Fresenius USA Mfg., Inc.

National Labor Relations Board - Board Decisions

May 30, 2008

352 N.L.R.B. 679 (N.L.R.B. 2008)

FRESENIUS USA MFG.
352 NLRB No. 86
679
Fresenius USA Manufacturing, Inc. and International
Brotherhood of Teamsters Local 445, Petitioner.
Case 2–RC–23145
May 30, 2008
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The National Labor Relations Board has considered
objections to an election held on November 3, 2006, and
the attached administrative law judge’s decision recom-
mending disposition of them.1 The election was held
pursuant to a Stipulated Election Agreement. The tally
of ballots for unit A shows 9 votes for and 7 against the
Petitioner, with no challenged ballots. The tally of bal-
lots for unit B shows 9 votes for and 7 against the Peti-
tioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the judge’s findings2
and recommendations only to the extent consistent with
this Decision and Direction of Second Election.
We find that the judge erred in overruling the Em-
ployer’s Objections 1, 3, 4, and 5.3 These objections
allege, in pertinent part, that the Board agent in charge of
the election improperly denied the Employer an opportu-
nity to monitor the ballot count and, based on his confu-
sion in differentiating between ballot colors, may have
incorrectly distributed ballots to voters. For the reasons
explained below, we find that the cumulative effect of
the Board agent’s conduct warrants setting aside the elec-
tion.
I. FACTS
Two units of employees voted in this election: the
Employer’s drivers (unit A), and warehouse employees
(unit B). At the preelection conference, the Board agent

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The judge was sitting as a hearing officer in this representation
proceeding. The Employer has excepted to some of the hearing offi-
cer’s credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for reversing the find-
ings.
3 We adopt the judge’s recommendation to overrule the Employer’s
Objections 2 and 6.
explained that unit A would vote with green ballots and
unit B with yellow ballots. During this explanation, he
pulled a yellow ballot from his shirt pocket and stated
that it was green. After one of the representatives cor-
rected this mistake, the Board agent announced that he
was colorblind.
During the election, the Board agent kept blank ballots
rolled together in his left shirt pocket, with green ballots
encircling yellow ballots. Ballots were marked “UNIT
A-GREEN” or “UNIT B-YELLOW.” After the party
observers verified a voter’s eligibility and unit designa-
tion, the Board agent asked, “yellow or green?” The
observers responded by calling out the color ballot a
voter should receive. The Board agent then removed a
ballot from his shirt pocket and handed it to each voter.
He required that all voters mark ballots with a number
two pencil.
After the first hour of the 3-hour election, employer
observer Janet Buxbaum, unaware that the Board agent
was colorblind, asked why she and the union observer
needed to call out voters’ ballot colors. The Board agent
responded that he was colorblind and asked that the ob-
servers continue to call out ballot colors. Shortly after
this disclosure, he handed a driver a yellow ballot instead
of a green one.4 After Buxbaum corrected the mistake,
the Board agent handed the voter the appropriate green
ballot.5 He then stated that he needed the observers to
call out ballot colors to prevent errors in distribution.
After the polls closed, the Board agent counted the bal-
lots at a table in the polling area. The party observers sat
at an adjacent table, four feet from him. The Board agent
instructed the Employer’s representatives to stand 6 to 8
feet away from him during the count. He first counted
unit A ballots, calling out “yes” or “no” for each ballot.
He placed “yes” ballots face up, in one pile, and “no”
ballots face down, in a separate pile, but did not display
their markings to those present for the count. He then
counted the ballots in each pile and announced the results
of unit A. He repeated the same process for unit B.
After the Board agent completed both counts, em-
ployer representative Kevin King requested a recount of
unit B. During the recount, the Board agent did not re-
examine or display ballot markings. Instead, he re-
counted the “yes” and “no” piles by paging through the
ballots, with his hand placed over the markings on the
top ballot in each pile. During the counts and recount,

4 Although not stated by the judge, the record shows that the party
observers called out “green” before the Board agent incorrectly handed
the driver a yellow ballot.
5 The judge inadvertently found that both party observers corrected
the mistake. This inadvertent finding does not affect our decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD680
the Employer’s representatives and observer Buxbaum
could not see any ballot markings.
After the recount, King asked to examine all ballots.
The Board agent denied this request, but stated that King
could view the ballots at the Regional Office on Monday
morning (the election was held on a Friday). The Board
agent took the ballots home during the weekend and de-
posited them at the Regional Office the following Mon-
day. There is no evidence that the Board agent secured
the ballots in a way to assure against any tampering,
mishandling, or damage. The Employer did not examine
the ballots at the Regional Office.
II. JUDGE’S RECOMMENDED DECISION ON OBJECTIONS
The judge acknowledged that the Board agent’s han-
dling of the ballot count did not comport with Board
guidelines. He nevertheless found that these irregulari-
ties were not objectionable absent evidence that they
actually affected the election results. The judge empha-
sized that his close examination of ballots showed no
questionable markings and revealed that the number of
ballots cast for each unit matched the number of eligible
voters in each unit. He also noted that the Employer’s
representatives failed to contemporaneously object to the
Board agent’s instruction to stand back from the counting
table during the count or inform him at that time that
they could not see ballot markings. In addition, the judge
determined that any prejudice to the Employer was cured
by the offer to inspect ballots at the Regional Office the
next working day.
The judge rejected as speculative the possibility that
employees may have voted with incorrect ballots. He
found that the Board agent could have determined which
ballot to distribute by reading them, and that the party
observers likely would have noticed and corrected any
errors. Under these circumstances, the judge found that
the Board agent’s conduct did not warrant setting aside
the election.
III. ANALYSIS
When determining whether to set aside an election on
the basis of Board agent conduct, “the Board goes to
great lengths to ensure that the manner in which an elec-
tion was conducted raises no reasonable doubt as to the
fairness and validity of the election.” Jakel, Inc., 293
NLRB 615, 616 (1989) (citing Polymers, Inc., 174
NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969),
cert. denied 396 U.S. 1010 (1970)).6 There is not a “‘per
se rule that . . . elections must be set aside following any
procedural irregularity.’” St. Vincent Hospital, LLC, 344

6 Contrary to the judge, the Board does not require proof that irregu-
larities in the handling of ballots necessarily affected the election re-
sults before an election will be set aside.
NLRB 586, 587 (2005) (quoting Rochester Joint Board
v. NLRB, 896 F.2d 24, 27 (2d Cir. 1990)). Thus, the
Board “requires more than mere speculative harm to
overturn an election.” J. C. Brock Corp., 318 NLRB
403, 404 (1995) (citation omitted).7 The Board will set
aside an election, however, if the irregularity is sufficient
to raise “a reasonable doubt as to the fairness and validity
of the election.” Polymers, 174 NLRB at 282.
The Board’s “election procedures are designed to en-
sure both parties an opportunity to monitor the conduct
of the election, ballot count, and determinative challenge
procedure.” Paprikas Fono, 273 NLRB 1326, 1328
(1984). See also Madera Enterprises, 309 NLRB 774
(1992) (same).8 In this case, the Board agent did not
ensure that all parties had an opportunity to monitor the
ballot count. As noted above, the Board agent did not
display the ballots for inspection during the count.9 In-
deed, the Board agent denied the Employer’s specific
request to examine the ballots immediately after the
count. By these actions, the Board agent prevented the
Employer from verifying the accuracy of his count and
interpretation of voter intent.
Nor was this irregularity cured by the Board agent’s
offer to allow the Employer to inspect the ballots at the
Regional Office at a later date. As described, the Board
agent did not secure the ballots against tampering or
mishandling before taking them to his home over the
weekend. In light of this unsupervised access to ballots
that were marked—at the Board agent’s direction—with
an erasable pencil, we cannot say with confidence that
ballots remained in the identical condition as during the
count.10 Thus, subsequent examination of ballots by the

7 See, e.g., Enloe Medical Center, 345 NLRB 874, 891, 891 fn. 18
(2005) (Board agent’s harmless error in handling of color-coordinated
challenged ballots did not provide a basis for setting aside the election;
error could not have affected the election results where challenged
ballot procedure insured that all ballots were counted in the proper
unit).
8 The Board’s Casehandling Manual (while not binding authority)
states that ballots should be displayed during the count: “The Board
agent(s) . . . removes the ballots from the box, opens them one by one,
calling out and displaying the preference expressed and places them,
face up, in piles according to the preferences expressed.” NLRB Case-
handling Manual (Part Two) Representation Proceedings, Sec. 11340.5.
“[A] Board agent should [also] count aloud the different piles, display-
ing each ballot to the witnesses as it is counted.” Id. The Board’s
Casehandling Manual also states that parties can, with good cause,
challenge a Board agent’s interpretation of voter intent. Sec.
11340.7(a).
9 The Employer’s timely request to inspect ballots, although not a
formal objection, sufficiently brought to the Board agent’s attention the
Employer’s concerns about his handling of the ballot count.
10 We are not questioning the integrity or neutrality of the Board
agent in this case or suggesting that the ballots were tampered with.
FRESENIUS USA MFG., INC. 681
Employer—or by the judge—does not ameliorate this
election irregularity.11
The Board agent’s two mistakes in ballot identification
cast additional doubt on the fairness and validity of the
election. Although the judge found that the Board agent
could have independently ensured proper distribution by
reading the ballots, the Board agent incorrectly identified
a ballot during the preelection conference and during the
election. Even after the observers called out the correct
ballot color, the Board agent nevertheless failed to cor-
rectly identify the ballot on at least one occasion. That
error would have resulted in an employee voting with the
wrong ballot absent observer Buxbaum’s action to cor-
rect the mistake. These errors in ballot identification
further contribute to doubt as to the election’s fairness
and validity.
We find it unnecessary to pass on whether the irregu-
larities in this election, considered separately or in vari-
ous combinations, would warrant setting aside the elec-
tion. Rather, reviewing all the facts in this case, we find
that the cumulative effect of these irregularities, particu-
larly those during the ballot count, raises a reasonable
doubt as to the fairness and validity of the election. This
is especially so considering the closeness of the election,
where even one mistake in the distribution or counting of
the ballots could have altered the election outcome. Ac-
cordingly, we sustain the Employer’s Objections 1, 3, 4,
and 5, set aside the election, and direct a second election.
[Direction of Second Election omitted from publica-
tion.]
Susannah Z. Ringel, Esq., for the Regional Director.
Thomas G. Servodidio, Esq. and Brian Crowner, Esq., of Phila-
delphia, Pennsylvania, for the Employer.
Donald L. Sapir, Esq. and Cristina Fahrbach, Esq., of White
Plains, New York, for the Petitioner.
RECOMMENDED DECISION ON OBJECTIONS
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. On September 5,
2006,1 International Brotherhood of Teamsters Local 445 (the
Union or the Petitioner) filed a Petition seeking to represent
certain employees employed by Fresenius USA Manufacturing,
Inc. (the Employer or Fresenius) at its facility located in Ches-
ter, New York. The parties entered into a Stipulated Election

