Harry Lunstead Designs

National Labor Relations Board - Board Decisions

Jun 13, 1984

270 N.L.R.B. 1163 (N.L.R.B. 1984)

HARRY LUNSTEAD DESIGNS
Harry Lunstead Designs, Inc. and Local Union No.
3-9 International Woodworkers of America,
AFL-CIO, Petitioner. Case 19-RC-10133
13 June 1984
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Pursuant to a Stipulated Election approved by
the Acting Regional Director for Region 19 13
March 1981, an election by secret ballot was con-
ducted 15 May 1981, under his direction and super-
vision, among the employees in the appropriate
unit. At the conclusion of the election an amended
corrected tally of ballots was served on the parties
which showed that there were approximately 62 el-
igible voters and 61 cast ballots, of which 31 were
cast for the Petitioner, 29 were cast against the Pe-
titioner, and I was challenged. One ballot was de-
clared void. The amended corrected tally of ballots
reflected that the challenged ballot was insufficient
to affect the results of the election. Thereafter, the
Employer filed timely objections to the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, the Acting
Regional Director caused an investigation to be
made of the issues raised by the objections. On 20
August 1981 the Acting Regional Director issued
and duly served on the parties his "Report and
Recommendation on Objections to Election and
Challenged Ballot," in which he recommended that
the Board overrule all of the Employer's objec-
tions, that it sustain the challenge to the ballot of
voter Steve McClain, and that the Petitioner be
certified as the statutory representative of the Em-
ployer's employees in the appropriate unit.
On 10 December 1982 the Board issued a Deci-
sion and Order, 265 NLRB 799 (1982), directing,
inter alia, a hearing for the purpose of receiving
evidence to resolve the issues raised by the Em-
ployer's Objection 10.1 That objection concerns
whether the Employer waived its challenge to the
ballot of Kathy Wedde, 2 based on alleged repre-
sentations by the Board agent conducting the elec-
tion that the Employer "need not 'challenge' and
could appeal the matter later."
Pursuant to an order directing hearing issued 20
December 1982, a hearing was conducted in Seat-
The Board also sustained Objection II, and the amended corrected
tally of ballots was thereby altered to reflect 30 votes cast against the
Petitioner, and 31 votes cast for the Petitioner.
2 Although our earlier decision referred to "Karen Wedde," the record
herein is clear that the correct name of the individual in question is
"Kathy Wedde."
270 NLRB No. 174
tle, Washington, 7 January 1983 before Hearing Of-
ficer Donald E. Chavez, duly designated for that
purpose, at which the Employer, the Petitioner,
and counsel for the Regional Office appeared and
participated. All parties were given a full opportu-
nity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence relating to the
issues involved.
On 24 January 1983 the hearing officer issued a
report and recommendations which recommended
that the Employer's Objection 10 be overruled and
that the Petitioner be certified as the exclusive col-
lective-bargaining representative of the Employer's
employees in the appropriate unit. Thereafter, the
Employer filed exceptions and a supporting brief,
and the Petitioner filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the record in light of
the exceptions and briefs and hereby adopts the
hearing officer's findings and recommendations
only to the extent consistent herewith.
As noted above, the hearing officer recommend-
ed that Objection 10 be overruled, and that the Pe-
titioner be certified as the representative of the
Employer's employees in the appropriate unit.
Contrary to the hearing officer, however, we find
merit to the Employer's exceptions. In reversing
certain findings of the hearing officer, we have
found it necessary not only to reverse some of his
legal conclusions, but also to reject certain of his
credibility findings. In the past the Board has been
very reluctant to overturn a hearing officer's credi-
bility findings, Coca-Cola Bottling Co. of Memphis,
132 NLRB 481, 483 (1961), citing Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). In this case, howev-
er, we conclude that with respect to certain mat-
ters a clear preponderance of all the relevant evi-
dence establishes that the hearing officer's credibil-
ity resolutions were incorrect and without proper
support in the record. Accordingly, we are com-
pelled to make our own findings of fact and appro-
priate conclusions based on substantial evidence in
the record.
The Employer's objection raises three issues:
whether the Board agent conducted the preelection
conference in such a fashion as to cause confusion
concerning the challenge procedure as it related to
Kathy Wedde; the effect on the conduct of the
election of the Board agent's telling the Employer's
observer that there could be only one list in the
polling area; and whether the Board agent had a
duty to challenge the ballot of Kathy Wedde.
