Polymers, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1968

170 N.L.R.B. 333 (N.L.R.B. 1968)

POLYMERS, INC.
Polymers , Inc. and Teamsters , Chauffeurs and
Warehousemen Local No. 597, a/w International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
1-CA-5866 and 1-RC-9190
March 14, 1968
DECISION AND ORDER
Upon a charge filed by Teamsters, Chauffeurs
and Warehousemen Local No. 597, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, the General Counsel for the Na-
tional Labor Relations Board, by the Regional
Director for Region 1, issued a complaint, dated
May 10, 1967, against Polymers, Inc., herein called
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing were
duly served on Respondent.
The complaint alleges that the Union was duly
certified by the Board as the exclusive bargaining
representative of Respondent's employees in the
unit found appropriate by the Board ' and that,
since on or about March 27, 1967, and at all times
thereafter, Respondent has refused and is refusing
to recognize or bargain with the Union as such ex-
clusive bargaining representative, although the
Union has requested and is requesting it to do so.
On May 31, 1967, Respondent filed its answer
admitting that a secret ballot election was con-
ducted but asserting that it is without knowledge
that by such an election a majority of the em-
ployees designated the Union as their representa-
tive. As an affirmative defense, Respondent claims
that the lack of proper and minimal safeguards by
the Board agent conducting the election resulted in
an invalid election and that Respondent has a good-
faith doubt as to the Union's majority status. The
Respondent admits that it has declined the Union's
request to bargain.
On June 8, 1967, the General Counsel filed a
motion for judgment on the pleadings, contending
that the Respondent was attempting to relitigate is-
sues raised and determined by the Board in a prior
representation case, and that such issues cannot be
relitigated in a subsequent unfair labor practice
proceeding absent newly discovered or previously
' Decision and Certification of Representative in Case 1-RC-9190, is-
sued March 22, 1967, not published in NLRB Volumes, is attached hereto
as Appendix A.
333
unavailable evidence. Pittsburgh Plate Glass Co. v.
N.L.R.B., 313 U.S. 146. The General Counsel
noted that Respondent, in its answer, does not con-
tend that there is newly discovered evidence or
evidence unavailable at the time of the representa-
tion proceeding.
On June 14, 1967, the Board issued a notice to
show cause why the motion for judgment on the
pleadings should not be granted.
On July 3, 1967, the Respondent filed a
memorandum in opposition to motion for judgment
on the pleadings, in which it presents the same ar-
guments raised in the representation case and in its
answer, but also contends that the election was not
conducted in accordance with the Board's own
election standards as set out in "Board procedural
manuals." Respondent asserts that the latter con-
tention involves newly discovered evidence which
was not previously available or known to Respon-
dent. Respondent also contends that the Board's
decision in the representation proceeding
represents a radical departure from established
Board precedent. Respondent further contends that
a hearing is necessary to show that the Board agent
failed to follow standard Board election procedures
and also to challenge various factual findings made
by the Regional Director, such as that the "ballot
box was not tampered with," "the Board agent's
car was locked," and "the scotch tape adhered to
the box."
On the same date, Respondent filed a motion to
rescind certification, reconsider, reopen record and
grant hearing in (the representation) proceeding
and to postpone hearing in Case 1-CA-5866, in
which it sets forth the same arguments as hereto-
fore noted.
On July 12, 1967, Respondent filed in the com-
plaint proceeding a motion in which Respondent
requests, inter alia, that the Board produce "any
and " all sections of the NLRB Case Handling
Manual pertaining to procedures for conducting
representation elections" and the "manual issued
by the National Labor Relations Board to Board
agents entitled `A Guide to the Conduct of Elec-
tions."' The Employer also requests that the- Board
agent who conducted the election in Case
1-RC-9190 be made available for questioning prior
to a hearing in the case and that the Regional
Director be required to furnish to Respondent all
affidavits, memoranda, etc., on which he relied in
making his Report on Objections. In this motion,
Respondent again alleges that the Board agent did
170 NLRB No. 33
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not conduct the election in-conformance with the Upon the entire record in this case, the Board
Board 's own standards and procedures . makes the following:
On July 14, 1967, the General Counsel filed an
answer to the above motion in which he argues that
the motion is premature in that no hearing is
scheduled in this matter and that the information
requested by Respondent is not necessary for
Respondent to defend its current position. The
General Counsel notes that Respondent is allowed
to view a copy of -the "National Labor Relations
Board Field Manual" and that Respondent has
been so notified. The General Counsel contends
that Respondent is not entitled to the manual "A
Guide to the Conduct of Elections" because that
document is not an administrative staff manual that
affects the public, but rather is a manual establish-
ing internal operating rules and guidelines for
Board agents in the conduct of elections, within the
meaning of Section 102.117 of the Board's Regula-
tions . The General Counsel also opposes Respon-
dent's other requests.
