Cabs Housekeeper Service, Inc.

National Labor Relations Board - Board Decisions

May 3, 1979

241 N.L.R.B. 1259 (N.L.R.B. 1979)

CABS HOUSEKEEPER SERVICE. INC
Cabs Housekeeper Service, Inc. and Local 32B-32J,
Service Employees International Union, AFL-CIO,
Petitioner. Case 29 RC-4317
May 3, 1979
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS PENEI.I.O
AND TRUESDAI.E
Pursuant to a Stipulation for Certification Upon
Consent Election, approved by the Regional Director
for Region 29 of the National Labor Relations Board
on September 12, 1978, an election by secret ballot
was conducted on October 13, 1978, among the em-
ployees in the unit described below, to determine
whether such employees desired to be represented by
the above-named Petitioner for purposes of collective
bargaining. After the election, the parties were fur-
nished a tally of ballots which showed that of ap-
proximately 384 eligible voters, 238 cast ballots, of
which 62 were for the Petitioner, 162 were against, 5
were void, and 9 were challenged. The challenged
ballots are not sufficient in number to affect the re-
sults of the election. Thereafter, the Petitioner filed
timely objections to the conduct of the election.
The Regional Director conducted an investigation
of the objections, and on December 15, 1978, he is-
sued and served on the parties his report on objec-
tions. In his report, the Regional Director recom-
mended that the Petitioner's Objection I be overruled
but that Petitioner's Objection 2 be sustained and that
a second election be directed. Thereafter, the Em-
ployer filed timely exceptions to the Regional Direc-
tor's report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the poli-
cies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
3. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full and regular part-time housekeepers em-
ployed by the Employer at 501 Marcy Avenue,
Brooklyn. New York, excluding all other em-
ployees, including office clerical employees,
guards and supervisors as defined in the Act.
4. The Board has considered the Regional Direc-
tor's report, the Employer's exceptions thereto, and
the Employer's brief and for the reasons set forth be-
low has decided to certify the results of the election.
Accordingly, we adopt the Regional Director's report
only to the extent consistent herewith.'
The Petitioner's Objection 2 alleged that, during
the actual hours of the voting, the Employer engaged
in electioneering in an area where such activity was
prohibited and distributed campaign propaganda in
printed form to employees as they received their pay-
checks from an employer representative in the said
area. The Petitioner contends that the distribution of
this literature had a coercive effect upon the voters
and destroyed the laboratory conditions during the
balloting.
The parties agreed that the election would take
place between 1:30 and 6 p.m. in the Employer's ac-
counting office, an area adjacent to and one flight up
from the Employer's main office. Friday, October 13,
1978, was agreed upon as the election date because it
was a payday and the only time when all housekeep-
ers would report to the main office from their field
assignments. It was further agreed that a no-election-
eering area would be designated as follows:
Marcy Avenue, in front of the Employer's office
at 501, North to the middle of the block between
Ellery Street and Flushing Avenue and South to
the corner of Park Avenue.
It was also agreed that each of the parties would have
three observers, two each for the voting area and one
each to maintain order and police the no-electioneer-
ing area.
During the election hours the Employer distrib-
uted, along with paychecks and timecards, certain
campaign literature. The literature consisted of a
card, one side of which set forth 12 reasons why the
employees should vote "no" and reminded the em-
ployees to vote on October 13, 1978. The other side of
the card was in the form of a ballot with an X in the
"No" box; it apprised the voters that nothing they
had done to date, such as signing an authorization
card, mattered, and it encouraged them to "vote no."
During the actual voting hours both the Board
agents present and the Employer's observer witnessed
a majority of the voters come into the voting area
carrying the cards. A large number of voters asked
the Board agents what the cards were and if the cards
were ballots. The Board agents recall that they had to
I In the absence of exceptions thereto, we. pro forma, adopt the Regional
Director's recommendation that Objection I be overruled.
241 NLRB No. 202
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prevent a few employees from stepping out of line to
place the cards into the ballot box before going into
the booth. The Board agents answered employees'
questions in English, Spanish, and French and in-
formed them that the cards represented only the Em-
ployer's opinion and were not ballots. It was further
stated to the employees that the ballot was secret, and
that they should vote as they desired.
The Regional Director noted that the Board per-
mits the distribution of campaign literature attached
to paychecks shortly before an election. He con-
cluded, however, that under all the circumstances and
in light of the apparent confusion the literature
caused among the voters, the laboratory conditions
for a fair election did not exist, and he recommended
that the objection be sustained and a second election
directed. He relied on the fact that the distribution of
the literature occurred during the voting hours in
close proximity to the no-electioneering area desig-
nated by the parties, and that the voters had to move
directly from the office area to the street and then to
the adjacent entrance to the voting area.
We do not agree with the Regional Director's con-
clusions. The Board has never held that proper cam-
paign material is per se objectionable simply because
it is distributed during voting hours. Similarly, we do
not agree with the Regional Director's reliance on the
fact that the distribution took place in close proximity
to the no-electioneering area. Once a no-electioneer-
ing area is agreed upon, the issue becomes whether
electioneering occurred within that area; the proxim-
ity of permissible campaign activities to this area is
irrelevant.2 Futhermore, in our view, any apparent
confusion created by the literature was corrected by
the periodic announcements and careful instructions
provided by the Board agents. Accordingly, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes have not been cast for Local 32B-32J, Service
2 See Marvil International Security Service, Inc., 173 NLRB 1260 (1966).
Employees International Union, AFL-CIO, in the
election held herein, and that said labor organization
is not the exclusive representative of the employees in
the unit found appropriate within the meaning of Sec-
tion 9(a) of the National Labor Relations Act, as
amended.
MEMBER TRUESDALE, dissenting:
Contrary to my colleagues, I would sustain the Pe-
titioner's Objection 2, set aside the election herein,
and direct a second election. In this regard, I agree
with the Regional Director's conclusion that a new
election is warranted based on his finding of apparent
confusion among the voters at the election caused by
the Employer's campaign literature.'
Thus, as found by the Regional Director and set
forth by my colleagues, during the election the Board
agents attempted to explain to the voters the purpose
for the cards distributed by the Employer shortly be-
fore the election, and, specifically, that such cards
were not official ballots;4 some voters attempted to
place the cards into the ballot box; and the Board
agents made periodic announcements to new groups
of voters as they arrived at the polls concerning the
Employer's cards and the mechanics of voting. My
colleagues rely on the measures taken by the Board
agents to support a conclusion that any apparent con-
fusion which occurred at the election was corrected.
Clearly, however, that the Board agents deemed the
situation during the election to necessitate such mea-
sures, particularly when coupled with the attempt by
some voters to place the cards into the ballot box, is
at least as indicative of the extent of the apparent
confusion among voters as it is supportive of the con-
clusion reached by my colleagues. It seems obvious
that the atmosphere in which the election herein was
conducted raises sufficient doubts as to the validity of
the results as to warrant the direction of a new elec-
tion. Accordingly, I dissent.
In view of my conclusion herein, I find it unnecessary to pass on the
Regional Director's reliance on other facts in support of his recommenda-
tions that the election herein be set aside and a new election be directed.
4 One side of the card distributed by the Employer contained, inter alia,
squares marked "yes" and "no" with an X in the "no" square.
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