Arthur Sarnow Candy Co.

National Labor Relations Board - Board Decisions

Jul 8, 1993

311 N.L.R.B. 1137 (N.L.R.B. 1993)

1137
311 NLRB No. 132
ARTHUR SARNOW CANDY CO.
1 In addition to the reasons given by the Regional Director for
overruling the Employer’s election objection, which we adopt, we
note that there is no evidence that the electorate was confused by
the voting procedures or unable to make an informed choice in the
election. See NLRB v. Precise Castings, 915 F.2d 1160 (7th Cir.
1990); Bridgeport Fittings, 288 NLRB 124 (1988), enfd. 877 F.2d
180 (2d Cir. 1989).
4 Excelsior Underwear, 156 NLRB 1236 (1966).
Arthur Sarnow Candy Co., Inc. and Lily Popcorn,
Inc. and Local 719, International Brotherhood
of Teamsters, AFL–CIO, Petitioner. Case 29–
RC–7973
July 8, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The NLRB has considered the Employer’s request
for review of the Regional Director’s Supplemental
Decision and Certification of Representative (pertinent
portions are attached). The request for review is denied
as it raises no substantial issues warranting review.1
APPENDIX
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BACKGROUND
Following the issuance of the Decision and Direction of
Election in this case on July 2, the case was transferred back
to Region 29 for processing. The Board agent assigned to the
case contacted the parties to arrange for the scheduling of the
election and to attempt to resolve certain preelection issues,
including the date, time, and place of the election; the lan-
guages in which the election notices and ballots would be
printed; and whether interpreters would be made available
during the election. During these discussions, the Employer,
through its representative, agreed to an afternoon election on
its premises and that the notices of elections and the ballots
would be printed in English, Spanish, Portuguese, and Hai-
tian Creole. The Employee requested that Spanish, Por-
tuguese, and Haitian Creole interpreters should be made
available during the election.
On July 10, pursuant to the Decision and Direction of
Election, the Employer filed an Excelsior list4 containing the
names of 24 employees. Four or five of the names on the
list appeared to be of French origin, and nine of the names
on the list appeared to be of Hispanic origin.
On July 27, the Petitioner requested that the Region estab-
lish a morning voting session to ensure that truckdrivers em-
ployed by the Employer (who spent part of their workday
away from the Employer’s facility) would have an oppor-
tunity to vote in the election. The Board agent assigned to
the case contacted the Employer’s representative regarding
this matter. The Employer indicated that it would not allow
the Region to conduct a morning voting session on its prem-
ises, contending that truckdrivers would have ample oppor-
tunity to vote in an afternoon voting session.
On July 28, the Board agent assigned to this matter noti-
fied the parties in writing of the Region’s intent to direct an
election on August 21, between the hours of 3:30 and 4:30
p.m., on the Employer’s premises; and that the Region would
provide Spanish and Portuguese interpreters at the election,
but would not provide a Haitian Creole interpreter. The
Board agent also requested that the Employer reconsider its
refusal to extend the voting period or permit a morning vot-
ing session to ensure that truckdrivers would have an oppor-
tunity to vote in an afternoon voting session.
On July 30, after further consideration, the Board agent
notified the parties in writing of the Region’s intention to
schedule a second voting period on August 21, between the
hours of 6 and 7 a.m., in a vehicle on the street outside of
the Employer’s premises.
On August 3, the Board agent assigned to this matter
spoke by telephone with the Employer’s representative. The
Employer’s representative indicated that he had not yet re-
ceived the Region’s July 28 and July 30 letters announcing
an intention to direct an election on August 21. The Board
agent informed the Employer’s representative of the contents
of the letters, and sent copies of the letters to the Employer’s
representative. During this telephone conversation, the Em-
ployer’s representative expressed the view that the Employer
might not allow the Region to conduct any election on its
premises. Later on August 3, the Board agent left a message
for the Employer’s representative that the Region would di-
rect both sessions be conducted in a vehicle on the street in
front of the Employer’s premises unless the Region received
assurances that the Employer would allow the afternoon vot-
ing session to take place on its premises. On August 4, the
Employer’s representative gave the Region oral assurances
that the Employer would allow the afternoon voting session
to be conducted on its premises, but again reiterated its in-
tention not to allow the morning voting session to be con-
ducted on its premises.
