American Nuclear Resources

National Labor Relations Board - Board Decisions

Oct 29, 1990

300 N.L.R.B. 567 (N.L.R.B. 1990)

567
300 NLRB No. 62
AMERICAN NUCLEAR RESOURCES
1 In the absence of exceptions, we adopt, pro forma, the hearing officer’s
recommendations to overrule the Petitioner’s objections which alleged that (1)
the Employer’s labor relations consultant created an impression that he was
a Board agent, (2) Supervisor Hess directed employees to the polling area and
advised employees that they could go home, and (3) the Employer paid the
employees to vote.
2 The Employer has excepted to some of the hearing officer’s credibility
findings. The Board’s established policy is not to overrule a hearing officer’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359,
1361 (1957). We find no basis for reversing the findings.
3 The lobby has a foyer with two sets of glass doors. The polls area was
down a long hallway, to the right of the foyer. Once inside the center, the
employees could go to the polling area, go upstairs to the cafeteria, or leave
the building. During the 45-minute polling period, three union representatives
and Labor Relations Consultant Hunter were present in the lobby, along with
Supervisor Hess.
American Nuclear Resources, Inc. and International
Brotherhood of Electrical Workers, Local 153,
AFL–CIO, Petitioner. Case 7–RC–19104
October 29, 1990
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held November 10, 1989, and the hearing officer’s re-
port recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 16 for and 22
against the Petitioner, with 1 challenged ballot.
The Board has reviewed the record in light of the
exceptions,1 brief, and memorandum and has decided
to affirm the hearing officer’s findings2 and rec-
ommendations only to the extent consistent with this
decision and certification of results of election.
The Employer is a subcontractor at the D.C. Cook
Nuclear Power Plant which is owned and operated by
the Indiana & Michigan Power Company. The Indiana
& Michigan Power Company refused to allow the elec-
tion to be held in the plant, which is the worksite of
the voting unit. The parties agreed to hold the election
at the training center, located about one-half mile from
the plant.
The Employer made a ‘‘release list’’ of employees
and gave the list to the employees and their super-
visors. At their release time, the employees left their
jobs and walked through the plant lobby to a van to
be driven to the polls. Supervisor Haines was standing
inside the lobby with his copy of the release list. As
the employees entered the van, Haines made a mark
beside their names.
As the employees entered the lobby of the training
center,3 Supervisor Hess made a mark beside the em-
ployees’ names, and then directed them down the hall-
way to the polling place. Hess could not see the em-
ployees after they entered the hallway.
The Petitioner’s objection alleges that Supervisors
Haines and Hess engaged in surveillance of the em-
ployees. The hearing officer found that Haines and
Hess engaged in listkeeping and recommended sus-
taining the objection based on several factors: (1) the
openness of the listkeeping, i.e., the supervisors
checked off the employees’ names in plain sight of all
the employees; (2) the Employer usually had an em-
ployee sign-in log at the center, not a supervisor with
a checklist; and (3) the listkeeping started before the
polls opened and continued throughout the polling pe-
riod.
The Employer, which is involved in the on-site op-
eration of an atomic powerplant, contends that it had
a legitimate reason for the listkeeping, i.e., to maintain
a secure workplace. The Employer argues that its em-
ployees are accustomed to being monitored and that
the listkeeping would not reasonably tend to intimidate
the employees. We agree.
The employees are accustomed to having their
movements monitored. When employees leave the
plant they must sign a timesheet and their supervisor
must also fill out a separate sign-out sheet. The em-
ployees wear radiation badges during their shift and re-
turn them at the end of the shift. They sign a log when
they go to the center for training. The Employer is re-
quired by its general contractor to know where its em-
ployees are. Checklists can be a legitimate method of
keeping track of employees. We find it was reasonable
for the Employer to choose to use checklists during the
election instead of a sign-in sheet, which would have
been unduly cumbersome given that the employees ar-
rived at the training center in groups of 9 to 13 per-
sons, at 10-minute intervals.
The cases relied on by the hearing officer concern
establishments that did not necessarily require, nor was
