J.P. Mascaro & Sons

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 637 (N.L.R.B. 2005)

J. P. MASCARO & SONS
345 NLRB No. 42
637
J. P. Mascaro & Sons and International Association
of Machinists & Aerospace Workers, AFL–CIO,
District Lodge 1, Petitioner. Case 4–RC–20920
August 27, 2005
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered
objections to an election held December 10, 2004, and
the judge’s decision recommending disposition of them.
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 26 for
and 41 against the Union, with 9 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the judge’s findings and
recommendations only to the extent consistent with this
Decision, and finds that a certification of results of elec-
tion should be issued.1
We find that the judge erred in sustaining the Peti-
tioner’s Objection 1, which alleged that the Employer’s
agents stood outside the voting area, within 15 feet of the
polls, and intimidated voters as they entered to vote.
Accordingly, we reverse the judge and overrule the Peti-
tioner’s objection.
Facts
This case involves a December 10, 2004 election
among employees at the Employer’s Berks County,
Pennsylvania solid waste collection terminal. The elec-
tion took place over two sessions, the first between 5 and
8 a.m. and the second between 4 and 6:15 p.m., in the
vending/snack room area of the Employer’s facility.
This room is approximately 16–20 feet long and 8–9 feet
wide. It is connected on one end to the ga-
rage/maintenance area. The other end of the room is
connected to a 10-foot-wide hallway which leads to the
front door of the facility. Outside the front door is a ce-
ment pad or sidewalk which leads to another sidewalk
that runs parallel to the front of the building. Beyond the
second sidewalk is a parking lot.
The vending/snack room is a high traffic area. Em-
ployees typically walk through the vending/snack room
when going from the front door and hallway in front of it
to the garage area behind it.2

1 In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendations to overrule Objections 2, 3, 4, and 5.
2 The judge said that some supervisors “probably” walked through
the room during polling hours. However, he made no express finding
on this point.
On election day, the Employer’s president, Pat Mas-
caro Sr., who does not have offices at the Berks facility,
arrived there at about 5:15 a.m. Mascaro stood in front
of the facility for most of the day. On several occasions,
Mascaro was standing 30 feet or 10 yards from the front
door and at other times he was pacing 5–8 yards back
and forth from his original position to locations further
away from the front door. Mascaro, the sole witness to
testify about his conduct outside the facility on election
day, stated:
Q. . . . did you have any conversations with any
of the employees?
A. Through the course of the entire day?
Q. Yeah.
A. Yes, there was different points throughout the
day. When I got there in the morning, during the
morning voting period there was almost no interac-
tion. When I was there, again, I was apprehensive
and I wanted to be there to signify the importance of
the day. I wasn’t there to materially impact what
was going to occur that day . . . I was there and dur-
ing the morning session hardly anyone really spoke
to me. I didn’t initiate discussion with anyone. If
someone came up to me and said, “Good morning,”
I’d say “Good morning.” If someone walked by me
and extended their hand to me I shook their hand.
That was like during the morning.
And when the, as it got prolonged more into the
day, and guys who might’ve voted in the morning
went out and ran their routes and came back, and
they were guys interested in the outcome of the elec-
tion, some of those people came up to me and had
conversations. And that was out near that huge white
sign, I think it’s a safety sign. That would’ve been,
you know, maybe 90–100 feet from the building
. . . [.]
. . . I had no conversations with people entering
the voting area to cast their vote. My interaction with
anyone coming to vote was at most “Good morn-
ing,” and a couple of guys, maybe two or three guys,
put their hand out to me.
When questioned again on this issue, he explained that:
I had very little conversation with employees during the
course of the day . . . But there came a point in the day,
and I don’t know really exactly what time, but it was
towards the end of the day, when people that obviously
voted in the morning and then went out and did their
routes came back to the terminal . . . And after they
parked their trucks they stayed there and congregated,
waiting for the ultimate determination of the election
. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD638
. . . so towards the end of the day some employ-
ees came up to me and initiated discussion, but we
were not talking about the election. . . [.]
