Acme Bus Corp.

National Labor Relations Board - Board Decisions

Feb 10, 1995

316 N.L.R.B. 274 (N.L.R.B. 1995)

274
316 NLRB No. 51
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer’s Objection 4 alleges that approximately 200
home drivers, 200 matrons, plus the employees who were on vaca-
tion, were led to believe that the election was canceled when Local
144 mailed all employees a leaflet 4 days before the election erro-
neously announcing that the Board had postponed the election.
The Board’s Order remanding the case states, in pertinent part, the
‘‘Joint Petitioners’ Request for Review . . . raises substantial issues
regarding the extent to which the leaflet falsely announcing the post-
ponement of the election was disseminated by the Petitioner Local
144 among unit employees shortly before the election.’’
2 The unit is all full-time and regular part-time drivers, drivers’ as-
sistants, and mechanics.
3 The Employer has excepted to some of the hearing officer’s
credibility resolutions. The Board’s established policy is not to over-
rule a hearing officer’s credibility findings unless the clear prepon-
derance of all the relevant evidence convinces us that the resolutions
are incorrect. Coca-Cola Bottling Co. of Memphis, 132 NLRB 481,
483 (1961). We have carefully examined the findings and find no
basis for reversing the findings.
4 The list, as corrected at the hearing, in fact shows 94 such em-
ployees, but the names of 2 individuals appear twice.
5 In addition to the Board’s notice, the Joint Petitioners distributed
approximately 2500 fliers at the bus yards and at the destination
schools of home drivers. These fliers likewise indicated that the elec-
tion was to be conducted as scheduled.
6 The hearing officer concluded that to set the election aside, the
Employer had to establish that 86 employees were disenfranchised
by the leaflet for a possible total of 404 votes against representa-
tion—the number of votes received by the Joint Petitioners. That cal-
culation however, ignores the 13 votes cast for Local 144 which, de-
spite being votes for union representation, would count as votes
against representation by the Joint Petitioners. Adding those 13 votes
to the votes cast against representation plus the 37 challenged bal-
lots, we find that the number of disenfranchised voters that could be
determinative of whether the Joint Petitioners received a majority is
73.
7 The election was conducted at two sites away from the Employ-
er’s facilities at its request.
Acme Bus Corp., Brookset Bus Corp., Bauman &
Sons Buses, Inc., Alert Coach Lines, Inc., and
Local 868, International Brotherhood of Team-
sters, AFL–CIO/District Lodge 15, Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO, Joint Petitioners
and Local 144, Service Employees International
Union, AFL–CIO, Petitioner. Cases 29–RC–
8162 and 29–RC–8167
February 10, 1995
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On March 2, 1994, the National Labor Relations
Board, by a three-member panel, granted the Joint Pe-
titioners’ request for review of the Regional Director’s
Decision and Direction of Second Election and re-
manded the case to the Regional Director for a hearing
on the Employer’s Objection 4.1 Following a hearing
on the matter, Hearing Officer Ariella Bernstein, on
June 1, 1994, issued the Hearing Officer’s Report and
Recommendation on Objections (pertinent portions are
attached), finding that the objection should be dis-
missed and the Joint Petitioners should be certified as
the exclusive collective-bargaining representative of
the employees in the appropriate unit.2 Thereafter, the
Employer filed exceptions and a brief with the Board,
and the Joint Petitioners filed a brief in support of the
hearing officer’s report.
The Board has considered the record in light of the
exceptions and briefs and affirms the hearing officer’s
rulings, findings,3 and conclusions and adopts her rec-
ommendation that a Certification of Representative
should issue.
In affirming the hearing officer’s findings, we agree
that the Employer failed to meet its burden to show
that the outcome of the July 30, 1993 election was af-
fected by Local 144’s July 26 dissemination of a leaf-
let that falsely stated that the election had been post-
poned or that the leaflet was the cause of the low voter
turnout in that election. The tally of ballots establishes
that of 1151 employees deemed eligible to vote, 404
cast ballots for the Joint Petitioners, 13 cast ballots for
Local 144, and 281 cast ballots against the participat-
ing labor organizations, and there were 37 challenged
ballots and 4 void ballots. Of the 425 individuals who
failed to vote, the voter eligibility list used in the elec-
tion establishes that 92 were home employees and em-
ployees on vacation or layoff4 who would not have re-
ported to the Employer’s bus yards for work prior to
the election, and therefore, would not likely have seen
the Board’s July 29 notices posted at those yards that
refuted the false information in Local 144’s leaflet and
advised that the election was to be conducted as sched-
uled.5 Assuming facts most favorable to the Employer,
i.e., that the 37 challenged ballots were all cast against
representation, it was incumbent on the Employer to
show that 73 employees of the 92 home/vacationing
employees received the leaflet or learned of its con-
tents and did not vote because they reasonably relied
on the leaflet’s message that the election had been
postponed.6 As stated, the Employer did not do so. Of
the five witnesses called by the Employer to testify
concerning receipt of the leaflet, one stated that he had
no opportunity to go to the Employer’s facilities be-
tween the time he received the leaflet and the election
and that he believed the election had been canceled.
Another, who was not a home driver, stated that she
received the leaflet prior to the election and believed
that the election was canceled and did not see the
Board’s notice or otherwise learn that it would be con-
ducted even though she went to one of the bus yards
on election day.7 The three remaining Employer wit-
nesses and two witnesses called by the Joint Petition-
ers all testified that they received the leaflet but
learned from various sources prior to the election that
275ACME BUS CORP.
8 Home driver Kuczewski called the Employer and learned that the
election would be held. Home driver Ellington and nonhome driver
Van Syckle both received the leaflet but learned over the two-way
radios in their vehicles that the election was still scheduled. Elling-
ton voted in the election. Two other employees who stated that they
received the leaflet testified they learned that the election was being
conducted but did not specify how they came by this information.
We note that Kuczewski testified to having conversations with five
other employees who received the leaflet, but they were not called
to testify and the record does not disclose whether they became
aware of the conduct of the election. Even assuming that those five
never learned that the election would be run, the Employer still has
not come close to meeting its burden of showing that the votes of
voters who relied on the leaflet could have been determinative.
9 See also Yerges Van Liners, 162 NLRB 1259 (1967).
it would proceed as scheduled.8 Accordingly, the
record fails to establish, in numbers sufficient to affect
the outcome of the election, that the leaflet kept em-
ployees from voting in the election.
In this connection, we reject the Employer’s conten-
tion that it need only show dissemination of the leaflet.
First, the order remanding the case for a hearing indi-
cates that the evidence sought concerns the extent of
dissemination of the leaflet. Second, although the
Board will set aside an election where the conduct of
a party to the election causes employees to be
disenfranchised, it will do so only if the ballots of
those employees could be determinative. Borg Warner
Corp., 254 NLRB 597 (1981).9 Thus, the mere show-
ing of a mathematical possibility that the number of
nonvoting employees could affect the outcome of the
election will not suffice. To the contrary, in order to
prevail on its Objection 4 the Employer had to estab-
lish widespread dissemination of the leaflet among the
nonvoting population and circumstances which could
show a connection between the false information and
their failure to vote. For the reasons stated by the hear-
ing officer, we agree that the record indicates some-
thing far less than extensive dissemination of the leaf-
let, and as stated above, we find that the testimony of
the seven witnesses who received the leaflet fails to es-
tablish that it caused a determinative number of em-
ployees not to vote.