11 In Paprikas Fono, supra, the Board agent failed to place determi-
native challenged ballots in a sealed and signed envelope in the pres-
ence of the parties. Id. Instead, the agent placed the ballots in an enve-
lope the following day, outside the presence of the parties. Id. Subse-
quently, the Regional Office opened the envelope to inspect the condi-
tion of ballots, again, outside the presence of the parties. Id. In addi-
tion to depriving the parties of an opportunity to monitor the handling
of ballots, the Board found that this conduct “did not permit the parties
to assure themselves that the challenge envelopes were secure.” Id.
1 All dates hereafter are in 2006, unless otherwise noted.
Agreement, approved on October 6, providing for an election to
be conducted in two separate bargaining units, one consisting
of drivers and the other warehouse employees. The election
was conducted on November 3. The tally of ballots was identi-
cal for both units. In each unit there were 16 eligible voters, 9
votes for Petitioner, 7 votes against, and no challenges.
On November 13, the Employer filed timely objections to
the election. On December 18, the Regional Director issued her
report, recommending that all of the Employer’s objections be
overruled, and recommending that the Petitioner be certified.
On January 12, 2007, the Employer filed timely exceptions
to the Regional Director’s report and recommendations. On
February 28, 2007, the Board issued an Order, in which it
adopted the Regional Director’s findings and recommendations
to dismiss Objections 7 through 10 filed by the Employer, but
concluded that Objections 1–6 regarding the Board agent’s
conduct raised “substantial and material factual issues warrant-
ing a hearing.” On March 13, 2007, the Regional Director
issued a notice of hearing on objections, ordering a hearing
before an administrative law judge for the purposes of receiving
testimony with respect to the issues raised by Objections 1
through 6 in the Employers objections. The hearing was con-
ducted before me on April 10, 2007, in New York, New York.
Briefs have been filed by the Employer and the Petitioner and
have been carefully considered. Based upon the entire record,
including my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. THE OBJECTIONS
Objections 1 through 6, filed by the Employer, alleges as fol-
lows:
Fresenius USA Manufacturing, Inc. (Fresenius) hereby ob-
jects, for the reasons set forth below, to the conduct of the rep-
resentation election held on November 3, 2006, and to certain
conduct affecting the results of the election.
II. BACKGROUND
A representation election was held at Fresenius’s Chester,
New York facility on November 3, 2006, from 1 to 4 p.m.
Pursuant to a Stipulated Election Agreement, the election con-
sisted of two separate voting units: (unit A) all full-time and
regular part-time drivers employed by the Employer located at
68 Tetz Road, Chester, NY; and (unit B) all full-time and regu-
lar part-time warehouse workers, warehouse leads, administra-
tive assistants and transportation routers employed by the Em-
ployer located at 68 Tetz Road, Chester, NY. Both proposed
bargaining units voted at the same place during the same voting
period, casting their ballots in the same box. Employees in unit
A were supposed to have voted on green ballots and employees
in unit B were supposed to have voted on yellow ballots. The
Board agent in charge of the election was Howard Shapiro (the
Board agent).
III. OBJECTIONS TO THE CONDUCT OF THE ELECTION
1. Fresenius objects to the confusion and potential miscast
ballots caused by the Board agent’s inability to differentiate
between the colors of the ballots, and the failure of the Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD682
agent to use two separate ballot boxes for the two separate vot-
ing units. During the election polling time, the Board agent
stated to the party observers that he was colorblind, that he
could not differentiate between yellow and green—the colors of
the ballots for the two voting units, and that when he was diag-
nosed as colorblind around the age of 35 years old, he was un-
able to identify marks in colored boxes in a vision test. In addi-
tion, rather than adding a level of protection from miscast bal-
lots, the Board agent used only one ballot box to collect the
ballots from the separate voting units. During the election, the
Board agent erroneously provided an incorrect colored ballot to
one or more employees (i.e., he initially handed an employee a
yellow ballot, when the employee should have received a green
ballot and thereby required the assistance of the party observers
to distribute the ballots). The confusion caused by the Board
agent’s inability to differentiate colors may have undermined
an employee’s ability to vote in the correct bargaining unit, or
to exercise an uncoerced and reasoned choice in the election.
2. Fresenius objects to the reliance of the Board agent on the
party observers to conduct the election. The Board agent ceded
his authority to conduct the election to the party observers dur-
ing the election time period by, in part, requiring the party ob-
servers to determine which colored ballot each employee re-
ceived after they were identified as eligible voters. Further-
more, the Board agent required the party observers to assist or
help the voters obtain their ballots indirect contravention of the
Board’s instructions to the party observers which stated, in part,
“DO NOT give any help to any voter. Only a Board agent can
assist a voter.” Form NLRB-722. (Emphasis in original.) The
Board has long held that it must maintain and protect the integ-
rity and neutrality of its election procedures and the Board
agent failed to do so in this election. See, e.g., Alco Iron &
Metal Co., 269 NLRB 590, 591 (1984); Glacier Packing Co.,
210 NLRB 571 (1974).
3. Fresenius objects to the Board agent’s decision to prohibit
employees from using any writing instrument except for an
erasable pencil in marking their ballots. The use of an erasable
pencil permits the potential tampering with the markings on the
ballots both before and after the election.
4. Fresenius objects to the Board agent’s failure to permit
the parties to see or review the marked ballots at any time after
he removed them from the ballot box. The Board agent re-
quired the party observers and all other party officials to stand
or sit a substantial distance from him as he reviewed and
counted the ballots, such that Fresenius’s representatives were
unable to see clearly, if at all, the markings on all of the ballots.
In addition, the Board agent turned the ballots face down and/or
covered with his hand(s) the markings on any ballots that he
placed on the table face up. Pursuant to Section 11340.5 and/or
Section 11340.6 of the Casehandling Manual, the Board agent
was required to “call [] out and display [] the preference ex-
pressed and place [] them, face up, in piles according to the
preferences expressed.” The Board agent, however, did not
“display” or otherwise show Fresenius’s representatives the
markings on the ballots. In addition, pursuant to Section
11340.7(a) of the Casehandling Manual, the parties are entitled
to object to the Board agent’s interpretation of any marks made
on the ballots. Fresenius, however, was precluded from con-
sidering the Board agent’s interpretation of any marks on the
ballots because the Board agent did not show the ballots to any
Fresenius representatives.
5. Fresenius objects to the conduct of the election as set
forth above to the extent that the abnormalities and significant
deviations from Board-recommended procedures contained in
the Casehandling Manual cast doubt on the fairness and impar-
tiality of the process. Employees were required to write in eras-
able pencil, and the Board agent (who was the only person to
actually see and interpret the markings made on the ballots and
count the ballots) admitted to the party observers that he was
colorblind, could not differentiate between yellow and green
(the color of the ballots), and that he could not differentiate
letters or numbers placed in a colored box in a vision test due to
his colorblindness. “[T]he commission of an act by a Board
agent conducting an election which tends to destroy confidence
in the Board’s election process or which could reasonably be
interpreted as impugning the election standards we seek to
maintain, is a sufficient basis for setting aside that election.”
Alco Iron & Metal Co., 269 NLRB at 591.
6. Fresenius objects to the conduct of the election whereby
the Board agent interfered with, coerced, and restrained em-
ployees in the exercise of their Section 7 rights, and interfered
with their ability to exercise an uncoerced and reasoned choice
in the election.
WHEREFORE, Fresenius respectfully requests that the election
conducted on November 3, 2006, be set aside, and a new elec-
tion be scheduled by the Regional Director.
IV. FACTS
A. The Preelection Conference
The election was held on November 3, from 1 to 4 p.m. in
the back of the Employer’s warehouse. At 12:30 p.m., the
Board agent, Howard Shapiro, met with representatives of the
Employer and the Union. Present on behalf of the Employer
was Kevin King (senior director of distribution operations),
Mike Sereno (distribution center manager), Doug Maloney
(east region manager for distribution), and Grant Dopheide
(human resources director). Jerry Ebert (union organizer) was
present on behalf of the Union.
Shapiro indicated that the area selected by the Employer to
conduct the election was satisfactory, and he proceeded to set
up the ballot booth and the ballot box. Shapiro showed the
parties that the box was empty and taped and sealed the box.
He explained that there would be one ballot box for both units
and that the employees in unit A (drivers) would be given green
ballots and that employees in unit B (warehouse employees)
would be voting on yellow ballots. At about that time, Bob
Bonds, a driver, entered the warehouse from the side entrance,
and approached the conference, apparently thinking that the
election had started and he could vote. Kevin King stepped
away from the conference, and instructed Bonds that it was too
early to vote, and asked Bands to go to the breakroom, until the
election was ready to begin. King escorted Bonds out of the
warehouse area.
While King was dealing with Bonds, the conference contin-
ued. Shapiro after discussing the different color ballots that
would be used, pulled a yellow ballot out of his shirt pocket,
FRESENIUS USA MFG., INC. 683
and stated that it was green. One of the representatives cor-
rected Shapiro, and told him that the ballot was yellow. Shapiro
then informed everyone that he was colorblind. No one made
any response to Shapiro’s disclosure, nor made any objection to
Shapiro conducting the election, in view of his colorblindness.
At about 12:45 p.m., the two observers, Janet Buxbaum (the
Employer) and Kevin Farrell (the Petitioner) joined the confer-
ence. Shapiro distributed written instructions to the observers,
and discussed these instructions with them. He told them that
they were to verify the identity of the voters and check off
names on the Excelsior list.
The instructions to observers contain the following language:
PRINCIPAL FUNCTIONS:
• Monitor the election process
• Help identify voters
• Challenge voters and ballots
• Assist Board agent in the conduct of the election
Shapiro did not mention to the observers that he was color-
blind, nor did he tell them that he needed assistance from them
in determining the color of the ballots.
Although several representatives of the Employer testified
that they were shocked or surprised at the revelation that
Shapiro was colorblind, none of them informed the Employer’s
observer of this fact, nor instruct her to make sure that the em-
ployees received the correct color ballots. Additionally, there
was no discussion between the officials of the Employer, after
the disclosure of Shapiro’s colorblindness, until after the elec-
tion was over, and the ballots counted.
B. The Polling Period
On two occasions during the voting, employees were told by
Shapiro that they could not use a pen to mark their ballots, but
they must use a pencil, provided by the Board agent. During
the first hour of voting, an employee would come to vote, the
observers would ask the employee his name. After the observ-
ers would agree as to the identity of the person, Shapiro asked
“yellow or green,” and the observers would respond which
color ballot the employee should receive, depending on whether
they were in unit A (drivers) or unit B (warehouse employees).2
After being so informed, Shapiro would remove a ballot
from his shirt pocket, and hand the ballot to the voter.3 The
voter would then take his ballot to the booth, fill out the ballot,
and then place it into the ballot box, which was situated next to
Shapiro.
Buxbaum testified that she wasn’t paying close attention for
the first hour to the color of the ballot that Shapiro actually
gave to the voters, so she did not notice whether Shapiro read
or looked at the ballot before handing it to the voter. Buxbaum
also testified that at times during this period, she could see
some of the ballots being carried by the voter to and from the
booth, as well as at times see the a ballot before or while the
voter placed the ballot into the box. However, Buxbaum also
testified that at times she did not see some ballots, because it