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. THE ELIGIBILITY STATUS OF KATHY WEDDE
Prerequisite to our analysis is a determination as
to the eligibility status of Kathy Wedde. Thus, con-
trary to the Petitioner and the hearing officer, each
of whom took the position that Wedde's status as
an employee is irrelevant to the issues herein, we
note that a finding that Wedde was an eligible
voter would have obviated the need for disposition
of the allegations now before us. Kentfield Medical
Hospital, 219 NLRB 174, 175 (1975). Nonetheless,
and based on the record evidence, we conclude for
the reasons set out below that, on the date of the
election, Kathy Wedde was not employed by the
Employer and was thus ineligible to vote. The
record reflects in this regard that, in December
1980, Wedde was apparently injured while at work
and did not return to work. The Employer main-
tained Wedde's name on the payroll in the event
she might return, and then in March 1981 placed
her name on inactive status. Thereafter, having dis-
cussed the matter with some members of the pro-
duction department, and having ascertained that
there was little chance that Wedde would return,
Robert B. Riley, the Employer's comptroller, who
also heads the personnel program, submitted a final
termination slip and removed Wedde's records
from the "open" files. Riley testified that he fol-
lowed the Employer's standard practice utilized in
situations similar to Wedde's, and the Employer's
"payroll change" record dated 23 April 1981 re-
flects that Wedde was terminated due to extended
absence. 3 Based on all of the above, we find that
Kathy Wedde was not employed by the Employer
on the date of the election, and conclude that she
was not an eligible voter.
II. THE HEARING OFFICER'S FACTUAL FINDINGS
With respect to the issues raised by the Employ-
er's objection, the record reflects that a preelection
conference was held which was attended by the
following individuals: Board agent Melvin Kang;
Robert Riley, the Employer's comptroller; Alfred
Feichtinger, vice president of production and engi-
neering; Harry Lunstead, the Employer's president;
Roger Stockwell, production manager; Forest
Pool, the Petitioner's organizer; and Brian Fyfe
and Maureen Malthesen, the Petitioner's and the
Employer's observers, respectively. The hearing of-
ficer found that Board agent Kang opened the
preelection conference by describing how the elec-
tion would be conducted, and that he handed out
printed instructions to the observers. The hearing
3 In these circumstances, the fact that Wedde may not have been for-
mally notified of her termination is not determinative. Hercules Inc., 225
NLRB 241, 242 (1976).
officer additionally found that the observers were
advised that they had a right to challenge anyone
that came to vote at the time the person presented
himself to vote. At this point, the parties reviewed
the Excelsior list (Excelsior Underwear, 156 NLRB
1236 (1966)) to ascertain whether the changed em-
ployment status of certain individuals was reflected
therein, the parties deleting the names of those per-
sons whom they agreed had been terminated and
were no longer eligible to vote. The status of
Kathy Wedde was then discussed. The hearing of-
ficer found that all witnesses were in substantial
agreement with the above account of what oc-
curred, but that the witnesses differed as to their
respective descriptions of subsequent events.
With respect to the disputed facts, the hearing
officer credited the testimony of observer Fyfe and
Board agent Kang, and found the following com-
posite of their credited testimony to be reflective of
what actually occurred at the preelection confer-
ence:
When the parties arrived at K. Wedde's name
on the Excelsior List, there was an exchange
by Riley and Pool as to her eligibility. The
end result was that Riley agreed to let Wedde
vote if she appeared. There was no inquiry as
to appealing her vote at a later time. Unlike
the other names that were deleted by agree-
ment of the parties because of termination of
employment, Wedde's name was not deleted
by crossing out or initialing. The Board Agent
had asked Riley and Pool to go back to the
Excelsior List and initial each name that they
had agreed to delete from the list. Riley's
statements and actions left the Union repre-
sentatives and Board Agent to believe that the
Employer had agreed to leave Wedde on the
Excelsior List as an eligible voter. Both Riley
and Malthesen were well aware of and under-
stood the challenged ballot procedure at the
time of the pre-election conference and both
concede that the challenged ballot procedure
was the one and only method described by the
Board Agent through which a voter's vote
could be challenged. At the time of the elec-
tion Malthesen admitted being aware that
Wedde's name was not on the Employer's list
of eligible voters and that she had been told by
Riley to challenge anyone not on that list.
Based on the above-credited version of events,
the hearing officer found that the Employer ex-
pressly agreed to the eligibility of Wedde; that the
Board agent did not at any time indicate a proce-
dure for challenging voter eligibility other than the
challenge procedure; and that the failure timely to
1164
HARRY LUNSTEAD DESIGNS
challenge Wedde's ballot was the result of an un-
reasonable assumption on the part of the Employer,
and the negligence of the company observer who
failed to challenge a voter whom she knew was not
on the Employer's own eligibility list, and whom
she had been specifically instructed to challenge.
III. THE HEARING OFFICER'S CREDIBILITY
RESOLUTIONS AND OUR ANALYSIS THEREOF
In crediting Petitioner observer Fyfe and Board
agent Kang, the hearing officer stated that their re-
spective testimony "appeared frank and forthright,"
and that such testimony was "more accurate and
reliable" than the accounts given by Riley and
Malthesen. The hearing officer additionally noted
that, on the date of the hearing, Fyfe was still em-
ployed by the Employer. In this regard, the hear-
ing officer stated that:
The average employee is keenly aware of his
dependence on the employer's good will. With
this in mind, and having much to lose by
giving testimony adverse to the Employer,
Fyfe did so realizing his exposure to consider-
able peril of economic reprisal. It can be said
that such testimony being adverse to the Em-
ployer was in a sense contrary to his own in-
terest. For this reason, such evidence is not
likely to be false.