On August 6, the Employer’s representative sent the Board
agent assigned to this matter a letter protesting the Region’s
administrative decision not to provide a Haitian Creole inter-
preter at the election.
On August 7, the Region sent the parties copies of the of-
ficial notice of election, establishing two voting periods on
August 21; the first voting session to be held between 6 and
7 a.m. in a vehicle on the street in front of the Employer’s
premises; the second voting session to be held between 3:30
and 4:30 p.m. in the Employer’s facilty. The notice of elec-
tion was printed in English, Spanish, Portuguese, and Haitian
Creole.
On August 13, the Board agent assigned to this matter
orally informed the parties that the Region would be unable
to provide a Portuguese interpreter at the election. The Em-
ployee’s representative faxed a letter to the Region again re-
questing that it provide interpreters for Portuguese and Hai-
tian Creole employees, as well as Spanish employees, and as-
serting that the ‘‘greatest number of unit employees not bi-
lingual at the employer’s facility are Portuguese.’’
The election was conducted on August 21 during the hours
and at the locations established by the notice of election.
Present at both election voting sessions were (1) a Board
agent principally responsible for conducting the election, (2)
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 No party contends that the ballot should have been counted as
a valid ballot.
6 Had the void ballot been cast for either the Intervenor or ‘‘Nei-
ther,’’ then the Petitioner would have only received 10 votes out of
the 20 ballots cast, and would have been deprived of a majority.
a Spanish interpreter which the Region obtained through an
outside contracting service, and (3) a Board agent fluent in
Portuguese to translate for any Portuguese employee. The
ballots used in the election were printed in English, Spanish,
Portuguese, and Haitian Creole.
As noted above, at the counting of the ballots at the con-
clusion of the voting sessions, the Board agent assigned to
conduct the election declared one ballot void. The void bal-
lot, a copy of which is attached to this Supplemental Deci-
sion, was declared void because the voter had checked all
three boxes on the ballot and wote the word ‘‘yes,’’ in
English, at the top of the ballot.5
DISCUSSION
The Employer has not supplied any evidence in support of
its election objection, other than to provide copies of its Au-
gust 6 and August 13 letters to the Region. Thus, the record
does not reveal how many employees eligible to vote in the
election were unable to read or write English, Spanish, Por-
tuguese, or Haitian Creole; how many employees eligible to
vote in the election did not speak English, Spanish, or Por-
tuguese; or whether any employee eligible to vote in the
election failed to vote or was confused in casting his or her
ballot because the Board did not provide a person able to
give instructions to the employees in Haitian Creole.
The Employer contends that the Region’s failure to pro-
vide a Haitian Creole interpreter at the election, coupled with
the single void ballot, in itself is sufficient to establish that
the election should be set aside and another elecion con-
ducted.6 In support of its contention, the Employer relies on
St. Elizabeth Hospital v. NLRB, 715 F.2d 1193 (7th Cir.
1983); Thermalloy Corp., 233 NLRB 428 (1977); and Gory
Associated Industries, 275 NLRB 1303 (1985).
In St. Elizabeth Hospital, above, the Employer contended
that the representation election should be set aside on the
grounds that two eligible voters were illiterate and unable to
read the notices of election or the ballots. See Franciscan
Sisters Health Care Corp., 258 NLRB 1208 (1981), revd. in
part sub nom. St. Elizabeth, above. The court of appeals re-
manded this objection for a hearing, noting that the employer
had ‘‘offered evidence to substantiate its claim,’’ and that the
Regional Director had erred by relying on the mere fact that
the ballots cast in the election did not reveal any confusion
on the part of the voters. St. Elizabeth, above at 1199.
