J.C. Brock Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1995

318 N.L.R.B. 403 (N.L.R.B. 1995)

403
318 NLRB No. 45
J. C. BROCK CORP.
1 The National Labor Relations Board, by a three-member panel,
has considered the objections in an election held on October 6, 1994,
and the Acting Regional Director’s report recommending disposition
of them. The election was held pursuant to a Stipulated Election
Agreement. The tally of ballots shows 43 for and 62 against the Pe-
titioner, with 2 void and 1 challenged ballots, an insufficient number
to affect the results.
2 In the absence of exceptions, the Board adopts, pro forma, the
Acting Regional Director’s recommendation to overrule the Petition-
er’s Objection 1.
3 In Paprikas Fono, the Board ordered an election set aside be-
cause, contrary to the General Counsel’s guidelines for the handling
of determinative challenged ballots set out in the NLRB Case-
handling Manual, (Part Two), Representation Proceedings, Sec.
11360, the Board agent waited until the day after the election to seal
the determinative challenged ballots in a large envelope and did so
outside the presence of the parties’ representatives. Further, in prepa-
ration for the hearing in the case, regional office personnel opened
the sealed envelope, again outside the presence of the parties’ rep-
resentatives, to check on the condition of the challenged ballot enve-
lopes. Because the Board’s established procedure for the handling of
determinative challenged ballots was not followed, the Board rea-
soned that the parties could not monitor the safeguarding of the de-
terminative challenged ballots and assure themselves that they were
secure. The Board therefore found that the manner in which the elec-
tion was conducted raised a ‘‘reasonable doubt as to the fairness and
validity of the election.’’
4 As the Board stated in Polymers, Inc., 174 NLRB 282, 282
(1969):
The question which the Board must decide in each case in
which there is a challenge to conduct of the election is whether
the manner in which the election was conducted raises a reason-
able doubt as to the fairness and validity of the election. [Fn.
omitted.]
J. C. Brock Corporation and United Food and
Commercial Workers, District Union Local
One, AFL–CIO. Case 3–RC–10189
August 17, 1995
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
The issue presented here is whether the Acting Re-
gional Director correctly recommended sustaining one
of the Petitioner’s objections and setting aside the re-
sults of a representation election on the ground that the
use of separate ballots in English and Vietnamese cre-
ated a doubt about the fairness and validity of the elec-
tion process.1 The Board has reviewed the record in
light of the Employer’s exceptions and brief and the
Petitioner’s memorandum in response and has adopted
the Acting Regional Director’s findings and rec-
ommendations,2 only to the extent consistent with this
decision. For the following reasons, we reverse the
Acting Regional Director and find that, in the cir-
cumstances present here, the use of separate language
ballots does not warrant the setting aside of the elec-
tion. Accordingly, we shall overrule the Petitioner’s
Objection 2 and certify the results of the election.
The relevant facts are not in dispute. Shortly before
the election, the Employer’s attorney informed the Re-
gional Office that there were three employees on the
voter eligibility list who spoke only Vietnamese and
requested that the Regional Office prepare ballots in
Vietnamese for these voters. Because the Regional Of-
fice prepared separate ballots in English and Vietnam-
ese, the Board agent conducting the election asked
each voter whether he or she needed an English or Vi-
etnamese ballot. The Board agent gave three employ-
ees ballots in Vietnamese. Two of these ballots were
marked ‘‘No’’ and the third ballot contained no mark
and was declared void.
The Acting Regional Director found merit in the Pe-
titioner’s Objection 2, in which the Petitioner main-
tains that by its use of separate English and Vietnam-
ese ballots the Board failed to preserve the voters’
right to cast secret ballots. Initially, the Acting Re-
gional Director observed that when foreign language
ballots are needed, the Board traditionally places all
the languages on each ballot in order to avoid creating
the impression that separate foreign language ballots
would be used to determine how a particular group of
employees voted. Because of the Regional Office’s
‘‘mistake’’ in preparing separate language ballots,
however, the Acting Regional Director observed that
the Board agent was required to ask each voter wheth-
er he or she needed a Vietnamese language ballot.
