Cross-Pointe Corp.

National Labor Relations Board - Board Decisions

Dec 9, 1994

315 N.L.R.B. 714 (N.L.R.B. 1994)

714
315 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt pro forma the Regional
Director’s recommendations that five of the seven challenged ballots
be overruled, and one challenge be sustained, and a hearing be held
on the other challenge if it remains determinative.
2 In rejecting the Employer’s exception to the Regional Director’s
recommendation to overrule Objection 5, Members Stephens and
Devaney note that the facts alleged in the Employer’s proffer are
distinguishable from those found with respect to the list-keeping ob-
jection in Days Inn Management Co., 299 NLRB 735, 736 (1990),
enf. denied in pertinent part 930 F.2d 211 (2d Cir. 1991). In that
case, the Board found that an agent of the employer stood by the
door of the building in which the polls were located, inquired the
name of each arriving employee, and then crossed it off the list of
potential voters which he was holding. The Board found that this
was objectionable because it amounted to ‘‘openly maintaining’’ a
voter list. Id. at 736. The evidence in the Employer’s proffered affi-
davits in the present case shows merely that the Employer’s election
observer and two other employees (the latter two reporting on obser-
vations made after they had voted) had seen one of the Petitioner’s
observers writing something unknown on a piece of paper. More-
over, assuming the truth of the voter statements to which our dis-
senting colleague alludes, we find the facts here substantially iden-
tical to those in Textile Service Industries, 284 NLRB 1108 (1987),
in which the Board found unobjectionable an observer’s writing, in
addition to hash marks, ‘‘unknown words’’ not recognized as names
while attempting to conceal the paper.
Cross-Pointe Corporation and United Paperworkers
International Union, AFL–CIO, CLC, Peti-
tioner. Case 13–RC–18774
December 9, 1994
DECISION, DIRECTION, AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered objections to and deter-
minative challenges in an election held November 4,
1993, and the Regional Director’s report recommend-
ing disposition of them.1
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 44 for
and 38 against the Petitioner, with 7 challenged bal-
lots, a sufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, and adopts the Regional Direc-
tor’s findings and recommendations.2
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 13 shall, within 14 days of this Decision, Direc-
tion, and Order, open and count the ballots of Joseph
Fewell, Alvin Bolden, Garth Ingram, John Pessina, and
Joel Hanson, and thereafter prepare and serve on the
parties a revised tally of ballots. In the event that the
revised tally of ballots shows that the ballot of Antonio
Contreras is determinative, the Regional Director shall
set a hearing to determine his voting status. In the
event that the revised tally of ballots shows that the
Petitioner has received a majority of the valid votes
cast, the Regional Director shall issue a certification of
representative pursuant to the Board’s Rules and Regu-
lations. In the event the revised tally of ballots shows
the Petitioner has not received a majority of the valid
ballots cast, the Regional Director shall issue a certifi-
cation of results of election pursuant to the Board’s
Rules and Regulations.
ORDER
It is ordered that the above-entitled matter is referred
to the Regional Director for Region 13 for further
processing.
MEMBER COHEN, dissenting in part.
Contrary to my colleagues, I find that Objection 5
raises genuine issues of fact. Objection 5 alleges that
an observer for the Petitioner engaged in objectionable
conduct by keeping a list of those who voted in the
election. Thus, if a revised tally shows that the Peti-
tioner won the election, I would direct a hearing on
whether the Petitioner’s observer kept a list of employ-
ees and whether employees were aware of any such
conduct. See, e.g., Days Inn Management Co., 299
NLRB 735, 736 (1990).
In my view, the employer has offered sufficient evi-
dence to warrant a hearing. My colleagues say that the
Employer’s affidavits state only that the Petitioner’s
observer wrote ‘‘something unknown’’ on a piece of
paper as each employee voted. In fact, one affidavit
said that the observer wrote ‘‘several words,’’ and an-
other affidavit said that the writing occurred when an
employee stated his name. The observer says that he
only made hash marks. In these circumstances, there is
a critical question, factual to its core, as to the precise
content of the observer’s writing. I would hold a hear-
ing to resolve that factual question.
Textile Service Industries, 284 NLRB 1108 (1987),
cited by my colleagues, is distinguishable. In that case,
after a hearing was held, there was no evidence that
names of voters were recorded. In the instant case, a
hearing has not been held. Such a hearing could
produce evidence that names were recorded. In any
event, even if only words were written, I agree with
former Member Babson’s observation, dissenting in
Textile Service Industries, that words alone can be
used to identify a voter.