Thiele Industires, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1998

325 N.L.R.B. 1122 (N.L.R.B. 1998)

1122
325 NLRB No. 211
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We agree with the Acting Regional Director, for the reasons stat-
ed by him, that the irregularly marked ballot (in which an ‘‘X’’ was
placed in the ‘‘YES’’ box, a diagonal line was placed in the ‘‘NO’’
box, and the word ‘‘YES’’ above the ‘‘YES’’ box was circled)
should be counted as a vote in favor of the Petitioner. See Mediplex
of Connecticut, 319 NLRB 281, 300 (1995) (valid ‘‘NO’’ vote
where, although ‘‘X’’s were placed in both boxes, ‘‘X’’ in ‘‘YES’’
box was covered by smudges indicating an attempted erasure with
an inadequate eraser); Brooks Bros., 316 NLRB 176 (1995) (valid
‘‘NO’’ vote where, although ‘‘X’’s were placed in both boxes, voter
effectively and clearly obliterated ‘‘X’’ in ‘‘YES’’ box by scratching
over it with additional pencil markings). We have attached to this
Decision that portion of the Acting Regional Director’s report that
addresses this issue.
2 The Employer excepts to the hearing officer’s failure to consider
its objections ‘‘as a whole’’ and contends that ‘‘the cumulative ef-
fect of the [alleged objectionable] conduct affected the results of the
election’’ and requires that the election be set aside. We find this
exception without merit. We have considered the objections cumula-
tively and find that they do not warrant setting aside the election.
In adopting the hearing officer’s recommendation to overrule Em-
ployer’s Objection 7, in which it is alleged that the Union told em-
ployees that they could not come to preelection union meetings un-
less they had previously signed union authorization cards, we rely
solely on her finding that a union’s conditioning of employees’ at-
tendance at preelection union meetings on their signing of authoriza-
tion cards is not objectionable. See, e.g., Bell Foundry Co. v. NLRB,
827 F.2d 1340, 1345 (9th Cir. 1987).
Thiele Industries, Inc. and United Mine Workers of
America, AFL–CIO, CLC, Petitioner. Case 6–
RC–11428
July 20, 1998
DECISION, DIRECTION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX,
LIEBMAN, AND BRAME
The National Labor Relations Board has considered
determinative challenges and objections to an election
held September 26, 1997, and the Acting Regional Di-
rector’s report recommending disposition of the chal-
lenged ballots and the hearing officer’s report rec-
ommending disposition of the objections. The election
was held pursuant to a Stipulated Election Agreement.
The tally of ballots shows 32 for and 30 against the
Petitioner, with 4 challenged ballots, a sufficient num-
ber to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs and adopts the Acting Regional
Director’s findings and recommendations regarding the
challenged ballots1 and the hearing officer’s findings
and recommendations regarding the Employer’s objec-
tions to the election.2
The Employer excepts to the hearing officer’s rec-
ommendation that its Objection 10, in which it is al-
leged that the election was flawed because probation-
ary employees were improperly excluded from the vot-
ing list, should be overruled. Because there is no evi-
dence that the Employer deliberately omitted the name
of any employee that it believed to be eligible, we do
not agree with the hearing officer that the Employer
has engaged in ‘‘misconduct.’’ However, where, as
here, the Union has won the election, we agree with
the hearing officer that the Employer is foreclosed
from filing an objection based solely on its failure,
even if inadvertent, to comply fully with its obligation
under the Excelsior rule to include all eligible voters
on the Excelsior list.
We agree with Member Brame that employees have
a Section 7 right to make a ‘‘fully-informed’’ choice
in an election, and that the purpose of the Excelsior
rule is to protect that right. However, we cannot agree
with his contention that our decision with regard to
Objection 10 is at odds with that purpose. The Excel-
sior rule furthers the interest in ‘‘an informed em-
ployee electorate’’ by ‘‘allowing unions the right of
access to employees that management already pos-
sesses,’’ NLRB v. Wyman-Gordon Co., 394 U.S. 759,
767 (1969), thereby helping to ensure that employees
are able to hear not just the employer’s point of view
but also the union’s arguments in favor of unioniza-
tion. Where, however, a union wins an election not-
withstanding the employer’s failure to provide it with
an accurate Excelsior list, the union has obviously
managed to communicate its message to employees
notwithstanding the employer’s omission. For an em-
ployer to argue that its employees’ vote to be rep-
resented by a union should not be allowed to stand be-
cause the employees did not have an adequate oppor-
tunity to receive from the union information about why
they should vote for the union seems to us to be the
height of silliness, and we are hard-pressed to under-
stand why our colleague would take such an objection
seriously.
