J&D Transportation

National Labor Relations Board - Administrative Judge Opinions

Jul 22, 2010

22-RC-013090 (N.L.R.B. Jul. 22, 2010)

JD(NY)–27–10
Neptune, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
J&D TRANSPORTATION
Employer
and Case No. 22-RC-13090
TEAMSTERS LOCAL UNION NO. 469, affiliated with
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Petitioner
Denise A. Forte, Esq., (Trivella, Forte
& Smith, LLP) White Plains, NY,
for the Employer
Timothy R. Hott, Esq. (Law offices of
Timothy R. Hott, PC) Jersey City, NJ
for the Petitioner
RECOMMENDED DECISION ON OBJECTIONS
Mindy E. Landow, Administrative Law Judge: Upon a petition filed on March 23, 20101
by Teamsters Local No. 469 a/w International Brotherhood of Teamsters (Petitioner or Union)
and pursuant to a Stipulated Election Agreement, an election was held on May 4 in the following
unit:
All full-time and regular part-time drivers employed by the Employer at its Neptune, New
Jersey facility, but excluding all office clerical employees, guards and supervisors as
defined in the Act.
The Tally of Ballots showed that of approximately 50 eligible voters, 23 cast votes for the
Petitioner, 16 votes were cast against the Petitioner and there were no challenged ballots. J&D
Transportation (the Employer) filed timely objections to conduct affecting the results of the
election.
On May 26, the Acting Regional Director issued a Report on Objections and Notice of
Hearing in which she found that the Employer’s objections raised substantial and material
issues of fact which can best be resolved on the basis of record testimony at a hearing.

1 All dates herein are in 2010 unless otherwise specified.
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The objections before me allege that the Petitioner engaged in objectionable conduct, as
follows:
1. Having its election observer, in the polling area while the voting was ongoing, using her
cellular telephone and/or personal digital assistant, in violation of the Instructions to
Election Observers. . . Moreover, the observer was contacting eligible voters via her
cellular telephone and or personal digital assistant during the polling times. The attached
instructions specifically prohibit such actions. This objectionable activity occurred
continuously throughout the voting process and this discriminatory tactic was
disseminated among the bargaining unit members; and
2. Refusing to abide by the directive of the Board agent, who conducted the election and
who directed the Local 469 observer to turn off her cellular telephone and/or personal
digital assistant on at least four (4) separate occasions; and
3. Violating the prohibition against election campaigning by repeatedly having its agent, i.e.
the Local 469 observer, transmit text messages and/or e-mails to the employees
informing said employees to vote while the Local 469 observer was serving as the
observer for Local 469 and was seated in the polling area in violation of Peerless
Plywood, 107 NLRB 427, 429 (1953). This objectionable activity occurred continuously
throughout the voting process and this discriminatory tactic was disseminated among the
bargaining unit members.
In addition to the above-enumerated objections, the Employer further alleges that the
Petitioner’s observer engaged in objectionable conduct by making comments about and holding
conversations with prospective voters as they entered the polling site.
A hearing was held before me in Newark, New Jersey on June 11. Based upon the
record and my observation of the demeanor of the witnesses and the closing arguments
presented by both parties,2 I make the following Recommended Decision.
Findings of Fact
The Employer presented two witnesses, Caroline Hardwick, who served as the
Employer’s observer during the election, and Purnell Wharton. The Petitioner presented no
witnesses.
Hardwick is employed as a driver with the Employer and, as noted above, served as the
Employer’s observer during the election which was held on May 4 during the hours between
1:00 pm and 4:00 pm. She arrived at the polling location at 12:30 pm, and was followed shortly
thereafter by the Union’s observer, who is referred to in the record as Jan Rosenfeld.3 Prior to
the election, the observers were given a set of written instructions 4 which lists their principal
functions, duties and contains a list of behavior which observers should not engage in. Such
behavior includes the use of any electronic device, including cell phones, laptop computers,
personal digital assistants, mobile e-mail devices and wired or wireless data transmission and