it shown that they maintained, a high degree of secu-
rity. Nor were their employees shown to have been ac-
customed to having their movements monitored. Here
it is not self-evident that these employees would have
tended to be intimidated and there is no evidence that
any employee was coerced by the listkeeping. The em-
ployees knew that the Employer routinely monitored
their movements, and that listkeeping is a normal secu-
rity procedure. In the circumstances of this nuclear fa-
cility and its practices, we find that the listkeeping did
not reasonably tend to coerce the employees and there-
fore it was not objectionable conduct.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for International Brotherhood of
Electrical Workers, Local 153, AFL–CIO, and that it
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It should not reasonably take more than a few seconds to sign one’s name
in a logbook. Hence, I do not agree with my colleagues that such a procedure
would be ‘‘cumbersome’’ whenever 9 to 13 employees arrive at the training
center together. In my view, the slight difference in elapsed time between
unmonitored logbook-signing and the supervisor’s list-checking does not war-
rant making an exception to the Board’s general rule on election day
listkeeping by parties.
is not the exclusive representative of these bargaining
unit employees.
CHAIRMAN STEPHENS, dissenting.
Contrary to my colleagues, I would adopt the hear-
ing officer’s recommendation that the election be set
aside on the basis of the Employer’s listkeeping in
plain view of all employees arriving to vote. As ex-
plained below, I rely on the activities of Supervisor
Hess and do not reach the question whether there
would be a sustainable objection had the list-checking
been limited to monitoring who boarded the van at the
nuclear facility.
As the hearing officer notes, it has long been Board
policy to prohibit agents of parties from standing at or
near the polls during a Board election and checking off
names of the employees voting in that election. Piggly-
Wiggly, 168 NLRB 792 (1967); Belk’s Department
Store, 98 NLRB 280 (1952); International Stamping
Co., 97 NLRB 921, 922–923 (1951). Furthermore, as
the hearing officer correctly concluded, this case does
not fit into exceptions for listkeeping that is either de
minimis because it could not have been observed by
most voters or that is linked to some more limited, le-
gitimate objective—as when an observer keeps track of
those voters whom he or she intends to challenge.
Here Supervisor Hess stood prominently in the lobby
at the training center, placing marks by employees’
names as they came through—directing employees to-
ward the hallway leading to the polling area, while
telling one, who may have been ineligible to vote and
who inquired as to what he should do, that he could
go home.
Neither is it significant that Hess was not standing
at the actual polls. Although Hess could not see em-
ployees as they entered the polling place, he was in a
position to see whether they turned down the hallway
leading there. The case is therefore not distinguishable
on this ground from Piggly-Wiggly, supra, in which the
Board sustained an objection based on the conduct of
union agents who stood with employee lists in front of
stores in which polling places were situated.
My colleagues in fact tacitly concede that this case
would normally fall within the Board’s listkeeping pro-
hibition. They create and rely on an exception to that
prohibition for nuclear facilities that have a safety-re-
lated practice of closely surveilling employees’ activi-
ties. I would not recognize such an exception on this
record. The election was not conducted in the nuclear
plant, and the interest of the power company in keep-
ing track of who remained in that building was served
by a check of who boarded the van in which a security
guard would transport the employees to the training
center, more than one-half mile away. Neither am I
pursuaded that the custom of closely monitoring these
employees during their workdays justifies the result
here. As the hearing officer found, Supervisor Hess’
list-checking was actually contrary to the standard
practice in the training center, where employees usu-
ally just signed a logbook to indicate their presence in
that building. The Employer simply has not shown
why it needed to change its practices in the center on
that day so as to put the monitoring process in the
hands of one of its supervisors.1
In sum, I would find that Board precedent con-
cerning listkeeping by parties near the polls dictates
adoption of the hearing officer’s recommendation that
the election be set aside.