Indeck Energy Services

National Labor Relations Board - Board Decisions

Feb 14, 1995

316 N.L.R.B. 300 (N.L.R.B. 1995)

300
316 NLRB No. 62
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer also relies on Hudson Aviation Services, 288
NLRB 870 (1988), which reaffirmed the Athbro standard.
2 In Athbro, the Board agent in charge of the election was seen
between voting periods having a beer with a union representative in
a cafe about a mile from the plant. This incident was observed only
by an employee who had already voted.
3 See Rheem Mfg., 309 NLRB 459 (1992), and cases cited therein,
affd. in the summary judgment proceeding 310 NLRB No. 116
(1993) (not reported in Board volumes), enfd. mem. 28 F.3d 1210
(4th Cir. 1994). In Rheem the conduct of two Board agents was at
issue. During the election a Board agent complained about the exces-
Indeck Energy Services of Turners Falls, Inc. and
International Brotherhood of Electrical Work-
ers, Local 455, Petitioner. Case 1–RC–20089
February 14, 1995
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on August 18 and 26, 1994, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Decision and Di-
rection of Election. The tally of ballots shows 10 for
and 4 against the Petitioner with no challenged ballots.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings and recommendations as modified and further
discussed below, and finds that a certification of rep-
resentative should be issued.
1. The Employer has excepted, inter alia, to the
hearing officer’s failure to apply the standard set forth
in Athbro Precision Engineering Corp., 166 NLRB
966 (1967), vacated sub nom. Electrical Workers IUE
v. NLRB, 67 LRRM 2361 (D.D.C. 1968), on remand
171 NLRB 21 (1968), enfd. 423 F.2d 573 (1st Cir.
1970), to the facts in the instant case.1
We find the instant case distinguishable from Athbro
and Hudson. We cannot find, under the standard set
forth in those cases, that the Board agent’s course of
conduct, even considered collectively and cumula-
tively, warrants setting aside the election.
In Athbro, the Board set aside an election based on
Board agent conduct even though no votes could have
been affected by that conduct.2 The Board stated that
the commission of an act by a Board agent ‘‘which
tends to destroy confidence in the Board’s election
process, or which could reasonably be interpreted as
impugning the election standards’’ is a sufficient basis
for setting aside an election.
In Hudson, supra, the Board set aside an election
where the Board agent had a loud argument with an
employer’s assistant manager concerning the assistant
manager’s presence in the dispatcher’s office, which
was located near the polling area, and threatened to
stop the election if the assistant manager remained in
the office. The Board affirmed the hearing officer’s re-
liance on Athbro and found that the Board agent’s con-
duct communicated the impression that the Board was
displeased with and was criticizing the employer’s as-
sistant manager and thereby undermined the perception
of Board neutrality in the election.
The conduct in the instant case involved fraterniza-
tion between the Board agent and the Petitioner’s ob-
server which occurred during the course of the election
and in the presence of the Employer’s observer, but no
eligible voters. Unlike the situation in Athbro, there
was nothing in this situation occurring in the full view
of the Employer’s observer which would reasonably
cause a witness to it to question the Board’s neutrality.
We agree with the hearing officer that this was simply
a conversation of an innocuous nature among individ-
uals who were brought together as a consequence of
the election. This is distinguishable from the situation
in Athbro, in which a witness to the beer drinking
which occurred outside the presence of any representa-
tive of the employer in a location away from the site
of the election could reasonably wonder about the rela-
tionship between the participants.
This case is also unlike Hudson, in which it would
have been evident to any witness to the confrontation
that the Board agent was displeased with the employer.
Here there was nothing in the Board agent’s conduct
to indicate that the Board agent was biased against the
Employer. While we do not condone excessive frater-
nization between Board agents and observers or rep-
resentatives of the parties to an election, we do not be-
lieve that the level of fraternization involved here war-
rants a finding that the Board’s neutrality was com-
promised. Accordingly, we agree with the hearing offi-
cer that the Employer’s Objection 3 should be over-
ruled.
The Employer also excepts to the hearing officer’s
failure to apply the Athbro standard to the conduct al-
leged objectionable in Objections 1 and 2. In Objection
1, the Employer alleges that the Board agent improp-
erly failed to retrieve a copy of the election eligibility
list which the Petitioner’s observer had made for the
Petitioner’s representative, and contends that the Board
agent’s conduct with regard to the removal of the list
for copying called the Board’s neutrality into question.
In Objection 2, the Employer contends that the Board’s
neutrality was compromised because the Board agent
jokingly asked the Petitioner’s representative to buy
