Gary Associated Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1985

275 N.L.R.B. 1303 (N.L.R.B. 1985)

GORY ASSOCIATED INDUSTRIESDECISIONS OF NATIONAL LABOR RELATIONS BOARD 1303
Gory Associated Industries , Inc. and United Union
of Roofers, Water Proofers & Allied Workers,
AFL-CIO; Local Union No. 57, Petitioner.
Case 12-RC-6550
31 July 1985
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS.
HUNTER AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 21 November 1984 'and the Regional
Director's supplemental report recommending dis-
position of them. The election was conducted pur-
suant to a Stipulated Election Agreement. The
tally of ballots shows 73 for and 43 against the Pe-
titioner, with 3 challenged ballots; an `insufficient
number to affect the results.
The Board has reviewed the record in ' light of
the exceptions and briefs, has adopted the Regional
Director's findings and recommendations, and finds
that the election must be set aside and a new elec-
tion held.'
[Direction of Second Election omitted from pub-
lication.]
MEMBER DENNIS, dissenting.
Relying in part on cases in which I. dissented,'
the Regional Director overturned the Union's elec-
tion victory because a Haitian Creole , interpreter
arrived late for the election. Up to 15 of the 124
eligible voters may have been Haitian Creole
speakers. My colleagues adopt 'the Regional Direc-
tor's supplemental report (pertinent portions of
which are attached hereto as an appendix). -
What is missing, however,- is any showing that
the translator's lateness affected the conduct of the
i The Employer has filed a related request for review of the Regional
Director's rejection of an additional allegation of objectionable conduct
in the Employer's "amended objections " In light of our finding that the
election must be set aside based on a timely, filed objection, we find it
unnecessary to pass on the request for review
Contrary to our dissenting colleague,' we conclude that the circum-
stances of this election raise a substantial doubt as to whether the voters
were afforded an effective and informed expression of their preferences
Prior to the election, the parties agreed that this electorate required Hat-
tian Creole election materials and'a Haitian Creole interpreter The inter-
preter-arrived at the voting place approximately 'halfway through 'the
election period This evidence is sufficient as prima facie proof of an ob-
jectionable failure to assure the effective and informed expression by .all
employees of their voting desires The, Petitioner's exceptions 'do not
refer to any specific evidence rebutting this proof' Consequently, there
are no substantial and material factual issues warranting a hearing and the
election must be set aside Our dissenting colleague apparently agrees
with us about the existence of a prima facie case. or else she would advo-
cate overruling the Employer's objection without any hearing She
would hold a hearing, however, based on the unsupported speculation
that the translator's absence could be proved inconsequential
i Kraft, Inc, 273 NLRB 1484 (1985), Papnkas Fono, 273 NLRB 1326
(1984) '
election. The notice of election ' and the ballots
were translated- into Haitian Creole. There is no
evidence that any Haitian Creole speaker needed
and was deprived of a translator's- assistance in
voting. , ' -
In Alco Iron & Metal Co.;- • 269 NLRB 590, 592
(1984), upon which the Regional Director relied,
the Board agent turned over the- conduct of the
election to the Petitioner's Spanish-speaking ob-
server, thus creating'the impression that "the Peti-
tioner, and not the Board, was responsible for run-
ning the election." No similar misconduct -is alleged
here. Moreover, the Alco majority 'declined to
adopt the suggestion. in Member Hunter's concur-
rence that a translator be required as a matter of
course when the Regional Office is aware that a
substantial percentage of the electorate does not
speak English.
Accordingly, I. would grant the Petitioner's re-
quest for a hearing in order -to determine whether
the late arrival of the, Haitian Creole interpreter ac-
tually affected the conduct of the election.
APPENDIX
Objection 1.,
The original Objection 1 alleges that the Haitian
Creole interpreter who was scheduled to assist the Board
agent during the election failed to arrive on time at the
election held on November 21. The amended Objection
1. further alleges that the Board agent conducting the
election did not give instructions to or assist the Haitian
Creole-speaking employees who'voted.
The investigation krevealed that due to the number of
Spanish and French-surnamed 'employees in the 'unit,'
and as* agreed'-by the parties, the election materials-," i.e.,
the notice 'of' election and the `ballots, were printed in
three languages: English, Spanish' and Haitian' -Creole.
Additionally,•the election was conducted by'a bilingual8
Board agent, and the -Miami 'Resident Office contracted
with a translation service to provide -a Haitian Creole in-
terpretec.9 The November 21 election was held as sched-
uled from 6.00 a.m. to 9:00 a in. The Employer submitted
two sworn statements concerning this'-objection: 'The
plant manager contends that the Haitian Creole interpret-
er did-not arrive at the' E'mployer's facility until-7:45 a.m.
to 8:15 a.m.; an employee who' was one-'of -the Employ-
ei's observers at the election -contends` that the Haitian
Creole interpreter arrived, around 7:30 a.in'. or 8.00' a.m:
The' Board agent who. conducted the election states that
the Haitian' Creole interpretei• arrived at; the election at
7:35 a.m. The -Petitioner presented no , evidence to the
contrary. Thus, it- is : uncontroverted 'that' the Haitian
Creole interpreter was- not 'present 'at the election during
a substantial 'period "of time ' t
' The election eligibility list shows approximately two Spanish-sur-
named employees and 15 French-surnamed employees
8 English and Spanish languages
9 That translation service had been used in the past by the Miami Resi-
dent Office and the services it had provided had been satisfactory
275 NLRB No. 179
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, through its entire history, consistently-has
gone to great lengths - to assure that its role in the con-
duct of election is not subject to question : Board election
procedures are designed to 'ensure both ' parties an oppor-
tunity to monitor the - conduct of the election , ballot
count , and determinative challenge procedure . Paprikas
Fono, 273 NLRB No. 86 (1984), slip op . at 7 and cases
cited therein. -
There is well-established precedent that , the Board in
conducting elections must maintain and protect the integ-
rity and neutrality of its procedures . See e . g., Glacier
Packing Co., 210 NLRB 571 (1974); Kerona Plastics, 196
NLRB - 1120 (1972 ). * Election conditions * must approach,
as nearly as possible , ideal "laboratory" conditions so as
to facilitate expression of the uninhibited - desires of the
employees . General Shoe Corp., •77 NLRB 124, '127
(1948). Thus, the commission of an act by a agent of the
Board conducting an election -which tends to destroy
confidence in the Board 's election process, or which
could reasonably be interpreted as impugning the elec-
tion standards we seeks to maintain , is a sufficient basis
for setting aside the election . Glacier Packing, supra.
