Builders Insulation Inc.

National Labor Relations Board - Board Decisions

Feb 27, 2003

338 N.L.R.B. 793 (N.L.R.B. 2003)

BUILDERS INSULATION INC. 793
City Wide Insulation of Madison, Inc. d/b/a Builders
Insulation Inc. and Milwaukee & Southern Wis-
consin Regional Council of Carpenters, Peti-
tioner. Case 30–RC–6503
February 27, 2003
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held November 26, 2002, and the Regional Director’s
report (pertinent portions are attached as an appendix)
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 15 for and 5 against Petitioner,
with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the Regional Director’s
findings and recommendations,1 and finds that a certifi-
cation of representative should be issued.
The Employer contends in its Objection 1 that the elec-
tion should be set aside because employees in the bar-
gaining unit blamed it for the failure to conduct the elec-
tion on November 20, 2002, as originally scheduled and
announced. It is undisputed that the Regional Office, not
the Employer, was responsible for the election’s post-
ponement. However, for the reasons set forth in the at-
tached portion of the Regional Director’s report, we af-
firm his finding that the circumstances surrounding the
postponement do not warrant setting aside the results of
the election ultimately held on November 26, 2002.
Although we are not aware that many elections are
postponed for administrative reasons, this is the second
such case to come to the Board’s attention recently. See
Superior of Missouri, Inc., 338 NLRB 570 (2002). In
order to avoid objections similar to the one the Employer
has raised here, we find that it would be preferable for
Regional Offices to include in any notice of rescheduled
election a statement that the election has been resched-
uled for administrative reasons beyond the control of the
employer or the union. The inclusion of such language
would dispel any erroneous impression among employ-
ees that an either the employer or the union was respon-
sible for the election’s rescheduling.

1 The Employer did not except to the Regional Director’s recom-
mendation to overrule its Objections 2 and 3. In the absence of excep-
tions, we adopt pro forma the Regional Director’s recommendation to
overrule Objections 2 and 3.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Milwaukee & Southern Wisconsin Re-
gional Council of Carpenters, and it is the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All regular full-time and regular part-time job site insu-
lation installers employed and working out of the Em-
ployer’s Germantown, Wisconsin facility, excluding
office and clerical employees, temporary and casual
employees, managerial employees, guards and supervi-
sors as defined in the Act.

