Lily Transportation Corp.

National Labor Relations Board - Board Decisions

Jul 31, 2008

352 N.L.R.B. 1028 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 121
1028
Lily Transportation Corp. and International Broth-
erhood of Teamsters, Local 863, Petitioner. Case
4–RC–21314
July 31, 2008
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The National Labor Relations Board1 has considered
objections to an election held December 7, 2007, and the
administrative law judge’s report concerning disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The revised tally of bal-
lots shows 17 votes for and 14 votes against the Peti-
tioner, with 2 challenged ballots, an insufficient number
to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the judge’s findings2 and
recommendations,3 and finds that a certification of repre-
sentative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for the International Brotherhood of Teamsters,
Local 863, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All full-time tractor-trailer drivers (“truck drivers”)
employed by the Employer at its Gouldsboro, Pennsyl-
vania location excluding all part-time tractor-trailer

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 Applying Boston Insulated Wire & Cable Co., 259 NLRB 1118
(1982), enfd. sub nom. Boston Insulated Wire & Cable Systems, Inc. v.
NLRB, 703 F.2d 876 (5th Cir. 1983), we find that the election-day
display of a union banner on a recreational vehicle parked in the hotel
parking lot did not constitute objectionable conduct.
3 The Employer’s reliance on Nathan Katz Realty LLC v. NLRB, 251
F.3d 981 (D.C. Cir. 2001), is misplaced. The facts presented there are
distinguishable from those presented here. In Nathan Katz, two union
agents, sitting in a parked car within the area designated as a no-
electioneering zone, motioned, honked, and gestured to employees
arriving at the polling place to vote. This conduct was found to be
contrary to the instructions of the Board agent overseeing the election.
Here, there is no contention that union representatives were stationed
within the no-electioneering zone during the election period, nor is
there evidence that they engaged in conduct contrary to the instructions
of the Board agent overseeing the election.
drivers, office and clerical employees, guards and su-
pervisors as defined by the Act.
Devin S. Grosh, Esq., for the Regional Director.
John M. Simon, Esq. (Stoneman, Chandler & Miller, LLP), of
Boston, Massachusetts, for the Employer.
Paul L. Kleinbaum, Esq. (Zazzali, Fagella, Nowak, Kleinbaum
& Friedman), of Newark, New Jersey, for the Petitioner.
RECOMMENDED DECISION AND ORDER
ON OBJECTIONS
MICHAEL A. ROSAS, Administrative Law Judge. I conducted
a hearing in this case involving objections to a representation
election on January 22, 2008, in Scranton, Pennsylvania. Based
on the evidence submitted in that hearing, including the testi-
mony of the witnesses and my assessment of their demeanor, as
well as the posthearing briefs submitted by counsel, I make the
following findings and conclusions.
Lily Transportation Corp. (the Employer) contracts with
Verascold, a cold storage facility, to transport food in tractor-
trailers to several large supermarket chains in the Northeast.
The Employer’s operations in this matter are based out of a
Verascold facility in Gouldsboro, Pennsylvania. The Em-
ployer’s staff consists of a manager, dispatchers, and truckdriv-
ers.
I. THE PROCEDURAL HISTORY
On June 21, 2007, the International Brotherhood of Team-
sters, Local 863 (the Union), a labor organization, filed a peti-
tion with the Board for a representation election pursuant to
Section 9 of the National Labor Relations Act (the Act). The
applicable unit was stated to include: all full time tractor-trailer
drivers employed by the Employer at its Gouldsboro location.
Excluded were all part time tractor-trailer drivers, office and
clerical employees, guards and supervisors as defined by the
Act.
In accordance with a stipulated election agreement signed by
the International Brotherhood of Teamsters, Local 863 (the
Union), and the Employer, and approved by the Regional Di-
rector for Region 4 on July 3, 2007,1 the first election was con-
ducted on September 21.2 Thirty-six eligible truckdrivers voted.
Fifteen votes were cast in favor of the Union, 18 votes were
cast against the Union, and 3 ballots were challenged. After the
Union filed objections, the parties stipulated to set aside the
September 21 election and conduct a second election.
The second election, hereinafter referred to as the election,
was held on December 7. The tally of ballots indicated that 17
votes were cast in favor of the Union, 14 votes were cast
against, and 4 ballots were challenged. On December 12, the
Employer filed timely objections to the election. Objection 1
charges the Union’s representatives engaged in active cam-
paigning at and near the polling area before and during the
election. Objection 2 charges the Union’s representatives en-
gaged in prolonged conversations with voters at and near the