We do not agree. We note at the outset that the
hearing officer's credibility resolutions are based
almost completely on testimonial analysis, and his
brief statement concerning the "frank and forth-
right" testimony of Fyfe and Kang is the only indi-
cation of what might be characterized as a finding
with respect to demeanor. We note, in this regard,
that the hearing officer made no adverse demeanor
findings with respect to the Employer's witnesses.
As to the hearing officer's comments concerning
the perils attendant to an employee's giving testi-
mony adverse to his Employer's interests, we are
constrained to point out that there is absolutely no
evidence of employer animus herein, and that a
witness' status as an employee is only one factor
among many to be considered. See generally Hor-
nell Nursing & Health Related Facility, 221 NLRB
123, 123 (1975), which noted that neither Georgia
Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961), "nor
the application of sound reason leads to the conclu-
sion that an individual's employment status stand-
ing alone constitutes a valid basis for concluding
such individual's testimony to be inherently more
credible . . . [although] it is a permissible factor to
be considered." Accordingly, we conclude that
Fyfe's status as an employee does not, in and of
itself, render his testimony inherently reliable.
In support of his adverse credibility determina-
tion with respect to Riley and Malthesen, the hear-
ing officer stated that Riley and Malthesen contra-
dicted each other's testimony in certain respects.
Thus, the hearing officer asserted that Malthesen
testified that Riley, in response to Kang's alleged
representations, stated, "[Wedde] can vote with the
stipulation something could be done." The hearing
officer further asserted that Riley testified that he
simply stated that Wedde could vote, and that
"[w]hatever his belief or understanding, Riley
made no statement about a stipulation. This appears
to be a case of Malthesen's embellishing her testi-
mony so as to put the Employer's case in a more
favorable light."
We disagree. While the record initially reflects
that Malthesen does testify using the word "stipula-
tion," a further reading of the record makes it
readily apparent that Malthesen, while testifying,
did not understand the distinction between those
words which were actually spoken, as opposed to
the unspoken understanding of the participants; and
that, when such distinction was pointed out, Malth-
esen amended her testimony and stated, "I know
that it was all of our understanding. I don't recall if
. . .[stipulation] was exactly said." Thus, contrary
to the hearing officer, Malthesen did not contradict
Riley in this regard, nor did she intentionally em-
bellish her testimony.
The hearing officer additionally stated, "Malthe-
sen further testified that employee Brian Fyfe
stated during the pre-election conference that
Wedde shouldn't be able to vote because it was his
understanding also that she had been terminated.
No other witness corroborates this testimony, in-
cluding Riley." We disagree, for it is clear that the
hearing officer's analysis is based on an incomplete
reading of the record. Thus, the record reflects
that Malthesen testified as follows:
It seemed to me at the time that Brian Fyfe
even said he was rather surprised, that she
shouldn't be able to vote because it was his un-
derstanding also that she had been terminated,
or that she hadn't been there to work for a long
time. [Emphasis added.]
Riley testified that "Brian Fyfe even indicated that
he knew she hadn't been working there for awhile
.... " Contrary to the hearing officer, and based
on the above-cited testimony, including the under-
lined phrase omitted by the hearing officer, we
conclude that Malthesen and Riley do corroborate
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each other, and that only Brian Fyfe's version is in-
consistent. 4
Finally, the hearing officer stated that Riley tes-
tified that Feichtinger made the crucial inquiry of
the Board agent as to whether something could be
done to contest the vote of Wedde at a later time.
Fyfe, Kang, and Pool,6 on the other hand, all testi-
fied that Feichtinger did not make any such state-
ment and that Riley was the only employer repre-
sentative who spoke at the preelection conference.
The hearing officer concluded, "As I have credited
the versions of Fyfe and the Board Agent, I do not
credit Riley in this respect. Further, the Employer
had the ability, but failed to call two Employer
witnesses to this disputed conversation. One of the
two witnesses is Feichtinger, who allegedly made
this inquiry upon which the Employer claims to
have relied."
The hearing officer does not appear to have dis-
closed the basis for his credibility resolutions con-
cerning the Feichtinger inquiry, except to note that
the Employer did not call Feichtinger as a witness.
Contrary to the hearing officer, we cannot find the
testimony of Fyfe and Kang to be believable or
plausible.
The record reflects that on direct examination
Fyfe testified as follows:
Q. Would you go through what occurred at
that pre-election conference?
A. We were all present. [Kang] started off
with a brief description on how the election is
ran and what would be done. He brought out
the excelsior list and we went through it and
we started going name by name, and we got
down to Kathy Weede's [sic] name and Bob
Riley said she was no longer employed with
the company. Forest Pool asked if she had
been terminated or laid off. Riley really gave
no answer.