APPENDIX
REGIONAL DIRECTOR’S REPORT
. . . .
THE OBJECTIONS
1. Objection 1 (Board agent conduct)—The failure of the
Board agent to appear at the scheduled election on November
20, destroyed the laboratory conditions required by the Na-
tional Labor Relations Board for the conduct of a Board-
supervised secret election. The failure of the Board agent to
appear at the first scheduled election upset employees, re-
sulted in antiemployer rumors and directly led to antiem-
ployer prejudice that affected the outcome of the re-scheduled
election.
The Employer contends that employees blamed the Em-
ployer for the November 20 missed election, and neither the
Union nor the Region informed the employees otherwise. The
Union contends that the Employer presented no evidence that it
fostered any rumor that the Employer was responsible for the
cancellation of the election, and this objection should be over-
ruled.
The evidence shows that due to a snafu in the Regional Of-
fice, no Board agent appeared at the election originally sched-
uled for November 20 at 7 to 7:30 a.m. The Region learned of
its error on November 20 at approximately 8:15 a.m., when
the Employer called to find out why a Board agent had failed to
appear. A Regional Office representative returned the Em-
ployer’s call at about 8:20 a.m., at which time the Employer
put the call on its speaker telephone so the Union’s representa-
tives could hear the conversation directly. The only explanation
provided by the Regional Office’s representative was that an
internal miscommunication had occurred.3 A series of tele-
phone calls among the two parties and the Region ensued that
same day to determine when the election would be rescheduled.
The Employer objected to holding the election later that day
and also objected, despite the Union’s willingness, to holding
the election the next day. The parties ultimately agreed on No-
vember 20 to reschedule the election for November 26, with
no change as to the original voting period and location. Several
copies for posting of a new Notice of Election for the resched-
3 No other explanation was ever provided by the Regional Office.
338 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
uled election, bearing the word “rescheduled” in capital letters
at the top of the notice, were hand delivered to the Employer’s
facility in the late afternoon of November 20. The Employer,
when posting the new notice, highlighted the November 26 date
and voting time to distinguish it from the original election no-
tice. All but one eligible employee voted in the November 26
election.
In support of this objection, the Employer provided affidavit
testimony from its facility branch manager and from five em-
ployees. Branch Manager Troy Wetzel testified that on No-
vember 20, when he told the employees, still assembled in the
voting area, at about 8:30 or 8:45 a.m., to go to work, it was his
opinion that many were angry and that employees looked
shocked and confused. An unidentified employee asked what
was happening, to which Wetzel, uncertain as to what he could
or should say, replied, “I simply said that there would be no
election that day and that the employees should go to work.”
Later that day or the next, employee Alfonso Casillas told Wet-
zel that some of the employees were “pissed off” about not
having been able to vote. Wetzel, believing employees were
blaming him for the canceled election, told Casillas the cancel-
lation was not his fault. Wetzel held an employee meeting on
November 21 to relate what little he knew about the November
20 election’s cancellation. He testified he did this so employees
would not think either he or the Employer had tampered with
the election process.
Employee Casillas testified in his affidavit that he was angry
on November 20 when he did not have a chance to vote and
that he believed other employees also were angry. He stated
that one employee told him he (the other employee) thought
company officials had stopped the election.4 Casillas also testi-
fied that at least four unidentified employees changed their
minds on or after November 20 about “whether to vote for the
company.” While Casillas testified he believed these employees
had changed their minds based on conversations, he did not
testify as to whom he had spoken with or what they had said.
Casillas voted on November 26.
Employee Jose Rodriguez testified in his affidavit that when
Wetzel instructed the employees at about 8:30 or 8:45 a.m. on
November 20 to go to work, he was worried and concerned that
he did not and would not have an opportunity to vote. He also
stated that while the employees were waiting and wondering
whether the November 20 election would be held, he believed
some employees changed their minds about whether they
would vote for the Union or the Employer. Rodriguez did not
testify about the basis for this belief. Rodriguez voted on No-
vember 26.
Employee Scott Helm testified in his affidavit that he was
concerned on November 20 when he did not have a chance to
vote, that it was human nature to think the Employer was some-
how to blame and that he was worried that the NLRB had
pushed the employees aside because the Employer is small.
Helm stated that on November 21, a fellow Spanish-speaking
employee, who “speaks a little English,” said in a frustrated
4 While this other employee also gave an affidavit, he did not cor-
roborate Casillas’ testimony in this regard.
tone, “Scotty, . . . the union . . . what the fuck?”5 Helms added
he was certain from the words and tone that this employee was
telling him he (the other employee) blamed the Employer for
the delay in voting. Both Helm and the other employee voted
on November 26.
Employee Jose Duenas testified in his affidavit that he was
confused and surprised when he did not get a chance to vote on