1 Unless otherwise stated, all dates refer to 2007.
2 All Board documents relating to the stipulations, objections, and
tallies in the first and second elections were received in evidence col-
lectively as Board Exh. 1.
LILY TRANSPORTATION CORP. 1029
polling area before and during the election. The Employer also
stated a third objection, that the Union offered voters benefits in
exchange for union support. That objection, however, has been
withdrawn.3
On December 28, the Board sustained the challenges to the
ballots of two of the four challenged voters. A revised tally of
ballots was issued indicating that the two unchallenged ballots
were insufficient to affect the outcome of the election. Accord-
ingly, on December 31, Region 4’s Regional Director directed
that a notice of hearing be held concerning the Employer’s
objections to the election.
II. THE ELECTION
A. The Voting Environment
The polling site was located on the third floor of the Dun-
more Holiday Inn (the hotel). The hotel’s main entrance leads
to a lobby and is the only means by which nonguests are able to
enter the hotel. The registration desk is on the right side of the
lobby; there is seating on the left side. The elevators leading to
the third floor are located approximately 75 feet from the main
entrance.4
There is a parking area outside the hotel’s main entrance and
another on the other side of the hotel driveway. A large recrea-
tional vehicle, driven by Charles O’Mara, the Union’s business
agent, was parked in the lot adjacent to the hotel prior to and
during the election. The vehicle, which was situated approxi-
mately 150 to 175 feet from the side of the hotel, had a large
banner on its side indicating that it was the Union’s organizing
unit. The banner was visible to voters as they arrived in the
parking area and proceeded to the hotel’s main entrance.5
B. The Preelection Conference
At around 1 p.m., the Board agent overseeing the election
conducted a preelection conference. The attendees included:
John Bunevith, the Employer’s human resources director; Un-
ion Business Agents Charles O’Mara and George Grimshaw;
Union Vice President Val Fiorello; and Patrick Martin, a truck
driver who served as the Union’s designated election observer.
At that time, in pertinent part, the Board agent instructed the
parties that electioneering was prohibited in designated areas.
Signs stating “no electioneering” were placed immediately
outside of the third floor polling site and next to the lobby ele-
vators. Those were the only elevators that could be taken by
voters to the third floor voting location. As such, the Board
agent established a no-electioneering zone from the lobby ele-
vators to the third floor polling site. There were no signs pro-
hibiting conversations in the hotel’s lobby or parking area.
After the Board agent instructed the parties, Bunevith left the
polling site and took the elevator to the lobby. As he walked
through the lobby to leave the hotel, Bunevith announced to
employees present that the polling site was open for voting.