From this, the Acting Regional Director found that the
use of separate ballots for the Vietnamese voters com-
promised the objective of voter confidence in a secret
election because the use of separate ballots ‘‘could
have caused concern among the Vietnamese voters that
their votes would not be secret or that the use of sepa-
rate ballots would allow the parties to measure the sen-
timents of a particular employee group.’’ The Acting
Regional Director further found that because the other
employees knew that the Vietnamese voters ‘‘were
being singled out as a voter group,’’ they may also
have had doubts about the fairness of the election
process. Citing Paprikas Fono, 273 NLRB 1326
(1984), for the proposition that a regional office’s de-
parture from established procedures that creates a
doubt about the fairness and validity of the election
process requires that the election be set aside even ab-
sent proof that the departure from such procedures ac-
tually affected the election results,3 the Acting Re-
gional Director recommended that the Petitioner’s Ob-
jection 2 be sustained and that a second election be
held.
Contrary to the Acting Regional Director, we find
that the Regional Office’s ‘‘mistake’’ in not using
multilanguage ballots here did not raise ‘‘a reasonable
doubt about the fairness and validity of the election’’
that would require the election be set aside.4 Initially,
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See, e.g., Bridgeport Fittings, 288 NLRB 124, 125 (1988), affd.
877 F.2d 180, 187 (2d Cir. 1989). In Paprikas Fono, supra at 1329,
the Board found that a reasonable doubt regarding the validity of the
election was raised in part by the fact that the irregularities there
‘‘involved a sufficient number of ballots to affect the election re-
sults.’’ In Rheem Mfg. Co., 309 NLRB 459, 461 fn. 11 (1992), the
Board distinguished Paprikas Fono on the ground, inter alia, that the
challenged ballots in Rheem were not determinative and found that
a reasonable doubt as to the fairness and validity of the election had
not been raised. Thus, in determining whether a new election should
be held, the Board has found relevant whether the ballots at issue
are determinative of the election.
6 Paprikas Fono, supra, is also distinguishable on the ground that
the conduct found objectionable there was a deviation from the Gen-
eral Counsel’s guidelines for the handling of determinative chal-
lenged ballots as set out in the Board’s Casehandling Manual. By
contrast, while the Board has traditionally used multilanguage ballots
in elections when foreign language ballots are needed, the use of
such ballots is not discussed in the Board’s Casehandling Manual.
Thus, the use of separate language ballots here was not a departure
from established Board guidelines. Further, as the Seventh Circuit
has observed, the Board has left it to its Regional Directors to decide
whether to use multilanguage ballots, ballots in different languages,
or English ballots plus election notices in other languages. NLRB v.
Precise Castings, Inc., 915 F.2d 1160, 1164 (7th Cir. 1990).
find that the Acting Regional Director’s suspicion that
the voters who used English language ballots may
have been affected by the use of separate language bal-
lots is too speculative to sustain a reasonable doubt as
to the fairness and validity of the election. As the
Board stated in Transportation Unlimited, 312 NLRB
1162, 1162 (1993), ‘‘it requires more than mere specu-
lative harm to overturn an election.’’ Thus, only the
three voters who used the Vietnamese language ballots
might have been affected by the use of separate lan-
guage ballots in the election because they were con-
cerned that the parties would find out how they voted.
We observe, however, that the secrecy of the election
process was not in fact violated because one of the
three Vietnamese ballots was voided and it was there-
fore impossible to determine which employees cast the
ballots marked ‘‘No.’’
*ERR14*Also contrary to the Acting Regional Di-
rector, we find the fact that the three Vietnamese lan-
guage ballots were not determinative of the election is
a relevant consideration in deciding whether to hold a
new election.5 Here, where we have found that 105 of
the 108 employees who voted in the election were not
affected by the use of separate language ballots, and
where a change in the three Vietnamese language bal-
lots would not have affected the results of the election,
we cannot find that the use of separate language bal-
lots raised a doubt about the fairness and validity of
the election.6 For all these reasons, we shall overrule
the Petitioner’s Objection 2 and certify the results of
the election.
CERTIFICATION OF RESULTS OF ELECTION
It is certified that a majority of the valid ballots
have not been cast for United Food and Commercial
Workers, District Union Local One, AFL–CIO, and
that it is not the exclusive representative of these bar-
gaining unit employees.