2 The parties waived the filing of post-hearing briefs.
3 Hardwick referred to the Petitioner’s observer only as “Jan.” Her last name was identified by
Counsel for the Employer.
4 Form NLRB-722
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recording devices. Observers are asked to turn off or disable these devices before entering the
polling area. The instructions additionally advise observers that they are to refrain from
conversations with voters in the polling area, except as instructed by the Board agent. Greeting
voters as they approach to vote is considered acceptable behavior. According to Hardwick,
during the pre-election conference the Board agent reiterated this point, advising the observers
to keep their interactions with the voters brief.
Hardwick testified that during the course of the election, at a time when no voters were
present in the polling area, Rosenfeld’s cell phone rang. She asked the Board agent who was
conducting the election if she could answer it, and the Board agent said that she was not
supposed to do so, but to go ahead and make it quick. When asked how long Rosenfeld had
remained on the phone, Hardwick testified, “I said around like five minutes, but it must have
been like five, six seconds.”5 Hardwick did not hear the telephone conversation, and does not
know who was on the other end of the phone. After Rosenfeld completed the call, her phone
remained in her hand. She fumbled with it and made an observation about the location of the
phone’s speaker.
During the initial period of the election, while waiting for voters to arrive, Hardwick
commented on the fact that the Board agent bore a strong resemblance her daughter. The
observers and the Board agent then engaged in what Hardwick termed “casual conversation,”
and showed each other photographs of their relatives. Hardwick had a picture of her daughter in
her wallet, and showed it to the Board agent. Rosenfeld displayed some pictures of her
grandchild which she had stored on her cellular telephone. Similarly, the Board agent showed
the observers pictures of her son which were also stored on her cellular telephone.
Hardwick testified that the Board agent had instructed the observers that if they saw
something they did not agree with they should state the word “recall.” Hardwick initially testified
that during the course of the election, she had stated “recall” on three separate occasions. The
first was when Rosenfeld received the phone call, as has been described above.
As Hardwick testified, she called a second “recall” as result of Rosenfeld’s comments to
and about employees as they entered to vote. Hardwick testified that Rosenfeld made
comments to the Board agent about almost every voter who came in. She offered the following
specific examples of such comments: “This is my cousin, who is Ike Turner;” “This is our other
worker, he’s 890. We call him Spider;” and “Oh he just loves everybody, you know and he’s
always funny.” According to Hardwick, after this had occurred with regard to three or four voters,
she complained about Rosenfeld’s behavior and the Board agent wagged her finger and said
“no, no, no” as if to admonish Rosenfeld. On direct examination, Hardwick characterized
Rosenfeld’s behavior as “constant conversation,” but offered no further specific detail about
either the content or duration of any other comment Rosenfeld may have made 6 other than to
characterize them as “casual” and to acknowledge that they did not pertain to the election.7