In Thermalloy Corp., above, the Board set aside an elec-
tion and directed a second election when the employer failed
to post election notices in one of its two facilities. The Board
foud that the employer’s failure to give all eligible voters ad-
vance notice of the election required the election be set
aside.
In Gory Associated, above, the Board directed a second
election when, contrary to the agreement of the parties prior
to the election, a Haitian Creole interpreter did not arrive at
election until halfway through the voting period.
Contrary to the Employer’s contentions, the above-cited
cases do not support the view that the Region’s failure to
provide a Haitian Creole interpreter requires that the election
be set aside. Both St. Elizabeth Hospital and Thermalloy
were concerned with the adequacy of election notices and
election ballots. The factual circumstances presented in those
cases simply do not apply to the case at bar as both the no-
tices of election and the ballots were printed in English,
Spanish, Portuguese, and Haitian Creole and there is no issue
as to whether the notices of election were properly and time-
ly posted.
The Board’s decision in Gory Associated is similarly dis-
tinguishable as in that case the parties agreed, prior to elec-
tion, that a Haitian Creole interpreter was necessary in order
to assist the eligible voters and that interpreter did not arrive
until halfway through the voting period. In the instant case,
at no time has the Employer provided evidence that any eli-
gible voter was either unable to read Haitian Creole (or any
one of the other three languages in which the notices of elec-
tion and the ballots were printed) or that any voter was un-
able to speak English, Spanish, or Portuguese (the languages
in which a Board agent or an interpreter could give instruc-
tions during the election). Thus, the record in this matter
contains no evidence that any eligible voter was affected by
the absence of a Haitian Creole interpreter. Indeed, as noted
below, the documentary evidence suggests otherwise.
The void ballot itself suggests that a Haitian Creole inter-
preter would not have affected the outcome of the election.
First, the voter who cast the void ballot checked all three
boxes, an action which is as consistent with a voter inten-
tionally casting a void ballot as it is with a void ballot being
cast as the result of voter confusion due to language difficul-
ties. Second, and more importantly, the voter hand-wrote the
word in English (not Haitian Creole), on the ballot itself,
demonstrating that the voter could write some English (one
of four languages in which the notice of election and the bal-
lot were printed).
As previously noted, during the election, the Region pro-
vided both Spanish and Portuguese interpreters during each
of the voting sessions. The Region took this action because
its experience conducting representation elections in the New
York metropolitan area led the Region to believe that a
Spanish interpreter would be necessary based on the number
of names on the Excelsior list which appeared to have a His-
panic origin, the availability of a Board agent fluent in Por-
tuguese to interpret at the election, and Employer’s assertion
in its August 13 letter that the ‘‘greatest number of unit em-
ployees not bilingual at the employer’s facility are Por-
tuguese.’’ While the Region was able to provide a Board
agent who spoke Portuguese, the Region was required to
contract with an outside service to provide a Spanish inter-
preter.
Given the limitations of the Board’s resources, it is appro-
priate to require a party seeking foreign language interpreters
during an election to demonstrate a need for such inter-
preters. The Employer did not provide any demonstrated
need for a Haitian Creole interpreter. Recently, in NLRB v.
Precise Castings, 915 F.2d 1160 (7th Cir. 1990), the court
of appeals upheld the practice of one Regional Office to pro-
vide election ballots in English only (while providing elec-
tion notices in several languages). In the instant case, the Re-
gion not only printed the notices of election in all the lan-
guages requested by the Employer, but it printed the election
ballots in those languages as well.
1139ARTHUR SARNOW CANDY CO.
As the Employer has provided no evidence, either prior to
or subsequent to the election, that a Haitian Creole inter-
preter was necessary to allow eligible voters to participate in
the election, I shall overrule the Employer’s election objec-
tion.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local 719, International Brotherhood of Team-
sters, AFL–CIO and that it is the exclusive collective-bar-
gaining representative of the employees in the following ap-
propriate unit:
All full-time and regular part-time employees employed
by the Employer at its facility located at 280 West
Merrick Road, West Hempstead, New York, but ex-
cluding all sales employees, office clerical employees,
guards and supervisors, as defined in the Act.