Jakel, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1989

293 N.L.R.B. 615 (N.L.R.B. 1989)

JAKEL INC 615
Jakel , Incorporated and Glass, Molders, Pottery,
Plastics & Allied Workers International Union,
AFL-CIO, CIC, Petitioner Case 14-RC-10472
April 3, 1989
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN, CRACRAFr, HIGGINS, AND
DEVANEY
On December 5, 1988, the Regional Director
issued a Decision and Direction of Election in the
above-entitled proceeding The Employer filed a
timely request for review On January 3, 1989, a
three-member panel of the Board' issued an Order
denying the Employer's request for review but per-
mitting two data entry clerks to vote subject to
challenge The election was conducted on January
6, 1989 The tally of ballots revealed 40 votes cast
for the Petitioner, 42 votes cast against the Peti-
tioner, and 3 challenged ballots The Petitioner
filed timely objections to the election On January
26, 1989, the Regional Director issued a Supple
mental Decision, Order Approving Withdrawal of
Certain Objections, and Order Setting Aside Elec-
tion and Directing Rerun Election, pertinent por-
tions attached as an appendix, in which he directed
that the election conducted on January 6 be set
aside and a rerun election be conducted
Thereafter, in accordance with Section 102 67 of
the Board's Rules and Regulations, the Employer
filed a timely request for review of the Regional
Director's supplemental decision
The Board has carefully considered the entire
matter and, for the reasons set forth in the Region
al Director's supplemental decision, has decided to
deny the Employer's request for review
Background
The Employer is an Illinois corporation with its pnnci
pal offices and place of business in Highland , Illinois, and
satellite production facilities in Ramer, Tennessee and
Palestine , Illinois , the facility involved where it is en
gaged in the manufacture and sale of small electric
motors At the time of the election, there were approxi
mately 85 employees included in the above unit, under
the direction of Plant Manager Gullett
On December 19, the Employer filed a Request for
Review of the Regional Directors Decision and Direc
tion of Election, as it relates to the exclusion from the
collective bargaining unit of two data entry clerks as
office clerical employees On January 3, 1989, the Na
tional Labor Relations Board ordered that the Employ
er s Request for Review raised a substantial issue with
respect to the unit placement of the two data entry
clerks, and concluded that this issue may best be re
solved through the challenge procedure Accordingly,
the Decision was amended to permit the data entry
clerks to vote by challenged ballot
The Objections
Objections 1 2 3 4 5 and 6 as to Employer conduct
affecting the results of the election and Objection 2 as
to conduct of the election
On January 18, 1989, the Petitioner submitted a writ
ten request to withdraw Objections 1, 2, 3, 4, 5, and 6 as
to Employer conduct affecting the results of the election,
and Objection 2 as to the conduct of the election
The Regional Director, having fully considered the
matter and having concluded that the withdrawal of Ob
jections 1, 2, 3, 4, 5, and 6 as to Employer conduct of
fecting the results of the election, and Objection 2 as to
the conduct of the election is not inconsistent with the
purposes and policies of the Act
IT IS HEREBY ORDERED that the withdrawal request as
to Objections 1, 2 3 4, 5, and 6 as to Employer conduct
affecting the results of the election, and Objection 2 as to
the conduct of the election is approved
1 Chairman Stephens and Members Cracraft and Higgins
APPENDIX
On January 9, 1989, the Petitioner filed two separate
sets of objections, one alleging Employer conduct affect
ing the results of the election, and one alleging objec
tions to the conduct of the election 2
Pursuant to Section 102 69 of the Board 's Rules and
Regulations , Series 8, as amended , the Regional Director
has caused a full and complete investigation to be made
of the objections All evidence adduced during the inves
tigation had been fully and carefully considered by the
Regional Director who reports and orders as follows
2 Copies of the Petitioner s objections are attached as Exhibits I and 2
respectively
Objection 1 as to conduct of the election
In its first objection as to the conduct of the election,
the Petitioner alleges that "When Tamara Newlin (one
of the data entry clerks whose eligibility was to be deter
mined by the challenge procedure) got up to vote, she
gave her name, received a ballot from the NLRB agent
(without a challenge envelope ), entered the voting
booth, apparently marked her ballot, exited the voting
booth, and put her ballot in the ballot box As she was
putting her ballot in the ballot box, the union observer
told the NLRB agent that it was to be a challenged
ballot The NLRB agent went to the ballot box, opened
it, took a ballot from the ballot box, and showed it to
Tamara Newlin, asked Ms Newlin if it was her ballot,
and destroyed the ballot when Ms Newlin answered that