He-Forest Pool asked if she had been noti-
fied of any termination and people for the
company all looked at each other and sort of
just shrugged their shoulders and did not
answer the question and said that if she comes
in to vote, they will go ahead and let her vote.
Q. Who said that, if she comes in to vote-
A. That was Bob Riley.
On cross-examination, the following exchange took
place:
4 Fyfe testified, "I believe my only statement then was that I thought
she was out on workmen's compensation because she had been injured at
work." We note that Fyfe qualified his testimony in this regard, using the
phrase, "I believe."
I We note that the hearing officer neither credited nor discredited
Pool.
Q. So what you're saying is that when the
question came up, Mr. Riley sort of just
looked around the room and nothing further
was said and-
A. He was asked if she had been notified of
her termination.
Q. Then he just looked around the room
and didn't say anthing?
A. He did not look around the room. Him,
Alfred [Feichtinger] and Harry [Lunstead] and
Stockwell all sort of looked at each other, and
they did not give an answer one way or the
other.
Q. Did Mr. Feichtinger say anything to any-
body in the room?
A. No.
Q. They were all quiet and didn't say a
word?
A. They were awed by her being on the ex-
celsior list.
Pool also testified concerning this incident:
Q. Now, when you got to K. Weede's [sic]
name on the list, would you tell us the conver-
sation that occurred?
A. Yes. Bob Riley stated that he didn't think
she would be able to vote, that she had been
terminated, and I asked Bob, I said was she
notified of termination. He said-he at first
didn't answer.
Q. What did he do?
A. He looked around the room, and then
after that agreed that she was eligible to vote.
Board agent Kang was also examined on this
point:
A. So every time Mr. Riley would pass a
name over off the excelsior list, we would stop
and there would be a discussion as to whether
or not that name would be deleted or not. I
believe in almost every instance it was because
the person was no longer employed, and that
continued with the Union and the Employer
agreeing to delete names until we got to an
employee by the name of Weede [sic]. At that
point there was a discussion as to whether or
not-we got to that name and Mr. Riley said
he wanted to delete her, the reason being she
was no longer employed. And Mr. Pool said
that he thought she was on a state industrial
leave. Then there was an exchange between
Mr. Riley and Mr. Pool. I remember-
Q. Excuse me. Did you take part in that ex-
change?
A. No, I did not.
1166
HARRY LUNSTEAD DESIGNS
Q. All right. What happened next?
A. At one point Mr. Riley said she was in
the hospital and he didn't think she would
vote anyway. So they agreed to leave her on
the list.
Q. All right. If you recall, what specific
words did Mr. Riley use and what specific
words did Mr. Pool use to show their agree-
ment?
A. I don't remember the exact words they
used. I know there was some signal that we
should go on and she would stay on the list. I
know that we had to finish the list after that.
After we'd gone through each name on the
list, Mr. Riley and Mr. Pool . . . initialed each
of the names that were scratched out . . . and
. . .also initialed the bottom of each page of
the list.
Q. At any time during the pre-election con-
ference, did you engage in a conversation with
Alfred Feichtinger, do you recall?
A. No, I don't.
[Q.] Is it that you don't recall or are you
saying there was no conversation?
A. I don't believe I had any conversation
with that gentleman.
Q.... during your earlier testimony you
testified that in addition to Mr. Riley there
were two other males present for the compa-
ny. You did not at that time know their names.
Did you engage in a conversation at any time
during the pre-election conference with either
of those two men?
A. No.
On cross-examination, Kang testified as follows:
Q. Did anybody else say anything for the
Company besides Mr. Riley in that meeting?
A. I don't recall anybody else speaking for
the company.
Q. Everyone else sat there and didn't say a
word?
A. There may have been conversations be-
tween themselves, but I don't recall any con-
versations.
Q. Do you recall this individual named Mr.
Feichtinger?
A. I recall that there was two other
people-two other males besides Mr. Riley. I
don't think I can identify him.
Q. Did you speak at that time with any of
those other males beside Mr. Riley?
A. No.
Q. None-no conversation whatsoever?
A. No.
As is obvious from a review of Kang's testimo-
ny, he was far from unequivocal in his recollection
of what occurred at the preelection conference.
Thus, Kang, for the most part, could not recall
whether any conversation involving Feichtinger
occurred, and he was notably vague concerning
how it came about that Riley agreed that Wedde
should be allowed to vote. 6 By contrast, the testi-
mony of both Fyfe and Pool is fairly detailed-
until the crucial moment at the preelection confer-
ence when their respective descriptions of who
said what to whom become, like the Kang testimo-
ny, disconcertingly blurred. Thus, the Fyfe-Pool-
Kang versions have Riley-for no apparent reason,
and based on some form of nonverbal inter-
change-suddenly reversing his position and agree-
ing that Wedde can vote. This, in spite of the fact
that Riley had specifically and consistently argued
that Wedde was no longer employed. Simply put,
this version makes no logical sense, and we do not
rely on it.