5 When asked about this matter on cross-examination, Hardwick initially claimed that she could not
tell the difference between minutes and seconds. When pressed on this issue, she confirmed that
Rosenfeld had been on the phone for seconds.
6 Counsel for the Employer did not seek to question Hardwick further regarding these “constant
conversations.”
7 On cross-examination, Hardwick testified that Rosenfeld had “lengthy conversations” with each
voter that arrived, and even continued the conversation with one voter, referred to as Ike Turner, as he
was casting his ballot. For the reasons set forth below I do not rely upon this testimony.
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When asked whether other voters were present during Rosenfeld’s comments, Hardwick replied
that due to the small size of the polling area, voters entered the room individually.
The third time Hardwick called “recall’ was to challenge the eligibility of a voter. His vote
was placed in a challenged ballot envelope and he was subsequently found to be an eligible
voter.
Shortly prior to the close of the polls, Rosenfeld commented that a particular driver,
referred to in the record as Leandra Story, had not yet voted. Hardwick then observed
Rosenfeld holding her cell phone close to her chest and operating her thumbs as if she was
“texting” or typing a message on the phone’s note pad. Hardwick could not tell if the Board
agent had noticed this activity, as she was sitting off to the side and appeared to be reading.
Shortly thereafter, Story came to the polling location and cast her vote. She was the final voter
of the afternoon. Hardwick testified that based upon the foregoing sequence of the events, she
believed that Rosenfeld had used her cellular telephone to contact Story to encourage her to
come and vote, but that she did not have any independent knowledge that this had actually
occurred.8
Purnell Wharton, also employed as a driver with the Employer, testified that on May 4 at
about 10:30 am he received a text message on his phone stating, “Please don’t forget to vote.”
He then deleted the message from his phone. Wharton stated that he did not know who sent the
message and does not know whether other employees had received a similar message on that
day.
Analysis
In Objection No. 1, the Employer contends, in essence, that on the day of the election,
the Petitioner’s observer improperly used her cellular telephone and, moreover, used it to
contact eligible voters during the polling times. In Objection No. 2, the Employer contends, in
substance, that the Petitioner’s observer repeatedly refused to abide by the directive of the
Board agent who directed the observer to turn off her cellular telephone. In Objection No. 3 the
Employer contends that on the day of the election, the Petitioner’s observer violated the
prohibition against election campaigning by repeatedly transmitting text messages and/or e-
mails to employees during polling times. As noted above, at the hearing the Employer
additionally argued that the Petitioner’s observer improperly engaged voters in extended
conversations at the polling site. In her closing statement, the Employer’s counsel argued that
the observer “basically introduced for the whole crowd, almost like an emcee, who this person
is, who that person is” and additionally “engaged in direct conversations with the voters.”
Counsel for the Employer contends that such introductions and comments were not in
accordance with the laboratory conditions that are supposed to be met when a NLRB conducted
election is being held.9