The conduct of elections with- due regard to the needs
of employee's who speak a language other than English
has been the subject of several Board decisions. In
Rattan Art Gallery, Ltd., _260 NLRB 255 (1982), an elec-
tion was set aside because the translation of the Board's
notice of election into another language was confusing
and incomplete . In Flo-tronic Metal Mfg., Inc., 251
NLRB 1546 ( 1980), an election was set aside on the
grounds - that the. Board 's notice',to employees - failed to
include a full statement of-rights of employees in both
English and Spanish , as agreed by the parties. And in
Fibre Leather Mfg. Corp., 267 NLRB 393 (1967), the
election was set aside' as a result of the failure of the
Board 's notice of election and ballots to be also in the
language of 15 to 20 of the 86 employees in the unit, and
because not all of the . Portuguese -speaking employees
were. advised of the purpose of additional bilingual ob-
servers. - =
More recently, t ° the Board set. aside an election be-
cause it found that the election therein was not conduct-
ed in accord with its 'principles . The Board found that
the Board agent , who spoke no Spanish,. merely instruct-
ed the union 's observer to "translate the procedure of
voting to these employees [ the non-English speaking
voters]." Further, the Board agent provided no addition-
alinstruction or guidance , and did not participate further
in the conduct of the election , except for handing ballots
to employees ,, until the employer's observer complained.
Even after- that. complaint , the Board agent merely in-
structed the union observer to repeat the instructions in
Spanish . Alco Iron, slip op . at 6. The Board held that
under those circumstances , the atmosphere of impartial-
ity in which the election should have been held was not
present . Further, . the Board expressed its concern that
elections be conducted in a manner which inspires confi-
dence in the impartiality of the Board and its agents,
Alco Iron, at fn. 2.
10 Alco Iron & Metal Co, 269 NLRB No 87 (1984)
Lastly, .in a decision issued subsequent to the Decem-
ber 18 Order directing Hearing, Kraft, Inc.-Retail Food
Group , 273 NLRB No . 184 (1985 ), the Board set aside an
election because the ballot was facially defective since
the four languages which appeared on the ballot were
laid out in a fashion which made for difficult reading for
all voters Significantly , the Board found irrelevant the
Acting Regional Director 's conclusion that the eligible
voters were presented with sufficient information prior
to the election to enable them to intelligently cast their
ballots.
Based on the foregoing , I find merit in the Employer's
contention that the election herein was not conducted
with due regard to the needs of Haitian Creole-speaking
employees for the following reasons. First, a person used
by a principal at the principal 's request to interpret on
behalf of the principal is an agent of the principal. See
Local 300, Cosmetic and Novelties Workers' Union (Cos-
metic Components Corp.), 257 NLRB 1335 ( 1981) Thus,
the interpreter obtained by the Miami Resident Office
through a translation service to provide assistance to the
Board -agent conducting the election in communicating
with Haitian Creole -speaking employees was an agent of
the Board . Therefore , the misconduct of the Haitian
Creole interpreter in failing to be present during 'a sub-
stantial part of the election is an act attributable to an
agent of the Board . Second , in the circumstances herein,
the undersigned is not satisfied that the conditions under
which the election was conducted were such as to assure
the effective and informed expression by all employees of
their true desires. Fibre Leather Mfg. Corp, supra. There-
fore , the undersigned finds that the failure to have a Hai-
tian Crole interpreter during a substantial portion of the
election , constitutes interference with the election which
requires that the election be set aside. Flo-Tronic Metal
Mfg., Inc., supra . Third , such conduct by the Haitian
Creole . interpreter is incompatible with the Board's re-
sponsibility for assuring properly conducted elections.
Alco Iron & Metal Co., supra . Fourth , the misconduct of
the Haitian Creole interpreter raises a reasonable doubt
as to the fairness and validity of the election . Papnkas
Fono, supra . '' Fifth , even if the Haitian Creole -speaking
employees were presented with sufficient information
prior to the election to enable them to intelligently cast
their ballots , that factor is irrelevant since the requisite
laboratory conditions for free expression of voter prefer-
ence were not present here. Kraft, Inc., supra , slip op at
3.
Accordingly , it is recommended that the portion of
Employer 's Objection 1 which alleges that the failure of
the Haitian Creole interpreter to be present during a sub-
stantial portion of the election be sustained.
Because I am recommending a second election , the un-
dersigned finds it unnecessary to pass on the Employer's
other objections.
11 It is indeed unfortunate that due to the misconduct of a person not
regularly employed by the Board, this election must be set aside Nothing
herein ii to be construed as being critical of the Board agent who con-
ducted the election , the staff of the Miami Resident Office who obtained
the services of a translation service which had previously been reliable,
or any officer or agent of the Petitioner