C & G Heating and Air Conditioning, Inc.

National Labor Relations Board - Board Decisions

Apr 6, 2011

356 N.L.R.B. 1054 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
356 NLRB No. 133
1054
C & G Heating & Air Conditioning, Inc. and United
Association of Plumbers and Pipefitters, Local
777. Case 34–RC–2408
April 6, 2011
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
The National Labor Relations Board, by a three-
member panel, has considered an objection to an election
held on November 24, 2010, and the Regional Director’s
report recommending disposition of it. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows six for and one against the
Petitioner, with two challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions, and has adopted the Regional Director’s find-
ings and recommendations, and finds that a certification
of representative should be issued.
In this case, the Employer filed an objection to the out-
come of a secret-ballot election, in which employees
voted 6 to 1 to be represented, on the ground that a union
representative sat in his parked truck on a public street
behind the Employer’s facility while voting was going on
inside the facility. Drawing all reasonable inferences in
favor of the Employer from both the two affidavits it
submitted in support of the objection and the factual rep-
resentations in its objection, the evidence demonstrates
that the Union’s representative at the election parked his
truck on a public street 77 feet from the entrance to a
garage behind the Employer’s facility through which
employees entered in order to vote inside the garage.
The representative was in that location between 8:05 and
8:30 a.m. while the polls were open between 7:30 and
8:30 a.m..1 There is no evidence that the union repre-
sentative talked to any voter as he or she entered or exit-
ed the garage. There is no evidence that the union repre-
sentative kept any form of list of employees entering or
exiting the garage or that any employee witnessed the
keeping of any such list. In fact, there is no evidence that
any employee entering the garage to vote saw the union
representative and recognized him as a union representa-
tive.2 There is no allegation that the secrecy of the bal-

1 The union representative had attended the preelection conference
inside the facility, left to have breakfast, and was then waiting outside
before reentering the facility for the tally of ballots.
2 Both of the affidavits submitted by the Employer state that the affi-
ant employees saw the individual in the truck before they voted but did
not know he was the union representative until after the polls closed
when he entered the facility for the tally.
loting was compromised in any manner.3 The Regional
Director concluded that, even accepting all the Employ-
er’s factual assertions as true, the alleged conduct was
not objectionable and dismissed the objections without a
hearing. The Employer then filed exceptions.
In its exceptions, the Employer’s legal argument, in its
entirety, reads as follows:

It is the Employer’s position that the Union by the
above and other acts, engaged in objectionable conduct,
in the instant case.

See:

Piggly Wiggly, #011, 168 [NLRB] 792 (1967);
Pepsi-Cola Bottling, 291 [NLRB] 578 (1988);
Hollingsworth Management Service, 342
[NLRB] 556 (2004);
Tyson Fresh Meats, Inc., 343 [NLRB] 1335
(2004).

The Employer made the identical legal argument to the Re-
gional Director. The Regional Director rejected the argu-
ment in a well-reasoned report supported with citations to
applicable Board precedent. The Employer’s exceptions do
not cite and thus do not distinguish the applicable precedent
cited in the report. Rather, the exceptions merely cite the
same four cases cited in the objection.
Each of the cited cases is clearly distinguishable from
the facts here, and the Employer makes no argument for
the extension of their holdings or for any other change in
Board law. In Piggly Wiggly, the union representative
kept a list of employees as they entered the polls to vote
in violation of Board policy “prohibiting anyone from
keeping any list of persons who have voted, aside from
the official eligibility list” and at least some eligible vot-
ers were aware of the maintenance of the list. 168 NLRB

3 The Employer alleges that while the windows of the overhead gar-
age door closest to the entrance to the polling area were covered by
cardboard, “the second overhead garage door windows were not cov-
ered in cardboard and would have provided [the union representative] a
direct line of sight to the actual balloting area.” While one of the Em-
ployer’s affiants speculates that the union representative “would have
been able to look through the window of the garage door and possibly
observe the balloting process,” neither affiant states affirmatively that
any of the windows were uncovered and neither states affirmatively
that it was possible from a distance of 77 feet to look through a window
in a garage door and discern anything going on inside the garage. The
Regional Director’s report states that the Board agent conducting the
election stated that the windows were covered throughout the election.
Even crediting the Employer’s assertion, employees cast their ballots in
Board elections in voting booths in order to insure the secrecy of the
ballot. Casehandling Manual, Part Two, Representation Proceedings,
Secs. 11304.3, 11322.2. The Employer does not allege that a voting
booth was not used in the election or that even people inside the polling
area could see into the booth much less someone in a truck 77 feet
outside the garage looking through a window.
C & G HEATING & AIR CONDITIONING, INC. 1055
at 793.4 In this case, the Employer does not allege that
the union representative kept any form of list or that eli-
gible voters knew of any such list. In Pepsi-Cola, a large
group of union supporters wearing union hats and shirts
stood on both sides of employees waiting in line to vote,
within the area that had been designated by the Board
agent as the no-electioneering area around the polls,
clapping and cheering and engaging in active campaign-
ing. In this case, the Employer does not allege that the
union representative entered any no-electioneering area
at any time, that a line of voters extended to the repre-
sentative’s truck parked on the public street or even out-
side at all, or that the representative engaged in any form
of campaigning. In Hollingsworth, the Board found
“physical manhandling of voters, . . . extended conversa-
tions with voters about the Union and about how they
intended to vote, and [a] large number of voters subject-
ed to the conduct while waiting in the voting line.” 342
NLRB at 558. In this case, the Employer alleges not one
of those three types of conduct. Finally, in Tyson, the
Board found that the conduct of union stewards engaging
in conversations with employees standing in line to vote
violated the per se rule established in Milchem, 170
NLRB 362 (1968), barring any party to the proceedings
from engaging in “prolonged conversations with pro-

4 Since Piggly Wiggly, the Board has several times distinguished that
case on the ground that even if a party’s representative keeps a list of
employees who have voted, the conduct is not objectionable unless
more than a de minimis number of voters have knowledge of the
maintenance of the list. See, e.g., Indeck Energy Services of Turner
Falls, 316 NLRB 300, 301 (1995); Tom Brown Drilling Co., 172
NLRB 1267, 1267 (1968).
spective voters waiting in line to cast their ballots.” 343
NLRB at 1335. In this case, the Employer does not al-
lege that the union representative engaged in any conver-
sations with employees waiting in line to vote much less
prolonged conversations.
Moreover, existing Board precedent, endorsed by the
Sixth Circuit, but not cited by the Employer, clearly
holds that “[p]resence [of a union representative in the
vicinity of the polls] alone, in the absence of evidence of
coercion or other objectionable conduct, is insufficient to
warrant setting aside an election.” Harlan #4 Coal Co. v.
NLRB, 490 F.2d 117, 121 (6th Cir. 1974), cert. denied
416 U.S. 986 (1974).
We find that the Employer’s exceptions are wholly
baseless.5
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for United Association of Plumbers and Pipe-
fitters, Local 777, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time installation and ser-
vice technicians and apprentices employed by the Em-
ployer at its Torrington, Connecticut facility; but ex-
cluding all professional employees, guards and supervi-
sors as defined in the Act.

5 Member Hayes would adopt the Regional Director’s report and
overrule the Employer’s objection as without merit. He finds no need
at this stage of Board proceedings to further characterize the relative
strength, or lack thereof, in argument made and evidence adduced in
support of the objection.

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