Paprikas Fono

National Labor Relations Board - Board Decisions

Dec 31, 1984

273 N.L.R.B. 1326 (N.L.R.B. 1984)

1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laszlo and Paulette Fono d/b/a Paprikas Fono and
Hotel and Restaurant Employees and Bartend-
ers Union, Local 2, AFL-CIO, Petitioner. Case
20-RC-15534
31 December 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and ap-
proved by the Regional Director for Region 20 of
the National Labor Relations Board on 13 August
1982, an election by secret ballot was conducted on
30 September 1982 among the employees in the
stipulated unit. On conclusion of the balloting, the
parties were furnished with a tally of ballots which
shows that, of approximately 67 eligible voters, 66
cast ballots, of which 29 were for, and 15 against,
the Petitioner; there were 21 challenged ballots, a
number sufficient to affect the election results, and
1 ballot was declared void. Thereafter, the Em-
ployer and the Petitioner each filed timely objec-
tions to conduct affecting the results of the elec-
tion. The Employer then withdrew three of the ob-
jections it had filed on 22 October 1982. Subse-
quently, on 1 December 1982, the Petitioner with-
drew all its objections to the election.
In accordance with the Board's Rules and Regu-
lations, the Regional Director for Region 20 con-
ducted an investigation and, on 10 December 1982,
issued and duly served on the parties his Report on
Objections and Challenged Ballots. In his report,
the Regional Director directed that a hearing be
held to resolve all issues raised by the Employer's
remaining objections and the determinative chal-
lenged ballots.
On 11, 12, 17, 20, 21, and 24 through 27 January
1983 a hearing was held to determine the merits of
the Employer's objections and the eligibility of the
challenged voters. During the course of the hear-
ing, on 17 January 1983, the Regional Director
issued his Supplemental Report on Objections in
which he found that the Employer's supplemental
objections filed that day also raised issues which
could best be resolved by a hearing, and he direct-
ed that they be heard at the hearing then in
progress. Thereafter, on 5 April 1983, the hearing
officer issued his Report on Objections and Chal-
lenged Ballots in which he recommended that the
Employer's objections, as well as the challenges to
the ballots of employees Thomas Corning, T. L.
Du, Juanita Lee, Manual Y. Lee, Marguerita S.
Lee, Rosario Lee, R. Huang, Y. Huang, Z. Huang,
Qui Cong Luu, Y. Tam, Y. Yee, M. Bogert, H. K.
Troung, J. Mendoza, M. Trieu, and L. H. Szeto, be
overruled, and that the challenges to the ballots of
employees David Johns, 1 Aleta Valdez, Debra
Lee, and Shu Wai Ma be sustained. Thereafter, the
Employer and the Petitioner filed timely exceptions
to the hearing officer's report and supporting
briefs, and both parties submitted briefs in response
to the other party's exceptions.
On the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the National Labor Relations Act,
and it will effectuate the purposes of the Act to
assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
4. The parties have stipulated, and we find, that
the following employees constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees
employed by the Employer at its restaurant at
900 North Point, San Francisco, California; ex-
cluding office clerical employees, guards and
supervisors as defined by the Act.
5. The Board has considered the hearing officer's
report, the exceptions and briefs, and the entire
record in this case, and adopts the hearing officer's
findings and recommendations only to the extent
consistent herewith.
The Employer in essence contends in its Objec-
tion 49 that the Regional Office's handling of de-
terminative challenged ballots following the elec-
tion was improper under Section 11344 of the
Board's Casehandling Manual. Although he agreed
with the Employer that the Regional Office had
not fully complied with the procedures set out
there, the hearing officer nevertheless recommend-
ed that this objection be overruled. The hearing of-
ficer found, quoting from Polymers, Inc., 174
NLRB 282 (1969), that the applicable standard for
considering the Employer's objection "is whether
the manner in which the election was conducted
raises a reasonable doubt as to the fairness and va-
lidity of the election." Based in substantial part on
the lack of evidence in this case that the Region
tampered with any of the challenged ballot enve-
1 The parties have stipulated that Johns is a supervisor as defined by
the Act
273 NLRB No. 86
PAPRIKAS FONO 1327
lopes, the hearing officer concluded that the Em-
ployer had not demonstrated a reasonable possibili-
ty of irregularity within the meaning of Polymers,
supra. We find merit in the Employer's exceptions
to these findings for the reasons set forth below,
and we shall sustain its Objection 49.
