Cerock Wire & Cable Group, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1041 (N.L.R.B. 1984)

CEROCK WIRE & CABLE GROUP 1041
Cerock Wire & Cable Group, Inc. and IBEW Local
Union 1100, AFL-CIO, Petitioner. Case 10-
RC-12799
14 December 1984
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 18 and 19 August 1983 and the hear-
ing officer's report recommending disposition of
them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 139 for and 77 against the Petitioner, with 7
challenged ballots, an insufficient number to affect
the results.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the hearing
officer's findings' and recommendations, 2 and finds
that a certification of representative should be
issued.
Contrary to our dissenting colleague, we agree
with the hearing officer's recommendation to over-
rule the Employer's Objection 3. (Excerpt from
hearing officer's report attached as an appendix.)
We find that the list compiled by union observer
Jackson while the election was in process did not
interfere with the employees' free choice.
During the balloting, Jackson had a list of voters
to be challenged on a table in front of her. She
covered the list with her arm. As employees gave
their names to vote, Jackson would make a hash
mark in a column on the reverse side of the list if
the employee was wearing a "Vote No" shirt. A
similar mark would be placed in an adjacent
column if the employee displayed a union button.
The columns were not labeled.
The hearing officer found that, while the tally
kept by Jackson did not comport with Board pre-
cedure, it was de minitnis conduct. He noted that
no actual names were recorded and that there was
no evidence that employees waiting to vote were
1 The Employer has excepted to some of the hearing officer's credibil-
ity findings. The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings.
2 We adopt the hearing officer's recommendation to overrule the Em-
ployer's Objection 2, but we rely solely on his finding that Rick England
was not an agent of the Petitioner.
In adopting the hearing officer's recommendation that the Employer's
Objection 5 be overruled, Member Zimmerman does not rely on A.G.&
Graphics, 262 NLRB 1071 (1982), in which he dissented and which he
finds factually distinguishable. Member Dennis finds it unnecessary to
rely on A.G.S. Graphics.
aware that notations were being made. The Em-
ployer's observer apparently was the only one
aware of this activity and did not report it to the
Board agent until after the polls had closed.
The facts in this case do not support the conclu-
sion that there was a substantial violation of the
Board's longstanding policy which prohibits
anyone keeping a list of persons who have voted3
aside from the official eligibility list used to check
off voters as they receive their ballots. To sustain
his conclusion, our colleague relies on Sound Refin-
ing, Inc., 267 NLRB 1301 (1983). We find, howev-
er, that Sound Refining is factually distinguishable.
In Sound Refining, the union observer kept a
copy of the Excelsior list4 inside a folder or note-
book during the election. As employees appeared
to vote, the union observer made a notation next to
the names of the voters. The Board set aside the
election, finding "that, in the circumstances, it can
be inferred that the voters knew that [the union ob-
server] was recording their names." The Board
noted that the union observer was a conspicuous
presence at the election who made no attempt to
conceal his conduct.
In this case, unlike Sound Refining, the Petition-
er's observer Jackson did not have a list of the
voters. The paper she had in front of her during
the election had a list only of the names of six em-
ployees to be challenged. She used the reverse side
of the paper to keep a tally which bore no names,
but consisted solely of hash marks arranged in two
unidentified columns. Further, Jackson attempted
to conceal her activity by keeping her arm over
the paper. In the absence of evidence to the con-
trary, the more reasonable conclusion would be
that Jackson did effectively conceal the tally and
that the voters neither could nor did infer that a
tally of their votes was being kept.
Even assuming that some voters were aware of
Jackson's conduct, the absence of names to which
the hash marks could be related and Jackson's fail-
ure to label the columns under which the hash
marks were recorded would make it impossible for
them to ascertain the nature of Jackson's tally.3
Accordingly, we conclude that any breach of the
aforementioned rule which may have occurred in
this case did not constitute grounds for setting
aside the election. The objection is therefore over-
ruled.
3 See International Stamping Co, 97 NLRB 921 (1951).
4 See Excelsior Underwear, 156 NLRB 1236 (1966).
a We emphasize that Jackson's conduct involved only the making of
hash marks, not the recording of names. See Masonic House of California,
258 NLRB 41 fn. 4(1981).
273 NLRB No. 132
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for IBEW Local Union 1100,
AFL—CIO and that it is the exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All production and maintenance employees
employed by the Employer at its Hartselle,
Alabama facility, including all janitorial em-
ployees and production clerical employees, but
excluding all office clerical employees, profes-
sional employees, quality control employees,
technical employees, leadpersons, guards and
supervisors as defined in the Act.
MEMBER HUNTER, dissenting.
Contrary to my collegues, I would find that the
Union's observer Kimette Jackson interfered with
the employees' free choice by compiling a list of
voters while the election was in progress.
The record establishes that Jackson possessed a
proper list of voters whose ballots she intended to
challenge. However, the hearing officer found that,
when each employee stated his name to the Board
agent on entering the polling area to vote, Jackson
made a hash mark in one of two unmarked col-
umns on the reverse side of that list. Jackson
marked one column if she considered the voter to
be a union supporter, and marked the other if she
thought the voter opposed the Union. Jackson kept
her arm over the paper, which was located on top
of the table where the observers were seated.