We note, too, that the Employer was apprised of its
burden at the opening of the hearing in this matter, if
not before, and that the hearing was conducted on 3
nonconsecutive days, April 15 and 20 and May 2,
1994, giving the Employer ample opportunity to inves-
tigate and gather enough information to meet its bur-
den. Further, contrary to the Employer’s assertion, it
would not have violated the Section 7 rights against
coercive interrogation to ask the employees who did
not vote, as an investigative matter and at the hearing:
(1) whether they received the leaflet; (2) whether they
learned that the election was to be conducted anyway;
and (3) whether the false leaflet caused them to refrain
from voting. Such a line of questioning would not be
intrusive under the circumstances and certainly does
not seek to determine the employees’ union sentiments.
In any event, assurances against reprisal could have
been given prior to questioning. G.H. Bass Caribbean,
Inc., 306 NLRB 823 (1992).
On the basis of all the foregoing, we find that Ob-
jection 4 should be overruled and that a Certification
of Representative should issue.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Local 868, International Brother-
hood of Teamsters, AFL–CIO/District Lodge 15, Inter-
national Association of Machinists and Aerospace
Workers, AFL–CIO, as Joint Petitioners and that the
Joint Petitioners are the exclusive representative of the
employees in the following appropriate unit:
All full-time and regular part-time drivers, driv-
ers’ assistants and mechanics employed by Acme
Bus Corp., Brookset Bus Corp., Bauman & Sons
Buses, Inc., Alert Coach Lines, Inc., single em-
ployer, at its Bohemia, Northport, Westbury/Jeri-
cho, and Westhampton, New York, locations, ex-
cluding all other employees, office clerical em-
ployees, guards and supervisors within the mean-
ing of the Act.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATION ON OBJECTIONS
Upon a petition filed on May 19, 1993, by Local 868,
International Brotherhood of Teamsters, AFL–CIO (Local
868) and upon an amended petition filed during the represen-
tation hearing naming District Lodge 15, International Asso-
ciation of Machinists and Aerospace Workers, AFL–CIO
(District Lodge 15), as Joint Petitioners, and upon a petition
filed by Local 144, Service Employees International Union,
AFL–CIO (Local 144) and pursuant to Decision and Direc-
tion of Election issued by the Regional Director for Region
29, on July 1, 1993, an election by secret ballot was con-
ducted on July 30, 1993, in a unit of all full-time and regular
part-time drivers, drivers’ assistants and mechanics employed
by Acme Bus Corp., Brookset Bus Corp., Bauman & Sons
Buses, Inc., Alert Coach Lines, Inc., a single employer (the
Employer) at its Bohemia, Northport, Westbury/Jericho, and
Westhampton, New York locations, excluding all other em-
ployees, office clerical employees, guards, and supervisors
within the meaning of the Act.
The tally of ballots served on the parties at the conclusion
of the election showed the following results:
Approximate number of eligible voters–1151
Number of void ballots–4
Number of votes cast for Joint Petitioner–404
Number of votes cast for Local 144–13
Number of voted case against participating labor
organizations(s)–281
Number of valid voted counted–698
Number of challenged ballots–37
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for the Region provided to all the parties, and offered
into evidence Board Exh. 2, consisting of a list of the names of
home, vacationing, and laid-off employees who did not vote in the
election. Objections to receipt of this document into evidence were
raised because Board Exh. 2 was not properly authenticated. Based
on such objections, the hearing officer conducted an in-camera in-
spection of Board Exh. 2 against the Excelsior list utilized at the
election, and received into evidence Board Exh. 3, a corrected ver-
sion of Board Exh. 2, pursuant to the in-camera inspection.
2 Clarke neither prepared the mailing labels, nor did she give the
labels to Best. Clarke’s information came from a system processing
log, Emp. Exhs. 8 and 9, which was prepared by Clarke’s former
supervisor who is no longer employed by Local 144. According to
Clarke, she recognized the handwriting on the system processing log,
Number of valid voted counted plus challenged
ballots–735
Challenges are not sufficient in number to affect the
results of the election.
A majority of valid votes counted plus challenged
ballots has been cast for Joint Petitioners.
Thereafter, on August 6, 1993, the Employer filed timely
objections to the conduct of the election.
Pursuant to Section 102.69 of the Board’s Rules and Reg-
ulations, as amended, the Regional Director for Region 29
caused an administrative investigation to be conducted con-
cerning the Employer’s objections. Thereafter, on October 8,
1993, the Regional Director for Region 29, issued a Supple-
mental Decision on Objections and Direction of Second
Election, wherein he directed that Employer’s Objection 4 be
sustained, that the July 30, 1993 election be set aside, and
that a second election be conducted. The Regional Director
overruled the Employer’s remaining objections. On March 2,
1994, the National Labor Relations Board issued an order
granting Joint Petitioner’s request for review of the Regional
Director’s Supplemental Decision on Objections and Direc-
tion of Second Election, with respect to Objection 4, and re-
manded the case to the Regional Director for a hearing con-
cerning the extent of dissemination of a Local 144
preelection leaflet among bargaining unit employees. On
March 23, 1994, the Regional Director for Region 29 issued
an order and notice of hearing in Cases 29–RC–8162 and
29–RC–8167, for the purpose of eliciting testimony regarding
the extent of dissemination of the Local 144 leaflet among
bargaining unit employees.
In accordance with the Board’s March 2, 1994 Order and
the Regional Director’s March 23, 1994 Order and Notice of
Hearing, a hearing was held before me on various dates in
April and May 1994, concerning the dissemination of Local
144’s leaflet among bargaining unit employees. All parties
were represented by counsel, were afforded a full opportunity
to be heard, to examine and cross-examine witnesses, to
present evidence pertinent to the issues, to present oral argu-
ment, and to file briefs.
In accordance with the Board’s March 2, 1994 Order and
the Regional Director’s March 23, 1994 Order and Notice of
Hearing and upon the entire record of this case, consisting
of the transcript and exhibits, including my observation of
the demeanor of the witnesses who testified and the specific-
ity of their testimony, I make the following findings of facts
and credibility resolutions and issues this report and rec-
ommendations to the Board.
The Employer is a New York corporation with its prin-
cipal office and place of business located at 3355 Veterans
Memorial Highway, Ronkonkoma, New York, and other lo-
cations in Bohemia, Northport, Westbury/Jericho, and
Westhampton, New York, where it is engaged in providing
bus transportation services.