it was her ballot The Board agent gave Ms Newlin
a new ballot, accompanied by a challenge envelope Ms
Newlin then cast her vote on the second ballot The
Employer contends that the conduct alleged in this ob
293 NLRB No 72
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
jection does not provide a basis upon which the election
may be set aside
In support of its objection, the Petitioner presented its
observer who was present in the polling place during the
conduct of the election The Board agent assigned to in
vestigate the objections also interviewed the Employer s
observer and the Board agent who were present in the
polling place during the conduct of the election
The investigation disclosed that Tamara Newlin is em
ployed as a data entry clerk and, as noted, her eligibility
to vote was left to resolution through the challenge pro
cedure Newlin also served as an Employer observer in
the polling place during the conduct of the election At a
time when no other voters were present in the polling
place, Newlin asked the Board agent conducting the
election if she could vote, and the Board agent stated
that she could Newlin stated her name , the Petitioner s
observer and Newlin marked off her name from the eligi
bility list, and the Board agent gave Newlin a ballot and
instructed her to cast her ballot As Newlin was deposit
ing her ballot in the ballot bag, the Petitioners observer
advised the Board agent that Newlin was to vote by
challenged ballot The Board agent, in Newlin s pres
ence, observed a ballot which was believed to be New
lin s at the top of the ballot bag The ballot had not
fallen completely through the opening in the ballot bag
and the Board agent attempted to retrieve the ballot by
pulling it through the slot on top of the bag The Pets
tioner s observer and Board agent state that the Board
agent was unable to retrieve the ballot through the slot,
and opened the ballot bag and reached into the ballot
bag to remove the ballot which was believed to be the
ballot cast by Newlin Newlin advises that she does not
recall whether the ballot was removed through the slot
or by opening the ballot bag After removing the ballot,
the Board agent showed the ballot to Newlin who iden
tified the ballot as the ballot which she cast The Board
agent tore the ballot into pieces, and the pieces were
placed in a challenged ballot envelope and marked
spoiled Newlin was given a second ballot and in
structed as to the procedure to follow in casting a chal
lenged ballot After marking her ballot, Newlin exited
the voting booth and placed this ballot in a challenged
ballot envelope provided by the Board agent Newlin
then deposited the envelope in the ballot bag Newlin s
challenged ballot was one of three challenges which
were sufficient in number to affect the results of the elec
tion
In these circumstances the undersigned concludes that
the conduct considered here provides a basis upon which
the election may be set aside In assuring the integrity of
the election process, the Board goes to great lengths to
ensure that the manner in which an election was con
ducted raises no reasonable doubt as to the fairness and
validity of the election Peoples Drug Stores Inc, 202
NLRB 1145 (1973) Polymers Inc, 174 NLRB 282
(1969) In Athbro Precision Engineering Corp 166 NLRB
966 (1967), the Board set forth the following standard for
conduct by its agents
The Board in conducting representation elections
must maintain and protect the integrity and neutrals
ty of its procedures The 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 im
pugning the election standards we seek to maintain,
is a sufficient basis for setting aside the election
Based on the foregoing, I conclude that the removal of a
ballot from the ballot bag by the Board agent compro
mised the integrity of the election process and constitut
ed conduct which would destroy confidence in the
Board s election process Moreover, it cannot be deter
mined with reasonable accuracy whose ballot was ex
tracted from the ballot bag Further Newlin was one of
three voters whose challenged ballots were sufficient in
number to affect the results of the election, and the de
sires of the employees in the election can be accurately
ascertained only by setting the election aside and direct
ing a new one F N Joslin Co 79 NLRB 1048 (1948)
Accordingly, the objection is sustained
Conclusion and Order
The undersigned Regional Director, having approved
the Petitioners request to withdraw Objections 1 2 3 4
5, and 6 as to Employer conduct affecting the results of
the election and Objection 2 as to the conduct of the
election, having concluded that Objection 1 as to con
duct of the election provides a basis on which the elec
tion should be set aside the undersigned further orders
that the election be set aside and that a rerun election be
conducted 3
3 Where it has been ordered that the election be set aside to preserve
the integrity of the Board s election process without regard to the out
come of the election it is not necessary to rule concerning the challenged
ballots