IV. THE CREDITED VERSION OF EVENTS AND
FURTHER FACTUAL FINDINGS
Contrary to the hearing officer, we credit the
Employer's witnesses based on the complete and
detailed nature of their testimony, as well as the in-
herent probabilities of the events. Thus, Riley testi-
fied:
And then the one that we got caught up at
the end when the name-on the list it said K.
Weede [sic], but when Kathy Weede's [sic]
name came up, I said she had been terminated
in April and should not be on the list. Mr.
Pool said no, he was showing that she should
be voting. And at that point in time we went
back and forth a few times. Brian Fyfe even
indicated that he knew she hadn't been work-
ing there for awhile, and then it kind of
bogged down a bit. And at that point in time I
asked Mr. Kang, I said. do we have to settle
this before we go on, and he said yes, we need
to come up with a decision on this person
before we go on with the list.
At that point, Alfred Feichtinger . . . said if
we agree, can we move along and contest this
at a later date. And at that point Mr. Kang
said yes. With that understanding I then signed
next to her name, and believing that we would
at the later date be able to do something be-
e Indeed, based on a review of the evidence given by Kang, we find
his testimony to be inherently unreliable. Thus, Kang's testimony was for
the most part, vague and was filled with responses that plainly reflect his
inability to recall what occurred.
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sides challenge. I was well aware of the chal-
lenge process.
Malthesen also testified concerning this incident:
Q. How was [Wedde's] eligibility resolved?
A. In the discussion, Bob Riley didn't think
she should be able to vote and Mr. Pool
thought that she should. Then Mr. Alfred
Feichtinger asked if we could appeal her vote
later, and Mr. Kang said yes, that would be
what we could do, something that could be
done later.
The record further reflects7 that, after the pree-
lection conference, Kang and the observers went to
the polling area. Malthesen, the Employer's observ-
er, had brought with her a copy of the company
eligibility list, essentially a current payroll list, and
she had been instructed by Riley to challenge
anyone whose name was not on that list. Prior to
the start of the election, however, Kang confiscat-
ed Malthesen's list, and told her that there could be
only one list in the room. During the election,
Kathy Wedde presented herself at the polls, and
voted without being challenged.
After the polls had opened, and Riley had re-
turned to his office, he reviewed the election rules.
Riley testified:
I began to have second thoughts about what
Mr. Kang had indicated and that we could
contest the Kathy Weede [sic] vote later. And
just to make sure, I then called our attorney
. . .to see if, indeed, we could contest at a
later date and if, indeed, we had to do that or
challenge.
Q. What were you told?
A. You told me that under no circumstances
could it be appealed, that that was misleading
information and that we had to file a chal-
lenge.
The record further reflects that Riley sent a note to
Malthesen instructing her to challenge Wedde, but
that the note arrived after Wedde had cast her un-
challenged ballot. Riley testified that at the time
the ballots were tallied, he told Kang
. . . that we'd meant to contest the Kathy
Weede [sic] vote, that I had felt he had indi-
cated that we could appeal or contest it at a
later date and that she should not have voted.
And he said well, it was too late. "You can
appeal the election, but she has already
voted."
We note that the hearing officer made no specific findings concern-
ing facts hereinafter set forth.
A review of the testimony reflects that the recol-
lections of Riley and Malthesen are consistently de-
tailed and mutually corroborative. 8 In addition, as
alluded to above, we find that the logical probabil-
ities support the Employer's version of events.
Thus, with respect to the Employer's understand-
ing as to the proper procedure for contesting a
voter's eligibility, the record is clear that, to the
extent that the challenge procedure was discussed,
such discussion occurred prior to the exchange
about Wedde's eligibility. There was, therefore, no
linkup between the concept of the challenge proce-
dure and the problem posed by the conflict over
Wedde's eligibility. In addition, because Kang's re-
sponse to Feichtinger's question could, under these
circumstances, be construed to indicate the exist-
ence of some other "appeal" process, the fact that
the Employer's representatives were aware of the
challenge procedure is not significant. Further-
more, had Riley agreed to allow Wedde to vote
based on what the hearing officer asserted was
Riley's apparent changed position with respect to
Wedde's eligibility status, there would be no logi-
cal reason for Riley to contact his attorney to in-
quire about an alternative to the challenge ballot
procedure. Finally, under the circumstances herein,
we assign no significance to the fact that the Em-
ployer's observer, Malthesen, voiced a challenge
when a former employee, Steve McClain, present-
ed himself to vote. Thus, McClain's name did not
appear on the Excelsior list 9 and, unlike the Wedde
situation, there is no evidence that McClain was
the subject of any discussion during the preelection
conference.
Accordingly, based on all of the above, we
credit the testimony given by the Employer's wit-
nesses, and find that Alfred Feichtinger asked the
question: "[i]f we agree, can we move along and
contest this at a later date?" Board agent Kang re-
plied "Yes," and, in reliance thereon, the Employer
agreed to allow Wedde to vote, having made the
assumption that Wedde's eligibility would be other-
wise considered.