On July 25, 1967, Respondent mailed a letter to
the Board's associate executive secretary requesting
that the Board make available to it the same infor-
mation requested in its motion for production of
evidence. The letter formally requests that the
documents be made available pursuant to the
Public Information Act of 1966.2
On July 25, 1967, Respondent filed a motion to
defer ruling on its motion to rescind the certifica-
tion, in the representation case until such time as
the Employer has exercised its rights under the
Public Information Act to secure more evidence to
support its position set forth in the motion to
rescind certification. On the same date, Respondent
filed a motion to defer ruling on the General Coun-
sel's motion for judgment on the pleadings until
such time as Respondent has exercised its rights
under the Public Information Act to secure
evidence which will support its position set forth in
its memorandum in opposition to motion for
judgment on the pleadings.
The substance of Respondent's arguments in the
above-mentioned documents filed in these
proceedings is that it is entitled to a hearing in sup-
port of its affirmative defense relating to the issues
previously resolved against Respondent in the
representation case, and that it is now entitled to
introduce in the complaint proceeding what it con-
siders to be evidence which was unavailable to it at
the time of the related representation proceeding.
For the reasons set forth below, the Board finds no
merit in Respondent's position , and grants the
General Counsel's motion for summary judgment.
25 US C. § 1002.
FINDINGS
1. THE BUSINESS OF RESPONDENT
Polyners, Inc., is, and has been at all times
material herein, a corporation duly organized under
and existing by virtue of laws of the State of Ver-
mont. At all times herein mentioned, Respondent
has maintained its principal office and place of
business in the city of Middlebury, Vermont, and is
now and continuously has been engaged at said
plant in the manufacture, sale, and distribution of
synthetic fibers which it has caused-to be sold and
transported from said plant in interstate commerce
to States of the United States other than the State
of Vermont. Respondent admittedly ships finished
products in excess of $50,000 annually to points
located outside the State of Vermont.
Respondent admits, and we find, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, as amended.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and we find, that Teamsters,
Chauffeurs, and Warehousemen Local No. 597,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The record before us establishes that on Sep-
tember 28, 1966, the parties stipulated to an elec-
tion in which the -appropriate unit for bargaining
was defined as follows:
All production and maintenance employees of
the Employer's operations at Case Street and
Munger Street, Middlebury, Vermont, includ-
ing shipping clerks and building maintenance
employees, but excluding office clerical em-
ployees, professional employees, managerial
employees, office utility man, development su-
pervisor, development and construction
machine shop supervisor, raw materials
processing supervisor, production maintenance
shop supervisor, area supervisor, shift foremen,
summer seasonal employees , guards , and all
supervisors as defined in the Act.
On November 15, 1966, an election was held in
which 73 votes were cast for the Union and 51
POLYMERS, INC.
against . There were no challenged ballots.
Thereafter, Respondent filed timely objections to
the election.
The Regional Director issued his report on objec-
tions3 on December 16, 1966, in which he found
that Respondent's objections lacked merit and
recommended that the objections be overruled in
their entirety and that the Union be certified as the
majority representative for Respondent's em-
ployees. On January 7, 1967, Respondent filed
timely exceptions to the report.
On March 22, 1967, the Board issued its decision
and certification of representative in which the
Board adopted the Regional Director's findings and
recommendations, noting that Respondent's excep-
tions raised no issue of fact or law which would
warrant reversal of those findings, and certified the
Union as the bargaining representative.
Thereafter, on or about March 27, 1967, the
Union requested Respondent to bargain collectively
with the Union as exclusive representative of the
employees in the unit described above. At that
time, and at all times thereafter, Respondent has
refused to do so. On April 3, 1967, the Union filed
a charge, amended on May 5, 1967, alleging this
refusal to be an unfair labor practice in violation of
Section 8(a)(5).