3 Emp. Br. at p. 3.
4 Descriptions of the distance from the hotel entrances to elevators
varied, but witnesses’ estimates ranged from 50 to 100 feet. (Tr. 12–14,
54–55, 68–70, 92.)
5 It was not disputed that the union van and its signs were clearly
visible to anyone who parked in the lot and entered the hotel to vote.
(Tr. 11–13, 19, 38–39, 54, 63, 68, 92–93, 125–126, 130.)
O’Mara left shortly after Bunevith, but Grimshaw and Fiorello
lingered in the lobby for a while before also leaving the hotel.6
C. Activity in the Hotel Lobby During the Election
Fred DePew was among the voters who were present in the
hotel lobby waiting to vote before the 1 p.m. start time. At that
time, three truckdrivers who supported the Union—Jamie Loss,
Kevin Taylor, and Troy Cole—were also present in the lobby.
In addition, an unidentified union official—a person wearing a
jacket bearing a union insignia—was also present. As DePew
waited in the hotel for an announcement that the voting poll
was open, he was approached by the union official. The union
official introduced himself to DePew and asked for his name.
Rather than identify himself, DePew responded by asking the
union official if he was one of the people in the Union’s recrea-
tional vehicle that had been seen in the Gouldsboro area during
the week. The union official acknowledged that he had been
one of the occupants in the recreational vehicle and they con-
tinued with general conversation for about 5 to 10 minutes.
They did not otherwise speak about the election.7
Jamie Loss, a truckdriver and member of the Union’s orga-
nizing committee, also spoke with DePew in the lobby. At or
around 1 p.m., Bunevith walked through the lobby to leave the
hotel and announced that the poll was open. At that point, De-
Pew, Loss, and an unidentified driver took the lobby elevator to
the third floor. While in the elevator, Loss told DePew that he
that he could not wait until the Union got in.8
After voting upstairs, DePew returned to the lobby. As he
walked through lobby to leave, Depew observed the union offi-
cial and Loss in the lobby approach another truckdriver who
arrived to vote.9 After Depew left, Loss, Taylor, and Cole re-
mained in or around the lobby area until the polls closed at 7
p.m.10
Truckdrivers Frank Gilroy, Frank Rowe, and Art Thomas ar-
rived at the hotel to vote at approximately 2 p.m. As they en-

6 I based my findings regarding the preelection conference on Bun-
evith’s credible testimony. (Tr. 23–27.) O’Mara testified that he left
with Grimshaw and Fiorello after the preelection conference. However,
he was evasive when asked whether he saw Grimshaw or Fiorello
speak with other employees in the lobby before they left the building. It
is also noted that neither Grimshaw nor Fiorello testified. (Tr. 122–125,
128–129.)
7 I based this finding, first, on DePew’s credible and unrefuted testi-
mony, including his concession on cross-examination that he and the
union representative engaged in “small talk.” Secondly, DePew’s testi-
mony in this regard was corroborated by Bunevith, who observed him
with a person wearing a union jacket. (Tr. 17–19, 27 –28, 53–59, 63–
64.)
8 Bunevith also corroborated DePew’s credible testimony that Loss
was in the lobby and not functioning as an observer at the polling sta-
tion, at least at the outset of the election. (Tr. 14–16, 58–61.)
9 There is no indication whether Loss and the union official suc-
ceeded in speaking with the unidentified truckdriver. (Tr. 61–62.)
10 Neither Loss nor Cole was called as a witness, but Taylor con-
ceded that he was either in the lobby or in the adjacent hotel restaurant
during the voting period. More significantly, he was not asked to refute
any of the testimony provided by the Employer’s witnesses—Bunevith,
DePew, Gilroy, or Storms—regarding their presence and activities in
the lobby during the election. (Tr. 14–15, 18–20, 25, 55–56, 60–62, 71–
72, 92, 110.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1030
tered the lobby, Loss, Taylor, and Cole were sitting. Taylor was
the first to speak to them, urging them to vote for the Union and
insisting that everything would be great if the Union won. Loss
managed to engage Thomas in conversation for several min-
utes. Gilroy, Rowe, and Thomas then proceeded to the eleva-
tors and went upstairs to vote. Gilroy’s vote, however, was
challenged because he was a part-time truckdriver. After return-
ing to the lobby, Gilroy expressed his dismay to Taylor about
the fact that his vote had been challenged.11
Truckdriver Mark Storms voted in the election between 3
and 5 p.m. When he arrived, he saw Loss, Taylor, Cole, and
another truckdriver, Alfredo Rivera, in the lobby. He was
greeted by Taylor, who advised him about the location of the
polling station. Although the group was engaged in conversa-
tion, Storms did not hear what they were speaking about.
Storms proceeded to the third floor and voted. After voting he
walked through the lobby, saw the same group talking, and
left.12
O’Mara, Fiorello, and Grimshaw returned to the hotel at
around 5 p.m. and remained in the lobby until the polls closed
at 7 p.m. During that time, “a couple” of persons passed
through the lobby to vote.13
D. After the Election
Bunevith returned to the hotel at approximately 7 p.m. to ob-
serve the tally of ballots. There were numerous employees in
the hotel lobby. He proceeded to the polling site and, together
with O’Mara, counted the ballots. He then left, but O’Mara
stayed and bought a round of drinks for voters who were still
there. Anmbrustea, the Respondent’s dispatcher and an em-
ployee excluded from voting, also stayed and bought a round of
drinks as well.14
III. LEGAL ANALYSIS
The Employer asserts that the Union engaged in impermissi-
ble conduct that destroyed the laboratory conditions necessary
for a fair election and interfered with employees’ free choice
regarding representation. Specifically, the Employer contends
that union officials and/or supporters campaigned in the hotel
lobby where voters passed through to get to the polling station.
In addition, a union supporter is alleged to have engaged in
improper conduct within the no-electioneering zone. The Union