breakfast for the Board agent. We have carefully ex-
amined this conduct and have applied the Athbro
standard to it. We find that the conduct, whether con-
sidered separately or cumulatively, was insufficient to
call the Board’s neutrality into question.3
301INDECK ENERGY SERVICES
sive heat in the voting area and stated, inter alia, that if he had to
return to the plant in the future he might have to file his own peti-
tion, and that a large air conditioning company like the employer
should be able to keep the area cool. The Board found the comment
made to observers did not warrant setting aside the election even
though the heat in the plant was an issue in the campaign. In so
finding, the Board noted that the comment was not so extreme as
to warrant a finding that the Board’s appearance of impartiality was
destroyed. The Board also found the comment not prejudicial in light
of the fact that it was made only in the presence of the observers,
and the employer’s observer had already voted. In addition to the
heat comment the Board agent also did not follow proper procedures
concerning late-arriving voters (placing their ballots in his pocket)
and during a break in the election another Board agent walked
through the plant with a union observer, ‘‘conversing in a friendly
fashion and occasionally laughing.’’ The Board stated that while it
did not condone the Board agents’ conduct, it was insufficient to
warrant setting aside the election. We find the conduct in the instant
case, even considered cumulatively, to be less extreme than that
found unobjectionable in Rheem.
4 Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d
Cir. 1969), cert. denied 396 U.S. 1010 (1970).
2. The Employer has excepted to the hearing offi-
cer’s failure to admit evidence concerning a statement
allegedly made by the Board agent on the second day
of the election. At the hearing the Employer made an
offer of proof that on August 26, 1994, in the presence
of the observers for both the Employer and the Peti-
tioner, the Board agent stated, ‘‘I was almost tempted
to open [the challenged ballots].’’ We find it unneces-
sary to pass on whether this evidence should have been
admitted, because we find that even accepting the Em-
ployer’s offer of proof and considering the testimony
in the light most favorable to the Employer, the remark
is insufficient to warrant setting aside the election.
We reject the Employer’s contention that the remark
indicates that the secrecy of the ballots was impaired.
There is no evidence that any ballots were opened pre-
maturely. While we do not condone remarks of this
nature, we cannot find under the circumstances of this
case that the remark, made outside the presence of eli-
gible voters other than the Petitioner’s observer who
had already voted, even when considered cumulatively
with all the other alleged misconduct involved in this
case, raised a ‘‘reasonable doubt as to the fairness and
validity of the election.’’4 We have also examined the
comment under the Athbro standard and we conclude
that, whether considered separately or together with all
the other evidence in this case, it did not tend to ‘‘de-
stroy confidence in the election process’’ or ‘‘reason-
ably impugn the election standards.’’
3. We agree with the hearing officer, for the reasons
stated in his report, that the removal and copying by
the Petitioner’s observer of the official voter eligibility
list shortly before the election did not warrant setting
aside the election. In this connection, we further note
that the list was returned before the election began and
there was no evidence that the list was tampered with
in any way. Accordingly, we find that this incident
was insufficient to raise a ‘‘reasonable doubt as to the
fairness and validity of the election.’’ Polymers, supra.
The Employer argues, inter alia, that the election
should be set aside because the Petitioner’s observer
and representative used the copy of the official list to
make a list of employees who voted. We disagree.
First, there is no clear evidence that they maintained
such a list. Second, even if they did maintain a list, we
would not find it necessary to set aside the election.
In Southland Containers, 312 NLRB 1087 (1993), the
Board stated that it will set aside an election on the
basis that a voting list other than the official eligibility
list was kept only if it can be shown or inferred from
the circumstances that employees were aware that their
names were recorded. Here, not only is it unclear that
a list was actually kept, but there is no evidence that
any employees even suspected that their names were
being recorded. Under such circumstances we find no
basis for setting aside the election.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for International Brotherhood of Elec-
trical Workers, Local 455 and that it is the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All operations and maintenance employees em-
ployed by the Employer at the Turners Falls En-
ergy Center in Turners Falls, Massachusetts, in-
cluding shift supervisors, shift operators, shift me-
chanics, maintenance leader, electrician, and in-
strument and control technician, but excluding the
office manager, guards, and supervisors as defined
in the Act.