Background
The alleged objectionable conduct centers on a Local 144
leaflet erroneously advising employees, essentially, that the
July 30, 1993 election was cancelled due to a postponement
request granted by the Region. According to the leaflet, the
election was postponed to an unspecified date in September
1993. It is undisputed that on July 29, 1993, after it became
aware of the leaflet and its contents, the Region prepared a
notice advising employees, inter alia, that the election was to
be conducted as scheduled, on July 30, 1993, that any infor-
mation concerning cancellation thereof was inaccurate, and
that any information concerning the election was available
from the Board’s official notices of election. The Employer
posted the aforementioned notice at each of its four locations
and distributed the notice to those employees who worked
out of these four locations. The Employer’s objection arose
because two groups of its employees may not have received
the Board’s July 29, 1993 reaffirmation of the July 30, 1993
election date, and thus, may have been led to believe that the
election was either cancelled or postponed. The Employer’s
Objection 4 alleges verbatim, as follows:
Local 144, Service Employees International Union,
AFL–CIO, sent a letter announcing that the Labor
Board cancelled the election . . . . The company post-
ed a Notice from the Labor Board saying that Local
144 lied, but the home drivers, which consists of 200
vehicles plus 200 matrons for a total of 400 people plus
those on vacation were led to believe that the election
was cancelled.
The home employees do not report to any of the Employ-
er’s four locations. Rather, they go directly from their homes
to their routes, thereby precluding them from receiving or re-
viewing the Board’s July 29, 1993 notice that the election
was proceeding as scheduled. Vacationing and laid-off em-
ployees, may have received Local 144’s leaflet, but not the
Board’s disavowal thereof. There were approximately 416
employees who did not vote in the July 30, 1993 election,
of which 86 are home employees, and 18 are either vacation-
ing or laid-off employees.1 The remaining 312 nonvoters are
from neither category. The Board remanded the case for a
hearing to elicit testimony regarding the dissemination of
Local 144’s leaflet among unit employees.
During the course of the hearing, Local 144’s business
agent, Tito Vargas, organizers Daniel Best, Frank DeStefano,
and Jean Marency, former coordinator Jean Smith, data entry
clerk Monica Clarke, and mailroom employee Robert
Darmanie, testified about the process employed by Local 144
in addressing, filling, and mailing envelopes containing the
leaflet. Union President Frank Russo and Director of Orga-
nizing Trevor Kellman also testified as to their knowledge of
the mailing.
Data entry clerk Monica Clarke testified that Local 144’s
internal documents show that, on July 22, 1993, organizer
Daniel Best received2 two sets of computer generated mail-
277ACME BUS CORP.
Emp. Exh. 9, as that of her former supervisor. Clarke testified that
the document notes that the mailing labels were given to Daniel
Best. Although Joint Petitioners assert that the document was not
properly authenticated, I am placing little weight on it for reasons
discussed infra.
3 According to Vargas, the labels were randomly divided among
other Local 144 employees for each to place on envelopes, thus, the
labels were not placed on the envelopes in any particular order.
4 Vargas testified that during that morning, Director for Organizing
Kellman gave him instructions not to do anything regarding a post-
ponement (Tr. 567).
5 According to Best, the only time he received any mailing labels
was early on in the campaign.
6 The organizing floor.
7 According to Best, all literature that is to be mailed to member-
ship is left on the table for the organizers to mail.
8 This was the only time that Best saw Emp. Exh. 2.
9 Best did not recall if the cardboard box had other stuffed enve-
lopes therein.
10 Although Best testified that other organizers were also stuffing
envelopes with leaflets, Best could not identify if the leaflet was in-
deed Emp. Exh. 2. As noted above, Local 144 was contempora-
neously preparing a second mailing of campaign leaflets to unit em-
ployees. Inasmuch as the organizers named by Best testified during
the hearing, I place greater weight on their own accounts of their
actions rather than Best’s account.
11 DeStefano did not stuff the remaining 20 addressed envelopes
and left them alongside any remaining leaflets on his desk. Upon ar-
rival at his office the following day, the addressed envelopes and
leaflets were gone.
12 On direct examination, DeStefano testified that other organizers
were also stuffing envelopes with Emp. Exh. 2, but on cross-exam-
ination, he testified that he assumed the leaflets were Emp. Exh. 2.
13 Local 868’s Exh. 2 is relevant to these proceedings inasmuch
as one unit employee testified that he received the leaflet at about
the same time that Emp. Exh. 2 was mailed. See employee James
Ellington’s testimony, described infra.
14 According to Smith, she handled mostly clerical duties, includ-
ing answering telephones and mailings. When Smith was involved
in mailings, she did not necessarily read the documents being mailed
(Tr. 437).
ing labels for employees employed by the Employer. Accord-
ing to Clarke, the mailing labels are randomly compiled and
not in alphabetical order.
Business Agent Tito Vargas testified that on the day that
the leaflet (Emp. Exh. 2) was mailed, he arrived at work at
9 a.m., and affixed computer generated mailing labels on en-
velopes.3 The envelopes were in preparation for mailing of
either a notice postponement of the election (Emp. Exh. 2),
which had not yet been prepared, or a standard campaign
leaflet asking the Employer’s employees to vote for Local
144 in the upcoming election (Tr. 52)4. While awaiting in-
structions on which leaflet to mail, he affixed the labels on
the envelopes. When Vargas left the Local 144 offices at 11
a.m., no decision was made as to which leaflet to mail, and
he had not completed placing all the mailing labels on the
envelopes (Tr. 44, 53). When Vargas returned to the Local
144 offices at about 4 p.m., he saw a large bin in the lobby
filled with approximately 550 envelopes, but did not look at
the labels thereon or the contents therein. The bins in the
lobby always contain the Union’s afternoon mail to be
picked up by the mailman (Tr. 34–35). On the sixth floor of
the Union’s offices, Vargas saw boxes of an unidentified
number of unsealed envelopes, one of which contained Em-
ployer’s Exhibit 2 (Tr. 38–39), the offending leaflet. Vargas
asked mailroom employee Robert why the boxes of enve-
lopes were not mailed. Mailroom employee Robert explained
that he ran out of time, that the envelopes ready for mailing
were already in the lobby (Tr. 46–47), and that there was in-
sufficient time to complete the many that had yet to be done
(Tr. 50). Based on this conversation with Robert, Vargas as-
sumed that all the envelopes in the bin in the lobby were en-
velopes that he labelled earlier in the day (Tr. 46), and they
contained Employer’s Exhibit 2.
Contrary to Clarke’s testimony, organizer Daniel Best tes-
tified that he did not receive any labels from either Clarke
or her supervisor in late July 1993.5 Sometime prior to the
election, Best arrived at the Union’s offices. On the sixth
floor,6 Best saw a table with a stack of leaflets identified as
Employer’s Exhibit 2, empty envelopes, and pages of com-
puter generated labels.7 After Best picked up some of Em-
ployer’s Exhibit 2, a batch of envelopes, and some computer
generated labels, Best stuffed about 25–30 envelopes with
Employer’s Exhibit 2,8 and affixed labels thereon. Best
placed the 25–30 stuffed envelopes in an empty envelope
box (Tr. 390) located on the table where the Employer’s Ex-
hibit 2 originated.9 When Best returned to the union offices
at 4 p.m. on the same day, the box with the envelopes was
no longer on the table where Best left it. According to Best,
the Union’s mailing procedure normally involved bringing
the mail to employee ‘‘Robert’’ to seal, and mail, or, em-
ployee ‘‘Robert’’ would pick up the mail.10
Organizer Frank DeStefano testified that sometime during
the last week of July 1993, he found a 6-inch stack of ap-
proximately 50–60 Local 144 envelopes with mailing labels
thereon, and a pile of xeroxed copies of the Employer’s Ex-
hibit 2, on his desk. DeStefano testified that he placed Em-
ployer’s Exhibit 2 into approximately 30–40 addressed enve-
lopes found on his desk,11 and placed the filled envelopes in
an empty cardboard box, which previously held empty enve-
lopes (Tr. 279, 280). DeStefano gave the box to a secretary,
whose name he did not recall, and instructed her to give the
box to mailroom employee Robert Darmanie for mailing.12
Organizer Marency testified that he never saw Employer’s
Exhibit 2 because the instant campaign was not his assign-
ment. Although Marency testified that about 1 week before
the election, he placed about 30 to 35 labels on envelopes
and stuffed the envelopes with leaflets, he did not know
which leaflet he stuffed into the envelopes. On direct exam-
ination, Marency testified that he never saw Employer’s Ex-
hibit 2 but did see Local 868’s Exhibit 2, a campaign leaf-
let,13 on the shelf in the Union’s offices. On cross-examina-
tion, however, Marency testified that he never saw Local
868’s Exhibit 2. When questioned about his activities on July
28, 1993, 2 days prior to the election, while at the union of-
fices, Marency testified that he was at the union offices for
2 to 3 hours, but he was only killing time, ‘‘doing his own
business’’ (Tr. 510).