8 After repeatedly testifying that she stated “recall” on three occasions, Hardwick subsequently
testified that she called a fourth “recall” to this event as well. Her testimony in this regard was not entirely
clear, and was frankly confusing. From the sum of her testimony, I conclude that if, in fact, Hardwick
complained about Rosenfeld’s alleged “texting” it was not until after all the voters had cast their votes or
after the polls had closed.
9 In her opening statement, Counsel for the Employer additionally made reference to certain of the
Board agent’s conduct during the election, in particular allowing the use of a cellular telephone to receive
a phone call and to view pictures.
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As an initial matter, it is clear that Rosenfeld, acting as the Union’s observer during the
election was its agent and her conduct is attributable to the Union. Detroit East, Inc., 349 NLRB
935, 936 (2007) citing Brinks Inc., 331 NLRB 46 (2000).
In Boston Insulated Wire & Cable Co., 259 NLRB 1118, 1118-1119 (1982), the Board set
forth certain rules to evaluate alleged impermissible electioneering which occurs at or near the
polls:
When faced with evidence of impermissible electioneering, the Board determines
whether the conduct, under the circumstances, “is sufficient to warrant an inference that
it interfered with the free choice of voters.” This determination involves a number of
factors. The Board considers not only whether the conduct occurred within or near the
polling place, but also the extent and nature of alleged electioneering, and whether it is
conducted by a party to the election or employees. The Board has also relied on whether
the electioneering is conducted within a designated “no electioneering” area or contrary
to the instructions of the Board agent.
The first determination is whether impermissible electioneering or other conduct which
interfered with the laboratory conditions expected for Board-conducted elections actually
occurred in this instance. Here, the Employer has adduced and relies upon the following
evidence: (1) the Union’s observer’s use of her cellular telephone to receive a phone call during
the election; (2) the shared viewing of photographs by the observers and the Board agent during
the election, some of which involved the use of a cellular telephone; (3) the comments made by
the Union’s observer as employees entered the polling site to vote; (4) alleged “texting” by the
Union’s observer during the election and (5) the receipt of one voter of a text message on the
day of the election encouraging him to participate in the election. While I conclude that certain
procedural irregularities did take place during the election, and that these irregularities were
conducted by a party to the election, within a designated polling area and contrary to the
instructions to observers which are provided by the Board, I find that the Employer has adduced
insufficient evidence that these irregularities warrant an inference that the free choice of voters
was compromised or were otherwise sufficient to disrupt the laboratory conditions so as to
require that the election be set aside.
As the Board has held, “the burden of proof on parties seeking to have a Board-
supervised election set aside is a heavy one. The objecting party must show, inter alia, that the
conduct in question affected employees in the voting unit and had a reasonable tendency to
affect the outcome of the election.” Delta Brands, Inc., 344 NLRB 252, 253 (2005) (internal
quotations omitted). If the evidence is insufficient, then the objecting party has failed to meet its
burden. Consumers Energy Co., 337 NLRB 752 (2002). The burden of proof is particularly
heavy where the margin of victory is significant. Avis-Rent-A-Car System, 280 NLRB 580, 581,
582 (1986). It is also the case that procedural irregularities, standing alone, are not sufficient to
set aside an election. St. Vincent Hospital, LLC, 344 NLRB 586, 587 (2006). Thus, the Board
“requires more than mere speculative harm to overturn an election.” J.C. Brock Corp., 318
NLRB 403, 404 (1995)(citation omitted).
With regard to Objections 1 and 3, the evidence establishes that the Union’s observer
used her cellular telephone while in the polling area on three occasions, two of which were
apparently countenanced by the Board agent. There is no evidence, however, that Rosenfeld
“continuously” used her cell phone, that she contacted prospective voters throughout the course
of the election or that there was any dissemination of such alleged misconduct among
employees. As to Objection 2, there is no evidence to establish that Rosenfeld defied
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instructions issued by the Board agent with regard to her cell phone other than, as will be
discussed below, the incident in which she allegedly contacted Story.
Generally, there is no evidence that the use of electronic devices for purposes of
receiving a brief telephone call or to view family photographs took place within the sight or
earshot of voters or otherwise compromised the integrity of election process.10 See St. Vincent
Hospital, LLC, 344 NLRB 586, 587, 599 (2005) where the Board agreed with the
recommendation of the administrative law judge overruling an objection that the Board agent
allowed the union’s observers to place telephone calls from the voting area while the polls were
open. The evidence established that during the voting period observers from both sides
received or made brief phone calls in the voting area. There, as here, there was no evidence
that these calls interfered with the election. In that case, the Board additionally agreed with the
judge’s recommendation to overrule an objection relating, in part, to the programming of a
cellular telephone by the Board agents during the voting periods as such activity took place
while voters were not present. Id at 587, 601.
With regard to the specific allegation involving Leandra Story, I find that there is
insufficient evidence to establish that Rosenfeld used her cellular phone to contact Story or
otherwise electioneer while the polls were open. Hardwick admitted that she had no
independent knowledge that this took place, and that she merely assumed that Rosenfeld had
contacted the voter based upon a particular sequence of events. In assessing the evidence, I
am mindful that the Employer, as objecting party, bears the burden of proof. I find it unwarranted
to rely, without some independent corroboration, solely upon Hardwick’s inference that
Rosenfeld contacted Story during the election period. However, even if I were to assume that
Rosenfeld had, in fact, contacted Story to come and vote in the election, I do not find that such
misbehavior would be sufficient to set the election aside. In this regard, there is no evidence that
any voter was present when the alleged texting took place. Further, I note that Story was the
final voter of the day, and her vote would not have been determinative. Moreover, there is no
evidence that any voter would have been aware that Rosenfeld had contacted Story or that
Story discussed any matter regarding the election with any other potential voter at any relevant
point in time. Thus, such conduct would not tend to affect the results of the election. I further
conclude that there has not been a sufficient breach of the Board’s election procedures to
warrant setting it aside as a matter of policy.
As to the text message sent to Wharton at about 10:30 am on the day of the election, the
Employer apparently contends that such conduct falls within the ambit of Objection 3 insofar as
it is alleged that it runs afoul of the rule enunciated in Peerless Plywood Co., 107 NLRB 427,
429 (1954). There, the Board prohibited election speeches held on company time to massed
assemblies of employees within 24 hours prior to an election. A violation of this rule, applicable
to employers and unions alike, is grounds for setting aside an election whenever valid
objections are filed. As an initial matter, I note that there is no evidence as to who may have
sent the text message to Wharton, and there is no evidence that it was sent to any other
employee. Moreover, the message contained no statement of position as to how Wharton
should vote: it was merely a reminder that he do so.