The record evidence here discloses that the elec-
tion was over at 7 p.m. According to the Board
agent in charge of the election, after the 21 chal-
lenged ballots proved determinative of the election
results, he placed these envelopes in the case file
which he took to the Regional Office. On arriving
there, the Board agent left the case file in his
office, which he locked, and went home. The next
day, he put all the challenged ballots in a large
manila envelope, attached a cover sheet listing the
names of the challenged voters, sealed that enve-
lope with tape, and wrote a signature across the
tape. The Board agent then placed the large enve-
lope in the Regional Office's election safe which
was located in his office.2
The Employer subsequently alleged, inter aha, in
its objections that the Board agent had interfered
with the election by failing to ensure that the chal-
lenged ballot envelopes were properly sealed
before he put them in the ballot box. The Regional
Director, as noted, directed a hearing on all issues
raised by the Employer's objections as well as the
challenged ballots. Thereafter, while meeting about
5 days before the hearing began, the regional attor-
ney and counsel for the Region in this matter de-
cided to determine whether any of the challenged
ballot envelopes were crumpled, written on, or im-
properly sealed as alleged in affidavits the Employ-
er had submitted to support its objections. Thereaf-
ter, counsel for the Region, with the permission of
the Assistant Regional Director, asked the Board
agent who had conducted the election to give him
the sealed envelope containing the challenged bal-
lots. The Board agent then removed the large en-
velope from the safe and handed it to counsel for
the Region, who opened the envelope and inspect-
ed, but did not open, the challenged ballot enve-
lopes that were contained inside. After counsel for
the Region had returned these items to his office,
the Board agent put the challenged ballots in an-
other large envelope that he sealed and placed in
the election safe.
Subsequently, during the course of the hearing,
the parties discovered that the Regional Office had
opened the large envelope that contained the chal-
lenged ballots. The Employer immediately filed
supplemental objections alleging that this conduct
interfered with the election process.
2 There is no evidence, however, that the Board agent stored the chal-
lenged ballots in this safe the previous evening
Section 11344 of the Board's Casehandling
Manual reads, in pertinent part, as follows:
Challenged Ballots and Impounded Ballots: The
following procedures with respect to the stor-
age of uncounted determinative challenged
ballots and uncounted impounded ballots must
be observed by all Regions, Subregions, and
Resident Offices.
Determinative Challenged Ballots: The enve-
lopes containing determinative challenged bal-
lots will be placed, in the presence of the par-
ties' representatives, in a large envelope or en-
velopes (Form NLRB-5126). After sealing the
large envelope(s), the Board agent and the par-
ties' representatives should sign their names
across the flap and the flap should be secured
with transparent tape in such a manner as to
insure against accidental opening. The case
name and number, the election date, a descrip-
tion of the contents of the envelope, the total
number of large envelopes when more than
one is used, and the name of the Board agent
who sealed the envelope must be included on
the face of Form NLRB-5126.
The envelope(s) must be stored in the office
safe.
A photocopy of the face of the envelope(s)
and a memorandum stating where the ballots
have been stored will be placed in the R case
file.
The Regional Director, Officer-in-Charge, or
Resident Officer is the custodian of the safe.
The Assistant to the Regional Director, Re-
gional Attorney, Deputy Regional Attorney,
or Deputy Officer-in-Charge may be designat-
ed as agent for this purpose but the ultimate
responsibility remains with the Regional Di-
rector, Officer-in-Charge, or Resident Officer.
A log should be maintained by the Regional
Director, Officer-in-Charge, or the duly desig-
nated agent concerning the challenged ballots
which are stored in the safe. If a designated
agent is appointed, the Regional Director
should set forth the name of the designated
agent in this log and this designation should be
signed by the Regional Director.