Local 144’s former coordinator14 Jean Smith testified that
there were only two mailings to the Employer’s employees
during July 1993 (Tr. 453). One was mailed 1 week prior to
the election, and the second, Employer’s Exhibit 2, was
mailed during the last week of July 1993 (Tr. 456, 457).
Smith testified that Employer’s Exhibit 2 may have been
mailed on the day that Director of Organizing Kellman was
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 She saw Local 868’s Exh. 2 on the shelf behind her desk. As
previously noted, Local 868’s Exh. 2 was received by one unit em-
ployee, James Ellington, as thus, the presence of Local 868’s Exh.
2 is relevant to this proceeding.
16 The cardboard box previously held 500 empty envelopes (Tr.
459).
17 Darmanie testified that the large mailing given to him by the or-
ganizer was posted and mailed on either July 26, 1993 (postmark
date on Emp. Exh. 4) or July 28, 1993 (postmark date on Emp. Exh.
6), but it was not mailed on both days.
18 Galaida Bettina testified that she voted in the election on July
30, 1993.
19 No envelope addressed to Kuczewski was submitted.
20 Although Kuczewski testified about other employees, the em-
ployees mentioned did not testify.
21 No envelope addressed to Johnson was submitted.
22 No envelope addressed to Ellington containing Emp. Exh. 2 was
submitted. Ellington testified that four or five other employees told
him that they received Emp. Exh. 2, and that some of these employ-
ees told Ellington that they voted. None of these employees were
called as witnesses.
out of the office (Tr. 455), which she believed to be Wednes-
day, July 28, 1993 (Tr. 470). Smith testified that on that day,
she affixed labels on about 20–30 envelopes, and stuffed
them with leaflets (Tr. 483). Smith recalled seeing Employ-
er’s Exhibit 2 (Tr. 434) and Local 868’s Exhibit 215 (Tr.
453, 454), but she could not recall which leaflet she stuffed
into the labelled envelopes (Tr. 438, 484), although there
were no other campaigns on which she worked at that time.
Smith indicated she placed the 20–30 stuffed envelopes in a
cardboard box on her desk, which box previously held 500
empty envelopes. According to Smith, any envelopes that
were stuffed on that day were placed by organizers Marency,
Best, and DeStefano on Smith’s desk, which Smith, in turn,
placed with her own 20–30 envelopes in a cardboard box on
her desk (Tr. 481–483). Although she did not know the num-
ber of envelopes in the cardboard box, she estimated that the
box could hold about 100–150 stuffed envelopes.16 At the
end of the day, Smith told mailroom employee Robert that
the contents of the cardboard box were ready for mailing.
The box was not on her desk on the following morning.
Mailroom employee Robert Darmanie testified that he
seals and places postage on Local 144’s mail by placing the
mail through a metered mail machine. All of the Union’s
mail is placed in a large United States Postal Service bin,
which Darmanie takes to the lobby at 4:30 p.m., for mailing
(Tr. 223–224). Darmanie testified that during the month of
July 1993, he was responsible for placing postage on two
separate large mailings, one of which involved a membership
meeting mailing consisting of 1500–2000 pieces of mail,
which Darmanie believed was mailed during the middle of
July 1993 (Tr. 243–244). Darmanie testified that the second
large mailing came to him in a cardboard box, from an
unnamed organizer. The box previously held 500 empty en-
velopes, but now contained a few hundred envelopes (Tr.
260). Darmanie passed through the postage meter all of the
envelopes in the cardboard box given to him by the unnamed
organizer, placed them in a United States Postal Service bin
with the remainder of the Union’s mail for that day (Tr.
250–251), and took that bin to the lobby at approximately 4
p.m. According to Darmanie, he posted and mailed these en-
velopes on only 1 day, either July 26 or 28, 1993, despite
Employer’s Exhibits 4 and 6, which had different postmark
dates (Tr. 237).17 Darmanie never saw Employer’s Exhibit 2,
and did not know to which campaign it related.
Generally, Local 144’s President Frank Russo testified that
he neither knew about, nor saw, Employer’s Exhibit 2 on the
day it was mailed, but saw it about 1 week prior to his testi-
mony in this matter. Director for Organizing Trevor Kellman
testified that on July 26, 1993, he was out of the office, but
that he spoke with Business Agent Vargas on the telephone
regarding the election. Despite attempts to refresh his mem-
ory, Kellman did not recall the elements of his conversation
with Vargas. Kellman testified that on July 27, 1993, he con-
ducted an investigation into the mailing of Employer’s Ex-
hibit 2, but did not ask, or find out, how many were mailed.
During the course of the hearing, a total of seven employ-
ees testified regarding their receipt of the leaflet. The Em-
ployer called employees Raymond Hamlin, Galaida Bettina,
Ursula Szobonya, Joanne Kuczewski, and Lilly Johnson to
testify.
Raymond Hamlin, a home driver, testified that he received
Employer’s Exhibit 2 sometime prior to the election, al-
though he did not recall precisely when. The envelope con-
taining Employer’s Exhibit 2 addressed to Hamlin is post-
marked July 26, 1993 (Emp. Exh. 3). Hamlin testified that
after his receipt thereof, he had no opportunity to go to any
of the Employer’s yards and assumed the election was can-
celled.
Non-home employees Galaida Bettina and Ursula
Szobonya, mother and daughter, each received Employer’s
Exhibit 2 in envelopes postmarked July 28, 1993 (Emp.
Exhs. 4 and 5). Although both became aware that the elec-
tion was to take place on July 30, 1993, and that the election
was not cancelled,18 they did not see the Regional Director’s
July 29, 1993 notification, nor did they hear any announce-
ments by the Employer or its representatives.
Employee Joanne Kuczewski, a home driver during the
week of the election, testified that she received Employer’s
Exhibit 2 one day prior to the election.19 Because five other
employees20 told Kuczewski that they also received Employ-
er’s Exhibit 2, Kuczewski called the Employer and was told
that the election was to proceed as scheduled on July 30,
1993.
