First Student, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 2010

355 N.L.R.B. 410 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 78
410
First Student, Inc. and Service Employees Interna-
tional Union, Local 284, and Amalgamated
Transit Union, Local 1005, Joint Petitioner.
Case 18–RC–17565
August 9, 2010
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held February 29, 2008, and the hearing officer’s report
recommending disposition of them. The election was
held pursuant to a Stipulated Election Agreement. The
tally of ballots shows 67 votes cast for and 83 votes
against the Joint Petitioner, with 8 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs,1 has adopted the hearing officer’s
findings and recommendations,2 and finds that the elec-
tion must be set aside and a new election held.
We agree with the hearing officer that the Employer
has placed its election observer, trainer, and substitute
bus driver Patty Baldwin, in a position in which she
could reasonably be viewed by employees as closely
identified with management. Sunward Materials, 304
NLRB 780 (1991). Baldwin interviews applicants for
the Employer’s commercial driver’s license (CDL) train-
ing program, notifies applicants of their acceptance into
the program, conducts the training in the classroom and
on buses, administers CDL testing on behalf of the State,
completes State- and Employer-required assessments of
employees’ driving performance and records, and in-
forms employees when they are required to undergo
physical examinations and other testing. She is also the
only employee who sits in an enclosed office that she
shares with a supervisor. We note particularly that
Baldwin is in some instances the only representative of
the Employer with whom applicants deal during the ap-
plication and training process, and therefore they could
reasonably believe that she plays a role in deciding
whether they are ultimately hired as drivers after they
complete the CDL program.
Contrary to the Employer’s contention, the Board did
not employ a different test or set a higher threshold for
showing close identification with management in Mid-

1 On August 1, 2008, the Board denied the Joint Petitioner’s motion
that the Board accept its late-filed exceptions and brief.
2 No exceptions were filed concerning the hearing officer’s recom-
mendation to overrule the portion of the Joint Petitioner’s objection
contending that Baldwin is also a statutory supervisor.
Continent Spring Co. of Kentucky, 273 NLRB 884, 884
fn. 2 (1984). No party in that case excepted to the hear-
ing officer’s finding that the observer was closely identi-
fied with management. Rather, the question was whether
the mere presence of the observer, whom employees per-
ceived as the personnel officer, warranted setting aside
the election, even without a showing of any specific in-
terference in the election. The Board held that it did. Id.
at 884.
Our dissenting colleague asserts that our decision im-
poses new eligibility restrictions for selection as an em-
ployer observer. We disagree. We create no new law
here. We simply apply the standard the Board set forth
in Sunward Materials almost 20 years ago, which was
based on precedent dating 30 years earlier.3 Under that
precedent, selection of an employer observer whom em-
ployees could reasonably perceive as closely aligned
with management interferes with laboratory conditions
and constitutes objectionable conduct. We do not share
our colleague’s view that the rule should be narrowly
interpreted by limiting its application to the precise facts
of prior cases. The Employer’s choice of Baldwin meets
the Board’s established standard and is therefore objec-
tionable.
Our dissenting colleague also argues that the Board
does not impose equivalent limitations on employers and
unions in the selection of their election observers. We
disagree. The Board’s principal goal in conducting rep-
resentation elections is to guarantee employees’ freedom
in exercising their choice with respect to union represen-
tation. See Family Service Agency, San Francisco, 331
NLRB 850 (2000); General Shoe Corp., 77 NLRB 124,
127 (1948). In pursuing that goal, the Board considers,
among other things, the employees’ awareness that the
employer wields substantial and direct control over their
livelihoods and day-to-day working conditions, power
that a petitioning union does not possess in any degree.
Thus, as here, the Board prohibits individuals closely
identified with management from serving as observers,
without imposing a parallel prohibition on individuals
identified with a petitioning union.4 By contrast, an in-
cumbent union may be perceived by employees as pos-
sessing the ability to affect their employment, if not as
directly or to the same degree as the employer. There-
fore, in order to assure employee free choice in decertifi-
cation elections, officials of the incumbent union are not
permitted to serve as observers in such elections.5 The