10 There is also no evidence that any voters were present when the Board agent initially instructed
the election observers to keep their interactions with voters to a minimum. Similarly, there is no showing
that any voters heard the Board agent admonish Rosenfeld for speaking about or to voters as they
entered the polls.
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In Virginia Concrete Corp., 338 NLRB 1182, 1187 (2003), it was alleged that the
employer violated the Peerless Plywood rule by sending a brief electronic “vote no” message to
its driver employees over equipment installed in their trucks. The Board found that such conduct
did not warrant setting aside the election. In doing so, the Board noted that in Peerless the
Board clarified that its rule prohibiting captive audience speeches did not prohibit circulating
campaign literature or “any other legitimate campaign propaganda or media.” 107 NLRB at 430.
The Board considered the electronic message at issue in Virginia Concrete to be analogous to
permissible campaign literature rather than to improper campaign speech or a sound truck
broadcast in that it was not audible, and the drivers could scroll past it or delete it if they chose
to do so. Based upon the foregoing principles, even if I were to conclude that the Union had
sent Wharton the message at issue, which I do not, I would not find the neutral reminder to vote
would amount to objectionable conduct.
With regard to Rosenfeld’s alleged comments to voters, I note that this was not
specifically alleged in the Employer’s objections; nor was it referred to in the Regional Director’s
Report. As such, a fair argument may be made that it is not appropriate for me to consider such
allegations at this stage of the proceedings. See e.g. Precision Products Group, 319 NLRB 640
(1995); Iowa Lamb Corp., 275 NLRB 185 (1985). Under all the circumstances, however, I
conclude that the matter was fully and fairly litigated. In this regard, the issue of Rosenfeld’s
comments to voters was addressed both on direct and cross-examination.11 Further, both
parties made arguments relating to the nature of the alleged misconduct in their closing
statements. Moreover, I find that that the additional allegations relating to Rosenfeld’s alleged
misconduct have a sufficient nexus to the objections as filed: in particular, the issues for
resolution concern themselves generally with the conduct of the Union’s observer during the
time the polls were open. See Sawyer Lumber Co., 326 NLRB 1331, 1332 fn. 9 (1998)
(objection relating to the Board agent’s handling of blank ballots sufficiently related to other
objections of Board agent misconduct to warrant consideration); cf. Precision Products, supra
(finding that the hearing officer improperly relied upon an objection which had been specifically
withdrawn by the petitioner); Iowa Lamb, supra (statement relied upon by the hearing officer
was “wholly unrelated” to the issues set for the hearing). Accordingly, I will consider these
additional allegations of objectionable conduct.
In Milchem, Inc., 170 NLRB 362, 363 (1968), the Board found objectionable conduct to
have occurred where, during the voting period, a union official stood for a number of minutes
near a line of employees waiting to vote, engaging them in conversation. The Board found that
“the sustained conversation with prospective voters waiting to cast their ballots, regardless of
the content of the remarks exchanged, constitutes conduct which, in itself, necessitates a
second election.” The Board, however, further noted that “our application of the rule will be
informed by a sense of realism” and that a “chance, isolated, innocuous comment or inquiry” by
a party to a voter will not necessarily void the election, Id. Objectionably prolonged
conversations include those which are five to ten minutes long. Tyson Fresh Meats, Inc., 343
NLRB 1335, 1338 (2004). By contrast, in Sir Francis Drake Hotel, 330 NLRB 638 (2000), where
the observer spoke to five or six of the approximately 100 voters for a few seconds to one
minute, and where the contents of the conversations were innocuous, the Board held that
improper electioneering did not occur, even where the observer disregarded the Board agent’s
admonitions not to talk to voters. Similarly, in Dubrovsky & Sons, Inc., 324 NLRB 1068, 1096
(1997), a union observer’s reply to a voter’s inquiry as to how he was doing and his 10 to 20