When the large envelope(s) containing ballots
is removed from the safe, the Regional Direc-
tor, Officer-in-Charge, Resident Officer, or
designated agent will make an entry in the log
showing the removal and this removal entry
will be signed by one of the aforementioned
persons. The log should indicate the reason for
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the removal, the date of the removal, the
Board agent to whom the envelope is released,
and the nature of the contents authorized to be
removed; e.g., all determinative challenged
ballots or the identity, as shown on the large
envelope, of the challenged ballots which are
authorized to be removed. In addition, when
some, but not all, of the challenged ballots are
removed from the large envelope for the pur-
pose of counting, such removal shall be done
at the count in the presence of the parties' rep-
resentatives and the Board agent shall put a
memorandum in the case file recording the
number of ballots removed, their identity, their
disposition, and the number of ballots remain-
ing in the large envelope. A copy of the
memorandum is to be placed in the large enve-
lope which should again be secured in the
manner described above by the Board agent
and the parties' representatives at the count
and placed in the safe.
There is no doubt here that the Board agent who
conducted the election deviated from the instruc-
tions promulgated by the General Counsel for the
proper conduct of elections in his handling of the
determinative challenged ballots at the election site.
On conclusion of the election, according to his tes-
timony, the Board agent did not, as directed by the
Casehandling Manual, immediately place the chal-
lenged ballots in a large envelope sealed with tape
over the signatures of the parties' representatives.
Rather, he put the challenged ballots in a large en-
velope the following day when the parties could
not verify that he had followed the proper proce-
dures. Even more serious, in our view, was the Re-
gional Office's subsequent conduct in opening the
large envelope to inspect the condition of the chal-
lenged ballot envelopes. While the Casehandling
Manual is not clear on this point, we conclude that
the Regional Office should not have undertaken
this examination in the absence of an opportunity
by all parties' representatives to be present. Exam-
ining these ballots is particularly troublesome since
here the Regional Office—long after a hearing had
been directed on the Employer's objections—decid-
ed to determine on its own whether the Board
agent had engaged in objectionable conduct.
The Board, through its entire history, consistent-
ly has gone to great lengths to assure that its role
in the conduct of elections is not subject to ques-
tion. 3 Board election procedures are designed to
ensure both parties an opportunity to monitor the
conduct of the election, ballot count, and determi-
a See Glacier Packing Co , 210 NLRB 571, 573 (1974), Tidelands
Marine Services, 116 NLRB 1222, 1223 (1956)
native challenge procedure. When such opportuni-
ty to monitor is denied as it was here, where the
normal procedures for handling determinative chal-
lenges were not followed and the procedures fol-
lowed did not permit the parties to assure them-
selves that the challenge envelopes were secure,
we consider the manner in which the election was
conducted to raise a "reasonable doubt as to the
fairness and validity of the election" under the
standard set forth in Polymers, Inc., supra. 4 We are
not questioning the integrity or neutrality of the
Regional Office personnel involved here. Rather,
the appearance of irregularity created by the pro-
cedures used and the impact of that appearance on
the election's validity lead us to conclude that this
election must be set aside.3
We therefore are satisfied that there are suffi-
cient grounds to warrant setting aside this election.
Our dissenting colleague, however, like the hearing
officer, apparently would require actual evidence
that the challenged ballots were tampered with or
mishandled before she would reach a similar result.
The dissent's approach to this issue, in our view,
would detract significantly from the election stand-
ards that the Board has promulgated. Our col-
league fails to recognize that, if this Agency is to
maintain the public's confidence in its election
processes, it is imperative that the Board act duti-
fully to set aside elections whenever there is any
appearance of irregularity in the handling of bal-
lots.