3 Peabody Engineering Co., 95 NLRB 952 (1951).
4 The Board has, however, adopted a per se rule that supervisors may
not serve as observers for either party. Family Service Agency, San
Francisco, supra.
5 Butera Finer Foods, 334 NLRB 43 (2001).
FIRST STUDENT, INC. 411
Board’s election observer rules, then, are carefully de-
signed not to achieve a formalistic equivalency, but
rather to address the economic realities of the workplace.
[Direction Of Second Election omitted from publica-
tion.]
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,
including employees who did not work during the period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the first election and who retained their employee status
during the eligibility period and their replacements.
Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those
in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the payroll pe-
riod, striking employees who have been discharged for
cause since the strike began and who have not been re-
hired or reinstated before the election date, and employ-
ees engaged in an economic strike that began more than
12 months before the date of the first election and who
have been permanently replaced. Those eligible shall
vote whether they desire to be represented for collective
bargaining by Service Employees International Union,
Local 284, and Amalgamated Transit Union, Local 1005.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election if proper objections
are filed.

MEMBER SCHAUMBER, dissenting.
First Student employees exercised their freedom of
choice in a secret ballot election by voting against the
Joint Petitioner 83 to 67. My colleagues set the election
aside, finding that the Employer’s nonsupervisory elec-
tion observer, Patty Baldwin, was “closely aligned with
management.” Contrary to my colleagues, I find nothing
in Baldwin’s duties as a trainer and substitute bus driver
that disqualifies her from serving as an election observer
for the Employer.
It is well settled that an election is not to be lightly set
aside and that the burden is on the objecting party to
show that the conduct about which it complains had a
reasonable tendency to interfere with employee free
choice. In the area of election observers, however, the
Board will set aside an election if a party’s election ob-
server is perceived as “closely aligned with manage-
ment.” Board policies concerning the parties’ selection
of observers derive from the Board’s goal of providing as
nearly as possible laboratory conditions for employees as
they cast their ballots. They are a recognition, in part, of
how highly contentious the question of union representa-
tion can be in the workplace. It is one thing, however, to
set aside elections because an observer was a supervisor
who actively participated in the employer’s antiunion
campaign; it is another to set aside an election because an
observer was an employee with routine administrative or
technical responsibilities.
In early decisions, the Board held that an employer
may not choose a supervisor as its observer.1 Thereafter,
the Board expanded the policy to disqualify a personnel
manager who, though not a supervisor, owed a “substan-
tial responsibility” to management.2 Under the next ex-
tension of the policy, the Board ruled that employers’
attorneys3 and family members of high management offi-
cials were also ineligible.4 Soon the Board began to char-
acterize its policy as providing broadly that “persons
closely identified with the employer may not act as ob-
servers.”5
Under this expansive approach, the Board has more re-
cently applied its prohibition not only to employer offi-

