Fessler & Bowman, Inc.

National Labor Relations Board - Board Decisions

May 12, 2004

341 N.L.R.B. 932 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932
Fessler & Bowman, Inc. and Local 9, International
Union of Bricklayers & Allied Craftworkers,
AFL–CIO, Petitioner and Local 16, Operative
Plasterers’ & Cement Masons’ International As-
sociation, AFL–CIO. Case 7–RC–22434
May 12, 2004
DECISION AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, AND WALSH
The issue in this case is whether a party’s collection of
ballots in a Board-conducted mail ballot representation
election is objectionable. Contrary to the hearing officer,
we find that the Union engaged in objectionable conduct
by collecting two employees’ mail ballots.
For the reasons explained below, we announce a new
rule that any party’s collection of mail ballots constitutes
objectionable conduct that may warrant setting aside an
election.
I. BACKGROUND
The National Labor Relations Board1 has considered
objections to a runoff mail-ballot election held between
July 24, and August 18, 2003,2 and the hearing officer’s
report recommending disposition of them. The runoff
election was conducted pursuant to a Stipulated Election
Agreement. The tally in the runoff election shows 19
votes for Local 16, Operative Plasterers and Cement Ma-
sons International Association of the United States and
Canada, AFL–CIO (the Union), and 15 votes for Local 9,
International Union of Bricklayers and Allied Craftwork-
ers, AFL–CIO (the Petitioner), with 2 challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has decided to adopt the hearing
officer’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order Remand-
ing.3
II. FACTS
The relevant facts are undisputed. On March 28, the
Petitioner filed a petition to represent a unit of employees
who were then represented by the Union. Pursuant to a
Stipulated Election Agreement, the Board conducted a
mail-ballot election held between May 14, and June 9.
The Petitioner and the Union each received 12 votes, and
no votes were cast against representation. Because nei-

1 Member Meisburg has recused himself and took no part in the con-
sideration of this case.
2 All dates refer to 2003, unless otherwise noted.
3 No party excepted to the hearing officer’s recommendations to
overrule the Petitioner’s Objections 2, 3, and 4.
ther union garnered a majority of votes, the Regional
Director ordered a runoff election.
After the Regional Office mailed out the ballot kits4
for the runoff election, a union agent telephoned em-
ployee Frank Deming at home and asked Deming to
bring his ballot to the jobsite. Some unspecified time
later, Union Business Agent Greg DeJongh went to the
Fenton, Michigan jobsite to distribute union T-shirts.
Deming said to DeJongh, “Hey, I got something.” Dem-
ing told DeJongh to wait and Deming went to his truck
and retrieved his mail ballot. Deming returned and
handed the ballot, which was sealed inside the return
envelope supplied by the Board, to DeJongh. DeJongh
took Deming’s sealed mail ballot, put it in his truck, and
continued to talk to employees at the jobsite. DeJongh
went to a post office several hours later and mailed Dem-
ing’s ballot. DeJongh testified that he did not look at or
tamper with the ballot before mailing it. Greg Lobodzin-
ski, a business agent for the Petitioner, learned, before
the ballot count, that the Union had collected Deming’s
ballot.
On a separate occasion, an individual identifying him-
self as a union agent approached employee Dave
Gardyszewski at Fessler & Bowman’s Lansing, Michi-
gan jobsite and asked Gardyszewski if he had voted.
Gardyszewski responded that he had voted, noting that
his ballot was in his truck. The union agent then said, “I
could hand it in for you, if you want.” Gardyszewski
retrieved his sealed ballot from his truck and handed it to
the union agent. Gardyszewski testified that he had not
received any telephone calls offering to collect his ballot
before his contact with the union agent at the Lansing
jobsite. Tom Payne, a former agent of the Petitioner,
learned, before the ballot count, that the Union had col-
lected Gardyszewski’s ballot.
Also during the period of the mail-ballot runoff elec-
tion, an individual identifying himself as a union agent
telephoned employee Raymond Turner. The union agent
asked Turner which jobsite he would be working at the
next day and offered to come out to that jobsite and pick
4 A ballot kit customarily includes Form NLRB-4175, Instructions to
Eligible Employees Voting By United States Mail. The record is silent
on whether the ballot kits in this case contained Form NLRB-4175. The
Instructions direct voters to:
1. Mark your ballot in secret by placing an X in the appropriate
box. Make no other marks on your ballot.
2. It is important to maintain the secrecy of your ballot. Do not
show your ballot to anyone after you have marked it.
3. Put your ballot in the blue envelope and seal the envelope.
4. Put the blue envelope containing the ballot into the yellow
addressed return envelope.
5. Sign the back of the yellow return envelope in the space pro-
vided.
6. Mail immediately. No postage required.
341 NLRB No. 122
FESSLER & BOWMAN, INC. 933
up Turner’s ballot. The union agent further encouraged
Turner to ask his fellow employees to bring in their bal-
lots for collection. Turner declined the union agent’s
offers.
Additionally, Union Agent Greg Brisboy informed
employee Mark McDermaid that he was trying to collect
mail ballots from the voters. At the time of this conver-
sation, McDermaid had already mailed his ballot to the
Regional Office, and he so informed Brisboy. Brisboy
telephoned employee Don Rowley and made a similar
offer. Rowley told Brisboy that he had already mailed in
his ballot.
Word of the Union’s conduct spread among the em-
ployees during the voting period. Deming told “the boys
on the crew,” including employees James Kiel and Craig
Woodley, that the Union had collected his ballot.
Gardyszewski told employee Tom Payne that the Union
had collected his ballot. In turn, Payne discussed the
ballot collection with employees Bobby Atkins and Bud
Godfrey. Likewise, Turner told employee John Smith
that the Union had solicited his ballot.
The deadline for returning mail ballots was August 18.
The tally of ballots showed 19 votes for the Union and
15 votes for the Petitioner, with 2 challenged ballots.5
The Petitioner timely filed an objection alleging that the
Union interfered with the election by soliciting employ-
ees’ ballots and by collecting Deming’s and
Gardyszewski’s ballots.
III. HEARING OFFICER’S REPORT ON OBJECTIONS
The hearing officer found that the Union’s solicitation
of ballots and its ballot collection did not constitute ob-
jectionable conduct. She found that the ballots were
sealed when given to the Union’s agents and that there
was no evidence of ballot tampering.
The hearing officer also found no evidence that the
Union’s conduct compromised the secrecy of the mail
ballots or that the Union’s solicitations to collect ballots
placed any undue pressure on the voters. Under these
circumstances the hearing officer found that the Union’s
ballot collection and solicitations did not taint the elec-
tion’s laboratory conditions. As set forth below, we dis-
agree.
IV. ANALYSIS
It is well settled that the Board, in conducting elec-
tions, must maintain and protect the integrity and neutral-
ity of its procedures. See, e.g., Family Service Agency,
San Francisco, 331 NLRB 850 (2000); Glacier Packing
Co., 210 NLRB 571 (1974). Because of the fundamental