In its memorandum in opposition to the motion
for judgment on the pleadings, Respondent con-
tends that the motion should be denied, that the
complaint should be dismissed, or that the Board
should direct a hearing to resolve factual and legal
issues . In its subsequent motions , Respondent ar-
gues, inter alia, that the representation proceeding
should be reopened and asserts that it is entitled to
a hearing on issues raised in its objections to the
election, claiming that following the Board's deci-
sion in the representation case, Respondent
discovered previously unavailable evidence in the
form .of certain Board "manuals." Respondent as-
serts a belief that these manuals may setforth stand-
ards for the conduct of representation elections,
and that if it were afforded access to said manuals,
it might be able to demonstrate that the election
here involved was not conducted in compliance
with those standards. Any such deviation, the
Respondent contends, would require that the elec-
tion be set aside.
As we have noted, one of the manuals requested
by Respondent, the National Labor Relations Field
Manual, has been made available to Respondent.
' Attached hereto as Appendix B
4Member Zagoria would make the "Guide" available for Respondent's
inspection whether or not the Public Information Act of 1966 requires such
disclosure, a question that he, therefore, need not reach Member Zagoria
otherwise concurs in this Decision and Order.
335
The other manual, entitled "A Guide to the Con-
duct of Elections," is a training guide which was is-
sued by the Office of the General Counsel of the
Board to Regional Office employees in 1960. The
booklet sets out some suggested procedures for the
safe, efficient, and expeditious , handling - of
representation elections . The procedures described
in the document were not intended to be all inclu-
sive or of mandatory effect. Rather, they were
designed to suggest to field agents those practices
which give the greatest promise of assuring fair and
secret elections. These suggested procedures simply
indicate optimum standards for the conduct of elec-
tions. The Board is mindful of the fact that because
of the great variety of conditions in which elections
may be conducted, the suggested procedures can-
not always in practice be met to the letter. Further-
more, it has always seemed clear to the Board that
many alternative methods of conducting elections,
although not in precise conformity with the
guidelines, nonetheless are capable of securing the
Board's ultimate goals of fairness, accuracy, and
free choice. Deviation from procedures suggested
in the booklet, therefore, is not deemed in and of it-
self a determinative factor in our appraisal of
whether an election has been improperly con-
ducted. Instead, our decisions in this area are based
upon an analysis of whether, on facts presented in
each case, the election has been carried out in a
manner which assured the secrecy and security of
the balloting. We therefore conclude that the
booklet in question is not within the category of
those "administrative staff manuals and instructions
to staff that affect a member of the public" which
must be made available to the public under the
provisions of the Public Information Act of 1966.'
Apart from its contention that access to "A
Guide to the Conduct of Elections" might provide
it with a new ground for disputing the validity of
our decision of March 22, 1967, in the representa-
tion proceeding, Respondent now offers no argu-
ment or evidence that has not already been con-
sidered by the Boards in that proceeding. All mo-
tions relative to reopening, rescinding, and requir-
ing production of evidence in that proceeding are
therefore denied, and we hereby reaffirm our deci-
sion in Case 1-RC-9190. Similarly, with the excep-
tion of Respondent's effort to interject the "Guide"
as a relevant factor, Respondent's answer and mo-
tions in the complaint proceeding raise no issue and
present no evidence which was-not or could not
It is clear , contrary to Respondent's apparent contention, that the
Public Information Act does not afford Respondent access to the reports
and memoranda upon which the Regional Director relied in rendering his
report on objections, nor does that statute permit Respondent to question
the Board agent who conducted the election.
336 DECISIONS OF NATIONAL
have been litigated in the representation proceed-
ing. As it is clear that Respondent's defense in Case
I-CA-5866 rests solely on the asserted invalidity of
the representation election, and as we have found
that election to have been validly conducted, we
shall grant the General Counsel's motion for
judgment on the pleadings.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in an appropriate unit, and that the Union at all
times since March 27, 1967, has been and now is
the exclusive bargaining representative of all the
employees in the unit, within the meaning of Sec-
tion 9(a) of the Act, as_ amended. We further find
that Respondent has, since March 27, 1967,
refused to bargain collectively with the Union as
the exclusive bargaining representative of its em-
ployees in the appropriate unit, and that, by such
refusal, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, as amended.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom, and, upon request, bar-
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Polymers, Inc., Middlebury, Vermont, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs and Warehousemen
Local No. 597 is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
the Employer's operations at Case Street and
Munger Street, Middlebury, Vermont, including
LABOR RELATIONS BOARD
shipping clerks and building maintenance em-
ployees, but excluding office clerical employees,
professional employees, managerial employees, the
office utility man, the development supervisor, the
development and construction machine shop super-
visor, the raw materials processing supervisor, the
production maintenance shop supervisor, the area
supervisor, shift foremen, summer seasonal em-
ployees, guards, and all supervisors, as defined in
the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(a) of the Act.