11 There was no objection to this line of testimony during the hearing.
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second whispered response to a 30 to 40 second question from a voter were deemed to be
non-objectionable.
In Vista Hill Hospital, 239 NLRB 667 (1978), enfd. 639 F.2d 479 (9th Cir. 1980), there
were six brief conversations, some involving the election. The Board did not set aside the
election and the court agreed, finding that the conversations did not “present in the aggregate
the ‘prolonged conversations’. . . found in Milchem to present a ‘potential for distraction, last
minute electioneering and unfair advantage.’ ” NLRB v. Vista Hill Foundation, supra. In Amal.
Serv. & Allied Ind. Joint Board v. NLRB, 815 NLRB 222, 229-231 (2d Cir. 1987), the union
representative had a two to three minute conversation with an employee at the polling place.
The court, agreeing with the Board, found that this did not require voiding of the election. In
addition, the union observer had three conversations with voters lasting approximately 30, 30
and 90 seconds in length. As these conversations were in Spanish, which the employer’s
observer did not understand, the content of the conversations was not known. The employer
argued that the cumulative length of all the conversations, which took place while about 17
employees were waiting to vote, was sufficient to void the election under Milchem. The Board,
however, declined to set aside the election because the observer’s conversations were brief and
isolated, and the court agreed, noting that while it would have “been better had the Board agent
prevented the challenged conversations . . . the failure of a Board agent to prevent all
misconduct does not automatically warrant setting aside an election.” Nor did it “impugn the
integrity of the election.” 815 F.2d at 231.
Here, the Employer has presented specific evidence regarding three brief comments, all
unrelated to the election, made by the Union’s observer about employees who appeared to
vote. The remainder of Hardwick’s testimony regarding this matter consisted of non-specific
assertions to the effect that the Union’s observer engaged in conversations with voters
throughout the voting process.
Although I believe that Hardwick endeavored to testify truthfully to the best of her
recollection and ability, I find that her testimony is not sufficiently reliable to meet the Employer’s
burden of proof here. Hardwick was at times an erratic witness, who had to be reminded to
listen to the question, confine her answers to what was asked of her and to avoid
extemporaneous commentary. She also demonstrated a tendency toward improbable
hyperbole; asserting, for example, that she was unable to make a distinction between minutes
and seconds, when it was readily apparent that she was able to do so. She also offered
inconsistent testimony regarding the number of times she called “recall” during the election. I
further note that, other than the specific examples of comments discussed above, Counsel for
the Employer made no attempt to test Hardwick’s recollection or elicit additional detail about
what Rosenfeld may have said to employees during the election.
Given the manner and context of Hardwick’s testimony I find it likely that her general
description of the Union’s observer’s conduct at the election was overstated. My conclusions in
this regard are supported by the fact that during the election Hardwick, who did not strike me as
someone who would be reticent to voice her objections, and who apparently took her
responsibilities as observer to heart,12 raised the issue of Rosenfeld’s comments to employees
on only one occasion. Further, she offered specific testimony regarding only a single instance
where the Board agent cautioned Rosenfeld to refrain from discussions with voters. I find it
inherently likely that, had Rosenfeld persisted in making unwarranted comments to voters to the