Based on this testimony, the judge concluded that Mascaro
may have shaken hands and talked to employees who had
not yet voted.
The Judge’s Decision
The judge found that Mascaro’s continual presence
during the election “just” outside the front door of the
facility was objectionable even without considering his
conversations and handshaking with employees. The
judge noted that Mascaro, as the Employer’s president,
presided at several “captive audience” meetings in which
he urged employees to vote against the Petitioner. The
judge also found that there was no reason for Mascaro’s
presence at the Berks facility on election day apart from
making his presence known to potential voters. The
judge concluded that Mascaro’s conduct amounted to a
nonverbal form of “electioneering.”
The judge relied on Nathan Katz Realty, LLC v. NLRB,
251 F. 3d 981, 991–993 (D.C. Cir. 2001). In that case,
the court held that the conduct of two union agents who
sat in a car 20 feet from the door of a church in which an
election was taking place, and motioned, gestured, and
honked at employees as they passed their car substan-
tially impaired the employees’ exercise of free choice.3
The judge further relied on Electric Hose & Rubber Co.,
262 NLRB 186 (1982), and Performance Measurements
Co., 148 NLRB 1657 (1964), cited in Nathan Katz, for
the proposition that a party engages in objectionable
conduct sufficient to set aside an election if one of its
agents is continually present in a place where employees
have to pass in order to vote. See 251 F.3d at 993.
The judge also found that Mascaro’s handshaking and
conversations with employees outside the facility inde-
pendently warranted setting aside the election. Although
acknowledging that the rule set forth in Milchem, Inc.,
170 NLRB 362 (1968), pertains to conversations within
the polling area, the judge nonetheless concluded that
Milchem should apply to a situation where a senior offi-
cial comes to a facility solely for the purpose of being
seen by potential voters and spends the entire day in an
area potential voters would normally pass. The judge,
therefore, sustained Petitioner’s Objection 1 and recom-

3 The court vacated the Board’s decision in 331 NLRB No. 22
(2000) (not reported in Board volumes), and remanded the case. In
331 NLRB No. 22, the Board, on the General Counsel’s Motion for
Summary Judgment, had found that the employer had unlawfully re-
fused to bargain with the union, relying on its unpublished decision
overruling the employer’s objections to the election and certifying the
union as the exclusive representative of the unit.
mended that the election be set aside based on his exten-
sion of the Board’s Milchem rule.
The Employer excepts to the judge’s finding of objec-
tionable conduct based on Mascaro’s activities on elec-
tion day, asserting that all of the decisions relied upon by
the judge are distinguishable from the circumstances of
this case. For the reasons set forth below, we find merit
in the Employer’s exceptions.
Analysis
Mascaro’s Presence Outside the Facility
As an initial manner, we note that the judge conflated
the analyses applied in surveillance and electioneering
cases in finding Mascaro’s presence, without more, con-
stituted objectionable conduct. The judge reasoned that
Mascaro’s actions amounted to a nonverbal form of elec-
tioneering, but most of the cases he relied upon to sup-
port this finding involve allegations of unlawful surveil-
lance. In any event, regardless of whether Mascaro’s
conduct is analyzed under surveillance or electioneering
principles, it was not objectionable.
First, the evidence does not show that the Employer
engaged in objectionable electioneering. In Boston Insu-
lated Wire & Cable Co., 259 NLRB 1118, 1119 (1982),
enfd. 703 F.2d 876 (5th Cir. 1983), the Board set out a
series of factors to be considered in electioneering cases,
including: (1) the nature and extent of electioneering, (2)
whether it was conducted by a party or by employees, (3)
whether the conduct occurred in a designated no elec-
tioneering area, and (4) whether the conduct contravened
the instructions of a Board agent. In that case, union
officials distributed campaign literature and spoke to
employees just outside a set of glass-paneled doors that
opened from the parking lot into a corridor that led to the
polling place. Id. at 1118–1119.