4. Since March 27, 1967, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about March 27, 1967, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, and has thereby en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within - the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, -Polymers, Inc., Middlebury, Vermont, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:.
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with Teamsters, Chauffuers and
Warehousemen Local No. 597,- a/w International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees
in the above-described appropriate unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the
rights guaranteed them by Section 7 of the Act.
POLYMERS, INC. 337
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Upon request , bargain with the above-named
organization, as the exclusive representative of all
employees in the aforesaid appropriate unit, with
respect to wages , hours , and other terms and condi-
tions of employment , and, if an understanding is
reached , embody such understanding in a signed
agreement.
(b) Post at its Middlebury, Vermont, place of
business , copies of the attached notice marked
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 1, after
being duly signed by Respondent 's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered , defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing , within 10 days from the date of this Order,
what steps have been taken to comply herewith;
h In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
is reached , embody such understanding in a
signed agreement.
The bargaining unit is:
All production and maintenance em-
ployees of the Employer's operations at
Case Street and Munger Street , Middelbu-
ry, Vermont, including shipping clerks and
building maintenance employees , but ex-
cluding office clerical employees , profes-
sional employees , managerial employees,
office utility man , the development super-
visor , the development and construction
machine shop supervisor , the raw materi-
als processing supervisor, the production
maintenance shop supervisor , the area su-
pervisor , shift foremen , summer seasonal
employees, guards , and all supervisors, as
defined in the Act.
POLYMERS, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, 20th Floor, John F. Kennedy Federal Build-
ing, Cambridge and New Sudbury Streets , Boston,
Massachusetts 02203, Telephone 223-3300.
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with Teamsters, Chauffeurs and
Warehousemen Local No. 597 , a/w Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen , and Helpers of America, as
the exclusive representative of the employees
in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union as the exclusive represent-
ative of all our employees in the bargaining
unit described below with respect to rates of
pay, wages , hours , and other terms and condi-
tions of employment , and, if an understanding
APPENDIX A
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Pursuant to a stipulation for certification upon
consent election , an election by secret ballorwas
conducted on November 15, 1966, under the
direction and supervision of the Regional Director
for Region 1 of the National Labor Relations Board
among the employees in the appropriate unit. After
the election, the parties were furnished a tally of
ballots which showed that of approximately 124
eligible voters , 124 cast valid ballots , of which 73
were for and 51 were against the Petitioner. There
were no challenged or void ballots. Thereafter, the
Employer filed timely objections to conduct affect-
ing the results of the election.
350-999 0 - 71 - 23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedures, Series 8, as amended, the Regional
Director conducted an investigation and on
December 16, 1966, issued and duly served upon
the parties his report on objections, in which he
recommended that the objections be overruled in
their entirety, ardthat the Petitioner be certified..
Thereafter, the Employer filed timely exceptions to
the report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three--
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for the pur-
poses of collective bargaining within Section 9(b)
of the Act:
All production and maintenance employees of
the Employer's operations at Case Street and
Munger Street, Middlebury, Vermont, including
shipping clerks and building maintenance em-
ployees, but excluding office clerical employees,
professional employees, managerial employees, the
office utility man, the development supervisor, the
development and construction machine shop super-
visor, the raw materials processing supervisor, the
production maintenance shop supervisor, the area
supervisor, shift foremen, summer seasonal em-
ployees, guards, and all supervisors as defined in
the Act.
5. The Board has considered the Regional
Director's report, the exceptions thereto, and the
entire record in the case, and hereby adopts the Re-
gional Director's findings and recommendations.'