In Sound Refining, Inc., 267 NLRB 1301 (1983),
the Board reiterated the principle that election
rules designed to guarantee free choice "must be
strictly enforced against material breaches in every
case." The Board also stated that an election
should be set aside where it can be affirmatively
shown or reasonably inferred that employees knew
their names were being recorded. 2 I note first that
the marks made by Jackson constitute the type of
list generally proscribed by the Board's rules.3
Contrary to the majority, I would also find it ap-
propriate under the circumstances to infer that the
voters were aware that Jackson was compiling a
list. In this connection I emphasize Jackson's con-
spicuous presence at the polls as an election ob-
server, as well as the absence of evidence that she
' The Board quoted from International Stamping Ca, 97 NLRB 921
(1951)
2 The Board cited A D Judhard & Co., 110 NLRB 2197, 2199 (1954)
3 The hearing officer specifically found that Jackson was keeping a
"personal tab" of the progress of the vote, and he noted that her conduct
"did not comport with the Board's election rules"
attempted to conceal her conduct from the voters.4
Indeed, rather than conceal her conduct, Jackson
recorded the marks in the presence of employees as
they stated their names to the Board agent, and she
maintained the list on top of the observer's table
where it could be seen. That she kept her arm over
the list does not warrant a different result because,
in doing so, she simply highlighted the overt nature
of her conduct. 3 In my view, the voters would rea-
sonably believe that Jackson's conduct was de-
signed to identify them.6
In view of the above, and because Jackson com-
piled the list thoughout the balloting, 7 I do not
agree with my colleagues that her breach of the
Board's rules was de minimis. Consequently, I
would sustain the Employer's Objection 3 and set
aside the election.8
4 See Sound Refining, above at 1302
5 In these circumstances, I see no basis for the majority's conclusion
that Jackson "did effectively conceal" her conduct Rather than wait
until the employees had left the polling area, Jackson recorded the marks
while they were giving their names to the Board agent Rather than keep
the list out of sight, she kept It in plain view on top of the observers'
table Placing her arm over the paper in an attempt to be secretive would
clearly have the effect of drawing attention to her activity In my view,
the record warrants the inference that the employees were aware that
Jackson was compiling a list
6 My colleagues assert that, even if the voters were aware of her con-
duct, Jackson's failure to label the columns or record names would make
it impossible for them to ascertain the nature of the tally In my view, a
voter who states his name and immediately sees an observer record a
mark would reasonably believe that the observer was trying to identify
him in some manner That Jackson did not ube a more specific identifica-
tion technique does not mean that her conduct was not coercive
7 See Sound Refining, above at 1302
8 In view of my disposition of the Employer's Objection 3, I find it
unnecessary to consider the remaining objections
APPENDIX
OBJECTION 3:
During the election, the union, by its agent Kimette
Jackson, engaged in electioneering at the polling
place
The Employer presented employee Donnie Luke in
support of this objection. Luke is classified as a leadper-
son and served as the Employer's observer in the 5:30
a.m , to 8 30 a.m., polling period on August 18, 1983
Luke testified that he observed that Petitioner's observer,
Kimette Jackson, had a list of six (6) names to be chal-
lenged, and that the list was folded from left to right.
Jackson held the list on the top of the table where the
observers were stationed, and kept her arm over the
piece of paper. Luke testified that she would make a
hash mark on the reverse side of the list as employees
would give their name to vote. (See Employer's Ex. 3).
The record is clear that Jackson was not wntmg the
voter's name down; however, the record is equally clear
that Jackson was keeping personal tab of how she
thought the vote was going. Luke testified that an em-
ployee who wore a "Vote No" shirt would prompt Jack-
CEROCK WIRE & CABLE GROUP 1043
son to mark in one column; while a union button would
prompt a hash mark in the adjacent column. However,
as Employer's Ex. 3 demonstrates,• the columns are not
labeled in any way which would indicate which column
signified a "yes" or "no" vote.
Given the foregoing, I find the list keeping by Jackson
to be de minimis. While Jackson's conduct undoubtedly
did not comport with the Board's election rules, I am not
convinced that her transgression warrants the setting
aside of the election. Of special significance is the fact
that no actual names were recorded by Jackson, and
there is no evidence that the employees waiting to vote
actually noticed Jackson's practice of making these
marks as they gave their names to the observers. To the
contrary, Luke apparently was the only individual that
was aware Jackson was making hash marks as the voters
entered the polling area:
HEARING OFFICER Rox: . . . When you discov-
ered that Miss Jackson was making marks on the
left side for a vote "no" or "yes"—I'm not sure the
record will reflect—and marks on the right side, did
you bring that to the Board agent's attention? Did
you tell the Board agent that she was doing that?
LUKE: No sir.
HEARING OFFICER Rox: Why didn't you?
LUKE: Because the lawyer told me to observe it
and tell him at the end of the session.
HEARING OFFICER Rox: Did the Board agent tell
you to [inform him of] anything that was going on
that you felt was improper? Didn't he tell you that
at the beginning of this, before the polls opened?
LUKE: He might [have].
HEARING OFFICER Rox: But you never men-
tioned it to the Board agent while the polls were
open, that she was doing this?
LUKE: No, sir.
Accordingly, I find Objection 3 to be without merit,
and shall recommend that it be dismissed. Robert's Tours,
Inc., 244 NLRB 818 at fn. 5 (1979).