2 The ballots themselves stated on the right side of each ballot “(Unit
B—Yellow)” and “(Unit A—Green).”
3 The ballots were in Shapiro’s shirt pocket, rolled together, with the
green ballots encircling the yellow ballots.
was dark, the voters folded the ballot so she could not see it, or
she was looking at the Excelsior list and not paying attention.
Thus, Buxbaum contends that Shapiro could have given the
incorrect color ballot to at least some voters, and she would not
have noticed the error. Buxbaum also testified that there were
“a lot” of people who came to vote at the beginning of the elec-
tion. She did not testify as to how many employees voted dur-
ing the first hour, but did indicate that several employees, i.e.,
more than four voted in the initial rush of voters, immediately
after the polls opened.
At about 2 p.m., Buxbaum asked Shapiro why the observers
had to continue to say green or yellow ballot. Shapiro re-
sponded that he was colorblind and that he has been since he
was 35 years old. Buxbaum asked, “You’re colorblind? How
could you, like, distinguish between green and yellow?”
Shapiro answered that he could see shades.4 At that point, Far-
rell and Shapiro had a discussion about colorblindness and the
ishihara colorblind test.5
After that discussion was completed, Shapiro asked the ob-
servers to continue to call out the colors. At that point, Bux-
baum began to more carefully watch the colors of the ballots
that Shapiro gave to the voters. Shortly thereafter, Shapiro
handed a yellow ballot to a driver who was supposed to receive
a green ballot. Both Buxbaum and Farrell corrected Shapiro
and told him that he had given a yellow ballot to a driver, in-
stead of a green ballot. Shapiro corrected the error, gave the
voter the appropriate green ballot, which the voter used.
Shapiro then stated to the observers, “This is the reason why I
need you to call out the colors. This way, I don’t make a mis-
take.”
After this incident, Buxbaum asserts that she began to watch
more carefully what color ballots were actually given to the
voter by Shapiro. She did not notice any other errors. Indeed,
except for the one mistake that was corrected, Buxbaum testi-
fied that she was unaware of any other mistakes by Shapiro,
and could not testify that any employee voted with an incorrect
color ballot.
C. The Count
After the poll was closed, Shapiro counted the ballots. Pre-
sent were King, Dopheide, Sereno, Frank Petliski (warehouse
supervisor), Tom Engel (transportation supervisor), Ebert,
Buxbaum, and Farrell. Shapiro sat at one of two circular tables
in the area. Buxbaum and Farrell sat at the other table approxi-
mately 4 feet away from Shapiro. The Board agent directed
Ebert and the Employer’s representatives to stand back from
the table, approximately 6 to 8 feet away from Shapiro.
Shapiro removed all the ballots from the box, and separated
the ballots into green and yellow. Shapiro had no difficulty in
determining which ballots were green and which were yellow,

4 In that connection, Union Representative Ebert testified that he was
“a little bit taken aback,” when he found out at the preelection confer-
ence that Shapiro was colorblind. However, he became reassured dur-
ing a conversation with his wife during lunch while the election was
going on. According to Ebert, his wife informed him, “There’s no
problem. Colorblind doesn’t mean you can’t see colors, it means you
just see shades of things.”
5 Farrell’s parents were doctors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD684
and was able to separate them without any assistance, and
without making any errors. He then first counted the green
ballots, by calling out “yes” or “no,” and placing the “yes”
ballots face up and the “no” ballots face down. Shapiro did not
hold up or display the ballots for anyone to see. He then re-
peated the same process for the yellow ballots. Shapiro then
counted the ballots in each pile and announced the count for
each unit. As noted, the counts were nine “YES” and seven
“NO” in each unit. None of the representatives present could
see the markings on the ballots during the count, and no one
asked to see them while Shapiro was separating and or count-
ing.
After Shapiro announced the results, King requested a re-
count in the warehouse unit. Shapiro complied with this re-
quest, by placing his hand over the markings on the top ballot
in each pile, and counting the piles by paging through the pile,
touching only the upper corner of each. During the recount,
Shapiro did not review the markings on any of the ballots to
make sure that only the correct ballots were in the correct piles.
After the recount was completed, King asked if the Em-
ployer could see the ballots. Shapiro replied that the ballots
could be seen at the Regional Office on Monday morning.6
Buxbaum asked Shapiro what he was going to do with the bal-
lots until Monday. Shapiro responded that he would be taking
them home with him. Buxbaum asked where he lived? Shapiro
replied, “New City, Spring Valley area.”
Shapiro did not allow the Employer’s representatives to view
the ballots as requested on November 3. The Employer did not
accept Shapiro’s offer to view the ballots at the NLRB office on
Monday morning.
The ballots have been introduced into evidence. I have care-
fully examined them, and conclude that the count was correct,
and that each ballot was clearly marked in the “yes” or “no”
box, with no identifying marks, or any other grounds for void-
ing any of the ballots. Further, the total number of ballots cast
in each unit, exactly matches the number of eligible voters on
the Excelsior list.
After the count, Buxbaum informed the Employer’s repre-
sentatives what had gone on during the election, particularly
Shapiro making a mistake in handling one ballot, and that the
observers were required to call out the colors. Buxbaum added
that she was confused about the process, since when the Board
agent counted the ballots, he never asked for help and was able
to determine the colors. Buxbaum was “taken back by it.” She
also felt confused by the fact that Shapiro did not show the
ballots to the Employer, so they could see the “Yes’” and
“No’s.”
My factual findings above are based on a compilation of the
credited portions of the testimony of Buxbaum, King, Do-
pheide, Sereno, Maloney, Petliski, Engel, and Ebert. While
much of the facts detailed are undisputed, there are several
significant areas of dispute. More specifically, Ebert testified
that at the preelection conference, when Shapiro disclosed that
he was colorblind, he also said that he had no problem distin-
guishing between yellow and green ballots. Ebert also con-
tends that Shapiro asked if anyone had a problem with him

6 The election took place on a Friday.
conducting the election because of his condition, and that King
replied, “As long as the count comes out right, no problem.”
Ebert adds that the other officials of the Employer nodded their
head in approval of King’s remark. Ebert also testified that at
the count, he was standing behind Farrell about 5 feet away
from the ballots, and he could see the markings on each ballot
clearly as Shapiro was announcing whether it was “Yes” or
“No.” Ebert adds that Kevin King was standing in a counter
position to Ebert, the same distance from the ballots. Ebert also
denied that King or anyone else from the Employer asked to see
the ballots, and did not recall the Board agent stating that he
would be taking the ballots home with him over the weekend. I
do not credit Ebert as to any of these areas, and credit the mu-
tually corroborative, consistent, and believable testimony of the
Employer’s witness, as detailed in the above statement of facts.
I did not find Ebert to be a particularly impressive witness. He
was often vague, at times flip, inconsistent with his affidavit,
and inconsistent between direct and cross-examination.
Most importantly, the Union failed to call Kevin Farrell, the
Union’s observer, who was present throughout the entire hear-
ing, and could have corroborated Ebert in these areas of dispute
between Ebert and the Employer’s witnesses.7
Since Farrell was the lead organizer and observer for the Un-
ion, there is a presumption that his testimony would be favor-
able to the Union. I find it appropriate to draw an adverse in-
ference from the Union’s failure to call Farrell as a witness, and
rely on same as additional support for my failure to credit Ebert
as detailed above. Teamsters Local 705 (K-Mart), 347 NLRB
439, 444 (2006) (“Adverse inference drawn when employee
who was predisposed towards the Union,” did not testify about
relevant incidents); Battle Creek Health System, 341 NLRB
882, 884 (2004) (Adverse Inference drawn against union, that
union supporter threatened and intimidated decertification sup-
porters when union failed to offer witness’s testimony). Dump
Drivers Local 420, 257 NLRB 1306, 1316 (1981) (Adverse
inference drawn against union for failure to call witness [busi-
ness agent] to corroborate testimony of union’s secre-
tary/treasurer); see also Avery Heights, 342 NLRB 1306, 1324
(2004) (vacated and remanded on other grounds). 448 F.3d 189
(2d Cir. 2006) (Adverse inference drawn against Employer for
failure to call witness who was present for most of hearing).
In this regard, the Petitioner in its brief, made several refer-
ences to the statement allegedly given by Farrell, and allegedly
(“attached as tab 3 to Appendix of Record Evidence in Support
of Local 445’s Objections, part of Board Hearing Exhibit 1”),
and relied on this alleged statement. Petitioner is incorrect, as
the document referred to is not included in Board Exhibit 1, and
Farrell’s statement is not in the record. Moreover, even if the
document had been in the record, I would not rely on Farrell’s
statement, inasmuch as he was available to testify, and should
have been called by the Union as witness, and be subject to
cross examination, if the Union wished to have Farrell’s ver-
sion of events be considered.