4 Contrary to the hearing officer and our dissenting colleague, we find
that the court's decision in Skyline Corp. v NLRB, 613 F 2d 1328 (5th
Cir 1980), is inapposite here The employer there contended that the
election should be set aside because the Board did not follow certain pro-
cedures, then in effect, for the proper handling of challenged ballots in
that the envelopes containing the challenged ballots were not sealed with
tape, there was no label with the name of the person who sealed the en-
velope, and no memo was placed in the file stating where the challenged
ballots were stored Put simply, we find that the conduct complained of
in this case was more serious than that in Skyline Corp Critically, on the
record evidence here, we cannot say that the determinative challenged
ballots were adequately "secured, safeguarded" as the Board concluded
in Skyline
We stress that we are not setting aside the election simply because the
Casehandling Manual was not followed, i e, not every failure to follow
the Manual will warrant setting aside the election Rather, reviewing all
the facts in this case, we find the particular conduct Involved sufficiently
serious to set aside the election
5 We reiterate that we do not question the Region's impartiality But
we are concerned with other aspects of this case Thus, we note that,
before the Board agent testified that he did not put the challenged ballots
Into a sealed envelope at the election site, the parties stipulated that when
the election was over the Board agent had handled the ballots in the
manner prescribed by the Casehandlmg Manual This unexplained dis-
crepancy on a critical matter creates uncertainty regarding the whole
proceeding
We further note that it appears it was the Employer's attorney who
raised the question of whether the Regional Office had opened the large
sealed envelope containing challenged ballots It does not appear from
the record that, absent the Employer's concerns, the Region would have
informed the parties of its action In all these circumstances, a second
election is the better course
PAPRIKAS FONO 1329
Here, in finding no merit to the Employer's ob-
jection, the dissent emphasizes the lack of evidence
that any party had unsupervised access to the bal-
lots. 6 While it may be true that this factor "typical-
ly" is present in cases in which the Board has set
aside an election based on the appearance of impro-
priety in the handling of ballots, this is not the only
situation in which we have sustained such objec-
tions. We note that after a mail ballot election in
New York Telephone Co., 109 NLRB 788 (1954),
the parties met at the Regional Office to determine
the results. It became apparent during the count
that a serious discrepancy existed between the
number of returned ballots (slightly under 4500)
and the then tallied votes (slightly over 3700).
Thereafter, a search by Board personnel of the
counting room, which apparently took place on the
next working day, uncovered a box containing ex-
actly the number of missing ballots. Although the
counting room had been locked in the interim and
it did not appear that there had been any tampering
with the ballots, the Board directed a new election
in order to maintain its strict election standards.
The Board concluded that the "irregularity" occur-
ring in that case, which involved a sufficient
number of ballots to affect the election results,
raised a reasonable doubt as to the validity of the
election processes. We find that the same is true in
this case.
We also conclude that our colleague's reliance
on N Sumergrade & Sons, 123 NLRB 1951 (1959),
as support for her position here is misplaced. The
conduct in Sumergrade was not "essentially the
same" as here, contrary to our colleague's claims.
In that case, the Board agent had placed numerous
challenged ballots in a cardboard carton that he
then sealed with tape and had the parties initial.
During its investigation of these challenged ballots,
the Regional Office, without notifying the parties,
opened the sealed carton to compare the names on
the envelopes with the employer's payroll list and
to put them in alphabetical order. The Board there
rejected a claim that the unilateral opening of the
carton was objectionable conduct. Differentiating
that case, we note first that at least there the box
was sealed in the parties' presence and initialed by
them. That was not done here, according to the
Board agent's own testimony. Next, when Sumer-
grade was decided, there was no provision in the
6 Contrary to our colleague, we do not require evidence that only a
"party to the election" have unsupervised access to the ballots before sus-
taining an objection alleging the mishandling of ballots Rather, in striv-
ing to maintain the Board's stnct election standards, we would set aside
the election whenever there has been any unsupervised access to the bal-
lots Furthermore, we note that the dissent has chosen to ignore the fact
that in the present case counsel for the Region certainly would be a party
at least to the hearing on objections
Casehandling Manual directing Board agents to
place determinative challenged ballots in a sealed
envelope or box. In fact, the Board emphasized in
Sumergrade that these measures had been per-
formed "gratuitously." Also, it is clear that the
opening of the cardboard box was done there
solely for administrative purposes. In this case,
however, the Regional Office took such action to
investigate the condition of the individual enve-
lopes based on an objection involving alleged Re-
gional mishandling of them that had already been
set for hearing. In these circumstances, there was
no warrant for opening the sealed envelope con-
taining the challenged ballots. Lastly, we note that
the decision in Sum ergrade was rendered over the
strenuous objection of two Board Members.