V. ANALYSIS AND CONCLUSIONS
In drawing his conclusions, the hearing officer
reasoned that, "[a]ssuming the versions given by
Riley and Malthesen to be the more accurate ones,
a In this regard, we attach little weight herein to the fact that Feich-
tinger did not testify. Thus, had Riley not been corroborated by Malthe-
sen, we might have assigned more significance to Feichtinger's not
having been called as a witness.
9 Although the record does not reflect whether McClain voted before
Wedde, the evidence does show that, when Malthesen voiced a challenge
to McClain's vote, Kang, in effect, told Malthesen that the proper proce-
dure for challenging an individual whose name does not appear on the
Excelsior list is to have the Board agent voice the challenge.
1168
HARRY LUNSTEAD DESIGNS
such would still not amount to objectionable con-
duct." The hearing officer based his conclusion in
large part on the fact that the Board agent did not
affirmatively misrepresent the challenge procedure,
and that the only procedure described to contest a
vote was the Board's established challenged ballot
procedure. Based on his view of the record evi-
dence, the hearing officer concluded:
At best, the Employer's version would have
the Board Agent informing the parties that
Wedde's eligibility did not have to be agreed
upon in the pre-election conference but could
be determined at a later time; and the method
for determining Wedde's eligibility at a later
time would of course be accomplished through
the challenged ballot procedure. For the Em-
ployer to conclude that there existed an alter-
nate means of contesting a voter's eligibility
was an unreasonable interpretation of the
Board Agent's statements.
We disagree. Thus, as set out above, to the
extent that Kang explained the challenge process at
the preelection conference,1 o the evidence is plain
that there was no connection made between the
discussion as to Wedde and the challenge proce-
dure. There is, therefore, no record, or logical, sup-
port for the hearing officer's rationale that the Em-
ployer would be cognizant of the fact that any sub-
sequent determination of Wedde's status would "of
course" be through the challenge procedure.
Indeed, we find the hearing officer's conclusions to
be based on an unreasonable interpretation of the
record.
In addition, and contrary to the hearing officer,
the pivotal factor is not that the Board agent af-
firmatively misrepresented the challenge proce-
dure-which we agree he did not-but, rather, that
when Feichtinger asked, "if we agree, can we
move along and contest this at a later date," Board
agent Kang merely replied, "Yes," and failed to
properly redirect the attention of the parties to the
Board's challenge procedure as it would relate to
the ultimate resolution of Wedde's status. It was
this error of omission which caused the Employer
reasonably to believe that the Wedde vote could be
contested even if the parties agreed to allow her to
cast an unchallenged ballot.
We likewise find that the Board agent erred
when, after confiscating the eligibility list the Em-
ployer's observer intended to use to challenge the
voters, he told her simply that "there could be
only one list in the room." Thus, review of the rel-
1' Although there is testimonial conflict as to the degree to which the
Board agent explained the Board's challenge procedure, the substance of
such explanation is not at issue.
evant case law supports a finding that the Board
agent's instructions in this regard were overly
broad. In Bear Creek Orchards, 90 NLRB 286
(1950), the Board considered an objection request-
ing that the election be set aside on the ground,
inter alia, that the use of a list of names of employ-
ees, which the petitioner had prepared in order
that its observer might use it for challenges, was
denied them. The investigation revealed that the
then election examiner had advised the petitioner
that no list would be permitted other than the com-
pany's voting list. The Board found that insofar as
the election examiner prevented the petitioner from
retaining, for its own use at the polls, a list of pro-
spective voters whose ballots it wished to chal-
lenge, the election examiner interfered with the
conduct of the election and a new election was or-
dered. In Milwaukee Cheese Co., 112 NLRB 1383
(1955), however, the Board considered a situation
in which the union observer appeared at the polls
with a duplicate of the official eligibility list con-
taining checkmarks next to the names of certain
employees he intended to challenge. After being in-
formed by the Board agent that the Board's elec-
tion rules prohibit the use of all but one eligibility
list, the union observer transposed certain markings
by the names of voters he intended to challenge
from his duplicate to the official list. The Board
distinguished Bear Creek from Milwaukee Cheese,
stating that a duplicate of the official eligibility list
with the names of voters intended to be challenged
marked thereon is not the type list contemplated by
Bear Creek, and overruled the union's objection to
the Board agent's conduct.
Although Bear Creek and Milwaukee Cheese dis-
tinguished between types of "challenge lists," and
discussed what type is to be considered permissible,
nowhere does the Board state that the Excelsior, or
"voting," list is the only permissible list insofar as
challenges are concerned. On the contrary, both
cases indicate that a party to an election is entitled
to a means of recording the names of employees'
ballots it intends to challenge. t Accordingly, we
find that the Board agent's statement to Malthesen
that there could be only one list in the room, with-
out further clarification, was overbroad, and there-
fore erroneous.