11 I had some problems with Gilroy’s credibility in light of contra-
dictory statements in an affidavit he submitted to the Board. His affida-
vit omitted any reference to comments made to him as he left the poll-
ing location. Nor did he include any statements in his affidavit about
conversations he had with Anmbrustea, Martin, or anyone else. His
affidavit also did not include any statements about confronting Kevin
Taylor in the lobby about his vote being challenged (Tr. 70–76, 87–88).
Nevertheless, I found it significant that neither Loss nor Cole testified
and Taylor, who did, failed to refute Gilroy’s testimony.
12 Storm’s testimony added nothing new to the record except to con-
firm the continued presence in the lobby of the aforementioned union
supporters. (Tr. 92–93.)
13 This finding is based on O’Mara’s testimony, but there is no tes-
timony indicating that he, Fiorello, or Grimshaw spoke with voters
during the period of time. (Tr. 125–131.)
14 The testimony of Bunevith, O’Mara, and Anmbrustea was consis-
tent as to the postelection events. (Tr. 19–20, 37–40, 42–43, 123–124.)
does deny that its officials and supporters were present and
campaigned on behalf of the Union during polling hours, but
contends that such conduct occurred in the lobby, which was
located outside of the no-electioneering zone established by the
Board agent. In the case of the employee blurting out prounion
comments on the elevator, the Union denies he was acting as its
agent when he expressed support for the Union.
The proponent of an election objection has the burden of
proving that the conduct complained of had the tendency to
interfere with the employees’ freedom of choice. Double J.
Services, 347 NLRB No. 58, slip op. at 1–2 (2006) (not in-
cluded in bound volumes). That burden is a heavy one because
there is a strong presumption that ballots cast under Board
Rules and supervision reflect the true desires of the electorate.
See Safeway, Inc., 338 NLRB 525 (2002), and cases cited there.
In assessing whether to set aside an election, the Board looks to
all of the facts and circumstances to determine whether the
atmosphere was so tainted as to warrant such action. Such a
determination has typically involved consideration of several
factors: (1) whether the conduct occurred within or near the
polling place and, specifically, within a no-electioneering area;
(2) the nature and extent of the electioneering; (3) whether it
was conducted by a party or employees; and (4) whether the
conduct contravened the instructions of a Board agent. Boston
Insulated Wire & Cable Co., 259 NLRB 1118, 1119 (1982),
enfd. 703 F.2d 876 (5th Cir. 1983).
In Boston Insulated, union officials engaged in electioneer-
ing just outside glass doors that opened from the parking lot
into a corridor that led to the polling site. The Board did not
find the union’s conduct objectionable because it did not occur
in the polling place or a designated no-electioneering zone, was
not directed at employees waiting in line to vote, and did not
violate any of the Board agent’s instructions.
In this case, prounion employees and union officials engaged
in conversation with, or directed prounion comments to, voters
in the lobby as they waited for voting to begin at 1 p.m. When
voting began, Loss, one of those employees, directed prounion
comments to DePew and another voter while they were in the
elevator going to vote. After voting, Loss returned to the lobby
and remained there with the other two prounion employees
until the poll closed at 7 p.m. At that point, at least one union
official was still in the lobby engaging arriving voters in con-
versation. At some point before 2 p.m., however, that official
had left. Finally, at 5 p.m., O’Mara, Grimshaw, and Fiorello
returned to the lobby and remained there until the poll closed.
The lobby and parking lot areas were outside the perimeter