Accordingly, contrary to the hearing officer's
recommendation, we shall sustain the Employer's
Objection 49, set aside the election held on 30 Sep-
tember 1982, and direct a second election.7
ORDER
It is ordered that the election previously con-
ducted herein on 30 September 1982 is set aside.
[Direction of Second Election omitted from pub-
lication.]
MEMBER DENNIS, dissenting.
I cannot agree with my colleagues that the
manner in which Regional Office personnel han-
dled determinative challenged ballots in this case
raises "a reasonable doubt as to the fairness and va-
lidity of the election" under the standard of Poly-
mers, Inc., 174 NLRB 282 (1969). Accordingly, I
would not set aside the election on this ground.
There is no dispute that the Board agent who
conducted the election failed to secure the chal-
lenged ballot envelopes, which already had been
individually sealed, in accordance with Section
11344 of the NLRB Casehandling Manual. It is
also undisputed that counsel for the Region, with
the Regional Director's permission, inspected the
challenged ballot envelopes for irregularities with-
out affording the parties' representatives the oppor-
tunity to be present. Although the Casehandling
Manual's guidelines for the handling of determina-
tive challenged ballot envelopes do not expressly
require counsel for the Region to notify the parties
in these circumstances, I agree with the majority
that it would have been better procedure for him
to have done so. As to the challenged ballot enve-
lopes themselves, there is no suggestion that
7 Because we are directing a second election in this case, we find It
unnecessary to pass on the hearing officer's other recommendations con-
cerning the Employer's objections and the determinative challenged bal-
lots
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyone opened or tampered with them after they
were sealed at the voting site. There is no reason
to believe that the security of the determinative
challenged ballot envelopes was breached or com-
promised in any way.
In my colleagues' opinion, the election must be
set aside because of the "appearance" the Regional
Office's handling of the challenged ballot envelopes
created, and the effect of this "appearance" on the
election's validity. While they are careful not to
impugn the integrity or neutrality of the Regional
Office personnel involved, they find that by depart-
ing from "normal" procedures the Region made it
impossible for the parties to monitor the determina-
tive challenged ballot procedure and to assure
themselves that the challenged ballot envelopes
were secure, thereby raising reasonable grounds for
concern about the Board's role in the election.
I am mindful that the absence of evidence that
the challenged ballot envelopes were opened or
tampered with is not in itself controlling because
the conduct of Regional Office personnel is at
issue. The Board has held that any act in the con-
duct of an election "which tends to destory confi-
dence in the Board's election process, or which
could reasonably be interpreted as impugning the
election standards we seek to maintain, is a suffi-
cient basis for setting aside that election.' Contrary
to my colleagues, however, I do not believe that
the manner in which Regional Office personnel
handled the challenged ballot envelopes reasonably
can be found either to have raised questions con-
cerning the Board's neutrality or to have under-
mined the parties' confidence in the regularity of
Board-conducted elections. Besides the Board
agent's and counsel for the Region's departure
from certain optimal procedures in their handling
of the challenged ballot envelopes, there is no inde-
pendent evidence that either of these individuals,
or any other individual in the Regional Office, han-
dled the envelopes in a manner even suggesting the
appearance of an irregularity sufficient to affect the
integrity of the Board's election process.
The "appearance" of impropriety in the handling
of ballots has typically been found when a party to
the election appeared to have the opportunity of
unsupervised access to the ballots. See, e.g., Tide-
lands Marine Services, 116 NLRB 1222 (1956). In
the instant case, however, from the time the Board
agent placed the challenged ballot envelopes in the
case file, there is no evidence whatsoever that the
parties had access to them. Since the election, the
1 Athbro Engineering Corp. 166 NLRB 966 (1967), vacated sub nom
Electrical Workers IUE y NLRB, 67 LRRM 2361, 57 LC il 12,440 (D C
Or 1968), acquiesced in 171 NLRB 21 (1968), enfd 423 F 2d 573 (1st
Cir 1970)
challenged ballot envelopes have remained inside,
and in the custody of, the Regional Office.
