Brinks Inc.

National Labor Relations Board - Board Decisions

May 12, 2000

331 N.L.R.B. 46 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46
Brinks Incorporated and United Federation of Secu-
rity Officers, Inc., Petitioner. Case 29–RC–8914
May 12, 2000
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held November 21, 1997, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Decision and Direction of Elec-
tion. The tally of ballots shows 177 for and 163 against
the Petitioner, with 4 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, and has adopted the hearing
officer’s findings1 and recommendations2 as modified.

In this case, we are presented with the question
whether the conduct of the Union’s observer at the polls
constitutes objectionable electioneering. We conclude,
for the reasons stated below, that it does and that the
election must be set aside and a new election held.
Union observer Muhammad told four employees, as
each one approached the observer table, to vote for the
Union. Further, one of these four employees (Rolean)
told other employees, waiting to vote, what Muhammad
had said.3 Muhammad also gave a “thumbs up” signal to
still other employees as they approached the table.
The Employer’s observer (Mayo) credibly testified
that at the preelection conference both he and Muham-
mad were given instructions by the Board agent not to
converse “with the people coming in.” Also, the hearing
officer credited Mayo’s testimony that Muhammad was
admonished for his conduct by the Board agent.

1 The parties have excepted to some of the hearing officer’s credibility
findings. The Board’s established policy is not to overrule a hearing offi-
cer’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB
1359, 1361 (1957). We find no basis for reversing the findings.
We have also carefully reviewed the record and find no merit in the
Petitioner’s contention that the hearing officer demonstrated bias
against Bashir Muhammad, the Petitioner’s election observer and wit-
ness. Nor do we find any merit to the Employer’s implication that the
hearing officer demonstrated bias against the Employer.
2 The Petitioner contends that the Regional Director erred in denying
its request that the Board agent who conducted the election testify. The
Petitioner requested that the Board agent testify as to whether Muham-
mad repeatedly left the observers’ table and greeted voters, whether
Muhammad engaged voters in conversation, and whether he requested
voters to vote for the Petitioner. We note that both the Petitioner and
the Employer presented witnesses regarding these issues and that the
matter was fully litigated without the Board agent’s testimony. In the
circumstances of this case, we conclude that there was no abuse of
discretion by the Regional Director.
We also deny the Employer’s motion to strike the Petitioner’s sub-
mission, which constitutes, in essence, the Petitioner’s exceptions and
brief. However, we do not rely on any representation contained in the
Petitioner’s submission which representation is not based on evidence
contained in the record of this proceeding. The Employer also requests
that the Board discipline the Petitioner’s counsel. We find no basis for
imposing discipline on the Petitioner’s counsel.
3 The dissent ignores this fact.
The hearing officer recommended setting aside the
election. We agree that the election must be set aside for
the reasons discussed below.4
In Boston Insulated Wire & Cable Co.,5 the Board ex-
plicated its duty to safeguard the election processes from
conduct that inhibits the employees’ exercise of free
choice. The Board stated that:
In carrying out this duty, “the Board is extremely zeal-
ous in preventing conduct which intrudes upon the ac-
tual conduct of its elections.” . . . Thus, the Board pro-
hibits electioneering “at or near the polls.”
. . . .
When faced with evidence of impermissible elec-
tioneering, the Board determines whether the con-
duct, under the circumstances, “is sufficient to war-
rant an inference that it interfered with the free
choice of the voters.” This determination involves a
number of factors. The Board considers not only
whether the conduct occurred within or near the
polling place, but also the extent and nature of the
alleged electioneering, and whether it is conducted
by a party to the election or by employees. The
Board has also relied on whether the electioneering
is conducted within a designated “no electioneering”
area or contrary to the instructions of the Board
agent. [Citations omitted].

Analyzing Muhammad’s electioneering in this case under
the test set forth in Boston Insulated Wire, we conclude that
an inference is warranted that it interfered with the free
choice of the voters. First, Muhammad’s electioneering
occurred in the polling place. Second, Muhammad engaged
in the electioneering while acting as the union observer, and
he was thus an agent of the Union at the time of his miscon-
duct. See Dubovsky & Sons, Inc., 324 NLRB 1068 (1997).
Third, Muhammad acted contrary to the instructions of the
Board agent who conducted the election. Fourth, with re-
spect to the “extent” of the conduct, we note that Muham-
mad directly told four employees how to vote; others were
told what he had said; and still others were given the
“thumbs up” signal. Finally, with respect to the “nature” of
the conduct, we believe that party electioneering during the
4 The Union won the election with 177 votes to 163 “no” votes.
There were 4 challenged ballots. The hearing officer concluded that the
votes of the four voters whom Muhammad told to vote for the Union
could make a difference in the results of the election. Therefore, she
recommended setting aside the election. Although we agree that the
election must be set aside, the votes of the four voters Muhammad told
to vote for the Union would not have affected the election results.
However, as noted above, more than these four employees were af-
fected by Muhammad’s conduct.
5 259 NLRB 1118, 1118–1119 (1982), enfd. 703 F.2d 876 (5th Cir.
1983).
331 NLRB No. 10
BRINKS, INC. 47
voting, and indeed in the election room, is a serious interfer-
ence with the election process.
In sum, under each of the Boston Insulated factors, the
conduct here was objectionable.
Our dissenting colleague acknowledges that Muham-
mad’s conduct was inappropriate. She also notes that the
correct standard for determining whether an election should
be set aside because of electioneering at or near the polls is
whether the circumstances of the electioneering warrant “an
inference that it interfered with the free choice of the vot-
ers.” However, she fails to analyze the facts of this case
under the factors of that standard as outlined in Boston Insu-
lated. Instead, our dissenting colleague relies on the hearing
officer’s finding that Muhammad did not greet voters “in
the manner of an authority in control of the election.” How-
ever, that is not the appropriate test. The relevant factor
under Boston Insulated is whether Muhammad was an agent
of a party. Clearly, he was such an agent. Further, as dis-
cussed above, Muhammad, while acting as the Union’s
observer and agent, defied instructions from the Board agent
and, inter alia, told employees, in the final seconds before
they cast their ballots, how to vote. Thus, Muhammad’s
behavior met the criteria set forth in Boston Insulated and it
is therefore appropriate to draw “an inference that it inter-
fered with the free choice of the voters.”
We conclude that the election must be set aside and a
new election held.6
[Direction of Second Election is omitted from publica-
tion.]