12 Hardwick testified that she felt “very backstabbed” by the fact that, while she followed the
instructions to observers, Rosenfeld did not.
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extent as has been asserted, and in particular, while they were casting their ballots, the Board
agent would have made further attempts to discourage her from engaging in such conduct.13
Thus, for the foregoing reasons I do not credit Hardwick’s testimony in its entirety and find it is
not sufficiently reliable to support the Employer’s allegations regarding the nature and extent of
Rosenfeld’s alleged misconduct. See Operative Plasterers’ and Cement Masons’ International
Union, Local 394 (Burnham Brothers, Inc.), 207 NLRB 147, 147 (1973)(“A trier of fact need not
accept uncontradicted testimony as true if it contains improbabilities or if there are reasonable
grounds for concluding that it is false. It is well settled that a witness’ testimony may be
contradicted by circumstances as well as by statements and that demeanor may be considered
in such circumstances.” (Footnotes and citations omitted))
My conclusion that Rosenfeld’s comments to employees were not sufficiently egregious
to warrant setting aside the election is further informed by the fact that they were not heard by
any other voters waiting to vote and did not pertain to the election. In sum, therefore I conclude
that they do not present the type of “prolonged conversations” which would suggest a
“potential for distraction, last minute electioneering and unfair advantage under Milchem.” NLRB
v. Vista Hill Foundation, supra.14
Moreover, in disagreement with the Employer, I do not find that Rosenfeld’s comments
suggested to voters that it was the Petitioner, and not the Board, that was conducting the
election or that the Board was endorsing any party. In this regard, I note that there is no
evidence of fraternization between Rosenfeld and the Board agent during any period of time
when voters were present or that the Board agent was responsive to Rosenfeld’s comments.
Therefore, for the foregoing reasons and in light of the Petitioner’s significant margin of victory,
I find that the Union’s observer’s remarks to voters could not have reasonably tended to affect
the results of the election and are not sufficient grounds for setting it aside.15

13 I note that the record establishes that the Board agent specifically cautioned the observers to
refrain from extended conversations with voters in the pre-election meeting. Moreover, there would have
been ample time during the three-hour election, where 39 employees voted, for the Board agent to speak
with Rosenfeld outside the earshot of voters. Thus, I conclude that if Rosenfeld had continued to
flagrantly violate the Board agent’s instructions regarding her interaction with voters, she would have
been further admonished by the Board agent.
14 The Employer has argued that I should draw an adverse inference from the Petitioner’s failure to
call Rosenfeld as a witness. I do not find it appropriate to do so. Although Rosenfeld was the Union’s
agent for purposes of the election, there is no evidence that she is otherwise affiliated with or an agent of
the Union generally. Further, because there is no evidence that Rosenfeld is no longer an employee of
the Employer, there is no basis for me to presume that she is within the control of the Union, or that her
testimony would tend to favor the Petitioner in this matter. Accordingly, I decline to draw any inference
from the Union’s failure to call her to testify in this matter.
15 To the extent Counsel for the Employer alluded to the issue of alleged Board agent misconduct in
her opening statement, I find that this matter is not reasonably encompassed either by the objections as
filed or as set by the Regional Director as set for hearing, and has not been fully litigated. Accordingly, I
decline to consider this issue. Precision Products, supra. Moreover, even if I were to consider the
evidence adduced in this record in such a light, I would find that any alleged action or inaction of the
Board agent was not sufficient to disrupt the laboratory conditions of the election. In this regard, I note
that the Petitioner’s observer’s brief phone call and the shared viewing of family photographs took place
outside the sight and earshot of employees and there is no evidence that voters became aware of such
activity at any time prior to the close of the polls. St. Vincent Hospital, supra. Moreover, the Board’s
agent’s alleged failure to prevent Rosenfeld from speaking with voters or to engage in any other
impropriety under the circumstances here is not sufficient to warrant overturning the election. Amal. Serv.
& Allied Ind. Joint Board v. NLRB, supra.
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Conclusion and Recommendations
Having found there is insufficient evidence to meet the Employer’s burden of proof to
sustain its objections, I recommend that they be overruled and the appropriate Certification of
Representative be issued.16
Dated, Washington, D.C. July 22, 2010
_________________________
Mindy E. Landow
Administrative Law Judge

16 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to this
Recommended Decision may be filed with the Board in Washington, DC within 14 days from the date of
issuance. Exceptions must be received by the Board in Washington by August 5, 2010.