In Boston Insulated, the Board held that the union’s
conduct was not objectionable, reasoning that the elec-
tioneering took place away from the polling place, was
not directed at employees waiting in line to vote, did not
occur in a designated no-electioneering zone, and did not
violate any instructions of the Board agent. Id. Most
significant to the Board was the fact that the glass-
paneled doors, which remained closed throughout the
polling, effectively insulated voters from the electioneer-
ing. Id. See also Harold W. Moore & Son, 173 NLRB
1258 (1968) (no objectionable electioneering, where
conversations were 30 feet from the building entrance,
with voting area 30 feet inside entrance).
In the instant case, the Petitioner produced no evidence
that Mascaro engaged in any electioneering. Although
Mascaro had conversations with some of the voters, there
is no evidence that any of these conversations related to
J. P. MASCARO & SONS 639
the election. Even assuming, arguendo, that Mascaro’s
conduct could be characterized as a nonverbal form of
electioneering, that conduct is not objectionable election-
eering under the factors articulated in Boston Insulated.
Mascaro’s activities took place well outside the front
entrance, which, in turn, was separated from the polling
place by a 10-foot-wide hallway. Mascaro never entered
a designated no-electioneering zone, and never violated
any instruction of the Board agent. Moreover, there is no
evidence that the Petitioner complained to the Board
agent about Mascaro’s conduct during the election when
the Agent might have been able to stop the activity.
Nathan Katz, supra, on which the judge substantially
relied, is distinguishable. In that case, the D.C. Circuit
reversed and remanded as inconsistent with other Board
precedent a Board determination that union agents had
not engaged in objectionable conduct. However, in Na-
than Katz, unlike the instant case, the facts, assumed by
the Regional Director to be true, reflected that the union
agents’ conduct occurred within a designated no-
electioneering zone in a spot employees had to pass in
order to vote. On these facts, there was a contravention
of the instructions of the Board agent, and the employer
therefore objected to the conduct. 251 F.3d at 991. See
also U-Haul Co. of Nevada, Inc., 341 NLRB 195, 197
(2004) (distinguishing Katz because, among other things,
there was no evidence that the union representative was
in an established no-electioneering zone).
We also find, contrary to the judge, that Mascaro’s
presence did not constitute objectionable surveillance.
Here there is insufficient evidence to establish that em-
ployees had to pass by Mascaro in order to vote. Con-
versely, in Performance Measurements, 148 NLRB at
1659, the employer’s president stood by the door to the
election area for prolonged periods and employees had to
pass within 2 feet of him to gain access to the polls. The
Board held that “the continued presence of the Em-
ployer’s president at a location where employees were
required to pass in order to enter the polling place was
improper conduct . . . .” Id. Similarly, in Electric Hose,
262 NLRB at 216, the Board found objectionable one
supervisor’s presence 10–15 feet from the entrance of the
voting area and two other supervisors’ presence in areas
that employees had to pass in order to vote. The Board
reasoned that the only plausible explanation for the su-
pervisors’ conduct was to convey to employees that they
were being watched. Id. In addition, in ITT Automotive,
324 NLRB 609 (1997), enfd. in part 188 F.3d 375 (6th
Cir. 1999), the “continued presence” of managers stand-
ing in a circle in an area where employees had to pass
through to vote and where the managers observed the
employees waiting in line to vote interfered with the
election. Id. at 623–625.