DIRECTION
It is directed that the Regional Director for Region
6 shall overrule the challenge to the irregularly marked
ballot and that this ballot be counted as a vote in favor
of the Petitioner. It is further ordered that within 10
days of this Decision the Regional Director for Region
6 shall open and count the ballot of John Claycomb,
and thereafter prepare and cause to be served on the
parties a revised tally of ballots. If Claycomb’s ballot
is in favor of the Petitioner, the Regional Director for
Region 6 is directed to certify the Petitioner as the ex-
clusive collective-bargaining representative of the unit
employees. If Claycomb’s ballot is against the Peti-
tioner, the Regional Director for Region 6 is directed
to take further appropriate action not inconsistent with
this Decision.
ORDER
It is ordered that this matter is referred to the Re-
gional Director for Region 6 for further processing.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01122 Fmt 0610 Sfmt 0610 D:\NLRB\325.166 APPS10 PsN: APPS10
1123THIELE INDUSTRIES
1 With respect to the ‘‘irregularly marked ballot,’’ I note that the
decision to count this ballot as a vote in favor of the Petitioner is
consistent with my dissenting opinion in Bishop Mugavero Center,
322 NLRB 209 (1996). See also TCI West, Inc. v. NLRB, No. 97–
70135 (9th Cir. 1998), denying enf. to TCI West, Inc., 322 NLRB
928 (1997), in which the court of appeals, in agreement with my dis-
senting opinion in the underlying representation case, found that the
voter clearly intended to cast a ‘‘No’’ vote where the ballot was
marked with one incomplete line in the ‘‘Yes’’ box and a dark, ob-
viously emphasized, complete ‘‘X’’ in the ‘‘No’’ box.
2 In adopting the recommendation to overrule the Employer’s Ob-
jection 2, alleging that the Union abused Board processes by filing
a frivolous charge on behalf of employee John Claycomb alleging
that he was terminated because of his union activity, I agree with
the hearing officer’s conclusion that since the charge was filed prior
to the critical period, this conduct cannot be the basis for overturning
the election. Accordingly, I find it unnecessary to pass on the re-
mainder of her rationale.
3 Excelsior Underwear, 156 NLRB 1236 (1966); North Macon
Health Care Facility, 315 NLRB 359, 360–361 (1994).
4 Sec. 103.20 NLRB Rules and Regulations and Statements of Pro-
cedure.
5 Sec. 103.20(c).
6 Thrifty Auto Parts, 295 NLRB 1118 (1989).
1 In adopting the Acting Regional Director’s recommendation to
overrule the challenge to the irregularly marked ballot, I rely specifi-
cally on the fact that other markings on this double-marked ballot,
i.e., the circle around the word ‘‘yes,’’ indicate clearly the voter’s
intent to vote for the Petitioner. Accordingly, I find it unnecessary
to pass on the Board’s decision in Bishop Mugavero Center, 322
NLRB 209 (1996), a case discussed by the Acting Regional Direc-
tor, because in that case, unlike here, there were no additional marks
on the double-marked ballot.
CHAIRMAN GOULD, concurring.
I join my colleagues in adopting the Acting Re-
gional Director’s findings and recommendations re-
garding the challenged ballots1 and the hearing offi-
cer’s findings and recommendations regarding the Em-
ployer’s objections.2 I write separately with regard to
Objection 10. The Employer, in Objection 10, alleges
that the election was flawed because the names of two
probationary employees were ‘‘improperly excluded
from the voting list.’’ I agree with my colleagues in
the majority and the hearing officer that the Employer
cannot object to its own conduct and, on that basis,
adopt the hearing officer’s recommendation to overrule
the objection.
The purpose of the Board’s Excelsior rule is to
achieve important statutory goals by ensuring that all
employees are fully informed about the arguments con-
cerning representation and can freely and fully exercise
their Section 7 rights.3 Under Excelsior, however, the
employer has the duty to prepare a complete and accu-
rate list of eligible voters. The analogous situation is
the Board’s requirements for the posting of election
notices. To further the same statutory goals as the Ex-
celsior rule and to promote clarity and uniformity in
election procedures, the Board’s rules require that em-
ployers shall post copies of the Board’s official notice
of election in conspicuous places for at least 3 full
working days prior to the election and that the failure
to post such a notice shall be grounds for setting aside
the election upon the timely filing of objections.4 The
rule further provides, however, that a ‘‘party shall be
estopped from objecting to nonposting of notices if it
is responsible for the nonposting.’’5 The same estoppel
principle is applicable under the Excelsior rule. A
party should not be able to assert its own failure to
meet its obligation as a basis for setting aside the elec-
tion.