In N Sumergrade & Sons, 123 NLRB 1951
(1959), the Board agents sealed the challenged
ballot envelopes in a cardboard carton and had the
parties initial the carton. The carton remained in
the Regional Director's custody. While investigat-
ing the challenged ballots, Board agents, without
notifying the parties, opened the sealed carton to
check the names on the envelopes. The parties
were present at the count, however, and at that
time witnessed the opening of the sealed chal-
lenged ballot envelopes.
The union filed an objection raising issues similar
to those which the objection raises in this case.
The union contended that, by opening the sealed
carton in private, the Board agents cast doubt on
the integrity of the Board's election processes. The
Board disagreed. It reviewed the agents' conduct,
albeit without the benefit of Section 11344 of the
Casehandling Manual, not yet in effect, and found
that it would have been better practice not to have
opened the carton without notifying the parties.
The Board concluded, however, that the conduct,
which essentially was the same as that of counsel
for the Region in this case, did not warrant invali-
dating the election. The Board stated:
The Regional Office at all times had custody
of the sealed envelopes and in the absence of
any showing to the contrary, we find that the
sealed envelopes opened in the presence of the
observers had not been previously opened or
tampered with. We therefore overruled the In-
tervenor's objections.2
In Polymers, Inc., supra, the Board acknowledged
that for various reasons the election procedures the
General Counsel or a Regional Director prescribes
may not always be followed to the letter. Thus,
each case involving a challenge to the conduct of
an election requires the Board to make a practical
judgment after reviewing all the facts to determine
whether the essential election standards were met.
Here, Regional Office personnel failed to follow
the optimal procedures for handling determinative
challenged ballots. There is no evidence, however,
2 123 NLRB at 1952 Skyline Corp 1, NLRB, 613 F 2d 1328 (5th Or
1980), on which the hearing officer relied, is very similar factually to this
case In Skyline Corp. although the Region failed to adhere rigidly to the
Casehandling Manual's instructions, the evidence demonstrated that the
ballots were secured, safeguarded, and untampered with The same is true
in this case
New York Telephone Ca, 109 NLRB 788 (1954), cited by the majority,
involved far more suspicious circumstances The Regional Office's inabil-
ity to lcoate 729 mailed ballots during the count necessarily cast doubt as
to who had access to them while they were missing In this case, as in
Skyline and Sumergrade, the Regional Office could account for the chal-
lenged ballots at all times
PAPRIKAS FONO 1331
that the challenged ballot envelopes were opened
or tampered with. The challenged ballot envelopes
never left the custody of Regional Office person-
nel, and neither of the parties had access to the en-
velopes after the election. Further, there is no
reason even to suspect that the envelopes were
mishandled. On these facts, there is no basis for
questioning the Board's neutrality in the election.3
From a practical standpoint, therefore, the proce-
3 The majority refers in fn. 5 to the parties' stipulation that, when the
election was over, the Board agent handled the ballots in the manner pre-
scnbed by the Casehandling Manual. The Board agent later testified,
however, that he had not complied with the Casehandling Manual's di-
rective to place challenged ballots in a sealed envelope at the election
site. Without further explanation, the majority asserts that It]his unex-
plained discrepancy on a cntical matter creates uncertainty regarding the
whole proceeding."
In my view, the majority seriously overstates the mattter's significance.
The parties' erroneous stipulation was nothing more than an innocuous
mistake. It does not support the majority's ill-advised decison to set aside
the election.
dures in question did not raise a reasonable doubt
as to the election's fairness and validity.
A majority of the employees voted for the Peti-
tioner, and it would be a serious disservice to de-
prive them of their chosen representative because
of the Board agent's insignificant deviation from
the Casehandling Manual's procedures. In Midland
Life Insurance Co., 263 NLRB 127 (1982), we re-
laxed our standards for setting aside elections based
on campaign misrepresentations. An important
reason for the change was to "insure the certainty
and finality of election results, and minimize un-
warranted and dilatory claims attacking those re-
sults."4 1 continue to value these policy consider-
ations. Accordingly, I would overrule the Employ-
er's objections.
263 NLRB at 131