These surveillance cases, all of which were cited by
the judge, are distinguishable from this case. In Electric
Hose, Performance Measurement, and ITT Automotive,
the company officials were either much closer to the vot-
ing area than Mascaro was, or employees had to pass the
company officials as they entered the polling area. Here,
although Mascaro was positioned outside the facility for
most of the day, he was not, contrary to the judge, “just
outside” the front door. Rather, Mascaro was at least 30
feet and on several occasions as far away as 54 feet from
the front door of the facility. In addition, Mascaro had
no direct view of the vending/snack room area. Although
he could see who entered the facility, he had no way of
knowing who was entering to vote and who was entering
to perform job-related duties or to eat and drink in the
vending/snack room. This case is much closer to Blazes
Broiler, 274 NLRB 1031, 1032 (1985), where the Board
found no objectionable conduct in a union agent’s sitting
in a restaurant approximately 30 feet from the polling
area because the agent had no direct view of the entrance
to the voting area; the Board noted that although the
agent “could see who entered the hallway leading to the
banquet room . . . [h]e had no way of knowing who was
entering the hallway to vote . . . .”
Mascaro’s Handshaking and Conversations
with Employees
We find, contrary to the judge, that Mascaro’s hand-
shaking and conversations with employees outside the
facility did not violate the Milchem4 rule. The Board’s
Milchem rule prohibits “prolonged conversations be-
tween representatives of any party to the election and
voters waiting to cast ballots.” See, e.g., U-Haul, supra at
195, 197 (although union representative spoke to a small
number of voters, his conduct did not violate Milchem
rule where the conversations did not occur in the voting
area, the waiting area, or near the line of voters). Here,
there is no evidence that Mascaro had prolonged conver-
sations with employees or that any conversations oc-
curred in the polling area, or near the line of voters.
For all of the foregoing reasons, we find Mascaro’s
conduct outside the Employer’s facility on election day
insufficient to warrant setting aside the election. Accord-
ingly, we overrule Petitioner’s Objection 1 and, as the
Petitioner has failed to secure a majority of the valid bal-
lots cast, we shall certify the results of the election.5

4 Milchem, Inc., 170 NLRB 362, 362 (1968).
5 We emphasize that we would reach the same result if this case had
involved one of the union officials standing outside the Employer’s
facility for the entire day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD640
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for International Association of Machinists
& Aerospace Workers, AFL–CIO, District Lodge 1, and
that it is not the exclusive representative of the bargain-
ing unit employees.
MEMBER LIEBMAN, concurring.
Employer President Mascaro’s continual presence out-
side the facility where he had no office for most of the
election raises troublesome questions. This was certainly
an unusual event, which in some circumstances might
well have impaired employees’ exercise of free choice in
the election. Nonetheless, in the circumstances here—
Mascaro did not stand in any designated no-
electioneering area, he had no direct view of the polling
place from where he stood, the Union never objected to
his presence, and there was no other objectionable con-
duct – I would not set aside the election.
In theory, the election process would be pristine if the
Board prohibited all parties from observing and greeting
employees at the workplace on their way to vote. But
that is not the law. My colleagues emphasize that they
would reach the same result here had a union agent stood
outside the facility. This statement is welcome. Still, I
would hasten to add that an employer’s presence on elec-
tion day sends a far different message to employees than
a union’s presence. The fundamental fact is that “[a]n
employer in an unorganized plant, with his almost abso-
lute control over employment, wages, and working con-
ditions, occupies a totally different position in a repre-
sentation contest than a union, which is merely an out-
sider seeking entrance to the plant.” NLRB v. Golden
Age Beverage Co., 415 F.2d 26, 30 (5th Cir. 1969). Un-
der these circumstances, I concur.
David L. Porter, Grand Lodge Representative, of Cincinnati,
Ohio, for the Petitioner.
Mark S. Shiffman, Esq. (Jackson Lewis LLP), of Pittsburgh,
Pennsylvania, for the Employer.
RECOMMENDED DECISION ON OBJECTIONS
ARTHUR J. AMCHAN, Administrative Law Judge. Pursuant to
a January 12, 2005 Notice of Hearing, I heard evidence in this
matter on February 3, 2005 in Philadelphia, Pennsylvania.