5 Neither of the collected ballots was challenged. Two uncollected
ballots were challenged on other grounds.
importance of this process, the election environment
must be one in which employees may freely and fairly
express their views regarding representation. To this
end, the Board has stated that election conditions must
approach, as nearly as possible, ideal “laboratory” condi-
tions so as to facilitate expression of the uninhibited
wishes of the employees. General Shoe Corp., 77 NLRB
124, 127 (1948). “[T]he Board goes to great lengths to
ensure that the manner in which an election was con-
ducted raises no reasonable doubt as to the fairness and
validity of the election.” Jakel, Inc., 293 NLRB 615, 616
(1989). Further, Section 7 of the Act assures employees
the basic right to choose whether or not they wish to be
represented by a labor organization for collective bar-
gaining purposes. Board-conducted elections support
such a right by providing a forum where employees may
freely express their representation choices via secret bal-
lot.
In a manual ballot election, employees cast their bal-
lots in secret, and then directly deposit those ballots in
the ballot box. Board agents are present to supervise the
election process. Whenever there is an appearance of
irregularity in the handling of ballots in a manual ballot
election, the Board has not hesitated to find the conduct
objectionable. See, e.g., Paprikas Fono, 273 NLRB
1326, 1328 (1984) (“[I]f this Agency is to maintain the
public’s confidence in its election processes, it is impera-
tive that the Board act dutifully to set aside elections
whenever there is any appearance of irregularity in the
handling of ballots.”).
In Tidelands Marine Services, 116 NLRB 1222 (1956),
the Board set aside a manual election where one party’s
representative had extended access to an unsealed ballot
box even though a Board agent was present and there
was no evidence to indicate that anyone had tampered
with the ballot box. In that case, the Board found that the
party’s access to the ballots “constitute[d] such a serious
irregularity in the conduct of the election as to raise
doubts as to its integrity and secrecy.” Id. at 1224.
In mail-ballot elections, of course, a Board agent is not
present when the ballots are marked and returned by
mail. Thompson Roofing, Inc., 291 NLRB 743 fn. 1
(1988); Mission Industries, 283 NLRB 1027 (1987). For
this reason, mail ballots are accompanied by election kits
that clearly specify the precise procedure for casting and
returning the ballot. Where such procedures are not fol-
lowed, and the mail ballots come into the possession of a
party to the election, the secrecy of the ballot and the
integrity of the election process are called into question.
The Board identified these concerns in London’s Farm
Dairy, 323 NLRB 1057 (1997). In that case, the Board
rejected the argument that holding an election by mail
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934
ballot likely would undermine its secrecy. In so holding,
the Board noted that the instances of abuse in Board
mail-ballot elections were almost nonexistent, and that,
in the long history of mail-ballot elections under the
Railway Labor Act, the instances of alleged improprie-
ties, including “alleged ‘ballot collection’ and conse-
quent invasion of privacy,” were rare. Id. at 1058, citing
United Air Lines, 22 NMB No. 82 (1995).
We agree with the proposition that the secrecy of bal-
loting—be it manual or mail ballot—is a hallmark of our
election procedures. Where mail-ballot collection by a
party occurs, we find that it casts doubt on the integrity
of the election process and undermines election secrecy.
For this reason, we hold that where a party collects or
otherwise handles voters’ mail ballots, that conduct is
objectionable and may be a basis for setting aside the
election.6 We shall also revise the instructions in NLRB
Form-4175 to reflect this new standard.
In this case, one party to the election obtained exclu-
sive control of two voters’ mail ballots for an extended
period of time after they were cast. Such conduct casts
doubt on the validity of these two ballots. We therefore
find, in disagreement with the hearing officer, that the
Union engaged in objectionable conduct by collecting
the ballots of Deming and Gardyszewski.7
Contrary to our colleagues, however, we find that the
Union’s solicitation of voters’ ballots did not constitute
objectionable conduct. The solicitation in this case does
not implicate the same concerns that cause us to find the
ballot collection objectionable. Unlike the ballot collec-
tion, the solicitation of ballots did not create an opportu-
nity for ballot tampering or for a breach of secrecy. Ac-
cordingly, solicitation alone does not cast doubt on the
secrecy of the employees’ ballots or the integrity of the
election process.
Our colleagues, who would find the solicitation objec-
tionable, fail to identify any harm that the solicitation, by
itself, inflicts on the integrity of the election process.
They do not suggest that solicitation creates an opportu-
nity for tampering or for a breach of secrecy. Nor do our
colleagues suggest that ballot solicitation interferes in
any way with employee free choice. Nevertheless, they
criticize us for failing to condemn as objectionable