7 I note that Ebert testified, contrary to all of the Employer’s wit-
nesses, that when Shapiro disclosed that he was colorblind, King alleg-
edly stated that the Employer had no problem with Shapiro conducting
the election.
FRESENIUS USA MFG., INC. 685
Analysis
Although the Employer has filed six separate objections,
which were found by the Board to require a hearing, all the
objections overlap and all rely on Athbro Precision Engineer-
ing Corp., 166 NLRB 966 (1967), vacated IUE v. NLRB, 67
LRRM 2361 (D.D.C., 1968), acquiesced in, 171 NLRB 21,
(1968), enfd. 423 F.2d 573 (1st Cir. 1970), and its progeny.8
Therefore, I shall consider all the objections together. In
Athbro, the Board agent in charge of the election was seen
drinking beer with a union representative in a cafe by an em-
ployee who had already voted, in between polling periods. The
Board observed as follows:
The Employer does not claim any violation of the in-
tegrity of the ballot box, nor does it claim that the conduct
of the Board agent had any effect upon the four employees
who later voted. Rather, it objects that the behavior of the
Board agent gave an appearance of irregularity to the con-
duct of the election, thus departing from the standards of
integrity which the Board seeks to maintain.
The Regional Director, while observing that a Board
agent in charge of an election should not fraternize with a
representative of one of the parties in the interim between
two balloting periods, nevertheless did not recommend
setting aside the election. Although the Board agent’s con-
duct did not affect the votes of employees, we do not agree
that this is the only test to apply.
The Board in conducting representation elections must
maintain and protect the integrity and neutrality of its pro-
cedures. The commission of an act by a Board agent con-
ducting an election which tends to destroy confidence in
the Board’s election process, or which could reasonably be
interpreted as impugning the election standards we seek to
maintain, is a sufficient basis for setting aside that elec-
tion.
In the circumstances of this case we hereby sustain the
Employer’s objections. Accordingly, we shall set aside
the election and direct that a second election be held.
The Employer contends that the conduct of the Board agent
here, in various respects, falls within the proscriptions detailed
in Athbro, and requires that the election be set aside. My re-
view of Athbro, as well as subsequent Board and court prece-
dent interpreting and analyzing that case and its principles,
leads me to conclude that the Employer has not met its burden
of establishing that the election should be set aside.
I note initially that Athbro, as well as every other case cited
by the Employer,9 involve facts that attack the neutrality of the
Board or the Board agent. Thus cases where the Board has set
aside elections based on Board agent neutrality misconduct
under an Athbro analysis include: Renco, supra (Board inter-
preter asked voter, while explaining the election procedure,

8 Sonoma Health Care Center, 342 NLRB 933 (2004); Renco Elec-
tronics, 330 NLRB 368 (1999); Hudson Aviation Services, 288 NLRB
870, (1988); Alco Iron Metal, 269 NLRB 590 (1984); Glacier Packing
Co., 210 NLRB 571 (1974); Skyline v. NLRB, 613 F.2d 1328 (5th Cir.
1980).
9 See preceding footnote.
“Do you know where to put your “Yes” vote?”); Hudson Avia-
tion, supra (Board agent, in the presence of voters, had a loud
argument with employer’s supervisor, which “impermissibly
put into a question the Board’s neutrality in the election.”);
Alco Iron, supra (Board agent instructed union’s observer to
“translate the procedure of voting to employees.” Board finds
contrary to hearing officer, that the “atmosphere of impartiality
in which the election should have been held was not present.”);
Glacier Packing, supra (Board agent in the presence of voters,
ripped off cards pinned to lapels of Employer’s and observers,
which stated “vote neither,” tore badges into pieces, and stated
to observers, “Shame on you.” Board agent also yelled at su-
pervisor for distributing literature outside the building, and
said, “get out of here, stop this. You have no business and no
right to be here handing out anything.” Employees were pre-
sent, began clapping, made “cat calls,” and pointed fingers at
supervisor. Board finds that “Employees witnessing the two
incidents involved could reasonably have interpreted Board
agent’s remarks and actions as indicative that the Board was
opposed to the Employer’s position in the election.”).
See also several court cases, reversing Board decisions
which had concluded that Athbro neutrality principles had not
been violated. North of Market Senior Services, 163 LRRM
271 (D.C. Cir. 2000) (Board agent delegated to union officials
the task of going through the plant, and telling employees what
time they could vote. Union agents, wearing union insignia,
told employees that they had been sent by the NLRB to tell
employees when they could vote, and openly disagreed with
management’s view as to whether they had to vote on their
lunch hour. Court finds that Board erred in not granting hear-
ing to employer, concluding that Board agent gave impression
that the “Board had ceded significant authority to the Union
over the conduct of the election.”), NLRB v. State Plating &
Finishing, 738 F.2d 753, 742 (6th Cir. 1984), (court disagrees
with Board, and concludes that statement made by Board agent
to employees concerning raises that could or could not be
granted by employer, “destroyed the Board’s neutrality,” and
tainted the election); Provincial House, Inc. v. NLRB, 568 F.2d
8, 11 (6th Cir. 1978) (Ten days prior to election, while investi-
gating ULP charges, Board agent was introduced by union
official to employees at an organizing meeting at a hotel, as an
NLRB agent. Court finds that when NLRB representative al-
lowed himself to be introduced to the union organizational
meeting, the appearance of NLRB neutrality was compromised,
warranting setting aside the election.).
Athbro and its principles have been applied in numerous
Board and court cases where the standards of Board neutrality
were found not to have been violated, and the elections were
not overturned. Sonoma Health Care, supra, cited by the Em-
ployer (Board agent answered questions of union observer why
companies do not like unions, by stating “companies don’t like
unions because they cannot fire or hire anyone, and they cannot
take benefits from the staff.” Later observer said to Board agent
that employer hired a consultant and paid $60,000. Board
agent replied, “Whoa!, $60,000.” Board majority concludes
that the comments of the Board agent “while intemperate and
inappropriate,” “do not reflect such a level of bias or impropri-
ety that they tend to destroy confidence in Board’s election
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD686
process.”). Indeck Energy Services, 316 NLRB 300, 301
(1995) (Board finds fraternization between the Board agent and
petitioner’s observer, insufficient to reasonably cause a witness
to question the Board neutrality, thereby distinguishing Athbro
and Hudson); Rheem Mfg. Co., 309 NLRB 459, 462 (1992)
(Comments by Board agent to observers about his possible
need to file a petition on his own, and complaints about heat in
the plant, and his conduct in walking through the plant and
taking and laughing with union observer, found by Board, con-
trary to hearing officer, insufficient to impugn Board’s neutral-
ity or give appearance of fraternization); NLRB v. Duriron Co.,
978 F.2d 254, 258 (6th Cir. 1992) (Court assessed conversa-
tions between Board agent and voters wearing union insignia,
when agent inquired if voters were related to Gwen West, and
Board agent telling voter that he had taken affidavit from Gwen
West in another case. Court agrees with Board that conversa-
tions failed to compromise the integrity of the election, and
distinguishing Athbro, as to the level of fraternization.). San
Francisco Sausage Co., 291 NLRB 384 (1988) (Board agent
allowed petitioner in RD case to summon voters over the em-
ployer’s intercom system. Board finds delegation of a minor
task, did not impugn “atmosphere of impartiality,” as con-
tended by dissent); Rochester Joint Board Clothing & Textile
Workers v. NLRB, 896 F.2d 24 (2d Cir. 1990) (Premature dis-
closure of Decision and Direction of Election by Region on
phone to Union, while refusing to inform employer who also
inquired by phone. Court affirms Board’s conclusion that
Board’s neutrality was not sufficiently impugned by conduct to
warrant setting aside election. Athbro and Hudson distin-
guished.); S. Lichtenberg & Co., 296 NLRB 1302 (1989)
(Comments made by Board attorney 5 days before election
published in newspaper, commenting on unfair labor practice
complaint issued by Region. Board concludes that statements
“cannot be found to constitute objectionable conduct destruc-
tive of Board neutrality under the Athbro standard.”); Sioux
Products, Inc. v. NLRB, 703 F.2d 1010, 1014, 1015 (7th Cir.
1983) (Court finds various acts of Board agent not to have suf-
ficiently interfered with the impartiality of election. Acts in-
cluded Board agent at preelection conference telling company
observers to “shut up,” when observer attempted to help inter-
preter translate Board agents remarks into Spanish, prohibiting
company observer from any conversation with voters, and help-
ing union observer in making a challenge.); U.S. Ecology, Inc.
v. NLRB, 772 F.2d 1478 (9th Cir. 1985) (Allowing petitioner’s
observer to read poll opening announcement did not compro-
mise the Board’s appearance of neutrality.); NLRB v. Osborn
Transportation, 589 F.2d 1275, 1279 (1979) (Same Board
agent who conducted election, took affidavits from employees
at motel room while investigating Unfair Labor Practice
charges, 6 weeks before election. Court agrees with Board that
above conduct did not compromise the integrity and neutrality
of the Board’s procedures.); NLRB v. Fenway Cambridge Mo-
tor Hotel, 601 F.2d 33, 36–37 (1st Cir. 1979) (Neutrality of
Board’s procedures not compromised by Board agent’s conduct
when handing ballot to voter, of pointing to “Yes” box and
instructing voter to place mark there.); Wabash Transformer
Co., 509 F.2d 647, 648–649 (8th Cir. 1975) (Board agent in
announcing the opening of the polls, stated “the polls are open
and you may now go vote and elect a union representative.”
Court upholds Board’s conclusion that the above conduct did
not breach the neutrality of the election procedures and that the
integrity of the election was not so impaired as to warrant the
holding of a new election.); Shorewood Manor Nursing Home,
217 NLRB 1106, 1107–1108 (1975) (Board agent informed
observers that he felt that he had gotten his job at the NLRB,
because he had been a union steward at his previous job.
Found not to compromise Board’s Athbro standards.); Wald
Sound, Inc., 203 NLRB 366 fn. 1, 368 (1973) (Board agent,
after count, stated to new Board agents who accompanied her at
election, that they had gotten “a winner,” where union appeared
to have won. Board affirms hearing officer’s conclusion (con-
trary to dissent who would have set aside election based on
Athbro) that Board’s neutrality was not compromised by re-
mark, noting also that there is no way the remark could have
affected the election results since the count was completed.);
NLRB v. Dobbs House, Inc., 435 F.2d 704, 705–706 (5th Cir.
1970) (Board agent in response to questions from the em-
ployer’s observer, stated the union represented about 20 places
and was trying to get more (that he felt the union would win at
Dobbs House and that it would do the people a lot of good.
Court found Athbro distinguishable, and sustained the Board’s
view that the election was not tainted by the above conduct).).
As can be seen from my description of the above precedent
dealing with Athbro issues, the primary thrust of these cases
was an examination of whether the Board’s neutrality was com-
promised sufficient to destroy confidence in the Board’s elec-
tion process. Here, there is no contention by the Employer that
any of the various alleged transgressions of the Board agent had
any affect on the Board’s neutrality. Thus, neither Shapiro’s
colorblindness and its potential affect on the election, nor his
alleged problems in conducting the count, nor his decision to
require pencils to be used, impacted the neutrality of the Board,
since he treated both sides equally in these areas. Thus, the
primary rationale for Athbro is not present here.
In this regard, the Employer alleges as a separate objection,
that the Board agent ceded his authority to conduct the election
to the observers, by requesting that they assist him in determin-
ing which color ballots to be given to the voters. Alco Iron &
Metal, supra. I disagree. The crucial factor in Alco that war-
ranted a finding of objectionable conduct was the fact that the
Board agent ceded his authority to the union observer (empha-
sis supplied) to translate voting instructions. The Board em-
phasized the fact that the employer’s observer has complained
about the conduct, and the Board agent continued to have the
union observer repeat instructions in Spanish. The Board con-
cluded that “under these circumstances, we find the atmosphere
of impartiality in which the election should have been held was
not present. The delegation of an important part of the election
process to the Petitioner’s observer conveyed the impression
that the Petitioner, and not the Board, was responsible for run-
ning the election.” 269 NLRB at 591–592. Here, the Board
agent requested the assistance of both observers in helping him
insure the correct colored ballots, so there can be no finding, as
in Alco that the impartiality of the election was not present.
The Employer also argues that the Board agent’s conduct
violates the instructions given to observers which states, “Do
FRESENIUS USA MFG., INC. 687
Not . . . give any help to any voter.” I again, do not agree.
Indeed, the same list of instructions to observers, states as
among the principal functions of the observer as “help identify
voters,” and “assist Board agent in the conduct of election.” In
my view, the observers were in fact “assisting the Board agent
in the conduct of the election”, by helping him to insure the
voter receives the proper ballot, as well as helping to identify
voters. It is clear that the observers were using the color of the
ballot, as a shorthand way of determining the proper placement
of the voter into either unit A or unit B. I find nothing even
remotely objectionable for the observers to assist the Board
agent in these minor tasks, particularly as detailed above, both
observers participated in these functions. NLRB v. Michigan
Rubber Products, 738 F.2d 111, 114–115 (6th Cir. 1984) (Fol-
lowing morning polling session, Board agent allowed union
representative to carry metal voting booth to her car. Court
finds, in agreement with the Board, that while Board’s agent
conduct may have been imprudent, it did not give appearance
of fraternization, sufficient to warrant setting aside election.);
San Francisco Sausage Co., 291 NLRB 384 (1988) (Board
agent allowing petitioner’s observer to use the intercom system
to announce that employees could vote, was the delegation of a
minor task, insufficient to require a new election.); U.S. Ecol-
ogy v. NLRB, 772 F.2d 1428, 1482–1484 (9th Cir 1985) (Board
agent allowed union observers to read the poll opening an-
nouncement, over the objection of employer. Choice of union
observer was made after a coin toss. Board agent also allowed
the union observer to signal the first voter to come into vote.
Court concludes in agreement with Board, that these delega-
tions of minor tasks to union observer did not compromise the
Board’s appearance of neutrality.).
Based upon the above analysis and precedent, I recommend
that Objection 2, be dismissed.
While the remaining objections, as I have detailed above, do
not raise any issue of lack of neutrality, which substantially
detracts from the Employer’s reliance on Athbro and its prog-
eny,10 this finding does not fully dispose of the Employer’s
objections.
Thus, there is another line of cases, which analyzes Board
agent conduct, under a slightly modified version of the second
sentence of Athbro. These cases generally involve conduct
which deal with the sanctity of the ballots and or the ballot box,
and the appropriate standard is set forth in Polymers, Inc., 174
NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert.
denied 346 U.S. 1010 (1970). The question to be answered is
whether the conduct of the Board agent raises a reasonable
doubt as to the fairness and validity of the election. This stan-
dard appears to me to be a slight modification of the Athbro
standard of evaluating whether the conduct could reasonably be
interpreted as impugning the election standards the Board seeks
to maintain. In any event, subsequent precedent makes clear
that the Polymers standard should be applied to situations, as

