Mead Southern Wood Products

National Labor Relations Board - Board Decisions

May 7, 2002

337 N.L.R.B. 497 (N.L.R.B. 2002)

MEAD SOUTHERN WOOD PRODUCTS 497
Mead Coated Board, Inc. d/b/a Mead Southern Wood
Products and Paper, Allied-Industrial, Chemical
& Energy Workers International Union
(PACE), AFL–CIO, Petitioner. Case 15–RC–
8339
May 7, 2002
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on June 21, 2001, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 72 for and 58 against the Peti­
tioner, with 6 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 hearing officer’s
findings1 and recommendations, and finds that a certifi­
cation of representative should be issued.
The Employer excepts, inter alia, to the hearing offi­
cer’s recommendation to overrule its Objection 1, which
alleged that the union observer maintained a separate
voter eligibility, or Excelsior2 list during the election.3
For the reasons set forth below, we affirm the hearing
officer.
I. RELEVANT FACTS
There were two voting sessions during the election,
one in the morning and the other in the afternoon. Walter
Bell was an observer for the Petitioner during both ses­
sions. In the morning session, Bell sat at a table with the
Employer’s observer, Jerry Miller, to monitor the main­
tenance of the official Excelsior list. Voters entering the
balloting area would first approach Bell and Miller to
1 The Employer has excepted to some of the hearing officer’s credi­
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co ., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
2 Excelsior Underwear, 156 NLRB 1236 (1966).
3 No exceptions were filed to, and we adopt pro forma, the hearing
officer’s recommendation that Objection 3 be overruled. Objection 2
alleged that the union observer’s wearing of union insignia during the
election was objectionable. The hearing officer overruled the objec­
tion. The Employer’s exception argues that this conduct was objec­
tionable in the context of Objection 1. As discussed below, we find
nothing improper in regard to the Union’s conduct as alleged in Objec­
tion 1. Accordingly, we find no merit in Objection 2.
have their names checked against the official Excelsior
list.
Bell also maintained a separate copy of the Excelsior
list as a challenge list. This list was given to Bell by Un­
ion Agent Eddie Barnes and was highlighted to indicate
which voters the Union intended to challenge. Through-
out the course of the morning session, Bell checked his
copy of the list to ensure that he made the proper chal­
lenges. At various times, Bell kept the list on his lap, in a
folder, and on the table. Bell needed to consult the list
because he worked on the second shift, and was unfamil­
iar with the names and faces of the first and third shift
voters who cast ballots in the morning. When Bell en-
countered a voter whose name was highlighted on his list,
Bell informed the Board agent of his challenge. In the
process, Bell would check off the names of the voters he
challenged with a red “C” to indicate that the challenge
was made. Bell also marked one name with a star to indi­
cate that he had tried to challenge the voter’s ballot but
withdrew the challenge because the voter contested his
alleged supervisory status. In addition, Bell knew that he
had to challenge seven voters, and made a list of the
numbers one through seven. Bell crossed out the num­
bers in order to indicate that the challenges had been
made.
Bell testified that, during the afternoon session, he kept
the list in a folder unless he was challenging a voter.
Bell explained that, unlike in the morning session, he
knew the voters’ names and faces during the afternoon
session because, like him, they were all second shift em­
ployees.
Credited testimony indicates that voters viewed Bell’s
activity in the context of the challenge procedure. The
Employer’s observer, Jerry Miller, confirmed that Bell
made markings on his list only when he made a challenge.
Employee Kenneth Sutton saw Bell’s list when Bell chal­
lenged his vote. Employee Jerry Whitehead, a third shift
employee, saw Bell mark his list when Bell challenged
two employees, one of whom was Sutton. Employee
Steven Nuckolls, another third shift employee, saw Bell’s
list and witnessed three challenges. Employee Charlie
Waful, also third shift, witnessed a challenge when he
saw the list as well. The Board agent at the election ques­
tioned Bell about his marking of the list, but did not for-
bid the use of it. There is no evidence that Bell marked
the list for reasons unrelated to the challenge process.
II. ANALYSIS
A brief survey of the Board’s decisions in this area,