Non-home employee Lilly Johnson testified that she re-
ceived Employer’s Exhibit 2 during the week prior to the
election and was annoyed that the election was cancelled.21
Although Johnson was at the Employer’s facility on the day
of the election, she did not see the Regional Director’s notice
that the election was not cancelled, and did not become
aware that the election was not cancelled.
During the hearing, Local 868 called employees Nerry
Van Syckle and James Ellington to testify.
Non-home employee Nerry Van Syckle received Employ-
er’s Exhibit 2 prior to the election, which led her to call Em-
ployer Safety Director Basile. Although Basile told Van
Syckle that he would investigate the matter, Van Syckle
heard over the two-way radio on her bus that the election
was not cancelled. She also saw the Regional Director’s noti-
fication regarding the correct election date posted on the bul-
letin board at the Employer’s Bohemia yard.
Finally, home employee James Ellington testified that he
received Employer’s Exhibit 222 about 2 to 3 days prior to
the election, but the following day, Ellington heard over the
279ACME BUS CORP.
23 Although home employees do not travel to the Employer’ yard,
Ellington went to the yard every other day to fill up his van with
fuel. When Ellington visited the yard prior to the election, he saw
the Regional Director’s notice to employees.
24 Moran did not specify the number or names of schools where
they distributed the leaflet.
25 Best denied that he received any mailing labels at the end of
July 1993.
26 Although I credit Kellman’s testimony, I find that the remainder
of his testimony regarding his investigation of the mailing of Emp.
Exh. 2 has no bearing on the instant case inasmuch as he had no
information concerning the number of leaflets that were mailed and
he was not present at that time.
two-way radio in his van that the election was not cancelled.
He also saw the Regional Director’s notification of the cor-
rect election date posted on the bulletin board at the Bohemia
yard.23 Ellington testified that he voted in the election.
Ellington also testified that he received Local 868’s Exhibit
2, a campaign leaflet completely different from Employer’s
Exhibit 2, about 1 week prior to the election. However, the
envelope addressed to Ellington containing Local 868’s Ex-
hibit 2 was postmarked on July 28, 1993 (Local 868’s Exh.
3).
Local 868 President Joseph Moran testified that on July
27, 1993, he became aware of the distribution of Employer’s
Exhibit 2, and thereafter, on July 28, 1993, Local 868 pre-
pared and distributed about 2500 campaign leaflets along
with directions to the polling place (Local 868’s Exhs. 6A
and 6B). In the afternoon of July 28, 1993, Local 868 pre-
pared about 2500 leaflets specifically explaining to employ-
ees that the July 30, 1993 election was not canceled (Local
868’s Exh. 7). Moran testified that on July 28, 1993, he
mailed said leaflet to the Employer’s employees, and on July
29, 1993, Moran and other Local 868 employees handed out
the leaflet at the Employer’s three locations and at some of
the schools24 for whom the Employer’s home employees
drive routes. On July 30, 1993, the day of the election,
Moran and other employees of Local 868 and the Employer
distributed a sample ballot card (Local 868’s Exh. 8) to the
Employer’s employees at the Employer’s three locations and
at the schools for which the Employer’s home employees
drive routes.
In light of the above, having carefully considered the de-
meanor of the witnesses while testifying, the internal incon-
sistencies and contradictions in the testimony, conflicts with
documentary evidence in the record and the inherent prob-
abilities of event, I make the following credibility resolutions
and find as follows:
The Generation of the Mailing Labels
I credit the testimony of Local 144’s data entry clerk
Monica Clarke regarding the computer generated mailing la-
bels inasmuch as she answered questions in a straightforward
manner, without hesitation, even on cross-examination. Al-
though I find Clarke’s testimony to be credible, her testi-
mony is immaterial to the issue herein inasmuch as requests
or receipt of mailing labels have no bearing on the extent to
which Local 144’s leaflet was disseminated among unit em-
ployees. Even assuming that organizer Best received two sets
of mailing labels,25 such facts fail to establish the number of
unit employees to whom Local 144’s leaflet was sent.
The Decision to Mail Employer’s Exhibit 2
I credit the portion of Business Agent Vargas’ testimony
that, while he awaited instruction from Director for Organiz-
ing Kellman as to which leaflet to mail, he placed mailing
labels on an unidentified number of envelopes. According to
Vargas, he was instructed by Kellman to ‘‘do nothing,’’ and
left the Union’s offices at 11 a.m. Although it was necessary
to recall Vargas to ask about his conversation with Kellman,
I credit this portion of his testimony based on the directness
and uniformity of his answers. I credit the testimony of
Kellman inasmuch as he answered questions on direct and
cross-examination in a straightforward and honest manner.26
Although Kellman did not completely corroborate Vargas’
version of their conversation, I do not believe that Kellman’s
failure to recollect the extent of his conversation with Vargas
is sufficient grounds for discrediting either Vargas or
Kellman. Thus, I find that Vargas and Kellman discussed the
possibility of election postponement, and that when Vargas
left the Union’s offices at 11 a.m., no decision had been
made with respect to which leaflet to mail. For the reasons
described infra, I do not credit the portion of Vargas’ testi-
mony regarding the number of envelopes he saw in the post-
al bin in the lobby upon his 4 p.m. return to the Union’s of-
fices.
Stuffing of the Envelopes
Initially, I note that Best, DeStefano, Smith, and Marency
testified about the number of envelopes each other may have
labelled, or stuffed with Employer’s Exhibit 2. However,
when each witness was pressed on cross-examination, none
could identify whether the leaflet placed into the envelopes
was indeed Employer’s Exhibit 2. Accordingly, I will not
credit that portion of each of their testimony and place great-
er weight on their accounts of their own activities, rather
than the activities of others. I credit the testimony of orga-
nizer Daniel Best, based on the directness of his answers on
both direct and cross-examination. Although Best was soft-
spoken, he answered consistently and uniformly without hesi-
tation. Best testified that at one time prior to the election, he
stuffed 25–30 envelopes with Employer’s Exhibit 2, affixed
labels thereon, and placed them in an empty envelope box
on a table. I credit the testimony of organizer DeStefano, re-
garding the number of envelopes he stuffed with Employer’s
Exhibit 2. Although I note that DeStefano was slightly anx-
ious, which may have caused him to prematurely answer
questions on direct and cross-examination prior to comple-
tion of the questions, I credit his testimony based on the con-
sistency and uniformity of his answers. DeStefano filled be-
tween 30 and 40 preaddressed envelopes with Employer’s
Exhibit 2, and asked his unnamed secretary to give the enve-
lopes to the mailroom employee to mail.
I am troubled by Marency’s testimony, based solely on his
demeanor. His answers were incoherent requiring the ques-
tioner not only to repeat the question, but also repeat
Marency’s disjointed answer to be sure it was understood.
Marency was not only fidgety, but hostile to the questioners
and generally reluctant to answer questions without express
direction from the hearing officer to do so. When asked what
he did when at the Union’s offices on the Wednesday before
the election, Marency flippantly answered that he just ‘‘killed
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Notwithstanding Ellington’s testimony that he received Local
868’s Exh. 2 one week prior to the election, I place greater weight
on the documentary evidence establishing a specific postmark date.