10 As I observed infra, all of the cases cited by the Employer which
followed or analyzed Athbro itself, including Athbro itself, involved
conduct which compromised the Board’s neutrality. Renco, supra; Alco,
supra; Hudson, supra; Sonoma Health Case, supra; Glacier Packing,
supra.
here, where the Board agent’s conduct although not necessarily
violative of neutrality principles, could be construed as a suffi-
ciently serious departure from Board election standards, to
warrant setting aside the election.
In this regard, elections have been set aside, based on viola-
tions of the Polymers standards, in a number of cases. Board
agent failed to keep a list of challenged voters, placed all bal-
lots both challenged and unchallenged into an envelope, and
sealed the envelope. When the employer asked for a list of
challenged voters, Regional personnel broke the seal, and
opened the ballots, removed the challenged ballots envelopes,
and a prepared of challenged voters, and returned the chal-
lenged ballots to the envelope, which still contained the unchal-
lenged ballots. Board concludes that the Board agent’s conduct
in breaking the seal, and opening the envelope outside presence
of the parties, constituted conduct which reasonably would
destroy confidence in the election process. Madera Enter-
prises, 309 NLRB 774, 775 (1992). In Jakel Inc., 293 NLRB
615, 616 (1989), as a voter was putting her ballot into the box,
the union observer told the Board agent that it was to be a chal-
lenged ballot. Board agent opened ballot bag, removed a ballot,
showed it to voter and asked if it was her ballot. Voter identi-
fied ballot as hers. Board agent tore up ballot and placed pieces
into challenged envelope and marked it “spoiled.” Board agent
gave a new ballot to the voter, who voted and had the ballot
placed in challenge envelope. Board affirms Regional Director
who concluded that the conduct of Board agent raised a reason-
able doubt as to the fairness and validity of the election. Re-
gional Director concluded that it cannot be determined with
reasonable accuracy whose ballot was extracted from the bag.
Paprikas Fono, 273 NLRB 1326, 1328–1329 (1984), involved
a Board agent who failed to place challenged ballots in an enve-
lope sealed with tape. Regional personnel subsequently opened
the envelope to inspect the condition of the challenged ballots,
outside the presence of the parties. Board concludes that con-
duct denied parties the opportunity to monitor challenge and
assure themselves that challenges were secure. This conduct
created a “reasonable doubt” as to the fairness and validity of
the election. Finally elections were set aside in Kerona Plas-
tics, 196 NLRB 1120 (1972), where the polls were closed 20
minutes early, in the presence of employees waiting to vote,
and in Austill Waxed Paper, 169 NLRB 1169, 1110 (1968),
where the ballot box was left unattended, for from 2–5 minutes,
due to an altercation outside the polling place.
On the other hand there are numerous Board and court deci-
sions, applying the Polymers standard, and finding that the
conduct did not raise a reasonable doubt as to the fairness and
validity of the election. Enloe Medical Center, 345 NLRB 874,
891 (2005), enfd. 219 Fed. Appx. 6 (D.C. Cir. 2007) (Board
agent, in election involving multicolor ballots and several units,
gave all challenged voters white ballots, even though some of
them should have received green or pink ballots. However,
since the name and job of voter was on the envelope, when
challenges were resolved, the ballots were placed in the correct
unit. Thus, the ALJ found, supported by the Board and the
court, that the error of Board agent could have had no effect on
the results.); St. Vincent’s Hospital, LLC, 344 NLRB 586, 587
(2005) (Two voters were allowed to enter the voting booth at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD688
the same time.); Cedars-Sinai Medical Center, 342 NLRB 396,
608–609 (2004) (Blank ballots left unattended, and observers
did not initial seal in ballot box.); Robert Orr-Sysco Food Ser-
vices, 338 NLRB 614, 623 (2002) (Board agent failed to detail
reasons for the challenge, contrary to Casehandling Manual.); J.
C. Brock Co., 318 NLRB 403, 404 (1995) (Region’s error in
using separate language ballots, requiring Board agent to ask if
voter needed Vietnamese ballot.); T. K. Harvin & Sons, 316
NLRB 510, 537 (1995) (Two ballots taken from ballot box, one
inside the other.); Rheem Mfg., supra, 309 NLRB at 459–461)
(Board agent allowed three employees to vote while polls were
closed between sessions. Board agent put ballots in shirt
pocket, and told observers that he would deposit ballots in box
when polls reopened. When other Board agent returned, he put
ballots in briefcase, and when polls reopened, explained to
parties what had occurred. The employer challenged ballots,
which were never counted. Board, reversing hearing officer,
finds that although proper procedures were not followed, facts
did not cause reasonable doubt as to validity of election.);
Dunham’s Athleisure Corp., 315 NLRB 689 (1994) (Observers
could not see the ballot box for substantial periods of time dur-
ing election.); Allied Acoustics, 300 NLRB 1181 (1996) (Board
agent miscounted ballots. An hour after tally was served, em-
ployer notified Region that he believed 24 employees had
voted. [tally showed 23]. Board agent recounted the ballots in
private, and recount disclosed an additional vote for union, and
24 votes cast. He prepared a corrected tally of ballots.); New-
port News Ship Building, 239 NLRB 82, 90 (1978) (Ballot box
not sealed, union representative carried ballot box from one to
another polling place, and company representative was denied
permission to inspect ballot boxes.); Kirsch Drapery, 299
NLRB 363, 364 (1990) (Board agent opened polls a half hour
late, allowed parties to assemble voting equipment, placed chal-
lenged ballot in box, rather than instructing voter to place it in
box, and violated Casehandling guidelines in resolving chal-
lenge. Board reverses hearing officer, and finds separately or
collectively, their misconduct do not raise a reasonable doubt as
to fairness and validity of election.); Trico Products, 238
NLRB 380, 381 (1978) (Board agent left envelope with blank
ballots unattended for 5 minutes while erecting voting booth.
When Board agent retrieved ballots, she noticed a small tear in
envelope.); Niagara Wires, 237 NLRB 1347 (1978) (Portion of
initials of company representative was under the tape rather
than over it.); Keystone Metal Moulding, 236 NLRB 697 (1978)
(Board agent did not request that observers inspect the seal,
before opening the box, and observers could not see or confirm
that box had not been tampered with. Further, Board agent
failed to have observers sign certification of conduct at end of
first voting session.); Pride Made Products, 233 NLRB 182
(1970) (Voter left polling area with marked ballot, spoke to
some employees who had voted, and returned to voting area to
cast her vote. Board agent challenged her ballot.); Benavent &
Fourmier, 208 NLRB 636 (1974) (Board agent left voting area
for 2–5 minutes, and left ballots on table and box unsealed.);
People’s Drug Stores, 202 NLRB 1145 (1973) (In multistore
election, ballot boxes were left in trunk of escort vehicles
[driven by employees], and Board agent took the trunk key for
the day.); Polymers, supra (Ballot box was left unguarded in
locked car of Board agent between sessions. Box not sealed
properly, since easily removable masking tape was used.); Na-
bisco Inc. v. NLRB, 738 F.2d 955, 958 (1984) (Union observers
failed to give identification badges, as required in Casehandling
Manual.); Skyline Corp. v. NLRB, 613 F.2d 1328, 1332–1333
(5th Cir. 1980) (Envelopes containing ballots were not sealed
with tape, no label with name of person who sealed envelope,
and no memo in file stating where challenged ballots were
stored, all in violation of Casehandling Manual.); Bell Found-
ary Co. v. NLRB, 827 F.2d 1340,1346–1347 (9th Cir. 1987)
(Board agent left ballot box unattended for 5 minutes before
start of afternoon session.); NLRB v. Capitan Drilling Co., 408
F.2d 676, 677 (5th Cir. 1968) (One seam on ballot box was not
sealed with tape.).
It is therefore appropriate and necessary to evaluate the con-
duct of the Board agent here, under the analysis of Polymers,
and determine if it creates a “reasonable doubt as to the fairness
and the validity of the election.”11 Polymers, supra, 174 NLRB
at 282; Enloe Medical Center, supra, 345 NLRB at 891; Sawyer
Lumber Co., 326 NLRB 1331, 1332 (1998); Keystone Metal,
supra, 236 NLRB at 697; Rheem Mfg, supra, 309 NLRB at 460.
In Objection 1, the Employer asserts that the Board agent’s
colorblindness rendered him unable to differentiate between the
colors of the ballots for the two separate units, and the failure to
use a separate ballot box for each unit, caused confusion and
potential for miscast ballots.
Taking the Employer’s latter contention first, I find nothing
inappropriate or confusing in using a single ballot box for both
units. Indeed this is the normal procedure in Board elections,
and nothing in the Casehandling Manual indicates or requires
separate boxes. In my view, the use of different color ballots
and voting lists ensured that each ballot was recorded, and
counted accurately. Further, the Employer introduced no evi-
dence of confusion amongst eligible voters as a result of using
one, rather than two boxes. I therefore conclude that the use of
one ballot box did not create a reasonable doubt as to the fair-
ness and validity of the election. Polymers, supra.
The Employer’s contentions with respect to the Board
agent’s colorblindness is more troublesome. The Employer
argues that his admitted colorblindness caused him to confuse
the color of the ballots twice, once at the preelection confer-
ence, and once during the election. While conceding that nei-
ther of these errors caused a wrong ballot to be voted,12 the
Employer asserts that since the Employer’s observer could not
be certain that the correct color ballots were distributed to all
voters, since she was not paying close attention for the first
hour of the election, that “no one will ever know how many
other wrong colored ballots were distributed by the Board
agent, or how many voters cast ballots with the wrong colored