and the policies they serve, is helpful to introduce the
issue here. It is well established that the keeping of a list
of who has or has not voted, aside from the official Ex­
celsior list, may be grounds for setting aside an election.
337 NLRB No. 72
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cross Pointe Paper Corp., 330 NLRB 658, 662 (2000).
The purpose of this prohibition is to protect employees
from fear of reprisal or discipline because they did or did
not vote. Masonic Homes of California, 258 NLRB 41,
48 (1981). However, the Board has long recognized the
right to refer to a challenge list as an exception to the
general prohibition against keeping lists, in order to en-
sure that the parties have a full opportunity to challenge
the ballots of voters they believe to be ineligible. See
Bear Creek Orchards, 90 NLRB 286 (1950).
The Board’s decision in Sound Refining, Inc., 267
NLRB 1301 (1983), illustrates how these two policies—
protecting employees, but preserving the rights of the
parties—are accommodated. The Board in that case held
that the use of a separate Excelsior list was impermissi­
ble where the union’s purpose was to record each vote by
checking off the name of every voter. But the Board also
observed that if the list had been used for the purpose of
ensuring that proper challenges were made, it would
have been permissible activity. 267 NLRB at 1301 fn. 5.
Sound Refining suggests the proper rule for deciding
this case. The Board in that case held that the use of a
separate Excelsior list was grounds for setting aside an
election where the union’s purpose was to record each
vote by checking off the name of every voter, and it
could be inferred that the voters knew that their vote was
being recorded. Where the duplicate Excelsior list was
used neither to record who had or had not voted, nor in
such a manner as to lead employees to reasonably believe
that the list was being used other than to make chal­
lenges, there is no danger of coercion and no basis to set
aside the election.
Here, the hearing officer found Bell’s list to be a bona
fide challenge list. Further, the employees who testified
stated they observed Bell’s list being used solely for
challenge purposes. Thus, there is no evidence either
that Bell’s list was maintained for an improper purpose
or that employees reasonably believed it was being used
for an improper purpose. Accordingly, consistent with
the principles discussed above, we find no basis to over-
turn the election.
In reaching this conclusion, we acknowledge that the
better practice is not to use a duplicate Excelsior list as
the challenge list because of the danger that employees
might perceive that it is being improperly used to record
who did or did not vote. See Casehandling Manual (Part
Two) Elections, Secs. 11312.4, 11322.1, and 11338.2
(observers may bring a list of employees they intend to
challenge, or alternatively note on the official eligibility
list at the preelection check the persons they intend to
challenge, but may not maintain a list of those who have
or have not voted); see also Milwaukee Cheese Co., 112
NLRB 1383, 1384 (1955) (overruling union’s objection to
election, where Board agent prohibited union’s observer
from using duplicate Excelsior list as a challenge list).
However, we also recognize that, as a general principle,
the Board agent has “broad discretion in deciding the de-
tails of an election, and unless he acts arbitrarily or capri­
ciously, the Board will abide by his judgment on these
matters.” East Texas Pulp & Paper Co., 114 NLRB 885,
887 (1955). See, e.g., Inland Waters Pollution Control,
306 NLRB 342 (1992) (Board agent’s refusal to allow a
late union observer into the polling area was not an abuse
of discretion warranting the setting aside of the election).
Here, for the reasons discussed above, we find that the
Board agent did not abuse his discretion by not prohibit­
ing Bell’s use of the separate Excelsior list as a challenge
list.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Paper, Allied Industrial, Chemical & En­
ergy Workers International Union, (PACE), AFL–CIO
and that it is the exclusive collective-bargaining repre­
sentative of the employees in the following appropriate
unit:
All full-time, regular part-time and those classified as
temporary production and maintenance employees, in­
cluding all planer mill, saw mill, wet yard, kiln, ship-
ping, store room clerks, utility, and maintenance, em­
ployed by the Employer at its Cottonton, Alabama fa­
cility; excluding all office clerical employees, profes­
sional employees, guards, and supervisors as defined
by the Act.