It should be noted that we do not, hereby, re-
quire that a Board agent charged with supervising
an election adhere to a scripted set of instructions,
and that any deviation therefrom will be cause for
" Sec. 11338.2 of the NLRB Casehandling Manual (Part Two), Repre-
sentation Proceedings, provides in pertinent part as follows: "Observers
may maintain lists of persons they intend to challenge, but the better
practice is to permit the parties to note on the eligibility list, at the pree-
lection check, the persons they intend to challenge"
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring a new election. What we wish to empha-
size, however, is that at an election the parties do
look to the Board agent for guidance concerning
the various procedures which the Board has de-
vised to ensure a fair election. In giving such guid-
ance, and depending on the particular situation at
hand, the Board agent must use his or her best
judgment to make certain that the parties are cog-
nizant of what the Board requires. Our review of
the record convinces us that the Board agent made
an error in judgment in failing to link the challenge
procedure to the resolution of Wedde's status, and
erred in giving overly broad instructions to the
Employer's observer concerning the keeping of a
challenge list; that the Board agent's error at the
preelection conference led the Employer reason-
ably to believe that, with respect to Wedde, it
would be unnecessary for the challenge procedure
to be invoked; and that this belief, combined with
the Board's agent's overly broad instructions at the
polls, caused the Employer to allow Wedde to cast
an unchallenged ballot when she appeared to vote.
We thus conclude, based on all of the above,
that the Board agent's errors, both at the preelec-
tion conference, and at the polls, interfered with
the conduct of the election.12 We shall, therefore,
set aside the election of 15 May 1981, and shall
direct that a new election be held.
ORDER
It is ordered that the election of 15 May 1981 be
set aside.
[Direction of Second Election omitted from pub-
lication.]
MEMBER HUNTER, dissenting.
Contrary to my colleagues in the majority, I
would adopt the hearing officer's findings and rec-
ommendations and certify the Union as the exclu-
sive bargaining representative of the employees in
the stipulated unit.
The majority finds that the Board agent conduct-
ing the election engaged in two acts of misconduct
and orders a new election on that basis. First, sub-
stituting its own version of the facts for the facts
found by the hearing officer, the majority finds
that at the preelection conference the Board agent
erred by answering "yes" to a question about
whether the eligibility of a voter could be resolved
later. The hearing officer found that during the
preelection conference the parties reviewed the of-
"2 Inasmuch as we have decided to set aside the election for the above
reasons, we find it unnecessary to consider the Employer's further con-
tention that under the circumstances of this case the Board agent had a
duty to challenge the ballot of Kathy Wedde. We do note, however, that
the Board agent, at the preelection conference, should have required the
parties to present evidence bearing on the issue of Wedde's status.
ficial Excelsior eligibility list to make any necessary
corrections. When they reached the name Kathy
Wedde the Employer's comptroller, Riley, stated
that Wedde had been terminated, and union repre-
sentative Pool disputed this assertion. A discussion
followed in which Pool asked whether Wedde had
ever been notified that she was terminated. At that
point, Riley looked at the other employer repre-
sentatives in the room and then agreed to leave
Wedde's name on the eligibility list. It is undis-
puted that the Employer had not informed Wedde
that she had been terminated. Despite this, and de-
spite the fact that the credited version of the con-
versation was based on the mutually corroborative
testimony of union agent Pool, the Union's observ-
er, and the Board agent, the majority rejects the
credited version as making "no logical sense."
Crediting the version given by Riley and the Em-
ployer's observer, Malthesen, the majority finds
that, at the end of the discussion about Wedde, one
of the employer representatives asked the Board
agent whether her eligibility could be resolved
later, and that the Board agent simply answered
"yes." The majority finds that, on the basis of the
Board agent's response, Riley agreed to leave
Wedde's name on the list, believing that there was
some postelection procedure for determining voter
eligibility.
Despite my colleagues' extensive efforts to re-
verse the hearing officer's credibility resolutions, I
am unpersuaded. Thus, I find nothing inherently il-
logical about Riley's agreeing to let Wedde vote
after the union agent asked whether she was ever
notified of her purported termination, since admit-
tedly Wedde never was so notified. The testimony
that, before agreeing to let Wedde vote, Riley
looked silently at his colleagues in the room neither
adds to nor detracts from the credibility of the tes-
timony that he agreed to let her vote. I cannot
agree with my colleagues that this testimony shows
that the version credited by the hearing officer was
based on some form of "nonverbal communication"
which "makes no logical sense." Further, even ac-
cepting the version of the conversation credited by
the majority, I do not agree that there is any basis
for setting aside the election. Thus, it is undisputed
that during the preelection conference, which
lasted only about 20 minutes, the Board agent de-
scribed the challenge procedure and distributed
copies of the Board's official "Instructions to Ob-
servers" form which states that any challenge to
the eligibility of a voter "MUST be made before
the voter's ballot has been placed in the ballot
box." (Capitalization in the form.) It is also undis-
puted that the Board agent did not describe or sug-
gest any other means to contest voter eligibility. In
1170
HARRY LUNSTEAD DESIGNS
these circumstances, even assuming, as my col-
leagues find, that the Board agent gave an affirma-
tive answer to a question about whether Wedde's
eligibility could be resolved later, the most reasona-
ble inference to be drawn is that he was referring
to the challenge procedure. Consequently, the Em-
ployer could not reasonably have been misled by
the Board agent's answer. And, indeed, there is
strong evidence that the Employer was not misled
by any such statement. Thus, the Employer's ob-
server, Malthesen, testified that following the pree-
lection conference Comptroller Riley told her to
challenge any voter whose name did not appear on
the Employer's then current payroll list, and that
Malthesen knew Wedde's name was not on that
list.' Accordingly, even under my colleagues' ver-
sion of the preelection conference discussion, I find
no basis for setting aside the election.