Accordingly, as the tally of ballots shows that the
Petitioner has received a majority of the valid votes
cast in the election, we shall certify it as the collec-
tive-bargaining representative of the employees in
the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Teamsters , Chauffeurs
and Warehousemen Local No. 597, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, has been
selected by a majority of the employees employed
by the Employer in the appropriate unit as their
representative for the purposes of collective bar-
gaining, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
organization is the exclusive representative of all
such employees for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
' The Employer's exceptions in our opinion raise no issue of fact or law
which would warrant reversal of the Regional Director's findings and
recommendations
APPENDIX B
REPORT ON OBJECTIONS
Pursuant to a stipulation for certification upon
consent election, executed on September 28, 1966,
and approved by the Regional Director on Sep-
tember 29, 1966, an election was held on
November 15 among certain employees of the Em-
ployer. The tally of ballots cast at said election is as
follows:
Approximate number of eligible voters . . . . 124
Void ballots .................. 0
Votes cast for Petitioner . . . . . . . 73
Votes cast against participating labor
organization . .. ........... 51
Valid votes counted . . . . . . . . . . . . . . 124
Challenged ballots . . . . . . 0
Valid votes counted plus challenged
ballots . . . . . . . . . . . . . . . . . . . . 124
On November 21, the Employer filed timely ob-
jections to conduct of the election and conduct af-
fecting the results of the election, serving a copy
thereof on the Petitioner. The objections allege the
following:
" 1. The Board Agent in charge of the election
made up the ballot box from a flattened cardboard
box he had brought with him. He sealed the edges
and corners with masking tape, but at no time was
such masking tape initialled or otherwise marked so
as to prevent its removal and replacement without
indication thereof.
"2. After each of the first two (2) balloting ses-
sions , the Board Agent improperly sealed the ballot
box slot for insertion of ballots in that the masking
tape seal was signed by the Board Agent and
representative of the parties and affixed in such a
manner as to permit access to the contents of the
box without indication that the seal had been
removed and replaced.
POLYMERS, INC.
"3. From shortly after the end of the second bal-
loting session at 10:30 a.m. until the Board Agent
returned to the Employer's premises shortly after
2:00 p.m. for the third balloting session, the Board
Agent alone assumed responsibility for the custody
of the improperly sealed ballot box and an unsealed
number of unmarked ballots. No representative of
the Employer was with the Board Agent during this
time. For most of this time, the improperly sealed
ballot box was left in the Board Agent's station
wagon which was parked, unattended, on the
streets of Middlebury, Vermont.
"4. The Board Agent stated to the Employer
that his station wagon was locked and he alone had
the key while it was parked on the streets of Mid-
dlebury. However, it is common knowledge and a
demonstrable fact that access to station wagons and
other vehicles is simple whether the vehicle doors
are locked or unlocked.
"5. The foregoing constitutes serious irregularity
in the conduct of the election which raises doubts
as to the integrity and secrecy of the election and
which is not in accordance with the strict standards
imposed by the Board to insure that its conduct of
elections is not open to question."
Pursuant to Section 102.69 of the Board's Rules
and Regulations, Series 8, as amended, the under-
signed has conducted an investigation and makes
this his report thereon. Since all five numbered
paragraphs of the objections are interrelated, they
will here be treated together.
Investigation reveals:
The facts underlying these objections are not in
dispute. They are described, without material diver-
gence, by the Board agent and the Employer as fol-
lows:
The voting took place from 6:30 a.m. to 8:30
a.m. and from 2:30 p.m. to 3:30 p.m. at the Em-
ployer's Case Street location and from 10:15 a.m.
to 10:30 a.m. at the Munger Street location, both in
Middlebury, Vermont. At the end of both morning
polling periods, the Board agent sealed the ballot -
box, a cardboard carton supplied to all regions by
the Board in Washington, with masking tape over
the pre-cut slot for inserting the ballots on the top
of the box, so that parts of this tape extended ap-
proximately one-half inch over the edges to the side
of the box where they adhered to the masking tape
securing the seams of the box. The parties' obser-
vers, the Petitioner's business agent, the Employer's
engineering manager, all of whom had observed
this procedure, and the Board agent himself then
signed their names on said tape but the signatures
339
did not extend onto the box. The Board agent then
affixed several strips of scotch tape across said tape
and over the signatures so that the scotch tape ad-
hered to both the masking tape and to the surface
of the box on each side of the masking tape.
After the early morning session at Case Street,
the Board agent placed the box in the back of his
station wagon and, with the two observers in his
car, proceeded to the Munger Street location. The
business agent and the engineering manager had
also gone to the Munger Street plant. Since there
was time before the scheduled opening of the polls
at 10:15 a.m., all five went to a nearby diner for
coffee where they stayed for approximately 30
minutes. During that time, the agent's car was
parked from 50 to 75 feet from the diner and was
locked. The ballot box was in the locked car for
from one-half to three-fourths of an hour. A leather
brief case, in which the agent kept the supply of
blank ballots, was also left in the locked car.