6 In Pacific Gas & Electric Co., 89 NLRB 938 (1950), the Board
overruled objections to an election in which union agents and employer
supervisors collected mail ballots from employees and forwarded them
to the Regional Office. We overrule Pacific Gas & Electric to the
extent it is inconsistent with our decision today.
7 We reject the Union’s argument that the Petitioner’s objection is
barred as an untimely postelection challenge filed in the guise of an
objection. The Petitioner does not challenge the eligibility of particular
voters, but rather argues that the Union’s conduct impugned the elec-
tion’s integrity.
“[a]ny effort” to collect ballots, even those that prove
unsuccessful, such as mere solicitation. Few elections
would withstand scrutiny if the Board were to set them
aside based on conduct that does not inflict actual harm
on the election process.
Our colleagues would find solicitation objectionable
because it forces an employee to either decline the solici-
tation and therefore be viewed a disfavoring the solicitor,
or comply with the solicitation and therefore worry about
the secrecy of his or her ballot. Only the second option
in this purported Hobson’s choice identifies a legitimate
threat to election integrity, and that threat is dissipated by
the rule against ballot collection. Obviously, if an em-
ployee complies with a solicitation, his ballot will have
been collected; and under the rule we announce today,
the Board will find the solicitor’s conduct objectionable.
The first option does not identify a harm cognizable un-
der the Act. Our colleagues are concerned that solicited
employees will fear being viewed as dissenters if they
decline the solicitation. Under well-established Board
law, however, union conduct that causes an employee to
signal his favor or disfavor of the union does not, without
more, constitute objectionable conduct. Specifically, a
union may ask employees whether they favor the union
so long as it does not coerce employees while conducting
its poll. Kusan Mfg. Co., 267 NLRB 740, 746 (1983),
enfd. 749 F.2d 362 (6th Cir. 1984); J.C. Penney Food
Dept., 195 NLRB 921, 922 fn. 4 (1972), enfd. 82 LRRM
(BNA) 2173 (7th Cir. 1972) (per curium). Surely, an
employee’s fear of being viewed as a dissenter is no
greater when he declines a union’s ballot solicitation than
when he responds negatively (or remains silent) during a
union-conducted poll.
Our colleagues find the polling analogy “inapt” be-
cause, in their view, solicitation, unlike polling, “inter-
feres with the Board’s role in conducting secret ballot
elections” and thus “impugns the secrecy and integrity of
the election process.” We disagree. Again, there is no
electoral interference, and no threat to ballot secrecy or
election integrity, unless ballots are actually collected.
Our colleagues also suggest that unless ballot solicitation
is held independently objectionable, “undetectable” bal-
lot collection will occur. We have reasonable confidence
that the diligence and acumen of the Board’s regional
investigators is more than adequate to obviate this specu-
lative concern.
Although we hold that a party’s noncoercive solicita-
tion of mail ballots does not constitute objectionable
conduct, we express our disapproval of this practice. We
are confident that our holding today, which prohibits
parties from collecting or handling mail ballots, removes
any incentive for parties to engage in ballot solicitation.