The majority also sets aside the election based on
a finding that the Board agent engaged in miscon-
duct by telling the Employer's observer that only
one list was permitted in the polling area. In so
doing, the majority relies on an incidental state-
ment in the testimony of the Employer's observer
Malthesen. It is clear that there was no adequate
notice that this matter was in issue as possible ob-
jectionable conduct, and that it was not litigated.
In this regard, I note that the previous Board
Order in this proceeding directed a hearing solely
on the issue of the Employer's waiver of its right
to challenge Wedde. Furthermore, Malthesen's tes-
timony concerning the Board agent's statement in
the polling area was not further developed at the
hearing by either party, the hearing officer made
no finding with respect to it, and neither party ad-
dressed the question in their briefs to the Board.
Therefore, contrary to my colleagues, I am unwill-
ing to set aside the election on the ground of Board
agent statements in the polling area. Moreover,
even assuming adequate notice and an opportunity
to litigate the matter, and even assuming that the
Board agent did tell Malthesen that only one list
was permitted in the polling area, I would find
such a remark insufficient to warrant setting aside
the election. According to Malthesen, the Board
agent made the remark when he confiscated a copy
of the Employer's payroll list from her. As the ma-
jority acknowledges, it was proper for the Board
I Malthesen nevertheless failed to challenge Wedde when Wedde ar-
rived in the polling area. This can only be explained as an omission on
Malthesen's part.
agent to confiscate the payroll list which was in
effect a second eligibility list.2 Although the major-
ity also notes that an observer is permitted to retain
a list of employees whom he or she intends to chal-
lenge, and it is improper for a Board agent to pre-
vent the observer from doing so,3 that reasoning is
unavailing here for the list that the Board agent
took from Malthesen was not in fact a challenge
list. Moreover, Malthesen testified that she knew at
the time that Wedde's name was the only name on
the official Excelsior eligibility list which was not
on the list that the Board agent took from her. In
these circumstances, the statement that only one
list was permitted could not possibly have preju-
diced the Employer with respect to making chal-
lenges.4
Finally, the majority's conclusion that the Board
agent engaged in misconduct is predicated on their
finding that Wedde was not an eligible voter. By
reaching the issue of Wedde's eligibility the majori-
ty goes well beyond the scope of the Board's pre-
vious Order and contravenes well-established
Board policy.5 Thus, longstanding Board policy is
to resolve eligibility only through the challenge
procedure and not as here through the objections
procedure. In accordance with this policy, the
hearing officer specifically ruled that Wedde's eli-
gibility was not a litigable issue, and therefore
denied the Union's request for a continuance to
prepare evidence on that issue. In my view, the
hearing officer's ruling was clearly correct, and the
majority's decision to resolve the eligibility issue is
clearly erroneous. 6
Based on all the foregoing, I would adopt the
hearing officer's recommendation that the Union be
certified. Accordingly, I dissent from my col-
leagues' direction of a second election.
s Milwaukee Cheese Co., 112 NLRB 1383 (1955).
s Bear Creek Orchards. 90 NLRB 286 (1950).
4 See Harlem River Consumers Cooperative, 191 NLRB 314, 323 (1971):
"the instructions of the Board agent to the observers that they were not
permitted to have lists other than the official eligibility list do not war-
rant the setting aside of the election."
a See, e.g., Crown Machinery Co., 205 NLRB 237 (1973), NLRB v. A. J.
Tower Co., 329 U.S. 324 (1946). It is true that in Kentfield Medical Hospi-
ral. 219 NLRB 174 (1975), relied on by the majority. the Board resolved
an eligibility question in an objections proceeding, but did so only to
avoid deciding a question of Board agent misconduct. In any event Kent-
field is an aberration and in my view it should not be followed.
" By the majority's reaching the issue of Wedde's eligibility in this ob-
jections proceeding I am at a complete loss to understand how under
their view they can conclude that the Board agent engaged in miscon-
duct by implying that a postelection procedure to resolve eligibility exist-
ed. Thus, by reaching Wedde's eligibility in this case the majority has
created the very procedure which they find the Board agent improperly
implied existed.
- -
1171