11 I note again my conclusion detailed above, that this standard
represents a clarification, and perhaps a slight modification of the lan-
guage in Athbro that the conduct can be objectionable, if it “could
reasonably be interpreted as impairing the election standards the Board
seeks to maintain.”
12 The first mistake occurred in the preelection conference, before
any ballots were distributed, and the second error was caught by the
observers, and the mistake rectified by giving the voter the appropriate
color ballot.
FRESENIUS USA MFG., INC. 689
ballots. It is for this reason that there cannot be confidence in
the results of this election.”
However, it is well settled that the Board will not set aside
elections based upon speculation that its election standards
have been impugned or violated. “It requires more than mere
speculation to overturn an election.” J. C. Brock, supra, 318
NLRB at 404, Sawyer Lumber, supra at 1332 (“Speculation
about the possibility of irregularity . . . does not raise a reason-
able doubt as to the fairness and validity of the election.); New-
port News, supra, 239 NLRB at 86 (“The speculation of the
Employer concerning the accuracy or legitimacy of the ballots
is no substitute for specific evidence relating to actual conduct
or events which raises material issues that the Board’s election
standard have been impugned.). Pride Motor Products, 233
NLRB 182 (1977) (The Board “does not set aside an election
based on mere speculation that election standards have been
impugned.”); Bell Foundry v. NLRB, supra, 827 F.2d at 1346
(“The mere possibility of irregularity of representation election
does not preclude certification.”), NLRB v. Capitan Drilling,
408 F.2d at 677 (Uncorroborated speculation that ballot box
could have been tampered with, insufficient to necessitate an
evidentiary hearing or the setting aside of the election.). Trico
Produces, supra, 238 NLRB at 381 (“It is not every conceiv-
able possibility of irregularity which requires setting an election
aside but only reasonable possibilities.”). Further, the Board in
Polymers, supra, supported by the court, enlarged upon the
definition of reasonable . The Board held:
We do not think, however that the word “possibility” could
ever be construed in this context to have the connotation of
‘conceivable’. The concept of reasonableness of the possibil-
ity must be imported into this text in order for it to have mean-
ing. [174 NLRB at 282 fn. 6.]
The circuit court specifically affirmed the Board’s analysis
in this regard. “A per se rule of possibility would impose an
overwhelming burden in a representation case. If speculation
on conceivable irregularities were unfettered, few election re-
sults would be certified, since ideal standards cannot always be
attained.” 414 F.2d at 1004.
Here, the Employer’s contentions with respect to the Board
agent’s conduct, comes down to no more than “speculation”
that it is possible that the Board agent my have given wrong
color ballots to one or more voter, during the first hour of vot-
ing, when Buxbaum asserts that she was not paying close atten-
tion, and could not be certain that all voters received a correct
ballot.
I do not find this speculative and uncorroborated testimony
to be sufficient to warrant the conclusion that reasonable doubt
as to the fairness or validity of the election has been demon-
strated.
The Employer relies on Buxbaum’s testimony, as well as the
fact that Shapiro made two mistakes with respect to the color of
the ballots. However, other evidence in the record tends to
show that notwithstanding the Board agent’s colorblindness, he
was able to determine the appropriate ballot. The ballots in
addition to being different colors, specifically stated “Unit A”
or “Unit B” on each ballot. There is no evidence in the record
that the Board agent had any difficulty in reading. Buxbaum in
her testimony conceded that she did not know if Shapiro read
the ballots before he handed them to the voter during the first
hour, because she was not paying close attention. Therefore, he
could have read the ballots and determined the appropriate
ballot to be distributed. I also found Buxbaum’s testimony
vague and unconvincing concerning the first hour of voting.
While she admits that at times during this period of time, she
did see the voter with the ballot and or place it into the box, she
insists that she could not be sure that she saw all of the voters’
ballots, since she was often focused on checking off names on
the Excelsior list. I find this testimony dubious, since it does
not take very long to check off a name on the list, leaving her
ample time to see what color ballot the voter had received,
before they placed it in the ballot box. Therefore, I find it
likely that Buxbaum was able to see most if not all of the bal-
lots, before they were deposited in the box. I further find it
highly likely, that even if Buxbaum did not see the ballots of
some voters, that the Union’s observer would have seen the
error and corrected it, as was done, when the Board agent made
a mistake with one ballot.
Furthermore, I note the undisputed evidence that Shapiro
was able to separate all the ballots, into green and yellow piles,
without any assistance or difficulty, while conducting the
count, thereby demonstrating that despite his disability, that he
was able to determine the difference between the ballots for
unit A and unit B.
Accordingly, based on the foregoing, I find the possibility
that the Board agent gave a wrong colored ballot to any other
voter to be extremely remote, and that the Employer has fallen
short of its burden of establishing reasonable doubt as to the
fairness and the validity of the election. Polymers, supra.
As further support for this conclusion, I also note that the
number of ballots cast (16 in each unit) equals the number of
eligible voters in each unit, which is at least an indication that
no errors were made in the distribution of ballots. T. K. Harvin,
316 NLRB 510, 537 (1995); Queen Kapiolani Hotel, 316
NLRB 655 (1994).13
Finally, I also rely on the fact that while the Employer be-
came aware of the Board agent’s colorblindness during the
preelection conference, it made no objection to Shapiro con-
ducting the election. While I do not find that the employer
waived any rights to object to the Board’s agent’s conducting
the election, I note that by failing to object, the Board agent
was given no opportunity to rectify the alleged deficiency of
the election. Polymers v. NLRB, supra, 414 F.2d at 1002;
Avante At Boca Raton, 323 NLRB 555, 558 (1997); Sioux
Products v. NLRB, supra, 703 F. 2d at 1015; Wabash v. NLRB,
supra, 504 F. 2d at 647. While the Board agent was by himself
at the time, it is conceivable, had the employer objected to
Shapiro conducting the election, that he might have been able
to call the Region, and arrange for someone else to be assigned