At Munger Street, the tape across the. slot was
removed by the Board agent in the presence of the
observers for the parties. There were no objective
indications of tampering, but, since the, election, a
company observer has stated that the masking tape
came off "smoothly," in that no part of the surface
of the box adhered to the tape as it was removed.
After the polling period at Munger Street, the box
was again sealed and signatures were affixed in ex-
actly the same manner as had been done at Case
Street. The agent again placed the box in his car in
the presence of the observers and drove to the Mid-
dlebury Inn (where he had a room) and parked the
car, about 11 a.m., near the Inn, which is near the
center of Middlebury. He placed a sweater over the
box concealing it from view. He again locked the
car, but took the brief case containing the blank
ballots with him and went into the Inn. When he
later went for a walk he left the brief case in his
locked hotel room. About 2 p.m., he returned to
the car and drove to the Case Street plant for the
afternoon polling period. Before the polls opened,
he removed the seal from over the slot in the ballot
box under the observation of the parties' observers
and the other representatives as he had done at
Munger Street. On no occasion prior to the ballot
count was any suspicion voiced by anybody that the
seal was or could have been tampered with between
polling periods.
Such suspicions were voiced for the first time
during the counting of the ballots by the Em-
ployer's president.' They were subsequently re-
peated and formalized in a memorandum by the
' The Employer declined to sign the certification on the tally of ballots.
However, he disclaimed any aspersions upon the integrity of the Board
agent himself
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's counsel submitted to the undersigned
before whom counsel for the Employer made oral
argument on December 13, 1966.2
The Employer presented no evidence that the
box had actually been tampered with. It is hereby
found that the ballot box was not tampered with.
The Employer argued that the facts set forth above
raise serious doubts as to the integrity and secrecy
of the election and that the election should, there-
fore, be set aside because the possibility of irregu-
larity existed. In support of the possibility of irregu-
larity, he speculates that the locked car might have
been entered either with false keys or with no keys;
that the tape might have been removed without
disturbing the signatures and that ballots marked
for the Union might have been substituted for bal-
lots which rejected the Union during the absence of
the Board agent. He also argues that the Union's
overwhelming loss of an election 14 months previ-
ously and the fact that 12 to 15 ballots were sharply
creased and similarly folded and that there were
long runs of "yes"ballots during the count.
The latter argument is entirely without merit.
The Board agent, in the interests of secrecy and fol-
lowing a long regional practice, prefolded the bal-
lots in groups before he handed them out in-
dividually to the voters and there is nothing unusual
in long runs of either "yes" or "no" ballots. Obvi-
ously there will usually be longer runs in favor of
the winner.
Whether the conjectures as to the car being en-
tered and ballots exchanged amount to "the possi-
' At this time, counsel for the Employer was asked whether he wished a
formal hearing, but there being no relevant issues of fact in the case, coun-
sel stated that he was not requesting formal hearing In the presence of
counsel, the undersigned personally examined the box which had been
used at the election and the tape which had been applied at Munger Street
bility of irregularity" within the meaning of Board
precedents must be evaluated in the light of `what
the Board has held in decided cases, some of which
are cited by the Employer.'
These cases clearly establish the principle ad-
vanced by the Employer that an election will be set
aside without evidence of actual tampering, if
desirable election standards have not been met or
where other irregularities have occurred. In this
case, however, the Board agent did maintain desira-
ble election standards and there were no irregulari-
ties. The ballot box was sealed and unsealed in the
presence of the observers and at all times kept in
the agent's custody in the interim periods between
balloting. The blank ballots were at all times in the
agent's custody. When the box and the blank bal-
lots were not in his immediate presence they were
kept under lock and key. In no case cited,by the
Employer or uncovered by independent research
has the Board set aside an election under such cir-
cumstances.
The undersigned concludes that the objections
lack merit and recommends that they be overruled
in their entirety and that certification of representa-
tive be issued to the Petitioner.
Albert J_ Hoban,
Director, Region 1
National Labor Relations
Board
Boston, Massachusetts
and removed at Case Street. The tape binding the box was tight and there
was no objective evidence of tampering.
a General Electric Company , Clock and Timer Department , 119 NLRB
944; The Royal Lumber Co., 118 NLRB 1015, New York Telephone Co., 109
NLRB 788; Tidelands Marine Services , Inc., 116 NLRB 1222 and others.