Finally, evidence of whether or not the omissions
were ‘‘deliberate’’ is not relevant to resolving an ob-
jection to an Excelsior list. Under the Board’s decision
in Excelsior, ‘‘[e]vidence of bad faith and actual preju-
dice is unnecessary because the rule is essentially pro-
phylactic.’’6
MEMBER BRAME, concurring in the result.
I agree with my colleagues’ disposition of the objec-
tions to the election and challenged ballots.1 As to Em-
ployer’s Objection 10, I also agree with my colleagues
that there is no evidence that the Employer engaged in
‘‘misconduct’’ by deliberately omitting the names of
employees Davison and Yuhas from the Excelsior list.
I write separately, however, because I disagree with
the broad rule which my colleagues announce today to
the effect that an employer is uniformly and automati-
cally ‘‘foreclosed’’ or estopped from filing any objec-
tion to an election based on its own inadvertent failure
to include the names of all eligible voters on the Ex-
celsior list. As explained in Excelsior Underwear, 156
NLRB 1236, 1244 (1966), in the context of a Board-
conducted representation election, ‘‘an employee exer-
cises this [Section 7] right [to participate in or refrain
from participating in union activity] by voting for or
against union representation.’’ Under the view of my
colleagues, however, even if a substantial number of
employees are omitted from the Excelsior list, and
even if they fail to receive full information concerning
the election issues, the election will not be set aside.
In my view, the majority, by understandably seeking to
ensure that a party does not benefit from its own mis-
take, undermines the very purpose of the Excelsior
rule—to protect the Section 7 rights of employees to
make a free and fully informed choice in an election—
by foreclosing an objection to an election based on the
breach of the Excelsior rule. The fact that the employer
(through inadvertence) is responsible for the omission
should be insufficient to defeat the employees’ interest
in receiving the information. The inadvertent error of
the employer should not result in harm to employee in-
terests.
I also reject my colleagues’ assertion that the pur-
pose of the Excelsior rule—to protect the Section 7
right of employees to make a free and fully informed
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01123 Fmt 0610 Sfmt 0610 D:\NLRB\325.166 APPS10 PsN: APPS10
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In this regard, I am unwilling to make the assumption, which my
colleagues have apparently made, that the more employees learn
about a union, the more likely they are to vote for it in an election.
This certainly does not hold true in the political arena, and I am
therefore wary of applying it here. There may be cases, for example,
where employees who were omitted from the Excelsior list, and who
did not vote in the election, might have been prompted to vote
against the union if they had received and evaluated for themselves
the full union message. Also, employees who were omitted from the
Excelsior list, and who did vote in the election, might have voted
against the union if they had had the opportunity to evaluate more
fully the union’s message. In addition, receipt of the union’s mate-
rials may have stimulated inquiry and questioning which could have
altered intra-employee debates. The Board should focus on employee
choice, and it is for the Board to determine whether the Sec. 7 right
of employees to make a fully informed choice in an election has
been so impaired as to affect the result of the election. By their deci-
sion today, my colleagues have created an unnecessarily rigid pre-
sumption and have effectively foreclosed the Board from making
such a determination.
3 The Petitioner was not present when the ballot was opened.
4 The cases relied upon by the Employer are factually distinguish-
able. In Gerber Plastic, the disputed ballot was marked with a short
diagonal line in the square under the word ‘‘Yes’’ and a heavily
marked ‘‘X’’ with a wavy line through the ‘‘X’’ in the square under
the word ‘‘No.’’ In E-Z Way Towers, the disputed ballot was marked
with horizontal pencil marks in both the ‘‘Yes’’ and the ‘‘No’’
boxes. In neither case could the voter’s intent be ascertained.
choice in an election—is not at odds with their deci-
sion today. In this regard, I am not persuaded by my
colleagues’ argument that a union victory in an elec-
tion somehow vindicates the Section 7 right of all unit
employees, even those omitted from the Excelsior list,
to make a free and fully-informed choice in the elec-
tion.2 If it be, in my colleagues’ words, ‘‘the height of
silliness’’ to reject such flawed logic, so be it.