13 I recognize in this regard, that it is mathematically possible for the
Board agent to have distributed two incorrect ballots, one in each unit,
and there would still be a correct number of total ballots in each unit.
However, as explained above, I find it highly unlikely and in fact re-
mote, that he gave out any wrong color ballots, and the fact that it
would be necessary for him to have distributed precisely, two or four
ballots incorrectly, and in each unit, is a further remote possibility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD690
to at least assist in the election. I also note that although sev-
eral of the Employer’s representatives testified that they had
some concerns about Shapiro’s ability to conduct the election,
due to his colorblindness, they nonetheless failed to instruct the
Employer’s observer to make sure and look out for the possibil-
ity of wrong color ballots being distributed to voters by the
Board agent. Indeed, none of the Employer’s representatives
even notified its observer that the Board agent was colorblind,
even though he had disclosed this information during the
preelection conference.
Accordingly, based on the foregoing analysis and authorities,
I conclude that the colorblindness of the Board agent did not
raise a reasonable doubt as to the fairness and validity of the
election. Polymers, supra; Enloe Medical Center, supra;
(Board finds no reasonable doubt as to fairness and validity of
election, even where Board agent had admittedly given wrong
color ballots to challenged voters. The court affirmed this find-
ing, concluding that the employer failed to show “that the
Board agent’s alleged misconduct would create a reasonable
possibility of an incorrect outcome in the election, and the alle-
gations were not of the sort that would create presumption of
such taint.” 181 LRRM at 2698).
I shall therefore recommend that Objection 1 be dismissed.
Objection 3 alleges that the Board agent required voters to
use an erasable pencil, and on several occasions refused to al-
low voters to use a pen, and directed them to use a pencil, pro-
vided by the Board agent. The Employer argues that the “use
of an erasable pencil permits the possible tampering with the
markings on the ballots before and after the election, and the
requirement that all employees only use such eraseable pencil
opens a question in the fairness of the election process.” I note
initially that the record does not establish whether or not the
Board agent required the voters to use an “eraseable” pencil as
the Employer’s observer testified only that the Board agent
insisted that employees use a pencil, without specifying
whether or not it had an eraser on it. However, even assuming
that the finding can be made the pencils contained erasers, the
evidence falls far short of establishing that the Board agent’s
conduct in requiring the use of such pencils, created a reason-
able doubt as to the fairness and validity of the election. While
the Employer argues, as related above, that the use eraseable
pencils “permits the possible tampering with the ballots,” this
contention again represents speculation, which as I have de-
tailed above, is insufficient to set aside an election. Sawyer
Lumber, supra; J. C. Brock, supra; Bell Foundary, supra. No
evidence was presented that any voters were disenfranchised by
the use of pencils, nor any evidence that any ballots were
erased, tampered with or changed. Although two voters at-
tempted to vote by using a pen, and the Board agent required
that they use a pencil, the voters in fact voted with a pencil and
did not object to this requirement. In this circumstance, this
objection is clearly nonmeritorious and must be dismissed. I so
recommend. Elizabeth Town Gas Co. v. NLRB, 212 F.3d 257,
263 (4th Cir. 2000) (Board agent requiring that voters use a
pencil, not objectionable, even where one employee had ini-
tially objected to using a pencil because voter felt that someone
could change her vote.).
Objection 4 alleges that the Board agent required the observ-
ers and other officials of the Employer to stand back or sit a
substantial distance from him, as he reviewed and counted the
ballots. It cites Section’s 11340.5 and .6 of the Casehandling
Manual, which requires that the Board agent “display the bal-
lots and place them face up in piles according to the preferences
expressed.” The Employer argues that the Board agent failed to
comply with these requirements, since he did not “display” the
ballots when he was counting, and that he did not place all of
the ballots face up. (He placed the “yes” ballots face up and the
“no” ballots face down.)
As a result of the Board agent’s failure to comply with the
Manual, the Employer asserts that its representatives could not
see the markings on the ballots, and were deprived of the op-
portunity to make challenges to the Board agent’s interpretation
of the markings on the ballots. The Employer also asserts that
this error was compounded by the Board agent’s failure to ac-
cede to the Employer’s request to examine the ballots, after
they had been counted.
However, it is well established by both Board and court
precedent, that the provisions of the Casehandling Manual are
not binding procedure rules. These provisions are merely in-
tended to provide optional guidance in the handling of repre-
sentation cases. Robert Orr-Sysco Food Services, supra, 338
NLRB at 623. (Board agent failed to detail reasons for chal-
lenge); Topside Construction, 329 NLRB 886, 900 (1999)
(Voters permitted to vote prior to opening of polls, contrary to
Manual); Sawyer Lumber, supra, 326 NLRB at 1333 (Board
agent failed to tape ballot box closed, and dismantled voting
booth before agreed upon closing time); Avante At Boca Raton,
supra, 323 NLRB at 557–558 (Violation of Casehandling Man-
ual requirement that observers should remain at least 3 feet
away from ballot box); Queen Kapiolani Hotel, supra, 316
NLRB at 655 (failure to securely seal ballot box); Kelly &
Hueber, 308 NLRB 578, 579 (1992) (Allowing former supervi-
sor employee of employer to act as observer for petitioner.);
Correctional Health Solutions, 303 NLRB 835 (1991) (Allow-
ing petitioner to use former employee as observer in violation
of Manual.); Kirsch Drapery, supra, 299 NLRB at 364 (Board
agent deposited challenged ballot in box, rather than directing
voter to do so, and disposed of challenged ballot after the
count, and failed to either secure withdrawal of challenge or
memorialize the disposition of the challenge.); Schwartz Bros.,
194 NLRB 158 (1971) (Board agent made challenges on behalf
of union, who did not have observer present.); Polymers, supra,
174 NLRB at 282 (Failure to seal ballot box properly.); L. C.
Cassidy & Sons v. NLRB, 745 F.2d 1059, 1063 (7th Cir. 1984),
(Poll closed early and observers did not remove badge while
taking a break.); Elizabethtown Gas v. NLRB, supra, 212 F.3d
at 267–268 (Board agent did not seal ballot box when taking
breaks); Nabisco v. NLRB, supra, 738 F.2d at 958 (Union ob-
servers failed to wear identification badges, as required in
Manual.); Skyline v. NLRB, supra, 613 F.2d. 1322 (Envelopes
containing ballots were not sealed with tape, no label with
name of person who sealed envelope, and no memo in file,
stating where challenged ballots were stored, all in violation of
manual.); NLRB v. Fenway Cambridge, supra, 602 F.2d at 38
FRESENIUS USA MFG., INC. 691
(Board agent stood as she explained mechanics of voting, con-
trary to Board Manual and request of employer’s observer.).
This as can be seen from the above precedent, the fact that
the Board agent violated the Manual’s provisions is not deter-
minative. Rather, the issue is whether these violations, create a
reasonable doubt as to the validity and fairness of the election.
Here, I agree with the Employer that the Board agent did in
fact violate the Manual’s provisions by failing to display the
ballots and not placing them all face up. I further agree that he
compounded these errors, by refusing to permit the Employer
to inspect the ballots, although the Employer had so requested.
However, while I do not condone the Board agent’s conduct
here, I conclude that it did not raise a reasonable doubt as to the
fairness and validity of the election, and thus was not sufficient
to warrant setting aside the election. Rheem Mfg., supra at 962;
Polymers, supra.
Initially, I note that although the Employer’s witness could
not see the marking on the ballots while the Board agent was
counting, due in part as to the Board agent’s instructions as to
where to stand, they made no objection to these instructions,
nor did they inform the Board agent that they could not see the
markings. Sioux Products, supra, 703 F.2d at 1015 (Although
Board agent ordered both union and employer representatives
“back from the table” when counting ballots, employer repre-
sentatives did not complain at the time that they could not see
the ballots.); T. K. Harvin, supra, 316 NLRB at 537 (Em-
ployer’s observer did not object to the location of the ballot
box.); Wabash Transformer, supra, 509 F.2d at 647 (Employer
representative made no objection to announcement made by
Board agent over loud speaker, which allegedly compromised
Board neutrality.).
The Employer did in fact request to see the ballots, after the
count was completed, which request was denied by the Board
agent. However, the Board agent did inform the Employer that
the ballots would be available for viewing at the Board’s office
on Monday morning, which was the next working day. The
Employer chose not to take advantage of this opportunity to
view the ballots. Thus, any prejudice to the Employer by the
failure of the Board agent to allow inspection of the ballots on
the day of the election, was cured by giving the Employer the
chance to do so, on the next working day. Thus, had the Em-
ployer taken advantage of this offer, it would have been able to
see all the ballots, and to determine for itself whether there
were any questionable markings on any of them.
Most importantly of all, these ballots have been introduced
into the record herein. I have examined them closely, and I
conclude that none of them contain any identifying marks or
any other grounds for voiding any of the ballots. Indeed, the
Employer has not so claimed. Further the total number of bal-
lots case exactly matches the number of eligible voters in each
unit. T. K. Harvin, supra at 537; Queens Kapiolani Hotel, supra
at 655. Dunham’s Athleisure, supra, 315 NLRB at 689.
In these circumstances, I conclude not only that this conduct
of the Board agent does not raise a reasonable doubt as to the
validity and fairness of the election, but that it could not have
affected the results of the election. Enloe Medical Center, su-
pra, 345 NLRB at 891 fn. 18, affirmed by circuit court’s con-
clusion that employer “failed to provide evidence that would
create a reasonable possibility of an incorrect outcome in the
election, and the allegations were not of the sort that would
create a presumption of such taint.” 181 LRMM at 2698, see
also Allied Acoustics, supra, 300 NLRB at 1181 (Error in
counting by Board agent, plus recount made in private, insuffi-
cient to set aside election, since no evidence of tampering, loss
of ballots or any factual issue concerning the accuracy or integ-
rity of Board agent’s recount.); Dunham’s Athleisure, supra,
315 at 689 (Although observer unable to see ballot box at all
times during election, no evidence of tampering, loss of ballots
or that box was “stuffed” when observers could not see box.).
As Board stated therein, quoting Polymers v. NLRB, supra, 414
F.2d 49 “A per se rule of [Setting an election aside if there is a
possibility] [of irregularity] would impose an overwhelming
burden on a representation case. If speculation on conceivable
irregularities were unfettered, few elections results would be
certified, since ideal standards cannot always be attained.” See
also Wald Sound, supra (Alleged improper conduct of Board
agent could not have affected election results, since they oc-
curred after ballots were cast.).
Accordingly, based on the foregoing analysis and authorities,
I recommend that Objection 4 be dismissed.
In Objection 5, the Employer in effect repeats all of the pre-
vious allegations, and contends that “the abnormalities and
significant deviations from Board recommended procedures
contained in the Casehandling Manual cast doubt on the fair-
ness and impartiality of the process.” It argues further that
“individually, or in the aggregate, the abnormalities and signifi-
cant deviations in the conduct of the election could reasonably
lead employees to question the secrecy of the election, the im-
partially of the ballot process and or the accuracy of the elec-
tion results reported by the Board agent.” Renco, supra; Alco,
supra.
However, I have already considered the Employer’s asser-
tions in connection with my discussions above concerning its
other objections. I do not find that considering the Employer’s
objection in the aggregate, results in any change in my conclu-
sion, that none of the specific allegations of misconduct of the
Board agent, singly or collectively, created a reasonable doubt
as to the fairness and validity of the election. Polymer, supra;
Enloe Medical Center, supra; Kirsch Drapery, supra at 364
(Deviations from guidelines in Manual, “considered separately
or collectively, do not raise a reasonable doubt as to the fairness
and validity of the election.”)14
The Employer’s reliance on Renco, supra; Alco, supra, and
Athbro, supra, is misplaced. As I have detailed above, the basis
and rationale for these cases, as well as other cases cited by the
Employer, all involve conduct by Board representatives that
was found to compromise the Board’s neutrality in the election
process, and which suggested that “the Board favored the Peti-
tioner.” Renco, supra at 368. Here, as I have concluded, there
is not a scintilla of evidence of any conduct of the Board agent