28 I found that Emp. Exh. 2 placed by Best and DeStefano into
55 to 70 envelopes, and that Local 868’s Exh. 2 could have been
placed by Smith and Marency into 50 to 65 envelopes.
29 By showing Darmanie envelopes (Emp. Exhs. 3 through 7), the
Employer attempted to impeach Darmanie’s testimony that he post-
marked all the envelopes in the cardboard box on the same day.
However, the addressee of Emp. Exhs. 6 and 7, postmarked July 26,
1993, did not testify about the envelope or its contents. Accordingly,
I have no knowledge as to what document was in those envelopes.
Three of the remaining four envelopes presented into evidence (Emp.
Exhs. 4 and 5 and Local 868’s Exh. 3) were postmarked July 28,
1993, and based thereon, I credit Darmanie that he postmarked the
contents of the cardboard box on 1 day only.
30 Although Darmanie’s testimony that he received the box from
an organizer conflicts with Smith’s testimony, I conclude that the en-
velopes in the cardboard box were in Darmanie’s custody at some
point, and it is irrelevant whether it was handed to Darmanie or if
he picked it up.
time.’’ Notwithstanding my concerns regarding Marency’s
demeanor, I am certain of only one part of his testimony;
that he placed about 30 to 35 labels on envelopes. I am un-
certain, however, what he did with those labelled envelopes
thereafter. When asked what was placed in the envelopes,
Marency testified that he never saw Employer’s Exhibit 2,
but had seen Local 868’s Exhibit 2, on the shelf in the
Union’s office. When asked on cross-examination if he could
have stuffed Local 868’s Exhibit 2, rather than Employer’s
Exhibit 2, into the envelopes, Marency contradicted his direct
testimony and said that he never saw Local 868’s Exhibit 2.
Based on his demeanor and his inconsistent answers, I can-
not determine with any degree of certainty that Marency
stuffed his envelopes with Employer’s Exhibit 2. However,
I credit the portion of Marency’s testimony that he labelled
30 to 35 envelopes.
I credit the testimony of former coordinator Jean Smith in-
asmuch as she answered questions on both cross and direct
examination uniformly and consistently. Smith recollected
that Employer’s Exhibit 2 was mailed on Wednesday, July
28, 1993. Smith stuffed between 20 to 30 envelopes but she
could not be sure whether she stuffed the envelopes with
Employer’s Exhibit 2, or with Local 868’s Exhibit 2. Be-
cause Smith repeatedly testified that she could not defini-
tively determine which leaflet she placed in the envelopes
she labelled, I cannot determine with any certainty that Smith
filled the 20 to 30 envelopes she labelled with Employer’s
Exhibit 2.
The testimony of employee Ellington reinforces my find-
ings regarding the contents of the envelopes labelled by
Marency and Smith. Ellington, whose testimony I find to be
credible based on his calm demeanor and the straightforward
and consistent manner in which he answered questions on
both direct and cross-examination, testified that he received
both Employer’s Exhibit 2 and Local 868’s Exhibit 2, two
separate documents. The postmark stamp on the envelope
containing Local 868’s Exhibit 2 is dated July 28, 1993.27
Smith credibly testified that she stuffed envelopes on that
day, and although she was not sure with what, Ellington’s
envelope postmarked on July 28, 1993, containing Local
868’s Exhibit 2, leads me to believe that Local 868’s Exhibit
2, and not Employer’s Exhibit 2, could have been placed in
Smith’s envelopes. Indeed, Smith testified that a stack of
Local 868’s Exhibit 2 was on the shelf behind her desk.
Given that neither Smith nor Marency could recall if they
stuffed their envelopes with Employer’s Exhibit 2 or Local
868’s Exhibit 2, that a stack of Local 868’s Exhibit 2 was
stored behind Smith’s desk, and that at least one employee
received both exhibits in the mail, it is entirely possible that
Local 868’s Exhibit 2 was available to be, and may have
been, placed in Marency and Smith’s 50 to 65 labelled enve-
lopes. In view of the foregoing, I find that there is insuffi-
cient evidence to establish that Employer’s Exhibit 2 was
placed in Smith and Marency’s 50 to 65 envelopes, but that
Best and DeStefano’s envelopes, totaling 55 to 70, did con-
tain Employer’s Exhibit 2.
The Envelopes in the Cardboard Box
With regard to the empty cardboard box, Smith testified
that it previously held 500 empty envelopes, but after placing
her envelopes and those of Best, Marency, and DeStefano
therein, the box on her desk contained a total of 100 to 150
envelopes. Best and DeStefano’s credited testimony however,
was that they placed their envelopes containing Employer’s
Exhibit 2 either in a cardboard box on a table, or handed the
cardboard box to an unnamed secretary. Although the testi-
mony regarding the location of the cardboard box conflicts,
in my opinion, it is more than a mere coincidence that any-
one who stuffed envelopes with either Employer’s Exhibit 2
or Local 868’s Exhibit 2, placed them in a different, but
similar, type of cardboard box that originally contained 500
empty envelopes. Moreover, it appears that when adding the
number of envelopes stuffed by each individual organizer, it
totals to between 105 and 135,28 a close approximation of
the number of envelopes which Smith asserts were in the
cardboard box on her desk. Accordingly, it appears that
Smith and Marency’s 50 to 65 envelopes, whose contents I
have found did not contain Employer’s Exhibit 2, were
placed with Best and DeStefano’s 55 to 70 envelopes, con-
taining Employer’s Exhibit 2, in the same box. In my opin-
ion, the inherent probability of events leads me to conclude
that any envelopes stuffed by Smith, Best, Marency, and
DeStefano, containing either Employer’s Exhibit 2 or Local
868’s Exhibit 2, ended up in a cardboard box whose contents
were taken by mailroom employee Robert to mail. Based on
the foregoing, I find that, at most, 150 envelopes in the box
ended up in Robert’s possession for mailing. Of the 150 en-
velopes in the box, at most 70 envelopes contained Employ-
er’s Exhibit 2.
The Mailing of the Envelopes in the Box
Mailroom employee Robert Darmanie became flustered a
few times during his testimony because he appeared con-
fused by counsels’ questions. Although Darmanie was soft-
spoken, he answered straightfowardly, honestly, and consist-
ently both on direct and cross-examination. Darmanie testi-
fied that on either July 26 or 28, 1993,29 he placed postage
on a few hundred envelopes which he received in an card-
board box.30 After posting the envelopes, he placed them in
a United States Postal bin with the remainder of the days
mail, and at 4 p.m., placed the bin in the lobby. Darmanie
281ACME BUS CORP.
31 Union President Frank Russo testified that he had no knowledge
of the mailing of Emp. Exh. 2 to the Employer’s employees, how-
ever, I am not persuaded that the president of the Union did not
know anything about the mailing until 1 week before the hearing.
While on the stand, Russo, who was subpoenaed, told the hearing
officer that he ‘‘resented’’ (Tr. 365) being called to testify, and was
generally belligerent to counsel during questioning. Based on his de-
meanor, I do not credit Russo’s testimony. Even if I had credited
Russo, his testimony did not shed any light on the extent of dissemi-
nation of Emp. Exh. 2.