Contrary to my colleagues, I believe that an effec-
tive protection of the Section 7 rights of employees re-
quires the Board to investigate all objections based on
an inadvertent breach of the Excelsior rule, even when
the objection is based on the objecting party’s own
failure to supply a complete voter list. In such cir-
cumstances, the Board’s investigation should be di-
rected to whether eligible voters were prejudiced by
the failure to adhere to the Excelsior rule and whether
that prejudice could have affected the results of the
election. Applying this analysis here, I find that the
purposes of the Board’s Excelsior rule were satisfied
here because both Davison and Yuhas did, in fact, vote
in the election, and there is no assertion by either the
Employer or the Petitioner that these employees were
not fully informed about the election issues when they
voted. For these reasons, I would find that the election
was not ‘‘flawed’’ as the Employer contends and
would therefore overrule the Employer’s Objection 10.
APPENDIX
The Irregularly Marked Challenged Ballot
At the election one irregularly marked ballot was chal-
lenged by the Employer as a void ballot. Petitioner takes the
position that the ballot should be counted as a ‘‘yes’’ vote
for the Union.
The disputed ballot was opened in the Office of the Na-
tional Labor Relations Board, Region 6, on October 15,
1997, and a copy of said ballot is attached hereto as Exhibit
A. Both parties were afforded the opportunity to witness the
opening of the ballot and examine the ballot.3 The ballot at
issue herein was marked in pencil. One diagonal line appears
in the ‘‘No’’ box. A boldly marked ‘‘X’’ appears in the
‘‘Yes’’ box. In addition, the word ‘‘Yes’’ is circled, with a
portion of the circle marking the ‘‘Yes’’ box.
The Employer contends that since the ballot does contain
marks in both the ‘‘Yes’’ and ‘‘No’’ boxes, the clear intent
of the voter cannot be ascertained and relies upon the
Board’s decisions in Gerber Plastic Co., 110 NLRB 269
(1954), and E-Z Way Towers, Inc., 121 NLR8 1175 (1958).
The Petitioner, to the contrary, notes the clear ‘‘X’’ in the
‘‘Yes’’ box as well as the circling of the word ‘‘Yes’’ as an
unambiguous expression of the voter’s intent and argues that
the ballot should be counted as a ‘‘Yes’’ vote. Hydro Con-
duit Corp., 260 NLRB 1352 (1982).
It is the Board’s longstanding policy to attempt to give ef-
fect to voter intent whenever possible and to count any un-
ambiguous expression of voter intent as expressed on the bal-
lot. Hydro Conduit, supra. Illustrative of the Board’s applica-
tion of this policy was its decision in Abtex Beverage Corp.,
237 NLRB 1271 (1978), in which the Board concluded that
the intent of the voter to cast a ‘‘Yes’’ vote was clear. There,
the challenged ballot was marked with an ‘‘X’’ in both
boxes, but the ‘‘X’’ in the ‘‘No’’ box was scratched over
with circular markings. More recently, in Bishop Mugavero
Center, 322 NLRB 209 (1996), in somewhat similar but
readily distinguishable circumstances, the Board found that
the intent of the voter could not be ascertained. There, the
ballot had been marked only with an ‘‘X’’ in the ‘‘No’’ box
and a diagonal line in the ‘‘Yes’’ box. There, the Board stat-
ed, ‘‘that where a voter marks both boxes on a ballot and
the voter’s intent cannot be ascertained from other markings
on the ballot, the ballot is void.’’ (Emphasis added.)
Applying the above-described principles to the disputed
ballot herein, I find that the ballot does clearly and unambig-
uously express the voter’s intent to cast a vote in favor of
the Petitioner. In this regard, I note that although the ballot
contains markings in both boxes, there is a complete, heavily
marked ‘‘X’’ in the Yes box and the word Yes’’ is circled.
The circling of the word ‘‘Yes’’ resolves any ambiguity as
to the voter’s intent which is raised by the diagonal line in
the ‘‘No’’ box and satisfies the other markings’’ requirement
set forth by the Board in Bishop Mugavero.4
Accordingly, I find that the irregularly marked challenged
ballot is a vote cast in favor of the Petitioner and recommend
that a revised tally of ballots be issued to reflect said finding.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01124 Fmt 0610 Sfmt 0610 D:\NLRB\325.166 APPS10 PsN: APPS10