14 The cumulative impact argument may not be used to turn a num-
ber of insubstantial objections to an election into a serious challenge.
NLRB v. Browning & Ferris Industries, 803 F.2d 345, 349 (7th Cir.
1986); Amalgamated Clothing Workers v. NLRB, 736 F.2d 1559, 1569
(D.C. Cir 1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD692
that can be said to have compromised the Board’s neutrality or
suggested that the Board favored the Petitioner. Thus, the Em-
ployer’s precedent is inapposite, and instead I have evaluated
the Board agent’s conduct under the Polymers standard, which
as I also have observed is similar to the second sentence of
Athbro. However, the cases following and interpreting Poly-
mers, do in assessing whether a reasonable doubt exists as to
the validity and fairness of the election consider the possible or
probable impact of the conduct on the election results. Indeed,
I note that even in Renco, supra, which analyzed the conduct of
the Board, under Athbro standards, concluded that since the
improper comments that were made by the Board representa-
tive was heard by voters waiting in line, “there was sufficient
evidence of dissemination, given the closeness of the election,
to establish that the conduct may have affected the outcome of
the election.” Id. at 368.
Here, as I have discussed above, I find that none of the
Board agent’s conduct, considered singly or collectively, raises
a reasonable doubt as to the fairness of the election. I found
that the possibility that the Board agent’s colorblindness af-
fected the election results to be remote. Polymers, supra; and
that the other conduct, i.e., use of one ballot box, pencils, and
the Board agent’s conduct in conducting the count, had no af-
fect on the election results. Enloe Medical Center, supra.
The Employer emphasizes in this regard, the closeness of the
election, noting that a change of one vote in either unit, could
have affected the results. Renco, supra. See also Jakel, supra,
293 NLRB at 616. However, while “elections decided by nar-
row margins are closely scrutinized, there is, however, simply
no presumption against the validity of a closely contested elec-
tion. cf. NLRB v. Browning Ferris-Indus. of Louisville, 803
F.2d 345, 349 (7th Cir. 1986) (While . . . the closeness of the
vote may be (a) relevant consideration [] in determining
whether free choice was interfered with . . . [this] fact is [not]
sufficient to raise a presumption that the complained of conduct
had an impact on the election results.). Elizabethtown Gas v.
NLRB, supra, 212 F.3d at 268–269. Therefore, the closeness of
the election is insufficient to meet the Employer’s burden of
establishing that the conduct of the Board agent raised a rea-
sonable doubt as to the validity and fairness of the election, or
otherwise impugned the Board’s election process.
I also note particularly the Board’s recent decision in Ensign
Sonoma, supra, reaffirming Athbro standards, but finding no
violation of same in that particular case. The Employer relies
heavily on the portion of the opinion that reaffirms Athbro, as
well as the dissenting opinion of Chairman Battista and his
reference to the Board’s election process as the “crown jewel”
of the Board’s endeavors. However, the Employer conven-
iently ignores other portions of the majority, as well as the con-
curring opinion therein, which clarify, if not modify the Athbro
analysis. Thus, in assessing whether the conduct of the Board
agent therein, destroyed confidence in Board’s election proce-
dures or truly impugned the election standards the Board seeks
to maintain, the Board considered the potential impact on the
election. It relied on facts that the statements were heard by
only two employees, and the election was won by a large mar-
gin, and concluded that its election standards were not im-
pugned and do not taint the perception of Board neutrality. The
Board also observed, “In so concluding, we are mindful of the
fact that the impact of Board agent misconduct on an election’s
outcome is not determinative under Athbro. Nevertheless,
preservation of the free choice of employees is a relevant and
compelling consideration, and we will not nullify that choice
under the circumstances presented in this case.” 342 NLRB at
934. Further as pointed out correctly in the concurring opinion
(342 NLRB at 435) “while actual impact on the election is not
the only consideration, it is not relegated to secondary status.
To the contrary, in Athbro itself the Board reveals the order of
analytical procedure. ‘Although the Board agent’s conduct did
not affect the votes of employees, we do not agree that this is
the only test to apply.’” 166 NLRB at 966.
Therefore, I reject the Employer’s contention that the Peti-
tioner’s argument that no evidence was shown that any ballots
were inaccurate is without merit. Sonoma Health makes clear,
that even in using an Athbro analysis, impact on the election is
a relevant consideration. Here, as I have described in detail
below, the Employer has failed to demonstrate the reasonable
possibility that any or all of the conduct of the Board agent had
any impact on the election results. In such circumstances, its
objections must be dismissed. Polymers, supra, Enloe Medical
Center, supra; Allied Acoustics, supra; Bell Foundary v. NLRB,
supra; People’s Drug Stores, supra; Kirsch Drapery, supra;
Trico Products, supra.15
As the Board’s concurring opinion in Sonoma Health, aptly
observed, “to set the election aside under these circumstances
would serve only to frustrate the free choice of the employees,
whose votes would be rendered a nullity even though the em-
ployees had nothing to do with the Board agent’s misconduct.”
I would also add that the Petitioner and its representatives en-
gaged in no misconduct here, unlike Athbro, supra, where the
union did participate in the misconduct of the Board agent, by

15 I have considered the cases that I cited above, such as Madera, su-
pra; Jakel, supra; Paprikas Fono, supra; Kerona Plastics, supra; and
Austill Waxed Paper, supra, where the Board set aside elections based
on Board agent misconduct. All of these cases involve situations where
the misconduct of the Board agent was far more serious and egregious
than that of the Board agent here, and where the Board concluded that
conduct created reasonable doubt concerning the fairness and validity
of election, principally in view of the significant uncertainty created as
to the sanctity of some of the ballots by the conduct of the Board agent.
Moreover, as I have detailed above, far more serious and egregious
misconduct by Board agents has been found by the Board and or the
courts not to have created a reasonable doubt as to the validity and
fairness of elections. See for example, Enloe Medical Center, supra
(Board agent gave wrong colored ballots to three voters); St. Vincent’s
Hospital, supra (Two voters allowed into voting booth at the same
time.); Cedars-Sinai, supra (Blank ballots left unattended, and observ-
ers did not initial seal in ballot box.); Rheem Mfg., supra (Allowing
voters to vote while polls not opened.); Allied Acoustics, supra (Board
agent miscounted ballots, and made recount in private.); Kirsch Drap-
ery, supra (Board agent opened polls late, placed challenged ballot in
box, rather than instructing voter to do so, and resolved challenge after
count, contrary to Manual.); Trico Products, supra (Board agent left
blank ballots unattended and tear noticed in envelope containing bal-
lots, when Board agent retrieved ballots.); Bell Foundry v. NLRB, supra
(Board agent left ballot box unattended for 5 minutes before start of
afternoon session.).
FRESENIUS USA MFG., INC. 693
drinking beer with the Board agent at a café after the first poll-
ing closed, but before the second polling had begun.
Accordingly, I also recommend that Objection 5 be dis-
missed.
The Employer’s final objection asserts that the Board agent
interfered with, coerced, and restrained employees in the exer-
cise of their Section 7 rights and interfered with their ability to
exercise an uncoerced and reasoned choice in the election. The
Employer relied on no additional facts with respect to this ob-
jection, relying on the various acts of alleged misconduct by the
Board agent, set forth in Objections 1 though 5, which I have
already discussed and dismissed.
I initially note that whether or not the Board agent’s conduct
warrants the election being set aside, it does not constitute co-
ercion or restraint of Section 7 rights of employees, since that
section of the Act covers only conduct by employers or unions,
but not Board agents.
To the extent that the Employer argues that the Board
agent’s conduct placed the fairness of the election in question, I
have rejected that contention, in the above analysis where I
recommended dismissal of Objections 1–5. Therefore, I rec-
ommend that Objection 6 be dismissed as well.
[Conclusion omitted from publication.]