This case arises pursuant to the Petitioner’s objections to the
conduct of a December 10, 2004 secret ballot election in an
appropriate unit of all full-time and regular part-time drivers,
helpers, slingers, and mechanics employed by the Employer at
its Reading (Berks County), Pennsylvania solid waste collec-
tion terminal. The election was conducted in two sessions, the
first between 5 and 8 a.m. and the second between 4 and 6:15
p.m. Seventy-six ballots were cast; 26 for the petitioner, 41
against, and 9 ballots that were challenged.
The objections before me, as set forth in the notice of hear-
ing, are as follows:
Objection 1. Pat Mascaro Sr., Pat Mascaro Jr., Mike Mas-
caro, and Attorney Bill Fox were viewed standing outside the
voting area within 15 feet of the polls intimidating voters as
they entered. This was witnessed by various employees and
Union officials Gary Anthony and Stephen Miller.
Objection 2. Owner Pat Mascaro Sr. also intimidated and re-
strained voters and was quoted as saying before the election in
the parking lot, “Do not vote for the union. I will take care of
you and your problems.” And telling employees “the family
will take care of the union guys.”
Objection 3. Owner Pat Mascaro Sr. [made] promises to
correct all of the overtime issues and problems if employees
voted against the union, in a captive audience meeting.
Objection 4. Supervisors James Martzolf, Al, and Shorty
and office workers Mary Beth Reid and Sonya Gorostieta en-
tered the voting area for the purpose of intimidation and to
restrain employees. [T]he opportunity for a sterile election was
contaminated by this conduct.
Objection 5. Employer and its representative had an anti-
union sign posted within the election area the morning of the
election.
Prior to the election, the Employer conducted four manda-
tory meetings for employees regarding the Union’s organizing
campaign. The last meeting was conducted on December 8,
2004, 2 days before the election. The only persons who at-
tended any of these meetings who testified at the instant hear-
ing were the Employer’s attorney, Bill Fox, and the Employer’s
president, Pasquale “Pat” Mascaro Sr.
At one meeting, Fox told employees that they could be per-
manently replaced in the event of an economic strike. He also
said that if they were permanently replaced, the employees
would have to pay their own hospitalization and would not
receive unemployment insurance benefits. Fox also said:
. . . that they’d be put on a list for recall, but there was no
guarantee that they would be recalled for their position . . . I
didn’t say they would never be recalled. I said they could be
permanently replaced with other employees and they’d be put
on the list, and if a position came open, it would be drawn
from that list. It’s just like you’d send out letter to the same
effect.
[Tr. 131–132.]
At the last meeting on December 8, Pat Mascaro Sr. enter-
tained some questions from employees. In response to one, he
told employees that it was obvious to him that “we need to
improve some things around here. But the law does not allow
me to address those issues.” He also drew an analogy between
employees selecting the Union and a married couple inviting a
third person into bed with them to help them resolve marital
problems.
The election was conducted in the vending/snack room area
of Respondent’s Berks County facility. This room is approxi-
mately 16–20 feet long and 8–9 feet wide. It is separated from
the front door of the facility by a 10-foot-wide hallway. Out-
side the front door, as depicted in Employer’s Exhibit 1 is a
cement pad or sidewalk which leads to another sidewalk which
J. P. MASCARO & SONS 641
runs parallel to the face of the building. Beyond the second
sidewalk is a parking lot.
The voting room is a high traffic area. Indeed, employees
normally walk through the vending/snack room on their way
between the front door and hallway in front of it and the garage
areas behind it. Employees and probably some supervisors
walked through the room during polling hours. The employer’s
in-house attorney, Bill Fox, offered the Board agent a different
room in which to hold the election; the Board agent declined
the offer. The Union agreed to conducting the election in the
snack room.