established by the Board agent for no-electioneering. Further-
more, those areas were not “at or near” the voting station. A
voter had to take an elevator to the third floor and then walk
down a hall to the rear of that floor before entering the voting
station. Being separated from the electioneering activity by at
least two building floors clearly established a separation from
the voting station. See J. P. Mascaro & Sons, 345 NLRB 637,
639–640 (2005) (voting location separated from area of elec-
tioneering by a 10-foot wide hallway). The elevator, however,
fell within the designated no-electioneering area and, as such,
Loss’ comments in that location ran afoul of the Board agent’s
instructions.
LILY TRANSPORTATION CORP. 1031
With respect to the nature and extent of the electioneering,
some of it was general conversation. During DePew’s conver-
sation with the union official, he had no problem avoiding a
discussion of the election. In the case of Loss’ prounion com-
ments to DePew and an unspecified driver on the elevator, the
comments were gratuitous, presumptuous, and relatively in-
nocuous—Loss expressed his excitement at the prospect that
the Union would prevail. Several employees, including Gilroy,
Rowe, and Thomas, were urged to vote for the Union, while
others, like Storms, were merely greeted by the prounion em-
ployees and advised as to the location of the polling station.
Finally, O’Mara, Grimshaw, and Fiorello were present in the
lobby between 5 and 7 p.m. However, there is no evidence that
they engaged voters in conversation during that period of time.
The union officials were clearly parties. However, the proun-
ion employees were not. Even though Loss was a member of
the organizing committee, he lacked any formal role with the
Union that would enable him to be treated as its agent. As such,
his conduct, as well as that of the other prounion employees,
must be evaluated on the basis of the Board’s standard for
third-party conduct. Cornell Forge Co., 339 NLRB 733 (2003).
Based on the foregoing, the election was conducted while
there was electioneering to varying degrees in the hotel lobby
and elevator. The conversations and outbursts in the hotel lobby
did not contravene the instructions of the Board agent, were not
harassing in nature, and did not occur at or near the voting sta-
tion. The comments of a prounion employee on the elevator
violated the Board agent’s instructions, but were relatively
innocuous under the circumstances. They were no worse than
the typical instance of employees talking among themselves as
they wait to vote—realities that do not justify setting aside
elections. See, e.g., Masoneilan International, 223 NLRB 965,
971 (1976) (there is no prohibition on such conversations). As
such, the conduct of prounion employees in the lobby, as well
as Loss’ remarks on the elevator, was not so disruptive as to
require setting aside the election. Boston Insulated Wire &
Cable Co., supra at 1118 fn. 11.
Based upon the evidence and testimony presented at the
hearing, the Employer has failed to meet its heavy burden to
demonstrate that Local 863 committed any objectionable con-
duct.
IV. CONCLUSIONS AND RECOMMENDED ORDER
In accordance with the above findings, I conclude that the
objections of Employer Lily Transportation, Corp. to the repre-
sentation election held on December 7, 2007, have no merit, are
hereby overruled, and the election ruled valid. The case is re-
manded to the Regional Director for Region 4 to process the
matter in accordance with this recommended decision and to
issue an appropriate certification.15

15 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, Exceptions to this Report may be filed with the Board in
Washington, D.C., within 14 days from the date of issuance of this
Report and recommendations. Exceptions must be received by the
Board in Washington by April 14, 2008.