FESSLER & BOWMAN, INC. 935
Having determined that the Union engaged in objec-
tionable conduct by collecting Deming’s and
Gardyszewski’s ballots, we turn to an examination of
whether this misconduct warrants setting aside the elec-
tion. The relevant inquiry is whether the objectionable
conduct had a tendency to interfere with the employees’
freedom of choice and “could well have affected the out-
come of the election.” Cambridge Tool & Mfg. Co., 316
NLRB 716 (1995); see also Metaldyne Corp., 339 NLRB
352 (2003).
The objectionable conduct in this case involved only
two ballots. Solely for the purpose of determining
whether the Union’s objectionable conduct could have
affected the election result, we will assume that the two
collected ballots were changed from votes for the Peti-
tioner to votes for the Union.
Under this scenario, the Union would have received, in
the absence of the objectionable conduct, 17 votes in-
stead of 19 votes, and the Petitioner would have received
17 votes instead of 15 votes, resulting in a 17–17 tie.
Thus, based on the current, actual tally (19–15), the Un-
ion’s objectionable conduct “could well have affected”
the election result.
The challenged ballots may change this calculus.
Therefore, we must remand this case to the Regional
Director to resolve the challenges.8 If, on remand, the
Regional Director sustains both challenges, the election
must be set aside.9 If the Regional Director sustains only
one challenge, the election will be set aside if the eligible
ballot was cast for the Petitioner, but will stand if it was
cast for the Union.10 If the Regional Director sustains
neither challenge, the election will be set aside if at least
one of the two eligible ballots was cast for the Peti-
tioner.11

8 See, e.g., Buedel Food Products Co., 300 NLRB 638 (1990) (re-
manding case for resolution of challenged ballot to determine whether
objectionable conduct could have affected election result).
9 If the Regional Director sustains both challenges, the tally will re-
main 19–15. In this event, the Union’s objectionable conduct—with its
potential for a four-vote swing—could have affected the election result.
10 If the hearing officer sustains only one challenge, and the eligible
ballot was cast for the Petitioner, the Union will have a three-vote mar-
gin of victory (19–16). In that event, the objectionable conduct could
have affected the election result, and therefore we will set aside the
election. If the sole eligible challenged ballot was cast for the Union,
the Union will have a five-vote margin of victory (20–15). In that
event, the Union’s objectionable conduct could not have affected the
election result, and therefore the election will stand.
11 If the Regional Director sustains neither challenge, and the Peti-
tioner and the Union each receive one of the two eligible votes, the
Union will have a four-vote margin of victory (20–16). In that event,
the objectionable conduct could have affected the election result, and
we will therefore set aside the election. If both eligible challenged
ballots were cast for the Petitioner, the Union will have only a two-vote
margin of victory (19–17). In that event, the objectionable conduct
ORDER
IT IS ORDERED that Case 7–RC–22434 is remanded to
the Regional Director for Region 7 for resolution of the
challenged ballots. Thereafter the Regional Director
shall take further appropriate action consistent with this
Decision and Order.