32 In its posthearing brief, the Employer also asserts that Emp.
Exh. 2 constituted misrepresentation by Local 144 that the Region
agreed to postpone the July 30, 1993 election. In Midland National
Life Insurance Co., 263 NLRB 127 (1982), Shopping Kart Food
Market, 228 NLRB 1311 (1977), and Metropolitan Life Insurance
Co., 266 NLRB 507 (1983), the Board held it would set elections
aside if a party misrepresented the facts or the law by forging docu-
ments, thereby deceiving the voters, and rendering them unable to
recognize the propaganda for what it is. Although the Employer as-
serts that the factual content of the Local 144 leaflet supports a mis-
representation finding under the cited cases, the Board will not probe
into the truth or falsity of the parties’ campaign propaganda material
and does not set aside elections based on misleading propaganda.
See Midland National Life and Shopping Kart, supra. Moreover, the
leaflet herein is clearly identifiable as a document prepared by Local
144, it is on Local 144 stationary and was sent in Local 144 enve-
lopes. Accordingly, I find that Emp. Exh. 2 does not constitute mis-
representation of Board action.
33 Local 868 President Joseph Moran testified about the leaflets he
mailed and handed out to the Employer’s employees regarding the
correct election date. I credit Moran, based on the directness of his
answers, and honest manner in which he testified. Moran, and other
employees of Local 868, tried to refute the allegations in Emp. Exh.
2, and communicate the inaccuracy thereof to the employees. If it
could be established that Moran’s curative efforts were directed to-
ward employees who in fact received Emp. Exh. 2, I would find his
testimony more helpful. However, the record evidence does not es-
tablish the extent that Emp. Exh. 2 was disseminated among the em-
ployees to whom Moran spoke. In these circumstances, I am unable
to base my recommendations herein on Moran’s curative efforts.
never saw the contents of the envelopes he posted, or Em-
ployer’s Exhibit 2. Although I generally credit Darmanie’s
testimony, I do not credit the more vague portion of his testi-
mony that there were ‘‘a couple of hundred’’ stuffed enve-
lopes in the cardboard box, over Smith’s testimony. Further,
Smith’s estimate of the number of envelopes in the cardboard
box was 100 to 150 envelopes, a number that is substantially
supported by the cumulative evidence that between 105 to
135 envelopes stuffed by the Union’s organizers ended up in
Smith’s box. Based thereon, I find that Darmanie was given,
at most, 150 envelopes, not a couple of hundred, to mail.
With respect to the number of envelopes in the bin in the
lobby, Business Agent Vargas testified that, at 4 p.m., the
bin contained approximately 550 sealed envelopes. Accord-
ing to Vargas, Darmanie told him that the envelopes in the
lobby were ready for mailing, but there was insufficient time
to postmark the envelopes on the sixth floor. When Vargas
saw that one of the unmailed envelopes in the boxes on the
sixth floor contained Employer’s Exhibit 2, Vargas assumed
that all the envelopes in the lobby also contained Employer’s
Exhibit 2. However, the bin in the lobby contained all of the
Union’s afternoon mail. Moreover, Vargas did not see the
contents of the envelopes and did not look at the labels af-
fixed thereon. Thus, the mail that Vargas saw in the bin
could have contained 150 envelopes from the cardboard box,
and any additional envelopes the Union wished mail that
afternoon. Based on the foregoing, I find that at most, be-
tween 135–150 envelopes in the bin in the lobby contained
either Employer’s Exhibit 2, or Local 868’s Exhibit 2, but
that the remaining envelopes’ contents are unknown. Inas-
much as I have already found that between 55 to 70 enve-
lopes contained Employer’s Exhibit 2,31 I find that at most,
70 of the envelopes in the bin contained Employer’s Exhibit
2 which falsely notified employees that the election was can-
celled.
In its posthearing brief, the Employer asserts that the mere
distribution of Employer’s Exhibit 2 to a ‘‘huge segment of
the employee population’’ requires setting aside the election
without reaching the effects of Employer’s Exhibit 2 on the
voting employees. Contrary to the Employer’s view, I have
found that Employer’s Exhibit 2 was mailed to, at most, 70
employees, out of a total of 1151, and not to a ‘‘huge seg-
ment of the employee population.’’ Although I believe that
dissemination of Employer’s Exhibit 2 to 70 employees ap-
pears rather insignificant relative to the large size of the unit,
I do not base my recommendations solely thereon.
The Employer argues, essentially, that limited distribution
of the leaflet is sufficient to set aside the election, even if
employees became aware that the leaflet was false, and that
the election was not cancelled.32 Upon questioning during
the hearing regarding this issue, the following conversation
ensued:
H.O.: even assuming that 150 leaflets went out, what
happens if the . . . leaflets went to employees who
voted?
PEARL: It is totally irrelevant. The fact is equally
plausible that those 150 told others they received this
literature.
H.O.: We don’t even have that evidence.
PEARL: The contamination, the possibility is enough
to upset the conditions this agency needs to run a fair
election . . . once it is out . . . it cannot be cured by
subjective questioning.
Although the Employer asserts that dissemination of the
leaflet, or effects thereof, are incurable, the Board does not
necessarily subscribe to that view.33 In Sahuaro Petroleum,
306 NLRB 586 (1992), the Board held that where the con-
duct of a party to an election causes an employee to miss
the opportunity to vote, the Board will find that conduct to
be objectionable if the employee’s vote is determinative and
if the employee was disenfranchised through no fault of his
own. Citing Versail Mfg., 212 NLRB 592, 593 (1974). If,
however, an employee is prevented from voting by reason of
sickness or some other unplanned occurrence beyond the
control of a party or the Board, the inability to vote is not
a basis for setting aside the election. Id. Based on the above,
I believe that the mere distribution of the Local 144 leaflet
to 70 employees is insufficient grounds to set aside an elec-
tion without first adducing if the employees eventually knew
that the election was to proceed as scheduled. In this connec-
tion, it is relevant to know if the employees heard from other
sources that the election was to proceed on July 30, 1993.
If the employees who received the leaflet did not vote be-
cause they did not learn that the election was, in fact, not
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Campbell Products Department, 260 NLRB 1247 (1982). It is
the burden of the objecting party to come forward with evidence in
support of its objection.
35 The home, laid-off, and vacationing employees would not have
as great an opportunity to learn that the Local 144 leaflet was false
and that the election was to proceed as scheduled. Thus, the Region
provided a list of these employees from which the Employer could
chose.
36 If one assumes that the 37 challenges are all votes against both
participating labor organizations, the Employer would have received
its 281 votes, plus the 37, totaling 318 votes. Accordingly, the Em-
ployer would need 86 votes to tie the 404 votes received by Joint
Petitioners. Thus, 86 nonvoters must testify that they received Emp.
Exh. 2, and did not know that it was false and that the election was
proceeding as scheduled.
37 If 9 of the 94 nonvoting home employees testify that they re-
ceived Emp. Exh. 2, knew that it was false and that the election was
not cancelled, or that they never received Emp. Exh. 2, yet did not
vote, the remaining 85 (94 minus 9) nonvoting home employees
would not be sufficient for the Employer to tie the election results
(i.e., 318 plus 85 totals 403).
