDER10
Representation elections are not lightly set aside. NLRB v.
Hood Furniture Mfg., 941 F.2d 325, 328 (5th Cir. 1991); the
burden of proof is on the party seeking to set aside a Board-
supervised election to show that the specific conduct in ques-
tion had a reasonable tendency to affect the outcome of the
election. Affiliated Computerizing Services, 355 NLRB 899
(2010). Here, the election results were not very close, as the
Employer prevailed by 13 votes out of 137 votes cast. As de-
scribed above, the election on May 31 was less than perfect and
was preceded by several notable instances of management ad-
vocacy during the week leading up to it. One of those instances
was interrupted by the vile dissemination of racial hatred by
one employee at a coworker as the latter expressed support for
the Union; management did nothing to address the outburst at
the time. However, there is insufficient evidence demonstrat-
ing that the irregularities interfered with the employees’ free-
dom to choose a representative or otherwise have a reasonable
tendency to affect the outcome of the election. See Delta
Brands, Inc., 344 NLRB 252 (2005); Avante At Boca Raton,
Inc., 323 NLRB 555, 560 (1997); Kux Mfg. Co. v. NLRB, 890
F.2d 804, 808 (6th Cir. 1989).
As there is no evidence of irregularities sufficient to question
the fairness and validity of the May 31 election, I recommend
that Union Objections 1, 2, 3, and 4 be overruled in their entire-
ty and not set aside the results of the election. Accordingly, I
recommend that the Regional Director for Region 5 certify the
results of the election consistent with my findings and conclu-
sions here.

10 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this report may be filed with the Board in
Washington, DC, within 14 days from the date of issuance of this report
and recommendations. Exceptions must be received by the Board in
Washington, DC, by September 26, 2013.