CHAIRMAN BATTISTA and MEMBER SCHAUMBER, concur-
ring in part, dissenting in part.
We agree with our colleagues insofar as they establish
the principle that a party’s collection of mail ballots is
objectionable conduct. We disagree in two respects
however.
1. While our colleagues hold that a party engages in
objectionable conduct if it collects ballots, they find it
does not do so if it only solicits for the collection of those
ballots. We disagree. We would bar a party from solicit-
ing or collecting mail ballots.
In essence, our colleagues hold that a party engages in
objectionable conduct if it succeeds in its effort to collect
mail ballots, but does not engage in objectionable con-
duct if it fails in its efforts. In our view, the integrity of
the electoral process demands that the employee control
his ballot at all times. Any effort to interfere with that
process, whether successful or not, undermines the integ-
rity of the process, and is therefore objectionable.
Those considerations apply with particular force to a
mail-ballot election. Every effort is made to assure that a
mail-ballot election conforms as closely as possible to a
manual election. More particularly, that is why Form
NLRB-4175 tells the employee to “mail [his ballot] im-
mediately” after marking it.
All of these rules are designed to make it clear that the
Board controls the election process. There is to be no
party intrusion between the voter and the Board. Any
party who seeks to come between the voter and the
Board undermines that vital principle.
The most sacred hallmark of a Board election is that
employees are guaranteed the secrecy of their ballot.
Thus, employees are entitled to an absolute assurance
that their ballots will not be seen by any party. A party’s
solicitation of a marked ballot undermines that assurance.
The solicited employee has no way of knowing whether
the soliciting party will look at the ballot or not. Con-
cededly, the solicitee can just decline the solicitation.
However, where, as here, the solicitation is widespread,
there are peer pressures to go along with the request or be

likewise could have affected the election result, and we will therefore
set aside the election. If both eligible challenged ballots were cast for
the Union, the Union will have a six-vote margin of victory (21–15). In
that event, the Union’s objectionable conduct could not have affected
the election result, and therefore the election will stand.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
viewed as a dissenter. We would not force employees to
make that choice.
Our colleagues state their “disapproval” of solicitation.
However, they fail to condemn it as objectionable con-
duct. They say that the ban on collection will prevent the
solicitation. We disagree. Those employees who re-
spond negatively to the solicitation are the ones who are
most likely to complain about it. Under our colleagues’
view, that solicitation will be nonobjectionable. And,
those who respond favorably to the solicitation, i.e.,
those whose ballots are collected, may not want to com-
plain at all. It is reasonable to assume that an employee
favors the party to whom he has given his ballot and that
the employee may not want to invalidate that party’s
election victory by later admitting to a hearing officer
that his ballot was collected. Thus, under our colleagues’
view, a party can solicit, with assurance that an unsuc-
cessful solicitation will not be the basis for a valid objec-
tion and with reasonable confidence that a successful
solicitation will go undetected.
By contrast, our position ensures that there will be no
collection of ballots. Since collection follows a solicita-
tion, a ban on solicitation precludes collection. In sum,
inasmuch as a party’s solicitation to collect an em-
ployee’s ballot can intimidate employees and can result
in undetectable ballot collection, we would find ballot
solicitation to be objectionable.
Our colleagues draw an analogy between ballot solici-
tation and nonobjectionable union polling. We find this
analogy inapt. When union agents conduct polls, they do
not attempt to insert themselves into the Board’s election
machinery. Instead, union pollsters merely ask employ-
ees whether they support the union. In contrast, a party
who asks an employee to turn over his cast ballot inter-
feres with the Board’s role in conducting secret ballot
elections. We find that this attempt to interfere with the
Board’s role impugns the secrecy and integrity of the
election process and renders the solicitation objection-
able.
We think that the Board should do all in its power to
discourage solicitation and collection. Thus, we would
make each act objectionable.
2. Contrary to our colleagues’ decision to set aside the
election only if the collected ballots of employees Dem-
ing and Gardyszewski turn out to be determinative of the
election result, we would establish a bright-line rule that
elections should be set aside, upon the filing of timely
objections, whenever a party is shown to have collected
or solicited mail ballots. As discussed above, such col-
lection and solicitation constituted objectionable conduct
that undermines the integrity of the electoral process it-
self. Thus, in order to restore that integrity, we would
direct a new election, even if it cannot be shown that a
particular number of objectionable events were outcome
determinative.
However, in the absence of a Board majority to adopt
these two positions, we agree with our colleagues to re-
mand the case to the Regional Director to resolve the
challenged ballots and to take further appropriate action.