MEMBER FOX, dissenting.
Contrary to my colleagues, I would not adopt the hearing
officer’s recommendation to sustain the Employer’s Objec-
tion 1(iii). The hearing officer found, based on his credibility
determinations, that the Petitioner’s observer, Bashir Mu-
hammad, spoke or mouthed the words “vote yes” or “vote
union” to four employees as they approached the check-in
table at the voting place. The hearing officer concluded that
this conduct constituted grounds for setting aside the election
based on his finding that the ballots of these four voters, if
affected by the conduct, would be sufficient to make a dif-
ference in the outcome of the election.

6 General Dynamics Corp., 181 NLRB 874 (1970), is distinguishable. In
that case the Board found that an observer’s instruction to voters to mark their
ballots for a union did not affect the outcome of the election. However, the
conclusion in that case turned on a unique set of circumstances. The Board in
that case acknowledged that the conversations in which the observer engaged
“were of a magnitude which, in other circumstances, would require us to set
aside the election.” The election in General Dynamics, involved two petition-
ers. The wrongdoing observer was the observer for the losing petitioner and
told employees whom he escorted to the polling place, as well as employees at
the polling place, to vote for the petitioner, for which he was an observer. The
employer objected to this conduct. If the objection were upheld, the losing
petitioner would benefit. The Board noted that, “under a well-established legal
principle we will not permit a wrongdoer to profit by the illegal act of its
agent.” In the instant case, setting aside the election will not benefit the
wrongdoer, nor, for that matter, will it penalize an innocent party.
This latter finding of the hearing officer is in error.
The tally of ballots shows 177 votes for the Petitioner,
163 votes against the Petitioner, and four challenged bal-
lots. If, under the scenario most favorable to the Em-
ployer, the four challenged ballots were to be counted as
“no” votes, the tally would become 177 votes for, and
167 votes against the Petitioner. Thus, the ballots of the
four voters whom Muhammad encouraged to vote for the
Petitioner, even if considered tainted, could not have
affected the outcome of the election.
My colleagues acknowledge this mistake by the hearing
officer but even so find that Muhammad’s conduct war-
rants setting aside the election. In so doing, they rely also
on his having given the “thumbs up” sign to several voters.1
If the Board applied a per se rule that any electioneering
in the voting place constituted grounds for setting aside the
election, I might agree that this election should be over-
turned. But that is not the standard, which the Board uses to
evaluate conduct of the type at issue here. Under the pro-
phylactic rule set forth in Milchem, Inc., 170 NLRB 362
(1968), the Board will automatically set aside an election on
the basis of any “sustained” or “prolonged” conversations
between a representative of a party and employees waiting
to vote, without inquiring into the nature of the conversa-
tions. But where, as here, the allegedly objectionable elec-
tioneering does not involve prolonged conversations, the
Board appraises the election “realistically and practically” to
determine whether the conduct at issue is, under the circum-
stances, “sufficient to warrant an inference that it interfered
with the free choice of the voters.” Boston Insulated Wire
& Cable Co., 259 NLRB 1118, 1118–1119 (1982) (citations
omitted). Applying that standard to the facts as found by
the hearing officer, I cannot conclude that the election
should be set aside.
The hearing officer specifically found “no evidence
that Muhammad, either seated or standing, greeted voters
in the manner of an authority in control of the election.”
Thus, there is no reason to believe that employees re-
garded Muhammad as anything other than what he
was—a union supporter acting as the Union’s observer at
the election. Muhammad’s conduct was inappropriate,
and I do not condone it. However, viewing the situation
“realistically and practically,” I cannot conceive of how
merely seeing or hearing Muhammad mouth or speak the
words “vote yes” or “vote union,” let alone receiving
from him a “thumbs up” sign, could have had so power-
ful an effect as to interfere with any voter’s ability to
exercise free choice. Accordingly, I respectfully dissent.

1 Six employees testified that Muhammad gave them a “thumbs up”
sign. Several of them testified that this occurred after they first gave
him the thumbs up sign, and three said that it occurred after they had
voted. The hearing officer found this conduct to be innocuous.