Allied Acoustics

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1181 (N.L.R.B. 1990)

1181
300 NLRB No. 166
ALLIED ACOUSTICS
1 There was also one void ballot, which is not at issue here.
Allied Acoustics, Inc. and Arizona State District
Council of Carpenters and its affiliated Locals,
AFL–CIO, Petitioner. Case 28–RC–4838
December 31, 1990
DECISION AND ORDER REMANDING FOR
HEARING
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held July 12, 1990, and the Regional Director’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The corrected tally of ballots shows 13 for and
10 against the Petitioner, with 1 challenged ballot, an
insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief and adopts the Regional Direc-
tor’s findings and recommendations only to the extent
consistent with this decision.
The Employer’s Objection 2 alleged that ‘‘The
Board revised the Tally of Ballots to show one more
vote for the Union than was counted during the post
Election conference, leaving the impression of tam-
pering with the ballots and raising a question as to
whether the ballot—if any—was cast for the Union or
the Employer.’’ The Regional Director’s investigation
revealed that commingled ballots from separate elec-
tion locations were opened and counted by a Board
agent in the presence of the parties’ representatives at
the Board’s Regional Office on July 13, 1990. The
tally of ballots served on and signed by the parties at
that time showed 12 votes for and 10 against the Peti-
tioner, with 1 nondeterminative challenge, making a
total of 23 valid ballots.1
Approximately 1 hour after this tally was served and
the parties’ had left the Board’s Regional Office, coun-
sel for the Employer telephoned the Board agent and
expressed the belief that 24 employees had voted in
the election. The Board agent immediately recounted
the ballots in private. The recount disclosed that one
additional ballot had been cast for the Petitioner. Fol-
lowing a second recount confirming that 24 valid bal-
lots had been cast, the Board agent prepared and
mailed to the parties on July 16 a corrected tally of
ballots reflecting the additional vote for the Petitioner.
In his report, the Regional Director recommended
sustaining the Employer’s Objection 2 and setting
aside the election on that basis. Noting that the Board
seeks to maintain high standards of integrity and neu-
trality in its conduct of representation elections, the
Regional Director summarily stated:
Although the investigation of Employer Objec-
tion 2 failed to disclose either an allegation or
evidence that the Board agent marked or altered
any ballots, I am constrained to conclude that the
. . . circumstances surrounding the counting of
the ballots in this case tend to destroy confidence
in the Board’s election process, impugn the stand-
ards of integrity and neutrality, and raise doubts
as to the fairness and validity of the election re-
sults.
In its exceptions, the Petitioner contends that Board
precedent requires objective evidence of the potential
impact of a Board agent’s conduct on the election in
order to establish the reasonable possibility that the
election process has been tainted. The Petitioner argues
that evidence of conduct occurring after the conclusion
of voting and resulting from a simple error in failing
originally to count a nondeterminative ballot for the
Petitioner is insufficient to establish a reasonable belief
that the integrity and neutrality of the Board’s proc-
esses has been compromised. We find merit in the Pe-
titioner’s exceptions.
In order to set aside an election on the basis of
Board agent conduct, the Board must be presented
with facts raising a ‘‘reasonable doubt as to the fair-
ness and validity of the election.’’ Polymers, Inc., 174
NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969),
cert. denied 396 U.S. 1010 (1970). The evidence in
support of the Employer’s objection does not present
such facts. Each party observed the initial counting of
ballots and signed the tally of ballots without ques-
tioning its accuracy. The Employer itself subsequently
raised the possibility that another ballot existed. The
Board agent then conducted a recount of the ballots,
revealing an additional vote for the Petitioner. There is
no evidence that all the ballots cast were not in the
Board’s custody at all times subsequent to the election.
There is no evidence raising doubt about the accuracy
of the recount. There is no allegation or evidence that
the discrepancy between the original and corrected
tally of ballots resulted from anything other than an
error in counting. By either tally, a majority of the
valid ballots were cast for the Petitioner.
In sum, the Board agent apparently made a simple
postelection mistake in counting ballots and corrected
that mistake in response to the Employer’s inquiry.
This is not objectionable misconduct. In the absence of
any affirmative indication of tampering, fabrication,
misplacement, or loss of the uncounted ballot, or any
factual issue concerning the accuracy or integrity of
the Board agent’s recount, it is not reasonable to infer
that the Board’s neutrality was impugned or that the
parties’ confidence in the election process was under-
mined. Polymers, Inc., supra at 283 (1969); N. A.
Woodworth Co., 115 NLRB 1263, 1264 (1956).
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See also Brink’s Armored Car, 278 NLRB 141 (1986).
Based on the foregoing, we overrule the Employer’s
Objection 2. With respect to the Employer’s three re-
maining objections concerning alleged initiation fee
waivers, electioneering, and misrepresentation by the
Petitioner, we adopt the Regional Director’s finding
that they raise substantial issues of fact which can best
be resolved by a hearing.
ORDER
It is ordered that a hearing be held before a duly
designated hearing officer for the purpose of receiving
evidence to resolve the issues raised by the Employer’s
Objections 1, 3, and 4.
IT IS FURTHER ORDERED that the designated hearing
officer shall prepare and serve on the parties a report
containing credibility resolutions, findings of fact, and
recommendations to the Board as to the disposition of
these objections. Within 14 days from the date the re-
port issues, either party may file with the Board in
Washington, D.C., eight copies of exceptions. Imme-
diately on the filing of exceptions, the party filing
them shall serve a copy on the other parties and shall
file a copy with the Regional Director. If no excep-
tions are filed, the Board will adopt the recommenda-
tion of the hearing officer.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 28 to ar-
range the hearing.
MEMBER OVIATT, dissenting.
I agree with the Regional Director that the private
recount of ballots by the Board agent following this
election could raise questions in the minds of employ-
ees about the integrity of the election process. As I
have stated in my recent dissenting opinion in Show
Industries, 299 NLRB No. 101 (Sept. 7, 1990), the
Board must be assiduous in avoiding even the appear-
ance of condoning irregularities in its election proce-
dures to ensure that the process is not compromised
and that confidence in that process is not undermined.1
It is undisputed that, at the original ballot count, the
Board agent, in the presence of representatives of both
parties, announced that 23 valid votes had been cast in
the election and that 12 votes had been cast for the Pe-
titioner. Only after the tally of ballots had been pre-
pared and served on the parties—and then only upon
prompting by one of the parties—did the Board agent
conduct a recount and determine that, in fact, 24 em-
ployees had voted and that the Petitioner had obtained
13 votes instead of 12. The recount was conducted in
private, ostensibly for no other reason than that the
parties had left the Regional Office. Thus, the defec-
tive count might easily have been cured by the Board
agent’s simply reconvening the parties for the recount,
since it appears that all ballots were in the Board’s
custody at all times.
I do not share my colleagues’ confidence that voters
would not question this irregularity, and with it the
Board’s commitment to election fairness. Because, in
my view, the undisputed facts require that the election
be set aside, I would not order a hearing in this case.