38 With the exception of employee Ellington and Galaida, who tes-
tified that they voted.
39 There is no documentary evidence in this record to establish
which non-home employees voted. Only a list of nonvoting home
employees was submitted into evidence because the employees
would not have as great an opportunity to learn that the election was
not cancelled.
40 If nine nonvoting home employees testified that they did not re-
ceive the leaflet, or that they received the leaflet, but did not vote
for another reason, Joint Petitioner’s would have retained a majority.
cancelled, arguably, the leaflet prevented employees from
voting. However, once armed with the knowledge that the
leaflet was inaccurate, the employees’ choice not to vote can
no longer be attributed to the leaflet alone.
The burden is on the objecting party, here the Employer,
to prove that employees who did not vote were prevented
from doing so because they received the leaflet but never
knew, or had the opportunity to know, that the election was
proceeding as scheduled.34 To assist the Employer, counsel
for the Region provided a list of names of 94 home, laid-
off, and vacationing employees who did not vote.35 In order
for the Employer to show that the leaflet affected the results
of the election, 86 nonvoting home employees would have
to testify that they received Employer’s Exhibit 2, but had
no opportunity to know, or did not know that the the election
was not, in fact, cancelled. If 86 employees so testified, the
Employer would tie the count with the Joint Petitioners.36 If,
however, 9 of the 94 nonvoting home employees testified
that they did not receive Employer’s Exhibit 2, or that, after
their receipt thereof, they knew, or became aware that it was
inaccurate, yet failed to vote, Joint Petitioners would still re-
tain their majority of the valid votes counted.37
A total of seven employees testified, and their testimony
is useful in determining whether their failure to vote was at-
tributable to Employer’s Exhibit 2, Local 144’s leaflet an-
nouncing the cancellation of the election. I credit the testi-
mony of all seven employees based on their consistent and
uniform testimony and on the straightforward and honest
manner in which they answered questions on both direct and
cross-examination. After their receipt of Employer’s Exhibit
2, three of the four non-home employees testified that they
became aware that the election was not cancelled from either
the Regional Director’s notification posted on the Employer’s
bulletin board, Employer announcements over the bus radio,
or from other unknown sources. The fourth employee, John-
son, testified that she received the leaflet, but that she had
no opportunity to go the Employer’s facility thereafter, and
never found out that the election was not cancelled. Accord-
ingly, it appears that only one non-home employee’s failure
to vote was attributable to her receipt of Employer’s Exhibit
2.
With regard to the home employees, counsel for the Re-
gion prepared and submitted into evidence a list of all home,
vacationing, and laid-off employees who did not vote in the
July 30, 1993 election (Bd. Exh. 3). Despite my urging, the
Employer did not present any employees from that list. Of
the three home employees presented, two testified that they
became aware that the election was not cancelled either from
the Regional Director’s notification posted on the Employer’s
bulletin board, Employer announcements over the bus radio,
or by speaking to Employer representatives about the elec-
tion date. The third employee, Hamlin, testified that he had
no opportunity to go the Employer’s facility, and did not
hear from any other source that the election was not post-
poned. However, Hamlin’s name is not listed among the non-
voters in Board’s Exhibit 3. Thus, Hamlin voted in the elec-
tion, and Employer’s Exhibit 2 did not cause him to miss his
opportunity to vote.
Any effects of Employer’s Exhibit 2 was cured when em-
ployees were made aware from different sources that the
election was to proceed on July 30, 1993, as scheduled. Of
the three home employees who testified, two became aware
that the election was not cancelled, and all three home em-
ployees who testified, voted, thereby diluting any impact
Employer’s Exhibit 2 had on them. With respect to the non-
home employees, there is no documentary evidence to clarify
if the four who testified voted in the election.38 It is clear,
however, that three of the four non-home employees had no-
tice that the election was proceeding on July 30, 1993. Once
these employees understood that the election was not can-
celled, any failure to vote is a fault of their own. Blame no
longer rests on Local 144’s leaflet when the employees had
sufficient and adequate notice that the leaflet was false and
the election was to proceed on schedule. It appears that only
one non-home employee, Johnson, did not vote because she
did not know that the election was proceeding on July 30,
1993. Johnson received Employer’s Exhibit 2, and was not
apprised that it was false.39 Accordingly, based on the testi-
mony of the employees, I find that Employer’s Exhibit 2 did
not prevent employees Raymond Hamlin, Bettina Galaida,
Ursula Szobonya, Joann Kuczewski, Neri Van Syckle, or
James Ellington from voting inasmuch as they had sufficient
notice of the leaflet’s inaccuracy, and adequate opportunity
to vote. By providing only one non-home employee who did
not know that the leaflet was inaccurate, and that the election
was not cancelled, the Employer failed to meet its burden to
prove that the dissemination of Employer’s Exhibit 2 af-
fected the outcome of the election. One nonvoting, non-home
employee does not affect or change the election results.40
Moreover, contrary to the Employer’s assertion, one
nonvoting employee does not establish that the low voter
turnout is directly attributable to Local 144’s leaflet. The
Board has held that election results should be certified where
283ACME BUS CORP.
41 See Lemco, supra.
all eligible voters have an adequate opportunity to participate
in the election, notwithstanding low voter turnout. See Lemco
Construction, 283 NLRB 459 (1987). In Lemco, supra, the
Board held that if a Board election is met with indifference,
it must be assumed that the majority of eligible employees
did not wish to participate in the selection of a bargaining
representative and are content to be bound by the results ob-
tained without their participation. Only if it can be shown by
objective evidence that eligible employees were not afforded
an adequate opportunity to participate in the balloting will
the Board decline to issue a certification and direct a second
election. Thus, the Board will issue a certification where em-
ployees had adequate notice and opportunity to vote and
were not prevented from voting by the conduct of a party or
by the unfairness in the scheduling or mechanics of the elec-
tion. In the instant case, of the 416 nonvoters, I found that,
at most, 70 received Local 144’s leaflet, leaving 346 employ-
ees who did not receive the leaflet, yet failed to vote. If 346
employees did not receive the leaflet, the circumstances lead-
ing to their failure to exercise their opportunity to vote are
not material to the certification of the election.41 Of the 70
employees that may have received the leaflet, only 1, John-
son, was not afforded an opportunity to vote because she did
not know that the leaflet was false and that the election was
proceeding as scheduled. If the remaining 69 recipients of
the leaflet knew that leaflet was inaccurate and that the elec-
tion was indeed scheduled for July 30, 1993, as did employ-
ees Hamlin, Galaida, Szobonya, Kuczewski, Van Syckle, and
Ellington, their failure to vote was within their control, and
not attributable to the leaflet. Because I know of only one
recipient, Johnson, whose opportunity to vote was impaired
by the leaflet, I cannot attribute the low voter turnout thereto.
Therefore, the Employer failed to meet its burden to prove
that the dissemination of the Local 144 leaflet either affected
the outcome of the election or was responsible for the low
voter turnout.
Based on the foregoing, I recommend that Employer’s Ob-
jection 4 be overruled.
Summary and Recommendations
I recommend that Employer’s Objection 4 be overruled.
As the tally of ballots shows that the majority of valid votes
has been cast for Petitioner, I recommend that a Certification
of Representative be issued.