During a preelection conference which started at about 4:45
a.m., union representatives noticed a flyer relating to the Em-
ployer’s desire or policy to remain nonunion on the wall of the
vending area. When they mentioned the flyer to Fox, he told
them to take the flyer down. This flyer was removed from the
wall before voting began.
Voting began shortly after 5 a.m. At various times while the
polls were open, a number of company officials were observed
standing on the cement pad just outside the front door to the
facility. These included Pat Mascaro Sr., Pat Mascaro Jr., a
management trainee, Mike Mascaro, the general manager, Al
Cataldi, a supervisor, and Attorney Bill Fox. There is no evi-
dence as to how long these individuals stood at the front door
with the exception of Cataldi, who stood there for 10–15 min-
utes shortly after the polls opened.
The Employer’s president, Pat Mascaro Sr., and its attorney,
Bill Fox, work at the employer’s headquarters in Harleysville,
Pennsylvania, approximately 28 miles east of the Berks County
facility. They do not have offices at the Berks facility. On
election day, December 10, 2004, Fox spent most of his time
working on unrelated matters on the second floor of the Berks
facility. Pat Mascaro Sr. arrived at the Berks facility at about
5:15 a.m.
Pat Mascaro Sr., spent virtually the entire day out in front of
the Berks facility. Sometimes he was pacing back and forth on
the sidewalk in front of the facility, other times he was standing
still. On at least one occasion, Pat Sr., entered the facility and
went to the offices on the second floor. To get to these offices
he entered the front door, turned left and went up a staircase.
Pat Mascaro Sr., testified that, with one brief exception, he
was never closer to the front door than 30–35 feet, or 10–11
yards. He also testified that on average he was 50–55 feet (17–
18 yards) from the front door and sometimes as far away as 90
feet or thirty yards. Grand Lodge Representative Stephen
Miller testified that at about 7:55 a.m., while the polls were still
open, he observed Mascaro at a location 15–20 feet from the
front door. I find that on a number of occasions, Pat Sr., was
standing 30 feet or 10 yards from the front door and on other
occasions was pacing 5–8 yards back and forth from his origi-
nal position to locations further away from the front door. On
two occasions at trial, Mascaro testified as to his activities out-
side the Berks facility on election day. On being called to the
stand by the Union, Mascaro stated:
Q. . . . did you have any conversations with any of the
employees?
A. Through the course of the entire day?
Q. Yeah.
A. Yes, there was different points throughout the day.
When I got there in the morning, during the morning vot-
ing period there was almost no interaction. When I was
there, again, I was apprehensive and I wanted to be there
to signify the importance of the day. I wasn’t there to ma-
terially impact what was going to occur that day . . . I was
there and during the morning session hardly anyone really
spoke to me. I didn’t initiate discussion with anyone. If
someone came up to me and said, “Good morning,” I’d
say “Good morning.” If someone walked by me and ex-
tended their hand to me I shook their hand. That was like
during the morning.
And when the, as it got prolonged more into the day,
and guys who might’ve voted in the morning went out and
ran their routes and came back, and they were guys inter-
ested in the outcome of the election, some of those people
came up to me and had conversations. And that was out
near that huge white sign, I think it’s a safety sign. That
would’ve been, you know, maybe 90–100 feet from the
building. . . .
. . . I had no conversations with people entering the
voting area to cast their vote. My interaction with anyone
coming to vote was at most “Good morning,” and a couple
of guys, maybe two or three guys, put their hand out to
me.
[Tr. 89–91.]
The employer’s counsel also asked Pat Mascaro Sr., about
his conversations with employees:
I had very little conversation with employees during
the course of the day. . . . But there came a point in the
day, and I don’t know really exactly what time, but it was
towards the end of the day, when people that obviously
voted in the morning and then went out and did their
routes came back to the terminal. . . . And after they
parked their trucks they stayed there and congregated,
waiting for the ultimate determination of the election. . . [.]
. . . so towards the end of the day some employees
came up to me and initiated discussion, but we were not
talking about the election. . . [.]