November 20 and that he knew approximately 13 other em-
ployees were similarly confused and/or surprised. Duenas did
not testify about the basis for this asserted knowledge. Duenas
voted on November 26.
Employee Ramon Martin testified he was concerned and
surprised when he did not have a chance to vote on November
20. He stated he heard other employees asking each other what
was going on as they waited in the voting area on November 20
for information. He stated he did not know whether other em-
ployees were concerned, as he was. Martin voted on November
26.
The Employer offered that other employees who had not
provided affidavits would provide testimony similar to that
which was provided by the five affiants. It added that one of
these additional potential witnesses would testify he was nerv-
ous when no Board agent appeared on November 20 and that he
believed he would be called out on strike by the Union as a
direct consequence. None of the employees who did provide
affidavits gave any testimony regarding such a possible strike
or on what such a belief was based.
In further support of this objection, the Employer argued that
the Region’s failure to conduct the November 20 election and
its failure to adequately explain its failure to the parties and the
employees, to make clear the November 20 election’s cancella-
tion was not the Employer’s fault, breached the Board’s labora-
tory conditions standard for conducting elections. General Shoe
Corp., 77 NLRB 124 (1948); also citing, inter alia, Austill
Waxed Paper Co., 169 NLRB 1109 (1968); and Sioux Products
v. NLRB, 703 F.2d 1010, 1013 (7th Cir. 1983). The Employer
also cited Flo-Tronio Metal Mfg., 251 NLRB 1546 (1980);
Rattan Art Gallery, Ltd., 260 NLRB 255 (1982); and NLRB
Casehandling Manual (Part Two), Section 11314, in arguing
the Board agent “has an official duty to effectively communi-
cate information regarding the election to the electorate.”
In its position letter response, the Union argued that as a
matter of Board law, the failure of a Board agent to appear at
the November 20 election, inasmuch as the rescheduled elec-
tion was conducted on November 26 and all but one employee
voted, was not objectionable. Malta Construction Co., 276
NLRB 1494, 1510 (1985). The Union also argued the rumors of
employer responsibility were not objectionable because the
Employer had ample opportunity to reply to those rumors.
Aladdin Plastics, Inc., 182 NLRB 64 (1970).
Discussion
As the objecting party, the Employer has the sole burden of
providing evidence in support of its objections. NLRB Case-
handling Manual (Part Two), Section 11392. 10. The Employer
5 This quote, with the indicated ellipses, is exactly as it appears in
Helm’s affidavit. No affidavit was provided from the other employee.
BUILDERS INSULATION INC. 795
may satisfy this burden by specifically identifying witnesses
who would provide direct rather than hearsay testimony to sup-
port its objections, specifying which witnesses would address
which objections. NLRB Casehandling Manual (Part Two),
Section 11392.6; Heartland of Martinsburg, 313 NLRB 655
(1994); Holladay Corp., 266 NLRB 621 (1983). The Employer
also may satisfy this burden by providing specific affidavit
testimony and other specific evidence in support of its objec-
tions. Cf. River Walk Manor, Inc., 269 NLRB 831 (1984). This
evidence or description of evidence must be provided to the
Regional Office “within 7 days of the day the objections are
required to be filed or within such additional time as may have,
upon a timely request, been allowed by the Regional Director.”
NLRB Casehandling Manual (Part Two), Section 11392.6.
Two issues are posed by this objection: (1) whether the Re-
gional Office’s failure to provide a Board agent to conduct the
November 20 election was, in itself, objectionable; and (2)
whether the Regional Office’s failure to provide an explanation
for not conducting the November 20 election to the parties, and
more particularly to the employees, was objectionable. As a
matter of law and a failure of the evidence, I answer both ques-
tions in the negative. Regarding the matter of the Region’s
failure to conduct the November 20 election, the critical ele-
ment is that the election was quickly rescheduled with the
agreement of the parties for just 6 days later, and conducted as
rescheduled on November 26. The tally of ballots shows, and
the parties agree, that all but one eligible employee voted on
November 26. The vote margin as shown in the tally, 15 to 5,
demonstrates that the missing employee’s vote would not have
affected the election’s outcome. Neither the Region’s failure to
provide a more complete explanation than it did for why it did
not conduct the November 20, election nor the fact that em-
ployees speculated among themselves about why the November
20 election was not held, is sufficient to establish that the labo-
ratory conditions for the November 26 election were disrupted.
Superior of Missouri, Inc., 338 NLRB 570 (2002); Malta Con-
struction Co., supra; Aladdin Plastics, Inc., supra. Moreover,
the Employer’s evidence failed to establish anything other than
employees speculated about why the November 20 election was
not held, and speculated about whether the Employer was
somehow responsible. The Employer not only had ample op-
portunity to respond to these rumors; it expressly did so in its
November 21 meeting with the employees. Under these cir-
cumstances, neither the rumors themselves, the Region’s failure
to more fully explain what had happened on November 20, nor
the Region’s failure to conduct the November 20 election itself,
whether taken individually or together, provide adequate
grounds for setting aside the November 26 election. I therefore
recommend that this objection be overruled.