1 See, e.g., Paragon Rubber Co., 7 NLRB 965 (1938) (factory man-
ager who was a “high supervisory official”); see also Hoague-Sprague
Corp., 80 NLRB 1699 (1948) (foremen/supervisors); Ann Arbor Press,
88 NLRB 391 (1950) (office manager who was a supervisor); Worth
Food Markets, 103 NLRB 259 (1953) (head bookkeeper). In Family
Service Agency, 331 NLRB 850 (2000), the Board established a bright-
line rule that supervisors may not serve as observers for either party.
2 Harry Manaster & Bros., 61 NLRB 1373 (1948).
3 Union Switch & Signal Co., 76 NLRB 205 (1948) (nonemployee
attorney); Peabody Engineering, 95 NLRB 952 (1951) (same).
4 Wiley Mfg., Inc., 93 NLRB 1600 (1951) (owner’s wife, who was
employee); International Stamping Co., 97 NLRB 921 (1951) (son- and
sister-in-law of employer’s president).
5 Herbert Men’s Shop, 100 NLRB 670 (1952) (executive or manage-
rial employee who attended negotiations and took part in final step of
grievance process ineligible).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
cials and close relatives, but also to employees whom
other employees would reasonably believe to be closely
aligned with management. In B-P Custom Building
Products, 251 NLRB 1337 (1980), the Board found ob-
jectionable the employer’s designation of an individual
who attended management meetings, scheduled shifts,
vacations, and overtime, authorized sick leave, and spoke
at two employee meetings, one of which he conducted
without management officials present. Because he re-
layed information from management, the Board found
that he “had been placed . . . in a strategic position where
employees could reasonably believe he spoke on its be-
half.” Id. at 1338.
Similarly, in Sunward Materials, 304 NLRB 780
(1991), cited by the hearing officer, the Board found
compliance/training specialist Ken Vivian ineligible as
an observer. Vivian was visible in the hiring process,
answering applicants’ questions, reviewing their applica-
tions for completeness, and scheduling interviews; in-
formed successful applicants of their pay rate and when
and where to report for work; provided on-site safety and
equipment training to employees; monitored drivers’
traffic records; and administered written drivers’ tests.
While Baldwin’s position resembles Vivian’s to some
degree, the Board in Sunward Materials relied on key
additional facts in determining that Vivian’s service as an
observer was objectionable. Notably, at a series of em-
ployer campaign meetings, he sat at the front of the room
facing the employees, in line with management officials,
while those officials made antiunion speeches. The
Board found that, by its assent to Vivian’s presence with
its managers, the employer placed him in a position in
which employees could reasonably view him as closely
identified with management.
Whatever the merits of B-P Custom Building Products
and Sunward Materials, both cases are distinguishable on
their facts. Unlike the employee in B-P, Baldwin does
not attend management meetings or conduct employee
meetings, other than on safety matters, her area of tech-
nical expertise. Nor has she participated in campaign
meetings at the side of the Employer’s managers, as in
Sunward Materials. No comparable facts have been pre-
sented to warrant the same result in this proceeding.6

6 Although, contrary to the assertion of my colleagues, I would not
limit BP and Sunward to “the[ir] precise facts,” those facts are essential
to an accurate understanding of the Board’s policy. Until today, the
Board has found ineligible only persons whom employees would rea-
sonably believe to be closely identified with management in a labor-
management framework. In my view, Baldwin’s technical and ministe-
rial duties are too circumscribed to reasonably create such an impres-
sion. Therefore, the “closely identified with management” standard,
understood in the context of the cases in which the Board has applied
it, does not warrant the majority’s conclusion.
The Board’s original policy of excluding only supervi-
sors and those persons most inextricably linked to the
employer was not unreasonable, although I would not
find it essential to the conduct of fair secret-ballot elec-
tions. Since that initial policy, however, the Board has
proceeded down a slippery slope, setting aside elections
while incrementally restricting the employer’s selection
of its observers and the Section 7 rights of employees
who would serve in that capacity.
Moreover, the Board does not correspondingly prohibit
employees who are closely associated with the union
from serving as union observers. Rather, the Board rou-
tinely permits employee union officials to serve as ob-
servers,7 and has also found unobjectionable the service
of nonemployee officials, including union officers8 who
could have actively participated in the union’s organiza-
tional campaign. Although my colleagues assert that
employers are unique in that they exercise direct control
over employees’ incomes and working conditions, they
disregard the power of the employees’ collective-
bargaining representative and the very real and immedi-
ate effects that a petitioning union, if successful, will
have over the employees day-to-day work lives, a situa-
tion not lost on employees as they cast their ballots in the
presence of union officials. Parties to Board elections
are entitled to equitable policies concerning the selection
of their observers.
In sum, I would decline to broaden by yet another in-
crement the group of employees who are prohibited from
serving as employer observers.
Accordingly, I would overrule the Joint Petitioner’s
objection.

7 See, e.g., Bordo Products Co., 119 NLRB 79, 80 (1957) (in the ab-
sence of electioneering, interference, or coercion, “an official position
with the [u]nion does not disqualify an employee from acting as a union
observer”).
8 See, e.g., New England Lumber Division, 252 NLRB 95 (1980),
enfd. 646 F.2d 1 (1st Cir. 1981) (union president); see also Black Bull
Carting, 310 NLRB No. 188 (1993) (not reported in Board volumes),
enfd. 29 F.3d 44 (2d Cir. 1994); but see Butera Finer Foods, 334
NLRB 43 (2001) (agent of incumbent union may not serve as observer
in decertification election).