Tr. 141–142.
While this testimony speaks for itself in establishing that
Mascaro shook hands with employees and had conversations
with them, while the polls were still open, he had no way of
knowing that he only talked to employees who had already
voted. I therefore find that he may have shook hands and con-
versed with employees who had not yet voted.
Analysis
I overrule Objections 2, 3, 4, and 5 simply on the basis that
there is no evidence of record to support the allegations
therein.1 With regard to Objection 5, it is clear that the poster

1 Assuming that I could consider the statements made by Respon-
dent’s attorney, Bill Fox, in a meeting with employees regarding the
replacement of strikers, it appears that his remarks were not objection-
able, Eagle Comtronics, Inc., 263 NLRB 515 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD642
in question, even assuming it was objectionable, was removed
from the wall before any employees entered the voting area.
However, I sustain Objection 1 regarding the conduct of Pat
Mascaro Sr., on the day of the election.2
Pat Mascaro’s day-long presence just outside the front door
of the facility was sufficient to warrant setting aside the elec-
tion even in the absence of the evidence regarding his conversa-
tions and hand-shaking with employees. Pat Mascaro Sr., is
president of the employer and had presided at several recent
“captive audience” meetings in which he had encouraged em-
ployees to vote against representation. Moreover, he did not
work at the Berks’ facility and had no reason to be there on
December 10, 2004, apart from making potential voters aware
of his presence. His conduct, therefore, constitutes a nonverbal
form of “electioneering.”
In Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981, 991–
993 (D.C. Cir. 2001), the Court of Appeals reversed the Board
and voided a representation election in somewhat similar cir-
cumstances. Two union agents sat in a car 20 feet from the
door of a church in which the election was taking place, mo-
tioning, gesturing, and honking at employees as they passed
their car. They were parked within what the Board agent had
designated a no-electioneering zone outside the church. The
court read relevant Board precedent to hold that a party engages
in objectionable conduct sufficient to set aside an election if
one of its agents is continually present in a place where em-
ployees have to pass in order to vote. The court found the un-
ion agents’ presence outside the church to be conduct sufficient
to set aside the election even if the agents did not actually talk
to any employee.
In one of the cases cited by the Court of Appeals, Electric
Hose & Rubber Co., 262 NLRB 186, 216 (1982), a supervisor
was stationed 10 to 15 feet from the entrance to the voting area.
Contrary to Pat Mascaro’s situation, this supervisor was near
his normal work area. However, the Board held that,
“[w]ithout any explanation for a supervisor to be “stationed”
outside the voting area, it can only be concluded that his pur-
pose in observing the event was to effectively survey the union
activities of the employees and to convey to these employees
the impression that they were being watched. This conduct is
found to have destroyed the laboratory conditions necessary for
the conduct a free and fair election.
Another case relied upon by the Court of Appeals is Per-
formance Measurements Co., 148 NLRB 1657, 1659 (1964).
In that case, the employer’s president stood by the door to the
election area so that it was necessary for each employee to pass
within 2 feet of him to gain access to the polls. On two occa-
sions, the company president entered the polling area and then
immediately left. The Board held:

2 Assuming that Pat Mascaro’s conduct does not exactly coincide
with the precise wording of Objection 1, it is sufficiently related to be
considered by the Board. Moreover, his day-long presence outside the
Berks facility and interaction with employees was fully litigated,
Hollingsworth Management Service, 342 NLRB 556 (2004); Precision
Products Group, Inc., 319 NLRB 640 fn. 3 (1995); Fiber Industries,
267 NLRB 840 fn. 2 (1983).
While we agree that the brief forays into the election area
alone may not tend to interfere with the free choice of em-
ployees, the continued presence of the Employer’s president
at a location where employees were required to pass in order
to enter the polling place was improper conduct not justified
by the fact that for part of the time he was instructing supervi-
sors on the release of employees for voting purposes. We find
that by this conduct the Employer interfered with employees’
freedom of choice in the election.
Also see, ITT Automotive, 324 NLRB 609, 623–625 (1997);
But see Mountaineer Park, Inc., 343 NLRB 1473, 1484 (2004),
as well as Standard Products, Inc., 281 NLRB 141, 164 (1986).
Additionally, I find the election must be set aside on account
of Pat Mascaro’s hand shaking and conversations with employ-
ees outside the Berks terminal. In Milchem, Inc., 170 NLRB
362 (1968),3 the Board enunciated its standard for measuring
the effect of conversations between parties to the election and
employees preparing to vote.
Careful consideration of the problem now convinces us
that the potential for distraction, last minute electioneering
or pressure, and unfair advantage from prolonged conver-
sations between representatives of any party to the election
and voters waiting to cast ballots is of sufficient concern to
warrant a strict rule against such conduct without inquiry
into the nature of the conversations.
. . . The difficulties of recapturing with any precision
the nature of the remarks made in the charged atmosphere
of the polling place are self-evident, and to require an ex-
amination into the substance and effect of the conversa-
tions seems unduly burdensome and, in this situation, un-
necessary. Finally, a blanket prohibition against such
conversations is easily understood and simply applied.
. . . Additionally, by attaching a sanction to its breach,
the rule assures that the parties will painstakingly avoid
casual conversations which could otherwise develop into
undesirable electioneering or coercion.
While the Board in Milchem at one point talked in terms of
sustained conversations with prospective voters and at another
point prolonged discussions, it made very clear that it was ad-
dressing the type of conduct herein.
. . . this does not mean that any chance, isolated, innocuous
comment or inquiry by an employer or union official to a
voter will necessarily void the election. We will be guided by
the maxim that “the law does not concern itself with trifles.”
We trust, however, that the parties to elections, in order to ob-
viate the sometimes troublesome task of what is to be consid-
ered trifling, will take pains to assure complete compliance
with the rule by instructing their agents, officials, and repre-
sentatives to refrain from conversing with prospective voters
in the polling area.
Mascaro’s contact and conversations with employees, who
may have been prospective voters was not chance or isolated.

3 In the bound volume 170, the name of this case is rendered as
Michem, Inc. although in the body of the decision the correct name of
the employer was Milchem, Inc. [with an “l”].
J. P. MASCARO & SONS 643
Although the Milchem rule is concerned with conversations
within the polling area, I find that it should also apply to the
instant situation in which the employer’s president came to the
facility solely for the purpose of being seen by potential voters
and spent the entire day in an area in which potential voters
would normally pass. Indeed, the Board may have already
applied this rule to conversations outside of the polling area,
Volt Technical Corp., 176 NLRB 832, 836–837 (1969).
The same considerations which led the Board to eschew an
examination into the substance of conversations leads me to
conclude no examination is required into whether the employ-
ees with whom Mascaro had conversations where employees
who were waiting to vote, or employees who had already voted.
Therefore, extrapolating from the Milchem rule, I find that the
December 10, 2004 election should be set aside and a new elec-
tion be held.
CONCLUSION
Because I have sustained Objection 1 the election must be
overturned. This case is remanded to the Regional Director for
Region 4 to hold a new election at a time and under circum-
stances he thinks appropriate. The notice for the new election
shall include a statement of the reason for the second election,
see Fieldcrest Cannon, Inc., 327 NLRB 109, 110 (1998).4

4 Pursuant to Sec. 102.69 of the Board’s Rules and Regulations, any
party may, within fourteen (14) days from the date of this recom-
mended decision, file with the Board in Washington, D.C., an original
and eight (8) copies of exceptions thereto. Immediately upon the filing
of such exceptions, the party filing them shall serve a copy on the other
parties and shall file a copy with the Regional Director of Region 4. If
no timely exceptions are filed, the Board will adopt the recommenda-
tions set forth herein.